Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

NWC Executive Director Stephen M. Kohn has asserted in the 12-part blog series entitled “What’s Wrong With The Senate Whistleblower Bill?” that the “when read together, the numerous ‘poison pill’ provisions inserted into S. 372 all but guarantee that very few, if any, federal employee cases will ever be removed to district court for a real trial.”

On the other hand, according to a news media report, the White House and members of the Senate including Senator Daniel K. Akaka (D-HI) assert that the Senate bill would dramatically improve protections for federal employees and give whistleblowers, like Bunny Greenhouse, access to federal court.  

This assertion is wrong, however.

The Senate bill limits access to jury trials to employees who suffer a major personnel action as defined by Section 7512 of the Civil Service Reform Act (5 U.S.C. § 7512).  This means that a whistleblower must suffer a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less (there are additional limitations to these five actions) in order to potentially receive a jury trial in federal court.

In Ms. Greenhouse’s case, a federal court has already ruled that she did not suffer a major personnel action as defined by Section 7512.  A copy of the Court's ruling is linked here.  This ruling directly contradicts the exaggerated claims by the White House and proponents of the Senate bill about the true scope of the bill’s jury trial provisions.  

It is clear that Ms. Greenhouse would not qualify for the right to jury under the Senate’s proposed whistleblower bill unless the Senate bill is changed to remove the limitation to jury trials for only those cases involving major personnel actions.

So, the question is what do you think will happen?

My opinion is that federal agency employers will just get “smarter” about how they retaliate against a whistleblower.  They will avoid the list of actions that could potentially expose them to real consequences – a jury trial in federal court.  They will suspend a whistleblower for 13 days instead of 14 days.  They will transfer employees to another position outside their area of expertise without a reduction in grade or pay.  There are many ways that an employer can create a hostile working environment and silence a whistleblower.  The only way to truly protect whistleblowers is to prohibit any retaliation against a whistleblower.

I urge you to read Bunny’s letter and get informed about the provisions in the current Senate bill.
 

Normally, “an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII,” Judge Sullivan said, quoting Ryan v. Reno,
168 F.3d 520, 524 (D.C. Cir. 1999).  “In other words,” Judge Sullivan continued, “the determination of whether the agency’s proffered reason for denying plaintiffs’ security clearances was legitimate or pretextual would necessarily require the court to assess the merits of the decision to deny the clearance – precisely the assessment prohibited by the Supreme Court’s holding” in Department of the Navy v. Egan, 484 U.S. 518 (1988).  Judge Sullivan established new precedent, holding that “the decision to strip Greenhouse of her security clearance was based on the Corp’s claim that Greenhouse didn’t need it any more based on the jobs they intended her to perform” thereby making it “entirely unrelated to any security-sensitive considerations.”  
 
Ms. Greenhouse's attorney Michael D. Kohn issued a statement explaining why this decision is so important: “A blanket refusal to permit a court to review the reasons for the denial of security clearances normally leaves national security whistleblowers completely vulnerable to retaliation.  This decision highlights how a decision to withhold security clearance can have nothing to do with national security and everything to do with unlawful retaliation,” Kohn added.

The decision for Ms. Greenhouse arrives just as the Senate Homeland Security and Government Affairs committee is prepares to markup the Whistleblower Protection Enhancement Act (WPEA), S. 372, to provide whistleblowers access to jury trials and expand coverage for employees of national security agencies.  You can watch the markup live tomorrow on the NWC homepage or follow the live updates by whistleblower expert David K. Colapinto on Twitter @ StopFraud.  You can also take action by clicking here.

Judge Sullivan’s Memorandum Opinion and Order in Greenhouse v. Geren, Case No. 07-182 (July 27, 2009)
 

*Morgan Arronson (a NWC intern) contributed to this posting.

Here is a decision of the Equal Employment Opportunity Commission (EEOC) holding that while it cannot restore a security clearance, it can require that a security investigation be reopened to redress a supervisor's retaliatory call for such an investigation.  The case is Marta Fonda-Wall v. v. Department of Justice, Appeal No. 0720060035 (July 29, 2009). The EEOC also increased the award of compensatory damages to Fonda-Wall to $200,000, and ordered other relief.  Here is an excerpt from the EEOC's decision on security clearances:

the Commission has consistently affirmed the dismissal of complainants' claims alleging that they were subjected to discrimination due to their security clearance being revoked or denied, finding that such claims fail to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), and are outside the purview of the Commission's jurisdiction. See, e.g., Rezaee v. Department of the Air Force, EEOC Appeal No. 01A60451 (April 25, 2006) (citing EEOC National Security Guidance); Carr v. Department of the Army, EEOC Appeal No. 01A44011 (November 4, 2004) (citing EEOC National Security Guidance).
However, the Commission retains authority to review whether the grant, denial, or revocation of a security clearance was carried out in a discriminatory manner. Id.; Schroeder v. Department of Defense (Defense Mapping Agency), EEOC Request No. 05930248 (April 14, 1994).

