Sen. Chuck Grassley (R-Iowa), ranking member of the Senate Judiciary Committee, issued a letter Tuesday requesting that the president take action to prevent agencies from designating whistleblowers’ positions as sensitive to national security and therefore exempt from due process after they have reported inappropriate behavior.
“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,” Grassley said.
Critics of the court decision have said it allows agencies to retaliate against whistleblowers by placing the “non-critical sensitive” label on their positions and then taking personnel actions that could not be appealed.
“The court created a ‘sensitive jobs loophole’ … and openly backed a proposed administration rule to declare virtually any job as national-security sensitive,” the Goverment Accountability Project said in a statement after the ruling.
The Merit Systems Protection Board had argued in the case that it could review personnel actions against two “non-critical sensitive” Defense Department employees because their jobs did not require access to classified information. The workers were accounting technician Rhonda Conyers, who was suspended indefinitely, and commissary worker Devon Northover, who was demoted.
The appeals court determined that the review board’s position ignored the impact employees without security clearances can have. Writing for the majority, Judge Evan Wallach said, “It is naive to suppose that employees without direct access to already classified information cannot affect national security.”