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Amending Title 5 of the U.S. Code

On March 20, 2018, Congresswoman Eleanor Holmes Norton from the District of Columbia reintroduced a bill to Congress intended to amend a federal court decision which limits the appeal rights of federal employees in sensitive positions. Earlier versions of the bill were introduced in October 2013 and February 2016; however both iterations died in Congress.

The bill would amend Section 7701 of Title 5 of the United States Code, which by extension, would overturn the decision of Kaplan v. Conyers. This case began after two Department of Defense employees were indefinitely suspended after being found “ineligible to occupy ‘noncritical sensitive’ positions.” During their appeals to the Merit Systems Protection Board, the Agency asserted that the Board did not have jurisdiction over their claims due to the nature of their sensitive positions.

The U.S. Court of Appeals for the Federal Circuit ruled that the MSPB “cannot review the merits of DoD national security determinations concerning the eligibility of an employee to occupy a sensitive position that implicates national security.” Earlier in its decision, the Federal Circuit stated that, “It is naïve to suppose that employees without direct access to already classified information cannot affect national security.”

The decision concerns DoD employees in noncritical sensitive positions and whistleblowers alike, as this decision limits their due process rights. In her reasoning for reintroducing the bill, Congresswoman Norton argued that “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.”

The 2018 iteration of the bill would amend Section 7701 of Title 5 by stating that employees in these positions may not be denied MSPB review if “A. the position is not one that requires a security clearance or access to classified information; and B. such action is otherwise appealable.”

If you have received an adverse action in the workplace and are unsure how to challenge it, contact a federal employment attorneyto discuss your rights.