If you are a federal employee who has had your security clearance indefinitely suspended without pay in retaliation for protected whistleblowing activity, recent developments regarding the Department of Justice’s compliance with whistleblower protections are highly relevant to your situation. These updates highlight gaps in the current process that may be leaving you without the recourse you deserve. The federal whistleblowing lawyers at the National Security Law Firm are equipped to navigate these complexities and advocate for your rights, ensuring that your case is handled with the seriousness and expertise it requires.
The Department of Justice (DOJ) plays a pivotal role in safeguarding the integrity of our nation’s legal system. Yet, recent concerns have emerged regarding its compliance with whistleblower protections, particularly for employees with security clearances. These concerns, highlighted by the Office of the Inspector General (OIG), revolve around the DOJ’s adherence to statutory requirements, specifically those laid out in 50 U.S.C. § 3341 and the Director of National Intelligence’s (DNI) Security Executive Agent Directive 9 (SEAD 9). These provisions are designed to protect federal employees from retaliation when their security clearances are suspended, revoked, or denied due to protected whistleblowing activities.
The Core Issue: A Gap in Whistleblower Protections
The crux of the issue lies in the DOJ’s existing policies, particularly DOJ Instruction 1700.00.01. While this policy outlines a process for employees to appeal a security clearance revocation or denial due to alleged retaliation, it fails to address situations where a clearance has been suspended for more than a year. This oversight is problematic, especially since some DOJ components, like the Federal Bureau of Investigation (FBI), routinely suspend employees without pay for extended periods during the security review process. In these cases, employees are left in limbo, with no formal process to contest a suspension they believe to be retaliatory.
The OIG’s investigation revealed that the average time between suspending an employee’s clearance and deciding whether to revoke or reinstate it is approximately 17.5 months—far exceeding the one-year threshold established by 50 U.S.C. § 3341. This extended suspension period not only jeopardizes employees’ financial stability but also undermines their right to due process.
The Legal Requirements: A Need for Reform
Under 50 U.S.C. § 3341, all Executive Branch agencies must establish uniform policies allowing employees to appeal the suspension, revocation, or denial of their security clearance if they believe the action was retaliatory. The statute also mandates that agencies provide a process for employees to retain their government employment status during the security clearance review, to the extent practicable. However, the DOJ’s current policy falls short in both respects, as it does not include a provision allowing employees to contest a retaliatory suspension lasting over a year, nor does it provide meaningful opportunities for these employees to maintain their employment status during this time.
This situation is particularly concerning given the DOJ’s role in enforcing the law. The absence of a fair and timely appeal process not only exposes employees to prolonged financial and professional harm but also creates a risk of the security clearance process being misused to pressure employees into resigning.
The Path Forward: Recommendations for Change
The OIG has put forth several recommendations to bring the DOJ’s policies in line with statutory requirements:
- Establish a Process for Filing Retaliation Claims: The DOJ must revise its policies to allow employees to file a retaliation claim with the OIG if their security clearance review or suspension lasts more than a year.
- Notification of Rights: When their clearance has been suspended for over a year, employees should be notified in writing of their right to file a retaliation claim with the OIG.
- Retaining Employment Status: The DOJ should implement a process to ensure that, to the extent practicable, employees with a retaliation claim can retain their government employment status during the security clearance review process.
- Regular Review of Suspension Cases: The DOJ should review monthly reports on suspension cases exceeding 90 days to assess compliance with its requirement to resolve these cases expeditiously.
The National Security Law Firm (NSLF) closely monitors these developments, as they have significant implications for federal employees with security clearances. If you believe your security clearance has been unfairly suspended or revoked in retaliation for whistleblowing, it is crucial to understand your rights and the processes available for challenging these actions.
At NSLF, we are committed to protecting the rights of federal employees and ensuring that the processes governing security clearances are fair, transparent, and compliant with the law. For more information or to discuss your specific situation, please contact us today.
Ready to Take the Next Step? Let’s Talk
If you have questions about how these changes might impact your situation, we’re here to help. Schedule a consultation with one of our experienced attorneys today, or call us directly at 202-600-4996. At NSLF, we understand the complexities of security clearance law and are dedicated to fighting for your rights.
