[Congressional Record Volume 159, Number 139 (Tuesday, October 8, 2013)]
[Extensions of Remarks]
[Page E1457]



                       HON. ELEANOR HOLMES NORTON

                      of the district of columbia

                    in the house of representatives

                        Tuesday, October 8, 2013

  Ms. NORTON. Mr. Speaker, today, as hundreds of thousands of our 
federal workers face furloughs and a third year of pay freezes, I 
introduce a bill to clarify certain due process rights of federal 
employees serving in sensitive positions. The bill would overturn a 
recent, unprecedented federal court decision, Kaplan v. Conyers and 
MSPB, that strips many federal employees of the right to independent 
review of an agency decision removing them 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, 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.
  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 pending 
rule by the Office of Personnel Management (OPM) and the Office of the 
Director of National Intelligence (ODNI) that would permit agency heads 
to designate most jobs in the federal government as noncritical 
  The Kaplan decision undercuts Title 5, section 7701 of the Civil 
Service Act, which ensures due process rights for federal workers 
required by the United States 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. My 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.