[Federal Register Volume 63, Number 200 (Friday, October 16, 1998)]
[Notices]
[Pages 55648-55649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27782]


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MERIT SYSTEMS PROTECTION BOARD


Opportunity To File Amicus Briefs in Roach v. Department of the 
Army, MSPB Docket No. DC-1221-97-0251-W-1, and Hesse v. Department of 
State, MSPB Docket No. DC-0752-97-1079-I-1

AGENCY: Merit Systems Protection Board.

ACTION: The Merit Systems Protection Board is providing interested 
parties with an opportunity to submit amicus briefs on whether the 
Board has authority to adjudicate whistleblower retaliation claims 
involving an appellant's security clearance, and, if so, whether there 
are limits pertaining to the scope of that authority.

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SUMMARY: The appellant in Roach v. Department of the Army, MSPB Docket 
No. DC-1221-97-0251-W-1 filed an individual right of action (IRA) 
appeal under the Whistleblower Protection Act (WPA) alleging that the 
agency, among other actions, suspended his security clearance in 
retaliation for whistleblowing activities. The appellant in Hesse v. 
Department of State, MSPB Docket No. DC-0752-97-1079-I-1, 
simultaneously filed a petition for appeal under 5 U.S.C. Chapter 75, 
and a request for corrective action with the Office of the Special 
Counsel after the agency indefinitely suspended his based upon the 
suspension of his security clearance.
    In Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), the 
Supreme Court held that, in an appeal under 5 U.S.C. Sec. 7513 based on 
the denial or revocation of a security clearance, the Board does not 
have authority to review the substance of the underlying security 
clearance determination. Based upon Egan, as well as other 
considerations, the Board has previously held that the revocation of a 
security clearance was not included within the statutory definition of 
a ``personnel action,'' under 5 U.S.C. 2302(a)(2), and that it lacked 
authority to review allegations of retaliation for whistleblowing when 
the claims pertained to the revocation of a security clearance. See 
Wilson v. Department of Energy, 63 M.S.P.R. 228, 232-32 (1994);

[[Page 55649]]

McCabe v. Department of the Air Force, 62 M.S.P.R. 641, 647-48 (1994), 
aff'd, 62 F.3d 1433 (Fed. Cir. 1995) (Table); Weber v. Department of 
the Army, 59 M.S.P.R. 293, 297 (1993), aff'd, 26 F.3d 140 (Fed. Cir. 
1994) (Table).
    In 1994, however, Congress amended the WPA to include ``any other 
significant change in duties, responsibilities, or working conditions'' 
under the definition of a ``personnel action.'' 5 U.S.C. 
2302(a)(2)(A)(xi). The legislative history of the amendments discusses 
security clearance determinations as an element of that broad category, 
which tends to support a conclusion that the Board has jurisdiction 
over security clearance issues in an IRA appeal. In Roach and Hesse, we 
are considering this issue for the first time. We therefore invite 
interested parties to submit amicus briefs addressing this subject.
    We also recognize that a conclusion that an agency decision 
pertaining to a security clearance is a ``personnel action,'' that may 
be pursued with the Board under the WPA, raises various subsidiary 
issues, some of which are interrelated. These include the following: 
(1) May appellants raise claims of whistleblower retaliation involving 
security clearance determinations as affirmative defenses in Chapter 75 
adverse action appeals, in addition to IRA appeals under the WPA, or 
are such Chapter 75 defenses precluded by Egan; (2) if such 
whistleblowing claims may be raised in both Chapter 75 and IRA appeals, 
should the Board continue to apply its current burden of proof and 
analytical framework (see e.g., Horton v. Department of the Navy, 66 
F.3d 279, 284 (Fed. Cir. 1995), cert. denied, 516 U.S. 1176 (1996); 
Caddell v. Department of Justice, 66 M.S.P.R. 347, 351 (1995), aff'd, 
96 F.3d 1367 (Fed. Cir. 1996)), given the Supreme Court's concern for 
the burden of proof issue in Egan, 484 U.S. at 531-32; (3) what is the 
relationship between a security clearance determination and a decision 
to permit or allow access to sensitive information, such as Sensitive 
Compartmented Information; (4) are there limits to the Board's 
authority over claims and evidence pertaining to security clearances or 
sensitive information; and (5) how should the Board adjudicate claims 
of evidentiary privilege that may arise in security clearance cases, 
and what effect, if any, will such privilege have on a party's burden 
of proof? We, therefore, invite interested parties to submit amicus 
briefs addressing all of these questions, as well as any related matter 
they deem relevant for a full examination of the Board's authority to 
adjudicate security-clearance related whistleblowing claims.
    Vice Chair Slavet did not participate in the issuance of this 
notice.

DATES: All briefs in response to this notice shall be filed with the 
Clerk of the Board on or before November 6, 1998.

ADDRESSES: All briefs shall include the case names and docket numbers 
noted above (Roach v. Department of the Army, MSPB Docket No. DC-1221-
97-0251-W-1 and Hesse v. Department of State, NSPB Docket No. DC-0752-
97-1079-I-1) and be entitled ``Amicus Brief.'' Briefs should be filed 
with the Office of the Clerk, Merit Systems Protection Board, 1120 
Vermont Avenue, N.W., Washington, DC 20419.

FOR FURTHER INFORMATION CONTACT: Shannon McCarthy, Deputy Clerk of the 
Board, or Matthew Shannon, Counsel to the Clerk, (202) 653-7200.

    Dated: October 8, 1998.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 98-27782 Filed 10-15-98; 8:45 am]
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