If you follow my articles with any regularity, chances are good that you’ve seen my past writings about whistleblower retaliation in the context of security clearance cases.
It isn’t exactly a “new” problem; as long as there have been whistleblowers there have been people retaliating against them. It is, however, an emerging area of law. Only in the last six years has there been legal recourse for reprisal victims. Prior to 2012, an individual facing a security clearance suspension, denial, or revocation in retaliation for whistleblowing had no real avenues for redress.
That glaring omission was solved by Presidential Policy Directive 19 and its legislative progeny, 50 U.S.C. § 3341(j). There remains work to be done on both – adding defined “teeth” that mirror those outlined in the Whistleblower Protection Act would be a good start, and one I am presently advocating to congress. Yet the new legal landscape has already resulted in some enhanced accountability. Among the most prominent examples are the shocking 2016 case of NSA Inspector General George Ellard and the 2017 case of Secret Service Special Agent Rob MacQueen (who, in full disclosure, I represented).
Another high profile case – that of Adam Lovinger (who I also represent) – is presently working its way through the adjudicative process at the Department of Defense. And, one more newsworthy case will be filed in the coming days at DoD, so stay tuned.
Unfortunately, where most agencies have developed a well-defined system for handling reprisal complaints, DoD’s process is muddied at best. That’s because while agency Inspectors General are generally charged with investigating reprisal claims, two obscure DoD policy memoranda purportedly empower DoD’s Consolidated Adjudications Facility (CAF) with also “resolve[ing]” whistleblower reprisal claims in the course of adjudicating the underlying security clearance case.
The CAF’s recent attempt to do so in the Lovinger case resulted in a written decision so nonsensical and embarrassing it was cringeworthy. That’s currently being appealed to the Defense Office of Hearings and Appeals – and I anticipate it resulting in some very prominent egg on some very prominent faces.
A tug-of-war between the IG and DoD CAF
But the broader question – one that no one has apparently considered – is what happens when the IG and security adjudicators reach opposite conclusions on the issue of reprisal? DoD internal policy can’t trump federal law, but it certainly adds a needless layer of complication.
Congress is apparently paying attention and doesn’t like what it sees at the CAF and its parent organization, DoD’s Washington Headquarters Service (WHS). A hugely significant provision in the 2018 National Defense Authorization Act requires DoD – and only DoD – to report to Congress each time a security clearance is taken away outside the regular reinvestigation process.
That has to sting. After all, while there are plenty of good people who work at WHS and DoD CAF, it’s not exactly a glowing endorsement of managerial competency and good faith when your agency is the only one in all of government singled out for extra congressional oversight.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
