Thursday, January 19, 2017

Important New Rules for Federal Employees Created by the National Defense Authorization Act for Fiscal Year 2017

Each fiscal year, for the past 50 years, Congress has passed a National Defense Authorization Act (“NDAA”). Primarily a budgeting and expenditures authority for the U.S. Department of Defense, the Act also often serves as a vehicle for numerous other provisions that have wide-ranging impact on all aspects of the federal government. The following is a concise list of changes in Title XI of the 2017 NDAA, which contains new provisions that concern federal employees.

1.  The two-year limitation on noncompetitive appointments for military spouses is eliminated. This means that a relocating spouse can now serve in a noncompetitive appointment until the end of his or her spouse’s service.

2.  Select employees—those serving under a time-limited appointment in the competitive service for a domestic defense industrial base facility or the Major Range and Test Facilities Base—are now eligible to compete for permanent positions in specialized circumstances. Additionally, benefits for such employees will be comparable to those employees who are not serving under time-limited appointments in the same facilities.

3.  There is a one-year extension for: 1) (from 2017 to 2018) the authority to grant allowances, benefits, and gratuities to civilian employees in combat zones; and 2) (from 2016 to 2017) the authority to waive the annual limitation on premium pay and the aggregate limitation on pay for overseas civilian employees.

4.  An advance of basic pay for up to four pay periods is permitted for employees relocated to an agency position outside of their commuting area.

5.  Time-limited appointed employees may now compete for permanent appointments at any federal agency.

6.  Official personnel files of former federal employees must be reviewed when they are being considered for rehire into the competitive or excepted service. Specifically, the appointing authority is now required to review and consider merit-based information relating to such employee’s former period(s) of service, e.g., official personnel actions, employee performance ratings, and disciplinary actions, if any, prior to making a determination with respect to the appointment or reinstatement of such employee.

7. The Office of Personnel Management (“OPM”) and all other agencies have 270 days to reform their administrative leave policies and procedures to be consistent with the following significant changes:
a. Administrative leave is now capped at 10 workdays per calendar year.

b. Investigative leave can be granted in 30-day increments (for a total of 90 days) if an investigation could not be completed within the initial 10 days of administrative leave. If an investigative entity certifies that additional time still is needed to complete the investigation, an agency can further extend this period for up to 30 days at a time. No extensions are permitted after the investigation is completed.

c. Notice leave cannot exceed the duration of the notice period.

d. Both investigative and notice leave are subjected to greater scrutiny; they are reserved only for occasions when the employee’s continued presence in the workplace would (i) pose a threat to the employee or others, (ii) result in the destruction of evidence relevant to an investigation, (iii) result in loss of or damage to Government property or (iv) otherwise jeopardize legitimate Government interests. Additionally, agencies must first consider whether other options, such as telework or a reassignment, would be viable.

e. Agencies must provide the employee with a written explanation of whether the employee was placed in investigative or notice leave and the limitations of the leave placement.

f. Placement on investigative leave in excess of 70 days will constitute a personnel action under § 2302(b)(8), (9) for which the employee may seek relief before the Office of Special Counsel.

g. Excused absences should still be granted to federal employees who cannot travel to work sites because of safety issues, weather issues, or other “acts of God.”
8.  Permanent notations must now be made in the employee’s official personnel file (“OPF”) if he/she was subject to an adverse finding pursuant to an investigation (by an Inspector General or an adverse personnel action as a result of performance, misconduct, or for such cause as will promote the efficiency of the service), even if he/she resigned prior to resolution of such investigation. However, the employee will be afforded an opportunity to respond to the adverse finding, and he/she may appeal the agency’s decision to make the permanent notation to the Merit Systems Protection Board (“MSPB”).
a. If an employee appeals the agency’s decision to the MPSB, the agency will notate in the employee’s OPF that an appeal disputing the notation is pending.

b. If the agency prevails, the agency must remove the pending notation within two weeks of the MSPB’s decision.

c. If the employee prevails, the agency must remove all notations of the adverse finding within two weeks of the MSPB’s decision.
The new year promises many changes for all employees, whether federal or private. This firm will be carefully monitoring for forthcoming developments that may impact our clients. Stay tuned.

