[Congressional Record Volume 144, Number 39 (Tuesday, March 31, 1998)]
[Extensions of Remarks]
[Page E525]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E525]]



         THE FBI FAIRNESS TO APPEAL IMPROVEMENT ACT (FBI FAIR)

                                 ______
                                 

                           HON. FRANK R. WOLF

                              of virginia

                    in the house of representatives

                        Tuesday, March 31, 1998

  Mr. WOLF. Mr. Speaker, some Federal Bureau of Investigation [FBI] 
special agents are accorded Merit System Protection Board [MSPB] appeal 
rights and others are not. This discriminatory policy offends 
traditional notions of fairness and should change. It is not fair that 
some agents receive MSPB appeal rights while others do not.
  Because of my concern about this policy, today I will introduce 
legislation, the FBI Fairness to Appeal Improvement Act, a copy of 
which appears at the end of my statement. This simple legislation would 
amend 5 U.S.C. 7511(b)(8) by striking ``the Federal Bureau of 
Investigation,'' thereby extending certain procedural and appeal rights 
with respect to certain adverse personnel actions to all employees of 
the FBI. This legislation corrects the current disparate treatment of 
nonveteran special agents regarding their ability to appeal adverse 
personnel actions and ensures the due process rights of all employees 
of the FBI.
  Last Congress I introduced a bill, H.R. 2683, the Due Process for FBI 
Agents Act, with the same language as the measure I am introducing 
today. This legislation in the 104th Congress was attached to H.R. 
3841, the Omnibus Civil Service Reform Act of 1996 which passed the 
House on September 27, 1996, but did not become law.
  Special agents of the FBI are loyal civil servants dedicated to 
protecting Americans from the worst kinds of crime. Their jobs are 
difficult, demanding, and often dangerous. They are often transferred 
to posts far from home which demands considerable sacrifice by FBI 
families. FBI agents are on the front line of the fight against crime. 
The FBI motto--fidelity, bravery, and integrity--accurately 
characterizes the manner in which agents approach their important work.
  These duties are performed by all agents, veteran and nonveteran 
alike. However, these two categories of agents receive disparate 
treatment when charged with misconduct. Military veterans are permitted 
full due process rights including the ability to appeal adverse 
personnel actions to the MSPB. In other words, veteran agents, who are 
in the excepted service, receive the same due process rights that 
employees in the competitive service receive.
  Nonveteran agents, also members of the excepted service, do not. This 
means that a veteran agent will receive an outside, independent, 
objective review of his/her case while a nonveteran agent will not. Is 
this fair? I maintain that it is not. Furthermore, female special 
agents are particularly hit hard by this policy because few have served 
in the military; thus they are not eligible to receive the MSPB appeal 
rights that veteran agents, who are predominantly men, do. Also, FBI 
agents should have the same MSPB appeal rights as federal law 
enforcement agents who work for the Bureau of Alcohol, Tobacco and 
Firearms, Drug Enforcement Administration, Customs Service, and Border 
Patrol.
  As this legislation was considered in the House in the 104th Congress 
the FBI raised only one objection. The Bureau was concerned about MSPB 
decisions, in five cases, that a federal agency could not sanction an 
employee for making false statements to the agency regarding his or her 
alleged employment-related misconduct. The Court of Appeals for the 
Federal Circuit affirmed the MSPB policy. But on December 2, 1997, in 
the case LaChance v. Erickson, the Supreme Court overturned the ``bad 
law'' established by the Court of Appeals. The high court held that the 
Fifth Amendment's Due Process Clause and the Civil Service Reform Act 
do not preclude a federal agency from sanctioning an employee for 
making false statements to the agency regarding his or her alleged 
employment-related misconduct. As a result, the one objection 
previously voiced by the FBI is no longer applicable.
  Mr. Speaker, there is no reason to maintain the distinction between 
preference eligible veteran and nonveteran agents. All agents, whether 
veterans or not, should be treated in a fair and equitable manner. The 
FBI has considerable experience with the MSPB process available to 
veteran agents. I am not aware that there has been any particular abuse 
of the MSPB process by preference eligible agents. Likewise, I do not 
anticipate that expansion of MSPB rights to all agents would be 
burdensome on the FBI. There is no room in the modern FBI for 
discriminatory personnel policies; therefore, nonveteran agents should 
receive all the rights and enjoy all the privileges accorded to their 
preference eligible veteran counterparts.
  Mr. Speaker, I urge our colleagues to cosponsor this important 
legislation. I also urge Congressman Mica, chairman of the House Civil 
Service Subcommittee, to move this legislation as expeditiously as 
possible. Finally, I include a copy of this bill and a letter from 
former Congressman Ed Bethune who represents the FBI Agents' 
Association in support of this legislation in the record immediately 
following my statement.

                                      Ed Bethune & Associates,

                                   Washington, DC, March 31, 1998.
     Hon. Frank Wolf,
     U.S. House of Representatives, Washington, DC.
       Dear Congressman: The FBI Agents Association, a non-
     governmental professional association, represents over 8000 
     active duty FBI Special Agents. The association strongly 
     supports your effort to extend Merit System Protection Board 
     appeal rights to all agents.
       As General Counsel for the association I can tell you that 
     the support for this reform is virtually unanimous among rank 
     and file agents.
       The association will be working to help you pass this much 
     needed reform in this session of Congress. Again, thanks for 
     your tireless efforts on behalf of the men and women who are 
     on the front line in the battle against crime.
           Sincerely,
                                                       Ed Bethune.


                                H.R. --

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``FBI Fairness to Appeal 
     Improvement Act''.

     SEC. 2. EXTENSION OF RIGHTS.

       (a) In General.--Section 7511(b)(8) of title 5, United 
     States Code, is amended by striking ``the Federal Bureau of 
     Investigation,''.
       (b) Effective Date.--The amendment made by this section 
     shall apply with respect to adverse personnel actions taking 
     effect after the end of the 45-day period beginning on the 
     date of enactment of this Act.

     

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