Legislation (HR-5560) has been offered in the House to overturn a court ruling that restricted MSPB appeal rights of employees in “non-critical sensitive” positions.
In 2013 an appeals court held that restrictions on appeal rights in a personnel decision – where the decision is based on a determination an employee is not eligible to occupy a position requiring a security clearance – also apply to employees holding non-critical sensitive positions, even if they do not involve access to classified information.
The U.S. Supreme Court the next year allowed the decision to stand by refusing to hear an appeal, after which OPM and the Office of the Director of National Intelligence broadly authorized agencies to use that designation. An estimated 200,000 employees at DoD alone have such a designation.
“Stripping employees whose work does not involve classified matters of the right of review of an agency decision that removes them from their jobs opens entirely new avenues for un-reviewable, arbitrary action or retaliation by an agency head and, in addition, makes a mockery of whistleblower protections,” said main sponsor Del. Eleanor Holmes Norton, D-D.C.
Norton, a non-voting member of the House, has offered similar legislation in past Congresses.