In Dodson v. Department of Defense, the Commission found discrimination where a manager sought to have an employee's clearance revoked in retaliation for filing EEO complaints. EEOC Appeal No. 01954101 (June13, 1997). The Commission did not address whether the agency actually decided to revoke the clearance, nor did it analyze the substance of any information that was part of the decision to grant or revoke the clearance. The decision addressed the manager's motivation for seeking to have the employee's clearance removed. Further, in Chatlin v. Navy, the Commission found that an agency's decision to initiate areview of a security clearance was not the result of any substantive decision making process, and was thus reviewable by the Commission. EEOC Request No. 05900188 (June 1, 1990).

Upon review, we find that this case presents a situation within the Commission's authority. *** Within thirty (30) calendar days of the date this decision becomes final, the agency shall reactivate the investigation into the suspension of complainant's security clearance, taking into account our finding of discrimination, and if it is determined that she is eligible for a security clearance, that she be reinstated to her former position or offered a substantially equivalent position.
 

Chairman Towns noted how, "Whistleblowers risk their careers to challenge abuses of power and gross waste of government resources." He added that, "enhancing whistleblower protections helps us to fulfill our role of bringing about a more honest, accountable, and effective government for the American people." He reported that his committee had worked with the House Intelligence Committee to craft strong whistleblower protections for national security personnel that would also protect classified information.  He explained that having an effective whistleblower protection will help federal employees feel safe to raise issues where they can be most effective, and without having to resort to the media.

Rep. Darrell Issa (R-CA), the ranking member of the Committee, also spoke of the need to protect whistleblowers, "absolutely, without fail."  He called the need for enhancement, "obvious and vital." He noted that such protections should not come at the expense of national security, and he looked forward to working toward resolution of this issue and passage of the bill.

Rep. Dennis Kucinich (D-OH) said that whistleblowers "deserve to be thanked, not punished." "If we can see what is happening, then we have a chance to make it right."

Mr. Rajesh De, Deputy Assistant Attorney General for the Office of Legal Policy said that the administration "strongly supports protecting the rights of whistleblowers." He agreed that the time had come to amend the current system.  He specifically supported "make whole" compensatory damages for whistleblowers.  He supports providing protection for raising issues to your immediate supervisor, even if it is part of the employee's normal duties. He said that national security employees should also have protections. While he did not address the issue of jury trials directly, he did say that for national security employees, the administration wants a new executive branch agency to be responsible for fielding and deciding whistleblower issues.  To experienced whistleblower advocates, that sounds a lot like the current, and failed, Merit System Protection Board.  Mr. De looks forward working this issue out with the Committee. Perhaps the administration is accepting that jury trials are inevitable for everyone outside of national security. At a minimum, Mr. De's statement certainly shows that the administration saw no need to speak against jury trials when it had the chance.

Ms. Teresa Chambers described her experienced being removed as Chief of the U.S. Park Police after telling the media that her agency was understaffed.  She explained that whistleblowers need a remedy that is "fast and fair."  She said that jury trials are the best reform Congress can enact.

Representative Chris Van Hollen (D-MD), one of the sponsors of H.R. 1507, reported that he is now "hopeful" that the Senate will pass WPEA.  "We wouldn't know of the flaws in the existing system if you had not come forward to tell your stories," he said, thanking the witnesses.  He said that protecting whistleblowers will also protect our taxpayers and our country.

Dr. Louis Fisher is the constitutional law specialist of the Library of Congress. He presented a remarkable history of the role of Congress in national security and foreign affairs. He explained that as long as the administration reserves for itself the decision of who needs to know classified information, then the administration will be able to escape review of abusive practices.  He noted that in 1990, Congress passed a law governing the CIA that made clear that Congress itself has a need to know to carry out its duties as a co-equal branch of government.

Michael German of the ACLU explained his insightful proposal to protect national security whistleblowers.  First, he said, we need to protect employees when they speak out as part of their official duties.  Second, we need a means for all employees to alert members of Congress about protected disclosures, so those members of Congress can pursue lawful means to review classified information contained in such disclosures.

David Colapinto of the National Whistleblowers Center explained how all federal employees, including those working in national security, have access to jury trials for claims of race, gender, religion and national origin discrimination. If an employee needs agency information, the agency's EEO office can review the information and either approve its release or provide a declassified substitute. He argued that the same procedure can be used for whistleblower cases. Any system that relies on administration appointees, such as the MSPB, will not work.  Only jury trials will be effective. 

Today's hearing marks a turning point in the history of whistleblower protection.  For the first time, legislators are working with a light shining from the end of the tunnel.  We are not out of the tunnel yet, however.  Our political process still needs to impress on the decision makers that whistleblowing is important for our transparent democracy, and that whistleblowers must have access to that same crucible of truth that we use for car accidents and criminal defendants -- jury trials. The momentum is with us now. We need to maintain our spine and our spirit to bring us to the finish line.

"I am doing everything I can to persuade Congress that whistleblowers deserve protection, but I cannot do it alone!" Bunny adds. "Please contact Congress and tell them that true oversight and accountability that this nation and the world needs now cannot exist without protection for all federal employees. I trust that you will pass this letter on to your friends, coworkers, and community groups to let them know that now is the time to act to protect all federal employees."

For 30 years, federal agencies have successfully lobbied against protecting federal employee whistleblowers. We need to make sure that they are not successful this time! As President Obama said, "We can do it!" So please contact President Obama and tell him not to be pushed by the agency bureaucrats who are hostile to change and want to leave federal employees unprotected.

The House Committee typically provides live video of its hearings.  Stay tuned.