Tuesday, March 31, 2015

New whistleblower protection for employees with security clearances

Last year, with little fanfare, Congress created a new whistleblower protection for employees with security clearances. President Obama signed the Intelligence Authorization Act of 2014 on July 7, 2014, and the whistleblower protection officially took effect in December. It is now codified at 50 U.S.C. § 3341(j).
Since 1988, the Supreme Court has barred lower courts from considering any claims challenging the Executive Branch’s determinations on security clearances. Department of the Navy v. Egan, 484 U.S. 518, 526-32 (1988). In 2012, Congress passed the Whistleblower Protection Enhancement Act (WPEA), but excluded any protection for employees of the “Intelligence Community” (IC).
President Obama then announced that he would fill the gap as best he could with is own order, Presidential Policy Directive 19 (PPD 19). He ordered the Director of National Intelligence (DNI) to establish a procedure for IC employees to make complaints about retaliation for whistleblowing – and receive relief if violations are found. The DNI did this by issuing Intelligence Community Director 120 (ICD 120).
As a creature of the Executive Branch, the procedure ends with a decision by a panel of agency directors. This procedure does not violate the Supreme Court’s holding in Egan because it is an exercise of the Executive Branch discretion protected by the Supreme Court.
Through the regular authorization process, Congress finally included legislation to make this new whistleblower protection a permanent law.
Reading the scope of protection in § 3341(j) makes clear that Congress wants to encourage IC employees to keep their concerns in-house. Edward Snowden’s actions have impressed our leaders with how they lose control when whistleblowers feel that no inside path will produce results and they must go outside, or even way outside, the chain of command to get problems addressed. Thus, officials have an incentive to make the internal process work so that whistleblowers are encouraged to raise their concerns internally.
The Intelligence Authorization Act covers “agency personnel.” An “agency” includes “an executive agency,” “a military department” and “an element of the intelligence community.” § 3341(a)(1). The new law does not cover employees of the FBI who have their own whistleblower procedure. 5 U.S.C. § 2303. Notice that this scope of coverage is broader than just the Intelligence Community (IC). It also covers federal employees (outside the FBI) who believe an action against their security clearance is an unlawful reprisal.
The precise wording Congress used covers, “Agency personnel with authority over personnel security clearance or access determinations[.]” This language suggests that the new procedure will protect not only federal employees, but also the employees of contractors who believe a security clearance decision is retaliatory.
The new provision states that these managers “shall not take or fail to take, or threaten to take or fail to take, any action with respect to any employee’s security clearance or access determination in retaliation . . ..” § 3341(j)(1). Finally, whistleblowers with security clearances will have some avenue to pursue when federal managers abuse their discretion to yank a security clearance as a reprisal. These national security whistleblowers will not have access to court, but they do have one route now to call on the managers to justify their actions.
Under § 3341(j)(1), whistleblowers are protected when they raise concerns about “a violation of any Federal law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety[.]” This scope of protection is similar to the Whistleblower Protection Act (WPA). From the WPA standards “gross” means more than de minimus. See the Committee Report on the WPEA, Senate Report 112-155 (April 19, 2012), p. 12.
Unlike the WPA, § 3341(j)(1) limits the protected channels for raising concerns. While the WPA protects “any” lawful disclosure, § 3341(j)(1) protects lawful disclosures to the DNI (“or an employee designated by the Director of National Intelligence for such purpose”), the agency head (or designees), the Inspector General, or lawful disclosures in conjunction with an appeal, grievance or complaint permitted by “any law, rule or regulation” or testifying or assisting others in the exercise of their rights to make a complaint.
In § 3341(j)(2), Congress says that the law does not authorize any action against an employee who makes a lawful disclosure to Congress. However, the phrase makes it less than clear that all lawful disclosures to Congress would be protected. Time will tell how the Administration applies this provision to employees who exercise their rights under the Lloyd-La Follette Act, 5 U.S.C. § 7211.
Incorporating clarifying provisions of the WPEA, § 3341(j)(3)(A) says that disclosures are protected when they (i) are “made to a person, including a supervisor, who participated in an activity that the employee reasonably believed to be [a violation],” (ii) reveal information that had been previously disclosed, (iii) are not made in writing, or (iv) are made while the employee is off duty. Also, protection cannot be denied because “of the amount of time which has passed since the occurrence of the events described in the disclosure.”
Surveys have shown that most whistleblowers make their initial disclosures to their immediate supervisors. The Intelligence Authorization Act anticipates this common situation with this provision in § 3341(j)(3)(B):
If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from paragraph (1) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.
I find it hard to say that any supervisor would not be “authorized” to receive a subordinate’s concerns. Still, it remains to be seen if the Administration will deny protection claiming the supervisor was not a person designated to receive such a disclosure. While the WPA has no time limit at all for the initial complaint to the Office of Special Counsel, § 3341(j)(4)(A) requires whistleblowers to make their initial complaints of reprisal within 90 days of each adverse action. Many agencies still have not announced their procedures to their employees, so I am suspecting that whistleblowers in these agencies will just make their reprisal complaints directly to the agency head. Perhaps then the agency head will write the agency policy and train the employees on how to use it.
If the agency finds a violation, they “shall take specific corrective action to return the employee or former employee, as nearly as practicable and reasonable, to the position such employee or former employee would have held had the violation not occurred.” § 3341(j)(4)(B). Unlike the WPA (which has no cap), § 3341(j)(4)(B) limits compensatory damages to $300,000.
If the agency decides that it did nothing wrong, the employee still has one more avenue of redress – an appeal to the DNI’s Inspector General. The appeal must be filed within 60 days of the agency’s final decision. § 3341(j)(5). Currently, the DNI has designated Daniel Meyer to hear these appeals. Whistleblowers may take heart in knowing that Daniel Meyer has a long record of advocacy for whistleblowers. He is a former attorney with Public Employees for Environmental Responsibility (PEER), and led the whistleblower protection program at the Department of Defense’s Inspector General’s office.
After the final decision from Daniel Meyer’s office, whistleblowers will then have no further right to appeal or go to court. § 3341(j)(6) and (7). The DNI must notify the House and Senate Intelligence Committees, and those Committee may choose to improve the law if they are not happy with the results.
The real test of this new process will be the experiences of the first courageous whistleblowers who use this system. If they can report that they received justice, then others with security clearances may feel encouraged to raise compliance concerns through the official channels. If a consciousness of compliance takes hold, then the American taxpayer could feel more confident that the black-budget agencies would be deterred from misusing our tax dollars – at least from the ways disapproved of by the Administration.

By Richard Renner

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