U.S. OFFICE OF SPECIAL COUNSEL DISAPPOINTED BY RULING THAT FEDERAL WHISTLEBLOWERS CONTINUE TO HAVE NO PROTECTION IN SECURITY CLEARANCE CASES

FOR IMMEDIATE RELEASE - 6/17/99
CONTACT: JANE MCFARLAND
(202) 653-7984      

    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 Under this interpretation, federal employees who claim that their security clearance was revoked in reprisal for whistleblowing have no legal recourse.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 concluded.

    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.

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