Norton and Wittman Introduce Bill to Protect Due Process Rights of Federal Employees

Feb 1, 2016
Press Release

WASHINGTON, D.C.—Congresswoman Eleanor Holmes Norton (D-DC) and Congressman Rob Wittman (R-VA) today introduced a bill to clarify and protect certain due process rights of federal employees serving in sensitive positions.  The bill would overturn a 2013 federal court decision that stripped many federal employees of due process rights to independent review of an agency decision removing them from a job on national security grounds.  The U.S. Court of Appeals for the Federal Circuit decision, Kaplan v. Conyers and MSPB, prevents workers who are designated as "noncritical sensitive" from appealing to the Merit Systems Protection Board (MSPB) if they are removed from their job.  Norton and Wittman said their bill is essential because the U.S. Supreme Court declined to hear the Kaplan case, leaving legislation as the only remedy.  The case was brought by two Department of Defense (DOD) employees, Rhonda Conyers, an accounting technician, and Devon Northover, commissary management specialist, who were permanently demoted and suspended from their jobs after they were found to no longer be eligible to serve in noncritical sensitive positions. The decision would affect at least 200,000 DOD employees who are designated as noncritical sensitive.

“The many federal employees affected by the Kaplan decision do not have what the public thinks of as security clearances and did not have jobs in the security sector,” Norton said.  “Yet, their due process rights have been severely eroded by an unprecedented court decision that undermines Title 5, section 7701 of the Civil Service Act, which ensures the due process rights of federal workers required by the United States Constitution.  Allowing terminations to take place without any sort of independent review opens the door for retaliations by agency heads and will dissuade potential whistleblowers from stepping forward out of fear of losing their jobs.  If we want to continue to get the best candidates serving in the federal government, we must ensure that their most basic constitutional rights are protected – at least to have an independent body review the decision of an agency official.  Otherwise, a single official can terminate or demote an employee for any or no reason.”

“Due process is one of the most essential protections of our Constitutional government,” Wittman said. “It means that no citizen can be deprived of his or her life, liberty, or property rights without sufficient notice and adequate process. But right now, many of the men and women in our federal workforce don’t have that guarantee. The Supreme Court’s Kaplan decision undermines section 7701 of the Civil Service Act and the right federal workers have to due process under the 5th Amendment of the United States Constitution. The Kaplan decision means that federal employees who are demoted or suspended from noncritical service positions have no right to independent review of the agency decision. That empowers agencies and undermines individual workers. Without that additional level of accountability, agencies are free to punish would-be whistleblowers and take retaliatory action against employees who are simply trying to do their jobs. This bill protects the individual, Constitutional rights of federal workers and continues to hold agencies accountable for the action they take against employees.”

Norton’s full introductory statement is below.

Statement of Congresswoman Eleanor Holmes Norton on the Introduction of a bill to Clarify Certain Due Process Rights of Federal Employees Serving in Sensitive Positions

February 1, 2016

Today, as hundreds of thousands of our federal workers face uncertainty in wages and work, I rise along with my House colleague Robert J. Wittman to introduce a bill to clarify certain due process rights of federal employees serving in sensitive positions.  Our bill would overturn an unprecedented federal court decision, Kaplan v. Conyers and MSPB, which stripped many federal employees of the right to independent review of an agency decision removing them from a job on grounds of ineligibility.  The case was brought by two Department of Defense (DOD) employees, Rhonda Conyers, an accounting technician, and Devon Northover, a commissary management specialist, who were permanently demoted and suspended from their jobs after they were found to no longer be eligible to serve in noncritical sensitive positions.  In 2014, the Supreme Court declined to hear the case, which allowed the appeals court decision to stand.

Specifically, the decision prevents federal workers who are designated as “noncritical sensitive” from appealing to the Merit Systems Protection Board (MSPB) if they are removed from their jobs.  Noncritical sensitive jobs include those that do not have access to classified information.  The decision would affect at least 200,000 DOD employees who are designated as noncritical sensitive.  Even more seriously, most federal employees could potentially lose the same right to an independent review of an agency’s decision because of a rule by the Office of Personnel Management (OPM) and the Office of the Director of National Intelligence (ODNI), which went into effect in July 2015, that permits agency heads to designate most jobs in the federal government as noncritical sensitive. 

The Kaplan decision undercuts Title 5, section 7701 of the Civil Service Act, which ensures due process rights for federal workers required by the U.S. Constitution.  Stripping employees whose work does not involve classified matters of the right of review of an agency decision that removes them from their jobs opens entirely new avenues for unreviewable, arbitrary action or retaliation by an agency head and, in addition, makes a mockery of whistleblower protections enacted in the 112th Congress.  My bill would stop the use of “national security” to repeal a vital component of civil service protection and of due process. 

I urge my colleagues to support this bill.

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