This blog was written by Aaron Herreras and Nina Ren.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Tuesday, January 17, 2017

Congress Seeks to Curb Federal Employees’ Rights

A large contingent of the 115th United States Congress, which convened on January 3, 2017, has made no secret that it plans to take steps to reduce employment protections for federal employees over the coming months.

First, the House of Representatives revived a 19th century rule, first adopted in 1876, that was dropped from its procedures over 30 years ago.  This rule, called the Holman Rule, gives each Representative the power to target the funding of specific government agencies and their employees by proposing an amendment to any appropriations bill to slash funding to particular federal program or to entirely eliminate certain positions within agencies.

While the Holman Rule originally was on the books, Congress used it sparingly.  However, in today’s increasingly partisan environment, there are concerns that Representatives may use the Rule to make civil servants and public programs susceptible to political influence by allowing elected officials to remove funding from departments that they disapprove of.  In this scenario, certain non-partisan federal employees, for example, those working on climate change, could find themselves in the cross-hairs of Congress’ political whims.

Next, there are reports that Representative Todd Rokita will reintroduce his bill from last October, called the Promote Accountability and Government Efficiency (“PAGE”) Act. If passed, this law would make all new federal hires at-will employees and allow agencies to immediately suspend or remove current civil servants without warning and – possibly – without the right to appeal.

Unlike their counterparts in the private sector who are mostly employed “at-will” – meaning the terms and conditions of those workers’ employment can be changed at the will of the employer for no reason – the majority of full-time federal government workers are protected by civil service laws, which guard them from unreasonable and unfair terminations and demotions.

Currently, civil servants, through the Due Process Clause of the 5th Amendment to the Constitution and various federal laws, must be given notice and an opportunity to be heard before the government can fire them, reduce their pay, or take other adverse employment actions.  Groups representing federal employees are concerned that Representative Rokita and other lawmakers want to make it easier to bypass these laws and fire competent civil servants in order to reduce the footprint of the federal government.

It is not clear exactly how Representatives could legally get around the nation’s civil service laws with either the Holman Rule or the PAGE Act to remove a particular civil servant, but federal employees should be aware that Congress has set its sights on reducing workers’ employment protections and contact an attorney at the first sign of trouble.

This blog was written by Sarah Martin.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Friday, January 13, 2017

KCNF files Supreme Court amicus brief supporting WPEA claims for EEO retaliation

On September 6, 2016, the Ninth Circuit U.S. Court of Appeals affirmed the dismissal of Leslie Kerr’s whistleblower retaliation claim against the Department of the Interior. The court held that federal employees who comply with the administrative exhaustion requirements governing EEO claims in mixed cases, cannot include in their subsequent district court suits claims alleging reprisal arising under the Whistleblower Protection Enhancement Act (WPEA).   The court recognized that its holding is in conflict with Wells v. Shalala, 228 F.3d 1137 (10th Cir. 2000), setting up a circuit split that only the Supreme Court can resolve.

Indeed, Leslie Kerr has petitioned the Supreme Court to grant review of the Ninth Circuit’s decision. The Government Accountability Project and Felecia Redding filed an amicus brief in support of Ms. Kerr’s petition.  KCNF, which represents Ms. Redding, drafted the brief for her and GAP.

Leslie Kerr worked for the Fish and Wildlife Service (FWS or the Agency) as director of the Kodiak National Wildlife Refuge (the photo shows protected auklets).  In the early 2000’s, Kerr raised concerns about alcohol abuse by other employees at the Refuge. In 2005, her supervisor asked her, “This is going to sound sexist as hell, but couldn’t you learn to be more feminine?” The supervisor gave Kerr a low performance rating, and Kerr complained. The supervisor transferred her, and she refused the transfer. The agency fired her for refusing the transfer, and she filed an EEO complaint alleging that the transfer and removal were discriminatory.  Although it was not a basis of her EEO complaint, Kerr believed that her disclosures about alcohol abuse were also a factor in the decision to fire her.

