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Washington, D.C.—The head of the National Treasury Employees Union (NTEU) today called for support of legislation that would restore important due process rights to the federal workforce.

In a statement submitted to a House subcommittee, NTEU President Colleen M. Kelley sought support for H.R. 3278, introduced by Rep. Eleanor Holmes Norton (D-D.C.). The bill would overturn an appeals court decision potentially depriving tens of thousands of federal workers of a key due process right impacting their ability to hold their job.

While the hearing was focused on treatment of whistleblowers, Kelley said the broader issue impacts not only whistleblowers, “but a much larger segment of the federal workforce, as well.”

The issue involves the right of the Merit Systems Protection Board (MSPB) to engage in substantive review of agency decisions concerning the eligibility of employees to occupy ‘sensitive’ positions. Earlier this year, the Supreme Court declined to review a federal appeals court decision—Kaplan v. Conyers—preventing the MSPB from reviewing an agency’s reason for deeming an employee ineligible for a sensitive position.

The decision directly affected the Department of Defense, but it is likely that its reasoning could be extended throughout the federal workplace.

“Without any review or oversight of its basis,” Kelley told the House Oversight and Government Reform Subcommittee on the Federal Workforce, “an agency is free to deem an employee ineligible for any reason it chooses”—even a reason based on incorrect or incomplete information.

At present, the NTEU leader emphasized, the executive branch “has unlimited discretion to designate positions as ‘sensitive.’ “There is no monitoring or reporting of how agencies arrive at this decision, and each agency can create its own guidelines,” she said.

“Indeed, there appears to be a great deal of inconsistency in how the determinations are made,” Kelley added, noting that in U.S. Customs and Border Protection, almost all of the 24,000-employee bargaining unit positions represented by NTEU have been designated as ‘noncritical-sensitive,’ but only a small fraction require security clearances.

“Whistleblowers are particularly at risk,” she told the subcommittee, “since those that would retaliate would also likely afford themselves of a process that is not reviewable.”

President Kelley said the Norton bill would correct the loss of MSPB review for thousands of federal employees. “We believe the bill is a sensible solution that balances national security and due process interests,” she said. “We urge you to schedule a mark-up of the bill at your earliest convenience.”

NTEU is the largest independent federal union, representing 150,000 employees in 31 agencies and departments.