U.S. OFFICE OF SPECIAL COUNSEL REQUESTS ORAL ARGUMENT IN KEY CASE AFFECTING WHISTLEBLOWER RIGHTS OF FEDERAL EMPLOYEES WHO HOLD SECURITY CLEARANCES

FOR IMMEDIATE RELEASE - 1/21/99
CONTACT: JANE MCFARLAND
(202) 653-7984      

    This week the U.S. Office of Special Counsel (OSC) -- the independent federal agency responsible for enforcing the Whistleblower Protection Action (WPA) -- asked the Merit Systems Protection Board (MSPB) to take the unusual step of holding oral argument in two cases that raise the issue of whether the WPA gives 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. 

    OSC is the federal agency that receives, investigates, and prosecutes complaints of reprisal for whistleblowing before the MSPB. Prior to passage of OSC’s reauthorization act in 1994, the MSPB had held that a negative security clearance determination was not a “personnel action” covered by the WPA. However, 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.” OSC’s brief contends that the plain language of the statute and its legislative history demonstrate Congressional intent to provide statutory protection to federal employees whose security clearances are revoked in reprisal for whistleblowing. 

    OSC is the only federal agency among the several that have briefed the question, to contend that the retaliatory revocation of a security clearance is a prohibited personnel practice. OSC’s position is opposed by the Office of Personnel Management, the Department of Defense, and the Department of Justice, each of which have also filed amicus briefs with the MSPB. 

    Special Counsel Elaine Kaplan explained that, “the issue before the Board is a very important one, which substantially affects the rights of whistleblowers, and the public interests served by the WPA.” “If the Board agrees with us, federal employees will be permitted, for the first time, to seek OSC assistance and MSPB review in cases where an adverse security clearance determination is alleged to be in retaliation for protected activity.” “For these reasons,” she said, “we believe that these cases are appropriate ones for the Board to exercise its discretion to hold oral argument.”

    The security clearance issue is before the Board 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.

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