Introduction of A Bill to Clarify Certain Due Process Rights of Federal Employees Serving in Sensitive Positions

Floor Speech

Date: April 25, 2022
Location: Washington, DC


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.