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By John P. Mahoney, Esq.
The agency responsible for protecting federal whistleblowers is warning that federal employees who blow the whistle and hold security clearance are vulnerable to retaliation from managers. The agency, the Office of Special Counsel (OSC), cautioned that managers can inappropriately trigger clearance investigations as a means of retaliating against whistleblowers, who have little recourse against consequent suspensions.
In a recently filed amicus brief, the OSC urged the Merit Systems Protection Board (MSPB) to secure federal employees’ constitutional due process rights to ensure that retaliatory motivations are not behind indefinite suspensions prompted by pending clearance reviews.
Responding to an MSPB post in the Federal Register calling for legal arguments on due process requirements under certain circumstances, the OSC said the Board should address the due process rights for federal employees facing indefinite suspension because of pending clearance reviews in a way more in line with the process rights of employees facing other adverse actions.
Currently, OSC said, the Board only conducts a “perfunctory review” in such cases to determine whether an agency provided an employee with adequate due process. Such a review includes only testing whether the agency met basic charge notification and response requirements. According to the OSC, the Board needs go a step further and apply the “ordinary due process test” and “balance the employee’s interest, the government’s interest, and the risk that the procedures used will lead to an erroneous deprivation in deciding whether the agency satisfied due process.”
In sum, the OSC is saying the Board must not only examine whether an agency met the procedural requirements in placing an employee on indefinite suspension due to a pending clearance review, it should also evaluate the merit of the indefinite suspension, which could last over a year and threaten the employee financially because of his or her loss of income. This due process question touches on a grey area in the MSPB’s jurisdiction, which is limited to reviewing the procedural rights of an adverse action prompted by a clearance revocation. Currently, the Board, cannot weigh whether an agency is justified in revoking an employee’s clearance.
The OSC warned that a manager could retaliate against a whistleblower by lying to a personnel security office to prompt a clearance investigation and clearance suspension. Consequently, the employee could be put on indefinite suspension without pay while the security concerns are investigated in a process that has no deadlines or opportunity for judicial review. Under OSC’s view, if the MSPB was to conduct a substantive review this matter, it might find the suspension to be retaliatory by identifying a nexus between the manager’s knowledge of a protected disclosure and the indefinite suspension.
Hopefully, the MSPB will heed the OSC’s legal argument to further protect whistleblowers from retaliation. Whether they have security clearance or not, federal employees need to know that the Whistleblower Protection Act protects them from removal, suspension, transfer, reassignment, poor performance reviews, and other forms of retaliation for making protected disclosures. Federal employees who have been subjected to unlawful retaliation for blowing the whistle or want to blow the whistle should immediately contact a federal employment attorney, such as those here at Tully Rinckey PLLC.
John Mahoney, a partner at Tully Rinckey PLLC, focuses on representing federal employees, contractors, agencies, unions, and employee associations in federal sector labor, employment, discrimination, and national security law. He can be reached at jmahoney@fedattorney.com.
