Legal Briefs: Whistleblowers revoked

Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

Whistleblowers tend to make information public that their bosses don't want made public. So it's no wonder that bosses often decide to restrict whistleblowers' access to government secrets by revoking their security clearances.

The Office of Special Counsel, which handles whistleblower complaints, thinks managers should be prevented from taking away security clearances in retaliation against whistleblowers. But the Whistleblower Protection Act doesn't specifically protect whistleblowers from having their security clearances revoked.

In 1994, Congress amended the act to protect whistleblowers from any "significant change in duties, responsibilities or working conditions" that happens in retaliation for going public with information. The OSC thinks security clearance denials fall under that category.

But in a decision June 11, the Merit Systems Protection Board ruled that because the act doesn't specifically list security clearance revocation as a prohibited action, whistleblowers have no legal recourse to get their clearances back.

The board sided with the Defense Department, Justice Department, Office of Personnel Management and Central Intelligence Agency, all of which wanted to keep the right to revoke whistleblowers' security clearances. The Defense Department argued that it would be unconstitutional for Congress to restrict that right because the authority to classify and control access to classified information is a power the Constitution reserves for the President.

Lesson: The government's not going to tell you its secrets if you can't keep them.

Roach v. Department of Army, DC-1221-97-0251-W-1, and Hesse v. Department of State, DC-0752-97-1097-I-1, Merit Systems Protection Board, June 11, 1999.

Truly Disabled

The Supreme Court this week spelled out what it takes to be called disabled in America. In three separate decisions, the court ruled that the Americans with Disabilities Act does not protect people with bad eyesight or other correctable conditions.

Remedies such as eyeglasses or medication should be considered when determining whether someone is protected under the ADA, the majority said.

Under the rulings, correctable physical impairments do not justify a discrimination lawsuit against employers. The three decisions affecting the ADA revolved around lawsuits that alleged illegal bias against two nearsighted pilots, a truck driver almost blind in one eye and a mechanic with high blood pressure.

"A 'disability' exists only where an impairment 'substantially limits' a major life activity, not where it 'might,' 'could,' or 'would' be substantially limiting if corrective measures were not taken," the court said.

Lesson: It's only beginning to become clear how a disability is defined under the ADA.

Murphy v. UPS (97-1992), Albertsons, Inc. v. Kirkingburg (98-591), Sutton v. United Airlines (97-1943), U.S. Supreme Court, June 22, 1999.