Del. Eleanor Holmes Norton's, D-D.C., legislation proposes to restore MSPB protections to employees in “sensitive” national security positions. Jemal Countess / Getty Images
D.C. lawmaker wants to restore due process to feds in ‘sensitive’ posts
A new bill would overrule a 2013 federal appellate court decision that denied roughly 200,000 federal employees access to the Merit Systems Protection Board.
Del. Eleanor Holmes Norton, D-D.C., on Tuesday introduced legislation that would restore due process protections to around 200,000 federal employees who occupy “sensitive” national security positions, despite not working with classified materials.
The measure stipulates that federal employees and job seekers “may not be denied” access to review by the Merit Systems Protection Board if an agency deems them ineligible for a sensitive position, provided that the job does not require a security clearance or access to classified information.
The issue stems from a 2013 decision of the U.S. Court of Appeals for the Federal Circuit, which found that federal workers in sensitive positions have no right to challenge their terminations or demotions with the MSPB. That move opened up roughly 200,000 federal employees, mostly within the Defense Department, to being terminated unilaterally. At the time, unions and other federal employee groups warned that the decision, coupled with then-new regulations from the Office of Personnel Management that gave agencies more flexibility to label positions as sensitive.
Norton decried the decade-old court ruling as an attempt to “undercut” the 1978 Civil Service Reform Act in a statement, and warned that future administrations could use OPM’s regulations to deem an even wider swath of federal workers as sensitive.
“The decision prevents federal employees who are designated as ‘noncritical sensitive’ from appealing to the Merit Systems Protection Board if they are removed from their jobs,” she said. “Noncritical sensitive jobs include those that do not have access to classified information . . . 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, which went into effect in July 2015.”
The nation’s capital’s lone House member said her bill would restore federal employees’ due process protections as well as end the misuse of national security to limit federal employees’ rights.
“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. “This bill would stop the use of ‘national security’ to undo a vital component of civil service protection and due process.”