In Kaplan v. Conyers, the Court of Appeals for the Federal Circuit addressed employment positions which are determined to be "sensitive" to national security or "non-critical sensitive" to national security, which means someone holding the position could have a negative effect on national security. The legislation seeks to rectify a part of Conyers by ensuring federal employees who have their positions deemed "sensitive" or "non-critical sensitive" are eligible to appeal the decision to the Merit Systems Protection Board. The Board hears appeals from civil service employees regarding merit system employment actions.
Grassley said that without the ability to appeal a decision to the Merit Systems Protection Board, potential whistleblowers throughout the federal government will likely think twice about reporting wrongdoing. He said even if a federal employee's current position is not considered sensitive, the court's ruling may make an employee who blows the whistle fear that his or her position may be designated non-critical sensitive as a means of retaliation.
Grassley initially wrote President Obama on September 4, 2013 asking him to clarify protections for federal whistleblowers after the Federal Circuit Court of Appeals decision. The White House has not responded to Grassley's letter.
"The Federal Circuit has historically been unsympathetic to whistleblowers, but the Conyers ruling is over the top. It's essentially a death knell to whistleblowers who are simply trying to help root out waste, fraud and abuse," Grassley said. "This legislation can help give whistleblowers assurances that their case will at least be heard by an independent board."
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.
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