The Agency’s Office of Civil Rights rejected Kerr’s complaint, and she filed suit in the U.S. District Court in Alaska. That court dismissed her WPEA claims and tried her EEO claims to a jury.  The jury found in favor of the Agency, and Kerr appealed the dismissal of her WPEA claims. The Ninth Circuit’s decision affirming the dismissal is now pending before the Supreme Court.
On behalf of the GAP and Ms. Redding, we argued to the Supreme Court that the “mixed case” statute, 5 U.S.C. § 7702(f), permits federal employees to file a lawsuit raising both discrimination and civil service claims after exhausting through only one agency process.  However, the decision below flies in the face of these statutory provisions and requires victims of retaliation to exhaust at least two administrative procedures to give the district court jurisdiction of all their claims.

As the Supreme Court has recognized, the public’s interest in protecting from reprisals employees who file complaints allowed by statute is so strong that the Supreme Court has imputed such protection into laws that have no words creating it. See, Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) (Title IX); CBOCS West, Inc. v. Humphries, 553 U.S. 442, 128 S. Ct. 1951 (2008) (42 U.S.C. § 1981); Gomez-Perez v. Potter, 553 U.S. 474 (2008) (ADEA).  The Ninth Circuit erred when it held that § 7702(a)(2) does not authorize Kerr to bring her Whistleblower Protection Act (WPA) claim directly from the EEO office to district court.

The Ninth Circuit was primarily concerned with the “practical import” of the Tenth’s Circuit’s interpretation of § 7702 in Wells, in particular the additional number of cases that could be brought to district court.  This “practical import” argument, however, places a higher priority on protecting the courts from having to decide more cases than on protecting victims of whistleblower reprisals. That is docket control, and it is an impermissible basis upon which to decline jurisdiction granted by Congress. The number of cases that can be filed is irrelevant to the question of jurisdiction. The Supreme Court has reaffirmed that “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.”  Congress emphasized at 5 U.S.C. § 7702(e)(1) that an employee has a right to bring a civil action in a mixed case after 120 days of agency processing “[n]otwithstanding any other provision of law[.]” In that statute, Congress declared that there are no other barriers to federal court jurisdiction, yet the Ninth Circuit in Kerr has erected such a barrier based primarily on its perception of “practical import.”

The requirement that an employee exhaust mixed-case EEO retaliation claims through the Office of Special Counsel (OSC) and MSPB is particularly ironic because OSC’s own policy states that it “will normally avoid” investigating such claims because employees can raise them separately in the agency EEO process. See 5 C.F.R. § 1810.1. Also, the MSPB has been less than consistent about applying the WPEA to protect EEO concerns.

Other circuit courts that have addressed this issue have concluded that district courts possess juris-diction to decide non-discrimination claims in mixed cases when agencies fail to meet the time limits in § 7702(e)(1)(B).  Employees may bring “mixed cases” to district court, even if the original administrative EEO complaint did not expressly articulate the legal theory underlying the “mixed case.” Generally, there is no requirement that a complaint set out the legal theory that permits relief for the facts alleged.

It is critical that employees know that they protected when they disclose wrongdoing, and that this protection is extremely broad and will not be narrowed retroactively by future MSPB or court opinions. Without that assurance, whistleblowers will hesitate to come forward. The interest at stake is as much the public’s interest in receiving allegations of wrongdoing as it is protecting employees who disseminate it. “Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistle-blowers within their ranks.”

The decision in Kerr runs counter to the administrative economy of the mixed case statute, which allows whistleblowers to preserve all of their claims by using just one of the available agency proceedings. It also runs counter to the remedial purpose of the 2012 WPEA, which explicitly extends protection both to “any disclosure” of violations of law and federal employees’ participation in official proceedings. Finally, it places federal employees in the dilemma of having to waive all of their civil service remedies (including their WPA remedies), just to bring their retaliation claim to district court.

The Amicus Brief urges the Supreme Court to grant Kerr’s petition and reverse the decision of the Ninth Circuit.

Richard Renner authored the amicus brief discussed in this blog.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Monday, December 19, 2016

Congress Enhances Whistleblower Protections for Contractors and Military Service Members

Congress just passed two bills making significant improvements in whistleblower protections, one for government contractors and another for military service members.

