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Washington, D.C.—The nation’s largest independent union of federal employees has offered its strong support for Senate legislation that would clarify certain vital due process rights for the great many federal workers serving in ‘sensitive’ positions.

The matter took on considerable importance earlier this year when a federal appeals court ruled the Merit Systems Protection Board (MSPB) no longer could engage in substantive review of Department of Defense (DoD) decisions about the eligibility of employees to occupy ‘sensitive’ positions that do not require a security clearance. The decision by the U.S. Court of Appeals for the Federal Circuit in Kaplan v. Conyers stripped the MSPB of a right it had been exercising for decades.

In a letter to Sen. John Tester (D-Mont.), sponsor of S. 1809, President Colleen M. Kelley of the National Treasury Employees Union (NTEU) applauded the legislation.

“In essence,” she wrote, “the Conyers decision allows the executive branch to ignore the Civil Service Reform Act. If the MSPB is not able to review eligibility determinations, agencies can remove, suspend or demote any employee they deem ‘ineligible’ to occupy a ‘sensitive’ position without ever having to justify the basis for their determination.” NTEU has warned on a number of occasions about the virtually unlimited discretion of agencies to designate positions as ‘sensitive,’ as well as the ability of each agency to create its own guidelines. “Indeed,” Kelley wrote to Sen. Tester, “there appears to be a great deal of inconsistency in how the determinations are made.”

Kelley added: “The Conyers decision creates an exception that swallows the rule, leaving hundreds of thousands of employees with little practical ability to ensure that adverse actions taken against them are legally appropriate.”

The NTEU leader noted that while the court decision is technically limited to DoD, “its broad reasoning will almost certainly be extended to all agencies.” Kelley said it has a very strong potential impact on many NTEU-represented employees. At U.S. Customs and Border Protection (CBP), for example, “almost all of the roughly 24,000 bargaining unit positions have been designated as ‘non-critical sensitive,’ but only a small fraction require security clearances.”

President Kelley called for Congress to take the lead on this important issue and said the Tester bill “is a sensible solution that balances national security and due process interests.”

As the nation’s largest independent federal union, NTEU represents 150,000 employees in 31 agencies and departments.