February 9, 2017

Trump Administration Halts Retaliation Penalties, Chills Nuclear Whistleblowers

By the C|C Whistleblower Lawyer Team

The US Department of Energy—responsible for, among things, the nation’s nuclear security—has frozen an Obama administration regulation that would have permitted civil penalties against federal nuclear contractors that retaliated against whistleblowers for reporting waste, fraud, and dangerous conditions. The original rule was to have taken effect on January 26, 2017. For now, the Trump administration’s procedural rule, published in the Federal Register, temporarily halts the whistleblower protections until March 21, 2017.

Whistleblower advocates caution the rule could discourage reports of fraud and waste that squander precious taxpayer dollars, as well as safety violations that threaten worker wellbeing and the country’s nuclear security. And many worry the rule represents more than just a pause to allow thorough review, but instead forms part of the Trump administration’s goal of reworking the federal regulatory process, including its plan to scrap two existing regulations for each new one adopted.

Others see the rule as fitting into a pattern of animosity toward whistleblowing, transparency, and bureaucratic dissent. Rep. Elijah E. Cummings (D-Md.) sees the rule as part of a series of actions that could have “real and serious consequences.” Additionally a recent letter from Cummings and Rep. Frank Pallone Jr. (D-N.J.) said impeding federal employee communications with Capitol Hill “appear to violate a host of federal laws.” Separately, Senate Judiciary Chairman Charles E. Grassley (R-Iowa), House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) and government operations subcommittee Chairman Mark Meadows (R-N.C.) wrote: “Whistleblowers can be one of the incoming Administration’s most powerful allies to identify waste, fraud, abuse and mismanagement in the federal government and ‘drain the swamp’ in Washington, D.C.”

The Obama administration rule was an attempt to address watchdog accounts criticizing DOE’s purported lack of whistleblower protections. A July 2016 Government Accountability Office report noted independent reviews “revealed problems with the environment for raising concerns.” Given the new rule, those problems may persist until at least March 21.

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