In 2013, Congress included in that year’s National Defense Authorization Act (“NDAA”) a pilot program for whistleblower protection for employees of federal contractors. In mid-December 2016, the Senate made that pilot program permanent with additional provisions.

The original pilot program allowed whistleblowers to report retaliation to the Inspector General (IG) of the federal agency that issued the affected contract.  This plan has the advantage of assuring that the IGs would also learn about whatever the whistleblower blew the whistle on.

The IG could investigate and order relief for the whistleblower, including reinstatement, backpay, compensatory damages and attorney’s fees. 41 U.S.C. § 4712(c)(1). The various IGs reacted unevenly as they did not have adequate training or additional resources for this new responsibility. Whistleblowers who did not get a final order from the IG within 210 days could bring their claims to federal court.

Whistleblowers only had to show that their protected activity was a “contributing factor” in the adverse action. To defeat the claim, the employer would have to show, by “clear and convincing evidence,” that they would have taken the same adverse action even without the protected activity. 41 U.S.C. § 4712(c)(6). The pilot program utilized the same analysis as the Whistleblower Protection Enhancement Act (WPEA), 5 U.S.C. § 1221(e)(2), and dovetails with the False Claims Act, 31 U.S.C. § 3730(h), which allows direct access to federal court and double backpay, but does not explicitly provide for compensatory damages.

In S. 795, passed in December 2016, Congress made the pilot program permanent.  It also expanded coverage to include employees of subgrantees.  Previously, the Department of Education IG had taken the position that the 2013 coverage of “contractors, subcontractors and grantees” excluded coverage of subgrantees. That position is no longer viable.  Congress also added protection for whistleblowers employed through personal service contracts.

The 2017 NDAA, S. 2943, improves the Military Whistleblower Protection Act (MWPA), 10 U.S.C. § 1034. It is also waiting for President Obama’s signature. The MWPA has long been viewed as weak protection for service members who report wrongdoing.  It depends on the Defense Department’s IG (DoDIG) to conduct investigations and leaves service members at the mercy of their harassers during the long investigations.

Section 531 of the 2017 NDAA makes it unlawful to change a whistleblower’s duties to those that are “not commensurate with the member’s grade” or to launch an investigation against the whistleblower (a protection federal civilian employees do not have). In a novel addition, the bill requires superiors to respond to complaints of harassment and retaliation. Superior officers will thus be forced to protect whistleblowers under their command, or face sanctions themselves.

The new bill also permits the IG to make a preliminary determination that a retaliation complaint has merit, and report it to the Secretary for “appropriate” action. This may provide interim relief to whistleblowers who face immediate hardship. The IG will also have to make reports about the investigation every 180 days.

As before, service members can use IG findings of retaliation to seek corrections to military records, including discharges.

DoDIG will be required to establish standards for whistleblower investigations and training investigators. DoDIG may benefit from reading OSHA’s Whistleblower Investigations Manual.

Section 536 of the 2017 NDAA requires the Comptroller General of the United States to make a report on the effectiveness of the MWPA. The report will compare results under the MWPA with the civilian WPA and assess the effectiveness of the DoDIG. The report must also disclose incidents of retaliation against whistleblowers within the DoDIG. This last provision telegraphs that Congress has heard reports of such retaliation at DoDIG and is not happy about it.

While the 2017 NDAA does not fundamentally change the structure of decision-making for military whistleblowers (such as allowing jury trials in federal court), it does add provisions to expand the scope of protection, permit faster responses, and add layers of accountability and reporting. A future Congress could use this information to assess whether the whistleblower protection program can encourage service members to use official channels to raise their concerns. An increase in leaks to the media by military personnel would indicate a lack of trust in the military’s whistleblower protection program.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Thursday, December 15, 2016

Trump’s non-disclosure agreements could violate the Whistleblower Protection Enhancement Act

Josh Marshall reported last week in Talking Points Memo that president-elect Trump has been requiring prospective transition team employees to sign “non-disclosure agreements” or NDAs. Mr. Marshall writes, “There are probably a number of reasons why such contracts would either violate federal law or be unenforceable. (Lawyers with relevant government experience, please chime in.)”

