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Developments at the OSC: Stay For Employee Resisting Illegal Order

Developments at the OSC:  On July 29, 2013, the U.S. Office of Special Counsel (OSC) received a stay order from the Merit Systems Protection Board (MSPB), protecting an employee from threatened detail, in a case where the employee had refused an illegal order that risked exposing classified information.

In Special Counsel ex rel. Hickey v. Dept. of Homeland Security, OSC sought a 45-day stay of the threatened detail of Mr. Hickey.  Mr. Hickey was working as an investigator on a case involving classified information.  Mr. Hickey's supervisors, including the Special Agent in Charge (SAC) ordered him to place classified information onto an internal investigative tracking system in a non-classified information system.  Mr. Hickey refused the order, citing concerns that placing the information in the investigative tracking system would constitute a violation of several federal statutes and would risk compromising the investigation.  In response, Mr. Hickey was told, "when you challenge the SAC, you will lose."  Management then ordered Mr. Hickey--who had a newborn child at home --detailed from Rhode Island to Puerto Rico.  

Mr. Hickey filed a complaint against the detail with OSC.  OSC then filed a request for stay with MSPB, alleging that the agency's reassignment of Mr. Hickey was potentially a Prohibited Personnel Practice.  Specifically, the agency was accused of violation of 5 U.S.C. § 2302(b)(9)(D), which prohibits personnel action against an employee "or refusing to obey an order that would require the individual to violate a law. 

OSC stay petitions are adjudicated by a single MSPB member rather than the entire Board. MSPB Chair Grundmann granted the stay. 

If you believe that you have been the subject of whistleblower reprisal or any other Prohibited Personnel Practice, please contact our firm to request an initial consultation.

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