Many federal workers may find themselves unable to appeal disciplinary actions, including terminations, as a result of a recent court ruling.

The U.S. Court of Appeals for the Federal Circuit this week ruled that government employees in “noncritical sensitive” positions, including those without access to classified information, cannot appeal suspensions or firings to the Merit Systems Protection Board (MSPB), which exists for the purpose of hearing such cases.

Critics of the decision said it would deny a large portion of the federal workforce some due process rights. They also warned that agencies could use the ruling to punish employees without worrying about the MSPB getting in the way.

“The consequences of the majority’s decision will be profound,” Judge Timothy B. Dyk said in a dissenting opinion. “In the [Department of Defense] alone, it will affect at least 200,000 non-critical sensitive civilian employees whose positions do not require access to security clearances. . . . Numerous employees in other agencies will be affected as well, as agencies other than DoD designate positions as non-critical sensitive.”

The Government Accountability Project, an independent watchdog group, said in a statement: “The court created a ‘sensitive jobs loophole’ . . . and openly backed a proposed administration rule to declare virtually any job as national-security sensitive.”

The administration proposal refers to a new regulation under consideration that would allow the government to categorize virtually any federal position as national security “sensitive” and therefore outside the civil service system rule of law.

-Noel Brinkerhoff

To Learn More:

Court Ruling Leaves many Federal Workers ‘Defenseless’ and without Appeal Rights (by Joe Davidson, Washington Post)

Federal Court Curbs Appeal Rights for ‘Sensitive’ Defense Jobs (by Josh Hicks, Washington Post)

Kaplan v. Conyers (U.S. Court of Appeals for the Federal Circuit) (pdf)