Senator Chuck Grassley, Ranking Member of the Senate Judiciary Committee, is pushing President Barack Obama to clarify protections for federal whistleblowers after a recent decision by the Federal Circuit Court that could be devastating for whistleblowers and may discourage them from reporting wrongdoing.
A long-time advocate for whistleblowers, in addition to co-authoring the 1989 whistleblower law designed to protect federal whistleblowers, Grassley authored changes made in 1986 to the President Lincoln-era federal False Claims Act to empower private sector whistleblowers.
Since the 1986 amendments were signed into law, the False Claims Act has brought back more than $30 billion to the federal treasury, and has deterred even more fraudulent activity. In 2009, in coordination with Senator Patrick Leahy, Grassley worked to pass legislation to shore up whistleblower protections in the False Claims Act that had been eroded by the courts after years of litigation by defense and healthcare contractors.
Here is a copy of the text of Grassley’s letter to the President. A signed copy of the letter can be found here.
September 3, 2013
President Barack Obama
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
Dear Mr. President:
On August 20, 2013, the U.S. Court of Appeals for the Federal Circuit released an en banc decision in the case of Kaplan v. Conyers (Case 11-3207). The majority held in Kaplan that the Merit Systems Protection Board (MSPB) cannot review the merits of Department of Defense (DOD) national security determinations concerning the eligibility of an employee to occupy a sensitive position. I am extremely concerned about this decision and its impact on whistleblower protections.
With the passage of the Civil Service Reform Act of 1978 (CSRA), Congress created a process for employees against whom adverse personnel actions are taken. That process, found in 5 U.S.C. § 7513, includes a provision which states in part: “An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.” An alternate process is outlined in 5 U.S.C. § 7532, which provides that “[n]otwithstanding other statutes, the head of an agency may suspend without pay an employee of his agency when he considers that action necessary in the interests of national security.” Further, the head of an agency may remove such an employee if he determines that removal is necessary or advisable in the interests of national security. When action is taken under this section, the determination of the head of the agency is final. Nevertheless, this process requires that if certain criteria are met, the employee must be provided with due process protection, such as a written statement of the charges against him and a hearing before an agency authority.
In Kaplan, DOD chose not to exercise its authority under § 7532, yet nevertheless argued that it had the authority to make final determinations. However, unlike the authority that has been delegated by executive order with respect to final security clearance determinations and which was upheld in Department of the Navy v. Egan, DOD has had no authority delegated to it to make final decisions on suitability determinations. In Kaplan, Circuit Judge Timothy Dyk wrote in a dissenting opinion joined by Judges Pauline Newman and Jimmie Reyna: “[T]he majority’s decision rests on the flawed premise that the DoD, acting on its own — without either Congressional or Presidential authority — has ‘inherent authority’ to discharge employees on national security grounds. No decision of the Supreme Court or any other court supports this proposition.”
By holding in DOD’s favor, the majority in Kaplan strips several hundred thousand employees of rights under CSRA and the Whistleblower Protection Act (WPA) when an agency bases an adverse action on an eligibility determination. In Conyers v. Department of Defense, the December 22, 2010, MSPB decision which was appealed by DOD, the MSPB warned: “Accepting the agency’s view could, without any Congressional mandate or imprimatur, preclude Board and judicial review of alleged unlawful discrimination, whistleblower retaliation, and a whole host of other constitutional and statutory violations.” The Office of Special Counsel noted in an amicus brief that over 25% of the existing federal work force would be impacted by this exception from the CSRA and the WPA.
In addition to automatically exempting some employees from the provisions of the WPA, this decision will also have a chilling effect on other potential whistleblowers throughout the federal government. Even if a federal employee’s current position is not considered sensitive, an employee who blows the whistle will now fear that his or her position may be designated non-critical sensitive as a means of retaliation. A new rule proposed by the Office of Personnel Management (OPM) and the Office of the Director of National Intelligence (ODNI) would expand the range of federal employees whose positions could be deemed non