The bills come in response to a federal appeals-court decision preventing federal employees from appealing personnel decisions to the Merit Systems Protection Board if their jobs are classified as “noncritical sensitive.”
Tester’s office said in an announcement that the court decision could “strip the due process rights of tens or hundreds of thousands of additional federal workers,” due to the “arbitrary and inconsistent manner in which agencies designate federal positions as ‘sensitive’ to national security.”
Critics fear federal supervisors could punish employees with impunity by classifying their roles as “noncritical sensitive” and then declaring them unfit for their jobs, in which case the workers would have no chance to appeal.
The cases in question involved two low-level defense workers who were trying to appeal adverse personnel actions. Federal accounting technician Rhonda Conyers had been suspended indefinitely, while commissary worker Devon Northover had been demoted, both after being given the “noncritical sensitive” security designation.
The Office of Personnel Management brought the case to the appeals court to stop the Merit Systems Protection Board from reviewing the workers’ cases. The board said it had jurisdiction to consider the appeals because the employees’ jobs did not require access to classified information.
The majority in the court ruling said the board’s argument focused too narrowly on access to classified information while ignoring “the impact employees without security clearances, but in sensitive positions, can have.”
“It is naive to suppose that employees without direct access to already classified information cannot affect national security,” Judge Evan Wallach wrote for the majority.
Tester’s bill would amend U.S. code to say that “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 (A) the position is not one that requires a security clearance or access to classified information; and (B) such action is otherwise appealable.”
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