U.S. OFFICE OF SPECIAL COUNSEL ARGUES THAT REVOCATION
OF SECURITY CLEARANCE IS PERSONNEL ACTION FOR PURPOSES OF THE WHISTLEBLOWER
FOR IMMEDIATE RELEASE - 11/14/98
CONTACT: JANE MCFARLAND
The U.S. Office of Special Counsel (OSC) today will
file a brief with the Merit Systems Protection Board (MSPB) arguing that
because of changes in the law enacted in 1994, adverse security clearance
determinations may now be investigated by OSC and reviewed by the MSPB under
the Whistleblower Protection Act (WPA). This issue is in contention in two
cases currently before the MSPB, in which OSC and other federal agencies
have filed amicus briefs.
OSC is an independent agency that receives, investigates,
and prosecutes before the MSPB, complaints by federal employees charging
retaliation for whistleblowing. Disclosures made by federal employees
protected by the WPA are those which an employee reasonably believes
evidence gross mismanagement; gross waste of funds; abuse of authority;
violation of law, rule or regulation; and dangers to the public health and
safety. Previously, the MSPB held that a negative security clearance
determination was not a personnel action covered by the WPA. Therefore,
federal employees who claimed that their security clearance was revoked in
reprisal for whistleblowing had no legal recourse.
However, effective October 29, 1994, the definition of
“personnel action” under the WPA was amended by Congress to include:
“[a]ny other significant change in duties, responsibilities, or working
conditions.” In its brief filed with the MSPB, OSC argues on the basis of
the plain language of the statute and its legislative history that, when it
amended the law, the Congress intended to provide statutory protection to
federal employees whose security clearances are revoked in reprisal for
whistleblowing. OSC contends that recognizing this right of review will
promote the interests underlying the WPA and is not inconsistent with
established principles granting executive agencies deference in determining
whether to grant or deny employees security clearances.
OSC’s amicus brief was filed in the cases Roach v.
Department of Army, DC-1221-97-0251-W-1 and Hesse v. Department of State,
DC-0752-97-1097-I-1. OSC is the only federal agency among those to file
briefs that is asserting the reviewability of retaliatory security clearance
revocations. If the Board (MSPB) agrees with OSC, federal employees will be
permitted, for the first time, to seek outside review of adverse security
clearance determinations, in cases where they claim that the determination
was retaliatory for protected activity, by filing a complaint with OSC.