Yesterday, U.S. District Judge Emmet G. Sullivan ordered that the Army Corps of Engineers must answer for its decision to withhold top-secret security clearance from whistleblower Bunnatine (Bunny) H. Greenhouse.
Bunny Greenhouse was the Corps’ top procurement officer when she objected to the Bush administration’s no-bid contracts for Halliburton subsidiary KBR. When Ms. Greenhouse was scheduled to testify before a Congressional Committee during the Bush Administration, the Army Corps’ then acting General Counsel personally advised Greenhouse it would not be in her bests interests to do so. She was swiftly removed as the Army Corps’ Procurement Executive when she ignored that warning. The Corps also refused to renew her top-secret security clearance (TSSC) on grounds that her new job did not require any clearance.
Ms. Greenhouse filed a lawsuit to get her old job back. In a ruling yesterday, Judge Sullivan overruled the government’s motion to dismiss Ms. Greenhouse’s claim for her TSSC.
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.