U.S. OFFICE OF SPECIAL COUNSEL DISAPPOINTED BY RULING
THAT FEDERAL WHISTLEBLOWERS CONTINUE TO HAVE NO PROTECTION IN SECURITY
FOR IMMEDIATE RELEASE - 6/17/99
CONTACT: JANE MCFARLAND
The U.S. Office of Special Counsel (OSC) today
responded with disappointment to last week’s ruling by the Merit Systems
Protection Board (MSPB) that the Whistleblower Protection Act (WPA) does not
give federal employees the right to obtain redress where an agency revokes
their security clearance in retaliation for their disclosure of information
that they reasonably believe evidences a violation of law, gross
mismanagement, gross waste of funds, abuse of authority or a significant
danger to the public health or safety.
This issue was in contention in two cases before MSPB.
The OSC had filed an amicus brief in those cases and taken the unusual step
of requesting oral arguments, a request that was denied.
In its brief, OSC had argued that because of changes in
the law enacted in 1994, adverse security clearance determinations might now
be investigated by OSC and reviewed by MSPB. Prior to 1994, MSPB had held
that a negative security clearance determination was not a personnel action
covered by the WPA. Under this interpretation, federal employees who claim
that their security clearance was revoked in reprisal for whistleblowing
have no legal recourse.
In 1994, the Congress amended the definition of
“personnel action” under the WPA to include: “[a]ny other significant
change in duties, responsibilities, or working conditions.” In its brief,
OSC had argued that the plain language of the statute and its legislative
history evidenced Congress’ desire to protect federal employees whose
security clearances are revoked in reprisal for whistleblowing.
The OSC is an independent agency that receives,
investigates, and prosecutes before MSPB, complaints by federal employees
charging retaliation for whistleblowing. It was the only federal agency
among those to file briefs to assert the reviewability of retaliatory
security clearance revocations. In its decision, MSPB sided with the Office
of Personnel Management, the Department of Defense, and the Department of
Justice, each of which also filed amicus briefs in the case.
Special Counsel Elaine Kaplan said, “we’re
disappointed that the Board did not close this loophole because revocation
of a security clearance can be a powerful weapon in a retaliator’s
arsenal.” “In our view, Congress intended to close this loophole in
1994,” Kaplan observed, “unfortunately, MSPB believed Congress expressed
its intent without sufficient precision.” “We disagree,” Kaplan
The security clearance ruling by the Board came on June
11, 1999, in the case of Roach v. Department of Army, DC-1221-97-0251-W-1
and Hesse v. Department of State, DC-0752-97-1097-I-1. Although OSC is not a
party to these cases, and therefore does not have the right to appeal, it is
currently studying the decision and considering options to take further
action on this issue.