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DOJ OIG Release Memo to Deputy Attorney General Regarding the Department of Justice’s Compliance with Whistleblower Protections for Employees with a Security Clearance

Department of Justice (DOJ) Inspector General Michael E. Horowitz announced today the release of a Management Advisory Memorandum to the Deputy Attorney General regarding the DOJ’s compliance with whistleblower protections for employees with a security clearance.

The DOJ Office of the Inspector General (OIG) identified these concerns in connection with the OIG’s assessment of complaints the OIG received from employees alleging that their security clearances were suspended in retaliation for protected whistleblowing activity. We identified several issues with the DOJ’s policy for employees whose security clearances have been suspended, revoked, or denied.

DOJ policy does not include an OIG appeal process for employees whose security clearance has been suspended for more than 1 year and who allege retaliation, as required by federal statute. This lack of appeal process is especially problematic at DOJ components that indefinitely suspend employees without pay for the duration of the security investigation and review process, which can sometimes last years.

Federal law also requires government agencies to establish a security clearance review process that, to the extent practicable, “permit[s]…individuals…[with a retaliation claim] to retain their government employment status while [the security clearance review] is pending.” DOJ policy does not address this requirement, and it also does not place any limitations, or even provide guidance, on how long an employee can be kept indefinitely suspended without pay while the component’s security review process is ongoing.

The DOJ policy does not require DOJ components to consider any practicable alternatives to indefinite suspension without pay during a security investigation for employees, including those with a reprisal claim, such as identifying duties that do not require a security clearance. In many cases, it is financially unrealistic for an employee suspended without pay who claims retaliation “to retain their government employment status while [the security clearance review] is pending,” given the length of time a security clearance inquiry often takes. As a practical matter, therefore, the ability of an employee who has been indefinitely suspended without pay to retain their employment status can be rendered meaningless when that suspension lasts for a substantial period of time. Therefore, existing DOJ practice is inconsistent with the intent of the federal statute.

In addition to the concerns identified in the DOJ security clearance policy, we identified similar issues with the security clearance policies of the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The DOJ OIG made four recommendations to the DOJ to address the concerns we identified. The DOJ concurred with all four recommendations.

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