The office of Congresswoman Eleanor Holmes Norton (D-DC) announced today that when Congress returns from August recess, the Congresswoman will introduce a bill to overturn an unprecedented federal court decision that strips many federal employees of due process rights to independent review of an agency decision removing them from a job on national security grounds. The U.S. Court of Appeals for the Federal Circuit decision, Kaplan v. Conyers and MSPB, prevents workers who are designated as "noncritical sensitive" from appealing to the Merit Systems Protection Board (MSPB) if they are removed from their job. 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. The decision would affect at least 200,000 DOD employees, who are designated as noncritical sensitive. Moreover, most federal employees could potentially lose the same rights 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's (ODNI) that would permit agency heads to designate most jobs in the federal government as noncritical sensitive. Noncritical sensitive positions include jobs that do not have access to classified information.
"The Kaplan v. Conyers and MSPB decisions undercut Title 5 section 7701 of the Civil Service Act, which ensures federal workers due process rights conferred to them by the United States Constitution," said Norton. "Stripping even employees whose work does not involve classified matters of the right of review of an agency decision upon removal from their job opens entirely new avenues for arbitrary action or retaliation by an agency head and, in addition, makes a mockery of whistleblower protections passed in the 112th Congress. The court decision contains seeds for the virtual elimination of civil service protections for most federal employees without due process review. My bill seeks to stop in its tracks the use of "national security' to repeal civil service protection against arbitrary or retaliatory action."