[Congressional Record Volume 164, Number 48 (Tuesday, March 20, 2018)]
[Extensions of Remarks]
[Page E346]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




INTRODUCTION OF A BILL TO CLARIFY CERTAIN DUE PROCESS RIGHTS OF FEDERAL 
                EMPLOYEES SERVING IN SENSITIVE POSITIONS

                                 ______
                                 

                       HON. ELEANOR HOLMES NORTON

                      of the district of columbia

                    in the house of representatives

                        Tuesday, March 20, 2018

  Ms. NORTON. Mr. Speaker, today, as hundreds of thousands of our 
federal workers face uncertainty in wages and work, I rise along with 
my House colleagues Robert J. Wittman and Andre Carson 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 then 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 no longer to 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. 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.

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