ASK THE GENERAL COUNSEL

Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com.

Imagine this: you recently filed a whistleblower case alleging waste, gross mismanagement, or illegal conduct at your federal agency. You may have contacted your agency’s Inspector General or you could have simply informed management officials about your concern. Whichever option you chose, you hopefully did it in writing and maintained a paper trail for your own protection.

Suddenly, your security manager is at your office door with a package in hand – the dreaded Statement of Reasons (SOR) – or, even worse, is accompanied by the local goon squad to “escort” you out of the building on suspension. The timing seems oddly suspicious, but what can you do about it?

Prior to 2012, nothing besides fight the adverse security clearance or discipline decision on the merits, however absurd or obviously retaliatory they might be. Fortunately, a little-known Presidential Policy Directive (similar to an Executive Order) signed that year has significantly changed the legal landscape. The Directive, PPD-19, for the first time gave security clearance holders across the federal government an avenue to challenge adverse security clearance or disciplinary actions on the basis of illegal whistle-blower retaliation. PPD-19 helps close significant loopholes left after Congress’ passage of the Whistleblower Protection Enhancement Act (WPEA) that same year. It has two key categories of coverage:

Intelligence Agency Employees

Under PPD-19, intelligence agency employees are protected from various forms of retaliation by management, including demotions, reassignments and termination. The Directive is fairly broad in what is considered retaliation. For example, changes in duties and referral of the employee for psychiatric evaluation are also covered. In essence, anything considered a “personnel action” – including adverse security clearance decisions – may be actionable under the Directive.

For reasons that remain a mystery, however, the broadest protections afforded by PPD-19 are limited to those who fall under this narrow category of intelligence agency employees. If you hold a security clearance at any other agency, or are a contractor at an intelligence community agency, the only form of retaliation that will be considered under PPD-19 is that which comes in the form of adverse action on your security clearance.

All Security Clearance Holders and Applicants

Regardless of where in the federal government you work, and regardless of whether you are an employee or a contractor, actions by a federal agency to deny, suspend, or revoke your security clearance may be covered under PPD-19 if the link to your whistleblower report can established. In legal terminology, this is called “causation”. You must prove that but for the whistleblower complaint you would not have otherwise been subjected to the adverse security action. That may sound easy, but it can be a tricky case to make – especially since the National Adjudicative Guidelines are broad enough to incorporate almost any purported security concerns that officials can dream up. This is where the Freedom of Information Act can play a potent role. My experience has been that most retaliatory actions leave a paper trail, usually in the form of conspiratory emails among management officials, which can be uncovered with some creativity. When that happens, most federal agencies are quick to waive the white flag lest their senior officials’ embarrassing lapse of judgment leak to the press.

Ultimately, victorious PPD-19 cases are few and far between. But the results of a win can be dramatic, including reinstatement, back-pay, and an official apology. If you believe that you may have a PPD-19 case I strongly recommend consulting with an experienced attorney.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

Related News

Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com