Grassley: Court decision is 'death knell' for whistle-blower protections

In a letter to Obama, Grassley said that the U.S. Court of Appeals for the Federal Circuit issued a decision in Kaplan v. Conyers that will damage whistle-blower protections for federal workers because workers could be retaliated against by having their position deemed non-critical.

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“Not only does the decision appear to exempt some employees from the provisions of the Whistleblower Protection Act, it will also have a chilling effect on potential whistleblowers throughout the federal government,” Grassley said. “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.”

In Kaplan v. Conyers the court decided that the Department of Defense has “inherent authority” to discharge employees on national security grounds without congressional or presidential authority. Grassley said that decision “strips several hundred thousand employees of rights” under the Whistleblower Protection Act.

Grassley said the president should make it clear that no federal agency has such authority granted by the court decision.

“I respectfully request that you issue an executive order clarifying that neither DOD nor any other agency has received the authority delegated from you to make final, unreviewable decisions regarding suitability determinations,” Grassley wrote. “Without such protective guidelines, 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.”