Indeed, the 2012 Whistleblower Protection Enhancement Act (WPEA) makes it unlawful for any federal employee who has authority to take, direct others to take, recommend, or approve any personnel action to:
implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement:
“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”
5 U.S.C. § 2302(b)(13)
If any transition official is already on the government payroll and is implementing or enforcing NDAs that omit the required text, that would be a violation. If the transition team is collecting NDAs now that omit the required text, then it would be unlawful for the Trump Administration to enforce them.

The Whistleblower Protection Act (WPA) already protects the rights of most federal employees to make lawful disclosures about:
(i) any violation of any law, rule, or regulation, or 
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety[.] 
5 U.S.C. § 2302(b)(8)(A)
Covered federal employees also have protection for:
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation ***
(B) testifying for or otherwise lawfully assisting any individual ***;
(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
(D) for refusing to obey an order that would require the individual to violate a law;
5 U.S.C. § 2302(b)(9)
On this last point, the House of Representatives recently passed the Follow the Rules Act, HR 6186, which would also protect federal employees who refuse to violate any rule or regulation.  The bill was waiting for action by the Senate, but will now have to be re-introduced.

Congress intended the WPA to provide broad protection for federal employees who stand up to protect taxpayers, the environment, or the integrity of the law.  An administration interested in draining the swamp will depend on whistleblowers to finish the job.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Monday, December 12, 2016

Federal Circuit finds strength in the “clear and convincing” protection for whistleblowers

Recently, the U.S. Court of Appeals for the Federal Circuit issued an important decision in the case of whistleblower Troy Miller. What is particularly notable about the new decision is that two judges were willing to look past the normal deferential standard of review on factual issues and hold that the government failed to show, by “clear and convincing” evidence, that the agency would have reassigned Mr. Miller even if he never made what all the judges agreed were protected disclosures.

Mr. Miller worked as the Superintendent of Industries at a federal prison in Beaumont, Texas (pictured). He oversaw a prison factory that produced ballistic helmets primarily for military use. His supervisor was the Warden, Jody Upton. Mr. Miller worked on the Warden’s Executive Staff, and he filled in as Associate Warden when Warden Upton was away.

On October 7, 2009, Mr. Miller disclosed to Warden Upton and other officials that he was concerned about mismanagement of funds. On December 15, 2009, agents from the Office of Inspector General (OIG) conducted a scheduled site visit. Warden Upton asked Mr. Miller to stay away from the prison that day. 

On December 16, 2009, Mr. Miller returned to the prison and discovered that the factory had shipped some helmets made with defective Kevlar. Mr. Miller said, “there’s a U.S. Marine’s life at the end of this helmet, period. And it is my responsibility as a superintendent of industries when I see anything that is wrong, to report it immediately and to stop production.” Mr. Miller asked that the factory be closed pending an investigation of potential sabotage.

Within hours of the Kevlar disclosure, Warden Upton reassigned Mr. Miller so that he would no longer serve as Superintendent of Industries. For the next four years, Mr. Miller monitored inmate phone calls, wiped tables, shredded documents and worked the night shift in the special housing unit (SHU). Needless to say, he no longer served on the Executive Staff or filled in for Warden Upton. After the helmet production ended, Mr. Miller’s job was to sit on a couch. That assignment lasted for eight months.

Warden Upton claimed that someone at OIG said that Mr. Miller would be a subject of the investigation and might interfere with it, but he could not remember who at OIG said this or when it was said. Warden Upton agreed that putting Mr. Miller in these positions was “absolutely” a waste of his talents.

Mr. Miller filed a complaint under the Whistleblower Protection Act (WPA) that covers federal employees. An administrative judge agreed that Mr. Miller’s disclosures about the financial misconduct and the sabotage were protected disclosures.  The judge further held that these disclosures contributed to Mr. Miller’s reassignment (the timing – within hours -- is hard to ignore). However, the judge also held that the agency proved by “clear and convincing evidence” that it would have reassigned Mr. Miller even if he had not made the protected disclosures. The Merit Systems Protection Board (MSPB) affirmed this decision.

