News from the Whitehouse: On October 10, 2012, President Obama issued Presidential Policy Directive 19 (PPD-19) which greatly expended the rights of whistleblowers in two key respects. First, PPD-19 required the agencies in the Intelligence Community to create policies for review of personnel actions against agency whistleblowers, specifically contemplating that the complaints would be investigated by the agency’s Inspector General and then decided by the Agency head. Previously, many Intelligence Community employees were excluded from the whistleblowing safeguards remedial process administered by the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB); PPD-19 calls for the new review processes to be consistent with the policies and procedures used by OSC and the MSPB to the greatest extent possible. Second, PPD-19 also required that any executive branch agency with the authority to affect an employee’s Eligibility for Access to Classified Information to create policies for review of any actions threatened or taken against an employee with regard to that Eligibility in retaliation for whistleblowing. Previously, any attempt to challenge possible illegal motives behind decisions affecting Eligibility were precluded from review by the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988). Under PPD-19, claims are to be investigated by the relevant agency’s Inspector General, who can recommend that the Agency reconsider the Eligibility decision. Appeals from both new remedial systems both go to an External Review Panel of Inspectors General from other agencies. Successful employees are then potentially entitled to remedies including back pay, compensatory damages, reimbursement of attorney’s fees and costs, and other remedies. Each agency affected by PPD-19 is required to issue personnel policies creating these new review procedures within 270 days, with the employees’ rights coming into force once their agency issues its new regulations. The Director of National Intelligence was also directed to issue policies to make sure that these new remedial procedures are made publicly available to the extent practicable, and that the newly-protected employees are made aware of these new protections. Finally, PPD-19 also ordered the Attorney General to conduct a review of the efficacy of the existing whistleblower reprisal protection system for FBI employees within the next 180 days. If effective, the agency policies adopted under PPD-19 can provide whistleblowing safeguards that thousands of federal employees never had.
If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan for an initial consultation.