News from the Whitehouse: On July 7, 2014, President Obama signed into law the Intelligence Authorization Act for Fiscal Year 2014 (Pub.L. 113-126). Sections 601-603 of the statute solidified protections for whistleblowers in intelligence agencies and/or with security clearances.
Broadly speaking, Sections 601-603 codified into statute the protections set up by the present Administration in 2012 in Presidential Policy Directive 19 (PPD-19), which was previously analyzed in this blog. These whistleblower protections broadly fall into two areas. First, intelligence agency employees gain statutory protection from retaliation for protected whistleblowing activities. Previously, these intelligence agency employees were excluded from OSC and MSPB whistleblower reprisal claim jurisdiction. Second, employees whose security clearances are suspended for more than one year or are revoked receive statutory protection, if the suspension or revocation was done as retaliation for protected whistleblowing. Previously, these employees had no avenue for redress due to the effects of the Supreme Court’s decision in Department of the Navy v. Egan and its progeny.
Section 601 also contains provisions requiring the Director of National Intelligence to “develop policies and procedures that permit, to the extent practicable, individuals to appeal a determination to suspend or revoke a security clearance or access to classified information and to retain their government employment status while such challenge is pending.” If implemented in an employee-friendly fashion, this provision could help keep employees in work status (rather than possible indefinite suspension status) while their security clearance denial appeals are pending.
Unfortunately, Sections 601-603 are not self-executing, and require action by the DNI to create the related implementing mechanisms. Given the delays in implementation of PPD-19, this provision raises concerns over whether these protections will come into force within the 180-day deadline specified in the statute. Also, Sections 601-603 are not as generous as their non-intelligence counterparts in the Whistleblower Protection Act, with compensatory damages capped at $300,000 (as opposed to non-capped damages for non-intelligence federal whistleblowers) and with agencies held to a lower standard to rebut the whistleblower’s prima facie case and avoid liability (preponderance of evidence with deference to the agency’s threat assessment, as opposed to clear and convincing evidence for non-intelligence federal whistleblowers).
If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan for an initial consultation.