Legislation Reintroduced to Protect Appeal Rights of Federal Employees Serving in Sensitive Positions

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By on March 22, 2018 in Human Resources with 0 Comments
Congresswoman Eleanor Holmes Norton (D-DC)

Congresswoman Eleanor Holmes Norton (D-DC)

Legislation was reintroduced in the House this week to overturn a 2013 federal court decision which limited the due process rights of some federal employees serving in sensitive positions.

The bill was introduced by Congresswoman Eleanor Holmes Norton (D-DC) and is the third time the bill has been introduced since 2013, having failed to pass the last two times. It was last introduced in 2016.

H.R. 5355 would overturn the Kaplan v. Conyers and Northover decision from 2013 which limited review of federal agency decisions on an employee’s eligibility to hold a sensitive position even when it does not involve access to classified information. See Court Limits Federal Employee Appeal Rights in Security Cases for details about the case.

Norton said in a press release about the bill that it is the only remedy for the situation: “[The] bill is essential because the U.S. Supreme Court declined to hear the Kaplan case, which did not mean it approved it, leaving legislation as the only remedy.”

The legislation is co-sponsored by Congressmen Rob Wittman (R-VA) and André Carson (D-IN).

The text of the 2016 version of the bill read:

  1. An employee or applicant for employment appealing an action arising from a determination of ineligibility for a sensitive position may not be denied Board review of the merits of such determination if:
    1. the position is not one that requires a security clearance or access to classified information; and
    2. such action is otherwise appealable.
  2. For purposes of this subsection, the term sensitive position means any position so designated pursuant to Executive Order 10450 (5 U.S.C. 7311 note) or, if superseded, a successor Executive order.

Norton said in a statement:

Far too many federal employees designated in ‘noncritical sensitive positions’ have been caught up in a misguided court decision that allows their supervisor to fire them on national security grounds, gutting their constitutionally-protected right to due process. Allowing terminations to take place without independent reviews opens the door for retaliatory firings, dissuading public servants from speaking up about mismanagement or other whistleblower issues.  These federal employees, like others, should have the right to appeal their terminations to an independent body.

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Ian Smith is one of the co-founders of FedSmith.com. He enjoys writing about current topics that affect the federal workforce.

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