U.S. OFFICE OF SPECIAL COUNSEL ARGUES THAT REVOCATION OF SECURITY CLEARANCE IS PERSONNEL ACTION FOR PURPOSES OF THE WHISTLEBLOWER PROTECTION ACT

FOR IMMEDIATE RELEASE - 11/14/98
CONTACT: JANE MCFARLAND
(202) 653-7984      

    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 Therefore, federal employees who claimed that their security clearance was revoked in reprisal for whistleblowing had no legal recourse.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.

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