In a letter to President Obama, Senator Chuck Grassley (R-Iowa) pushed for clarification of a recent court ruling that would strip many federal employees of their civil service rights and whistleblower protections.
The letter comes after the U.S. Court of Appeals for the Federal Circuit ruled that federal agencies can take adverse actions pertaining to the eligibility of employees to occupy a national security position without any review. The decision, known as Kaplan v. Conyers, Northover and MSPB (Conyers), greatly expands a Supreme Court decision, Department of Navy v. Egan, which for decades has only applied to security clearances. Conyers effectively wipes out civil service due process rights and whistleblower protections for anyone in a national security “sensitive” position.
Grassley called the decision “essentially a death knell to whistleblowers who are simply trying to help root out waste, fraud and abuse.”
In the letter, Grassley uses the case of Robert MacLean, a federal air marshal who blew the whistle on what he thought were unsafe policy decisions, to illustrate how this ruling will drastically change the way whistleblower protections are implemented. MacLean disclosed a text message to the press that said air marshal missions were going to be temporarily cancelled. The text message wasn’t secret or classified at the time of his disclosure, but was later retroactively classified. After being fired for the disclosure, MacLean took his case to the Merit Systems Protection Board (MSPB), which hears whistleblower and wrongful termination cases for federal employees. This allows whistleblowers an avenue to have their case heard if they are retaliated against. But the Conyers decision removes the MSPB as an avenue to review cases for whistleblowers like MacLean and will very likely leave others without any way to challenge actions taken against them.
In a statement about the decision, the Project On Government Oversight’s Angela Canterbury said:
This decision flouts the congressional intent of the Civil Service Reform Act of 1978, as well as the Whistleblower Protection Act of 1989, and the recently passed and strongly bipartisan Whistleblower Protection Enhancement Act of 2012.…Conyers guts these laws and significantly expands the boundaries and power of the national security state—throwing waste, fraud, and abuse of power deep into the shadows.
Grassley’s letter asked the President to issue an executive order to ensure that agencies can’t make unreviewable decisions or retroactively classify whistleblowers as national security sensitive employees in an effort to strip them of their rights.
If President Obama doesn’t clarify the Conyers decision, “federal employees will be left in limbo, with no certainty about whether disclosing information about waste, fraud, and abuse will be protected or not. The chilling effect of such uncertainty would be devastating and would certainly discourage whistleblowers from reporting wrongdoing,” Grassley said. POGO is very pleased that Senator Grassley has sounded the alarm, and we have no doubt that he will do all he can to ensure whistleblowers are protected. However, while we similarly encourage the President to take action, we think that administrative action will likely fall short of real protections for civil servants. As Canterbury said, “It’s clear it’s time for Congress to act.”
Read the full letter from Grassley here.