In its decision on review of Mr. Miller’s appeal, the Federal Circuit panel reiterated what it said in Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012):
“Clear and convincing evidence” is a high burden of proof for the Government to bear. It is intended as such for two reasons. First, this burden of proof comes into play only if the employee has established by a preponderance of the evidence that the whistleblowing was a contributing factor in the action—in other words, that the agency action was “tainted.” Second, this heightened burden of proof required of the agency also recognizes that when it comes to proving the basis for an agency’s decision, the agency controls most of the cards …. [I]t is entirely appropriate that the agency bear a heavy burden to justify its actions.
The Court could have noted that Congress found that too many whistleblowers were losing their cases and Congress needed a higher win rate to encourage whistleblowers to come forward. The high standard would require that prospective whistleblowers (and their advocates) could see in the public record that strong evidence is required to permit adverse actions against whistleblowers.

The court’s decision in Miller is more remarkable for its treatment of the standard governing its review of MSPB decisions. The law requires the court to affirm the MSPB if its decision is supported by “substantial evidence.”  Unlike “preponderant evidence,” which is defined as the degree of evidence sufficient to show that a contested fact is more likely true than not, “substantial evidence” is defined as the degree of evidence sufficient to show that a contested fact might be true, even if others would disagree. See 5 C.F.R. § 1201.56(c). “Substantial evidence” is normally a deferential standard that leads to affirming a large majority of agency decisions. However, the court here noted that the “clear and convincing” standard governing review of the evidence by the Board is interrelated with the “substantial evidence” the reviewing court must find.

In its key holding, the court majority stated, “We hold that no reasonable factfinder could find Warden Upton’s conclusory testimony about how OIG directed him to be strong evidence of independent causation.” The court added, “The Government’s evidence is weak, particularly when considered in light of the record evidence endorsing Mr. Miller’s character.”

The court considered that the IG investigation itself arose from Mr. Miller’s own disclosure, that the government had no corroboration for the Warden’s testimony, and that the government had no contemporaneous documentation to explain why it was reassigning Mr. Miller. The court emphasized that it was not altering the Board’s finding that the Warden’s testimony was credible, only that it was not the strong evidence required by the WPA. The court noted that retaliatory motive can be found in “agency officials who were involved in the decision,” not just the employee’s direct supervisor.

On the common issue of comparing the agency’s treatment of the whistleblower with its treatment of other employees, the court took a broad view. It would not limit this consideration to just the Beaumont, Texas, facility, but rather considered whether any other employees involved in IG investigations around the country were treated the same way. Yet again, the government provided no such evidence. “The burden lies with the Government[,]” the court correctly stated.

One judge wrote a concurring opinion suggesting that if one accepts the Warden’s testimony, then it was really the OIG that made the decision to reassign Mr. Miller. It was not Mr. Miller’s duty to show what was the OIG’s real motive.  Once he established that his whistleblowing was a “contributing factor,” it was the government’s burden to present “clear and convincing evidence.” Here, the government presented only the Warden’s testimony about what the OIG said, and that was not enough.

One judge dissented, claiming that the majority failed to “cite to a single piece of affirmative evidence that Mr. Miller was reassigned for whistleblowing.” This judge was apparently looking for an agency official to admit that the reassignment was because of the whistleblowing. However, as the majority noted, once the MSPB found that the whistleblowing was a “contributing factor” (a finding the government did not contest) the burden of coming forward with evidence to rebut that finding shifted to the government.  An absence of evidence cannot overcome that a disclosure was a “contributing factor.”

The dissenting judge concluded:
I have never heard of such an application of the substantial evidence standard that rejects uncontradicted, truthful testimony in favor of unfounded speculation about what might have happened or what more the agency should have done.
This conclusion fails to acknowledge that Mr. Miller had already established that his protected activities were a “contributing factor” for his reassignment. That is the standard Congress established in the WPA for whistleblowers to meet. The dissent apparently believes that as long as a supervisor can deny retaliation and there is no direct and contradictory evidence, the Agency has met its burden of supporting the adverse action against the whistleblower.  However, that is not the standard Congress set in the WPA.

This decision will be useful to federal employee whistleblowers, and also to other whistleblowers who have claims under any of a dozen federal laws that have copied the same “clear and convincing” standard imposed on disclosures that are a contributing factor in an employment action. These laws protect workers in the nuclear, transportation, corporate compliance, food, pipeline, consumer product and consumer finance industries, and employees raising concerns under the Affordable Care Act.

