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

WASHINGTON, D.C.—Congresswoman Eleanor Holmes Norton (D-DC), Congressman Rob Wittman (R-VA) and Congressman André Carson (D-IN) 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 an 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. The Members believe their bill is essential because the U.S. Supreme Court declined to hear the Kaplan case, which did not mean it approved it, 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.

"Far too many federal employees designated in ‘noncritical sensitive positions' have been caught up in a misguided court decision that allows their supervisor to fire them on national security grounds, gutting their constitutionally-protected right to due process," Norton said. "Allowing terminations to take place without independent reviews opens the door for retaliatory firings, dissuading public servants from speaking up about mismanagement or other whistleblower issues. These federal employees, like others, should have the right to appeal their terminations to an independent body."

"Due process is one of the most essential protections of our Constitutional government," Wittman said. "However, 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 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, but 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."

"Many federal employees were affected by the Kaplan decision," Carson said. "These workers' rights were hindered by the unprecedented court decision that undermined Title 5, Section 7701 of the Civil Service Act, which ensures the due process rights of federal workers required by the U.S. Constitution. I am proud to support this bill and hope to see Congress pass it this session."