Norton Says Today’s Supreme Court Action Puts Burden on Congress to Pass her Bill to Restore Due Process Rights to Federal Workers

WASHINGTON, DC – Following today’s Supreme Court refusal to hear a case – Northover v. Archuleta – brought by a Department of Defense (DOD) commissary management specialist who challenged her removal from a non-secure, “sensitive” job, Congresswoman Eleanor Holmes Norton (D-DC) stressed the urgency for Congress to pass her bipartisan bill to overturn an unprecedented lower court decision that strips many federal employees of due process rights to independent review of an agency decision removing them from their job.

“The exhaustion of judicial remedies still leaves the fate of thousands of DOD and perhaps other federal workers unresolved,” said Norton. “The Supreme Court’s routine refusal to review Northover v. Archuleta certainly does not mean that it is legal, much less constitutional, to dismiss employees from their job without independent review. I can certainly understand why the employee appealed to the courts, but fortunately this is a matter that can and should be resolved by the Congress itself. The civil service system was put in place a century ago to avoid arbitrary action by the government. Dismissal without a hearing or other review strikes at the heart of the civil service system itself. Today’s action makes congressional passage of our bipartisan bill mandatory.”

The bill, which Norton introduced last October, would overturn a U.S. Court of Appeals for the Federal Circuit decision, Kaplan v. Conyers and MSPB, that 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 said it undercuts Title 5 section 7701 of the Civil Service Act, which ensures federal workers due process rights conferred to them by the United States Constitution. She also said the federal court decision opens entirely new avenues for arbitrary action or retaliation by an agency head, and makes a mockery of whistleblower protections passed in the 112th Congress.

Last December, Senator Jon Tester (D-MT), chair of the subcommittee that oversees federal employees on the Homeland Security and Governmental Affairs Committee, introduced companion legislation, with Senators Charles Grassley (R-IA) and Claire McCaskill (D-MO) as original cosponsors. Norton’s bill also has bipartisan support, with five Democrats signing on as cosponsors along with two Republicans.

The case was brought by two 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. The decision would affect at least 200,000 DOD employees who are designated as noncritical sensitive. Moreover, most federal employees could potentially lose the same rights to an independent review of an agency’s decision because of a pending rule by the Office of Personnel Management and the Office of the Director of National Intelligence that would permit agency heads to designate most jobs in the federal government as noncritical sensitive. Noncritical sensitive positions include jobs that do not have access to classified information.

Published: March 31, 2014