The case is Miller v. Dep't of Justice, No. 2015-3149, 2016 WL 7030359 (Fed. Cir. Dec. 2, 2016).

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Tuesday, December 6, 2016

Can Seeing A Therapist Block Your Security Clearance?

On November 16, 2016, National Intelligence Director James Clapper, issued Revised Instructions for Completing Question 21, Standard Form 86, “Questionnaire for National Security Positions,” ES 2013-00242.  Once the new Section 21 is made part of the SF-86, applicants for security clearances will face a different set of questions than in the past under Section 21 Psychological and Emotional Health.

The new Section 21, soon to be part of the SF-86, will comprise five questions.  They ask whether the applicant has:
  1. Been declared mentally incompetent by a court or administrative agency;
  2. Been ordered to consult with a mental health professional by a court or administrative agency;
  3.  Been hospitalized for a mental health condition;
  4. Been diagnosed by a physician or other health professional with specifically listed diagnoses; and/or
  5. A mental or other health condition that substantially adversely affects judgment, reliability or trustworthiness. 
The focus now is on the condition.  In the past, applicants were asked whether they had “consulted with a health care professional regarding an emotional or mental health condition.”  The mere act of consulting with a therapist or other mental health professional served as a stand-in for determining the existence of a mental health condition for purposes of the security clearance background investigation.  That question is now gone, replaced by questions asking for a diagnosis or conclusions reached by a court, or doctor, regarding a mental health condition.  DNI Clapper explains that, “These questions shift the focus from whether an individual has sought treatment to whether an individual has a condition that may affect his or her eligibility for access to classified information (security clearance) or for eligibility to hold a sensitive position.”  The change is intended to remove any concerns that applicants may have that seeking mental health treatment might “negatively impact their ability to receive a security clearance.”  DNI Clapper is emphatic,
I want to make clear that an individual’s decision to seek mental health treatment and/or counseling will not, in and of itself, adversely impact his or her ability to obtain or maintain a national security position, or alone form the basis for a denial or revocation of a security clearance.
The Preamble to the policy also states clearly, “Seeking or receiving mental health care for personal wellness and recovery may contribute favorably to decisions about your recovery.”  It remains to be seen whether seeking mental health care may now even become a “mitigating factor” in clearance decisions, as seeking therapy for alcohol addiction mitigates concerns regarding alcohol use.  See Adjudicative Guidelines ¶ 23(b-d).

Adjudicators are already admonished that “No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.” (Adjudicative Guidelines, ¶ 27).  And see, EO 12968 ¶ 3.1(e) currently in effect:
No negative inference concerning the standards in this section may be raised solely on the basis of mental health counseling.  Such counseling can be a positive factor in eligibility determinations.  However, mental health counseling, where relevant to the adjudiction of access to classified information, may justify further inquiry to determine whether the (general eligibility criteria) are satisfied, and mental health may be considered where it directly relates to those standards.
The effort to ensure that security clearance adjudication proved no bar to clearance holders seeking mental-health treatment has been ongoing for some time before this most recent revision.

How the new questions will be used as part of the investigatory and adjudicatory process will not be clear for some time.  We will want to watch especially the last of the five new questions, which asks the applicant to self-assess whether a mental health condition “substantially adversely affects judgment, reliability or trustworthiness” and report only those that do rise to this “substantially adversely” standard.   The applicant’s self-assessment here would seem to create a mine-field of risks.  Except in extreme cases, how is an applicant to know whether his/her judgment, reliability or trustworthiness is “substantially adversely” affected by a mental health condition?  And what will be the penalty for misjudging this reporting standard?

Certainly, revisions to Section 21 make it no longer necessary for a person seeking counseling for a minor mental health problem to disclose that counseling on the SF-86.  But it is difficult to know now the risks to an applicant with some, but not substantial, mental health issues.   Just where will the line will be drawn – and how enforced, for the “substantially and adversely” standard for reporting mental health conditions on the SF-86?

This blog was written by Mary Kuntz.

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