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Federal Employees News Digest : Dec. 17, 2012
December 17, 2012 Vol. 62, No. 23 6 Visit us on the Internet at www.FederalDaily.com Months after a federal appellate court stripped federal employees in "noncritical-sensitive" positions of their right to challenge certain removal actions, many are still asking: "Now what?" In August, the U.S. Court of Appeals for the Federal Circuit decided Berry v. Conyers (Fed Cir. 2012). The court found the Merit Systems Protection Board is not authorized to review agencies' national security determi- nations pertaining to the eligibility of employees to hold "sensitive" positions. The MSPB had previously ruled that it had such review authority when the sensitive position in question did not require access to classified situation, but the Federal Circuit ruled to the contrary. While this decision closed the most direct route for employees in "noncritical-sensitive" positions to challenge adverse actions based on security clearance revocation, it is critical that federal employees know that there may be other avenues to justice. As Federal Circuit Judge Timothy B. Dyk noted in a scathing dissenting opinion to Berry, the majority's decision means hundreds of thousands of fed- eral employees cannot appeal adverse actions to the MSPB "simply because the Department of Defense has decided that such appeals should not be allowed." As argued in Judge Dyk's dissent, the decision contra- dicts the intent of the Civil Service Reform Act of 1978, which armed federal employees with the right to appeal agency adverse personnel actions to the MSPB. The Berry decision leaves employees in noncritical- sensitive positions in quite a pickle. All an agency has to do is cite national security concerns for an adverse action and the MSPB is barred. If abused, Berry could provide agency supervisors with an easy way to retaliate against whistle- blowers or discriminate against individuals. But employees in these positions should not give up on justice. Here are some options they may be able to pursue: • Appeal to the MSPB and show that the agency could have assigned him or her to noncritical-nonsensitive tasks during a pending security clearance investigation rather them placing him or her on indefinite suspen- sion without leave. • Appeal to the MSPB if the agency fails to follow its own procedural regulations in carrying out an adverse action. • File an equal employment opportunity complaint in instances where the agency uses false national security concerns as pretext for unlawful discrimination. • Appeal a security clearance denial or revocation to the Defense Office of Hearings and Appeals (DOHA) or the agency's specific security clearance appeal office if it is not covered by DOHA. Federal employees in noncritical-sensitive positions who have been put on indefinite suspension or removed due to national security concerns should immediately consult with a federal employment law attorney to help them explore these options. A lawyer may also be able to help them devel- op a case for a transfer to a non-sensitive position. Feds left hanging by Federal Circuit decision do have options By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at firstname.lastname@example.org. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
Dec. 10, 2012
Jan. 14, 2013