A newly introduced bipartisan House bill (HR-5355) would overturn a court ruling that restricted MSPB appeal rights of employees in so-called “non-critical sensitive” positions.

In a 2013 ruling, an appeals court held that restrictions on appeal rights in a personnel decision 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 later allowed the decision to stand by refusing to hear an appeal.


Sponsors of the bill argue that the ruling frees agencies to take unwarranted actions, including retaliating against whistleblowers, while avoiding the standard due process rights for the affected employees. An estimated 200,000 employees at DoD alone have such a designation.

Similar legislation was offered in the prior Congress but did not advance.