Federal workers may have a tougher time appealing demotions and disciplinary actions as a result of a recent court ruling.

At issue is the authority of the Merit Systems Protection Board (MSPB), which is charged with reviewing government employees’ appeals of personnel actions. Until now, the board could question punishments handed down by agencies unless a worker had a security clearance.

But a panel of the U.S. Court of Appeals for the Federal Circuit voted 2-1 last Friday that the MSPB could also be limited in cases involving “noncritical sensitive” positions—in other words those jobs not requiring a security clearance.

The case originated with two civilian employees at the Department of Defense. Rhonda K. Conyers, an accounting technician with the Defense Finance and Accounting Service,  was indefinitely suspended, while Devon Northover, who worked for the Defense Commissary Agency at Gunter Air Force Base in Alabama, was downgraded after Pentagon supervisors decided neither employee was eligible for a security clearance even if they didn’t have access to classified information.

When the MSPB first dealt with the issue in September 2010, it marked the first time in 27 years that the board entertained oral arguments for one of their cases.

Tom Devine, legal director of the Government Accountability Project, a whistleblower advocacy organization, criticized the court ruling.

“The Federal Circuit has given agencies a blank check to categorize almost any federal job as ‘sensitive’—demoted from the civil service merit system to a national security world of secret law,” Devine told The Washington Post.

The majority decision was supported by Judge Alan Lourie, who was appointed by President George H.W. Bush, while Judge Timothy Dyk, an appointee of President Bill Clinton, dissented. The deciding vote was cast by Judge Evan Wallach, who was nominated to the court in 2011 by President Barack Obama.

-Noel Brinkerhoff, David Wallechinsky

To Learn More

Court Limits Federal Employee Appeal Rights (by Eric Yoder, Washington Post)

Merit Systems Protection Board Weighs Security Powers Against Employee Rights (by Joe Davidson, Washington Post)

Berry v. Conyers, Northover and Merit Systems Protection Board (United States Court of Appeals for the Federal Circuit) (pdf)