[Congressional Record Volume 168, Number 67 (Monday, April 25, 2022)]
[Extensions of Remarks]
[Page E398]
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

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                       HON. ELEANOR HOLMES NORTON

                      of the district of columbia

                    in the house of representatives

                         Monday, April 25, 2022

  Ms. NORTON. Madam Speaker, today, 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 their 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 Andre Carson.
  Specifically, the decision prevents federal employees who are 
designated as ``noncritical sensitive'' from appealing to the Merit 
Systems Protection Board if they are removed from their jobs. 
Noncritical sensitive jobs include those that do not have access to 
classified information. The decision affects 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 and the Office of the Director of 
National Intelligence that permits agency heads to designate most jobs 
in the federal government as noncritical sensitive, which went into 
effect in July 2015.
  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. This bill would stop the use of ``national 
security'' to undo a vital component of civil service protection and of 
due process.
  I urge my colleagues to support this bill.

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