Norton Introduces Bill Clarifying Due Process Rights for Federal Employees Serving in Sensitive Positions

Jan 9, 2020
Press Release

WASHINGTON, D.C. – Congresswoman Eleanor Holmes Norton (D-DC) has introduced a bill to clarify due process rights for federal employees serving in sensitive positions.  Norton’s bill would overturn an unprecedented federal court decision, Kaplan v. Conyers and MSPB, that stripped federal employees who do not work on classified matters of the right to independent review of an agency decision removing them from jobs on grounds of ineligibility, preventing at least 200,000 federal workers who are designated as “noncritical sensitive” from appealing.  Norton says the Kaplan decision undercuts Title 5 of the Civil Service Act, which ensures due process rights for federal workers required by the U.S. Constitution.

In her introductory statement, Norton says: “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.  Our bill would stop the use of “national security” to repeal a vital component of civil service protection and of due process.”

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

January 8, 2020

Today, as hundreds of thousands of our federal workers face uncertainty in wages and work, I introduce a bill to clarify certain due process rights of federal employees serving in sensitive positions.  This 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 jobs 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 be no longer eligible to serve in noncritical sensitive positions.  In 2014, the Supreme Court declined to hear the case, which allowed the decision to stand.  This bill is cosponsored by Representative André Carson.

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.  Our 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.

###