Bill sponsor: The decision affects at least 200,000 DoD employees who are designated as noncritical sensitive. Image: Stephen VanHorn/Shutterstock.com
By: FEDweek StaffA bill (HR-7726) has been reintroduced in Congress to overturn a court decision holding that employees in positions designated as “sensitive” — which may not require access to classified information — do not have rights to appeal to MSPB an agency determination of ineligibility to hold the position.
That decision restricts the appeal rights of employees whose positions are — or could be — classified as “noncritical sensitive” at an agency’s discretion, with eligibility to hold those positions also solely at management’s discretion.
The case involved DoD employees who were demoted and suspended from their jobs after the department deemed them to be no longer eligible to serve in such positions. The MSPB ruled that it had jurisdiction in such cases, saying that while it cannot review agency decisions on access to classified information, it does have authority over suitability determinations.
However, an appeals court held that the case rested on similar national security-related determinations outside of MSPB’s purview, and the U.S. Supreme Court allowed that decision to stand by refusing to hear an appeal.
“The decision affects at least 200,000 DoD employees who are designated as noncritical sensitive. Even more concerning is that most federal employees could potentially lose the right to an independent review of an agency’s decision because of a rule issued by the Office of Personnel Management and the Office of the Director of National Intelligence that permits agency heads to designate most jobs in the federal government as noncritical sensitive,” said sponsor Del. Eleanor Holmes Norton, D-D.C.
“Stripping employees whose work does not involve classified matters of the right to an independent review of an agency decision that removes them from their jobs opens entirely new avenues for unreviewable, arbitrary action or retaliation by an agency head,” she said.
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