This is the final section in a three-part series on whistleblowers and security clearances. Read more at Security Clearances, Blowing the Whistle and Eligibility: What are the Risks? and Security Clearances and Employee Rights.
The Cleared Whistleblower and Incident Reports.
There are whistleblowers, and then there are whistleblowers.
Imagine a Whistleblower Spectrum. On one end of the spectrum we have the truly legitimate whistleblower who has real evidence of a “violation of . . . law, rule, or regulation.” This employee is a real asset to the organization. And to keep things as simple as possible, whistleblowers on this end of the spectrum exactingly follow proper whistleblower protocol, itself a morass.
On the other end of the spectrum we have an employee who might very well be a truly legitimate whistleblower. This employee, however, has a questionable record of performance. He is a conspiracy theorist in training who imagines a larger plot in every decision, and his judgment is on track just often enough to keep him dangling by a thread. To make matters worse, he fails to even consider the sensitivity of his evidence and whistleblowing protocol in making his report.
Do not misunderstand. Wherever an employee falls on the spectrum, if the employee properly filed a report of apparent evidence of a “violation of . . . law, rule, or regulation” means he warrants all the whistleblower protection the Acts can afford.
But there are a host of reasons why a supervisor in good faith might file a report in response to events leading to a whistleblowing event. Indeed, the unwitting employer may not even know the events are leading to or associated with an impending and legitimate whistleblowing event.
For instance, perhaps the employee accessed information beyond his “need to know” to gather what ultimately becomes evidence. Incident Report. Suppose the employee fails to properly secure the information he’s collecting for what ultimately becomes evidence. Incident Report. Suppose the employee uses the unclassified copier to reproduce classified material he later uses as evidence. Incident report. Suppose the employee consults an unauthorized agency and shares classified information with those holding no clearance. Incident Report. Suppose the employee uses the unclassified shredder for extra classified copies of evidence. Incident Report.
All of these hypotheticals are technically unrelated to the whistleblowing event, and none of the reports are filed as an act of reprisal. Indeed they all arguably fall within NISPOM’s definition of adverse information, “information that suggests that [an employee’s] ability to safeguard classified information may be impaired, or that [an employee’s] access to classified information clearly may not be in the interest of national security.”
And suppose the employee is once again blowing his whistle and his supervisor is just getting tired of it. Incident Report? The supervisor could very well file an arguably objective incident report for malicious reasons. Prove it.
Once the report is filed, DoD can dispose of it how it sees fit in the interest of national security.
In response to ClearanceJobs.Com query about just this point, Washington attorney John Berry advises, “I have seen JPAS incident reports improperly generated over a number of issues over the years causing significant difficulties to those who were the subject of improper JPAS reporting.”
Indeed, the determination that an event is a legitimate whistleblowing event may not be established until the scenario plays itself out. Berry said, “I don’t think [WPA] protects the whistleblower necessarily on the front end, but if you could demonstrate that the JPAS report was done as a means of whistleblower retaliation and get a ruling to the effect, [a ruling] that the Agency complied with or was forced by a court to accept, I think that it could possibly order the Agency to alter the record.”
And if the whistleblower fails to follow proper procedures, then he may set himself up for a JPAS Incident Report: “If the procedures are not followed, and there is a desire on the part of management to initiate [a report],” said Berry, “a JPAS report could be initiated. Again, this depends on how management reacts.”
Even when whistleblowing protocol is followed exactingly, ICWPA would not necessarily prevent an employer from filing a JPAS Incident Report, since those reports are not covered by 5 USC 2302.
As Berry said, “Something like this would have to be significantly litigated in order to succeed.”
Remember, Abby Wright in Conyers’ oral arguments answered unopposed the Court’s query regarding the breadth of MSRB bounds: “review of adverse action doesn’t extend to the underlying national security determination . . . an eligibility determination is not in itself an adverse action, and nothing in the [Civil Services Reform Act] empowers or directs the board to go beyond the adverse action itself.”
Technically, WPA and ICWPA protect the cleared whistleblower from any resulting adverse action. They do not, however, prevent the supervisor from filing a JPAS Incident Report, and they do not extend new authorities to the MSPB.
Remember, the Incident Report is not a personnel action, nor is it an adverse action.
It just is.
That the Cleared Whistleblower is at the mercy of the JPAS Incident Report is apparent.
1. WPA and ICWPA address personnel actions. A JPAS Incident Report is not, by definition, a personnel action.
2. A JPAS Incident Report is not an adverse action.
3. Justification for filing an incident report is broad, and one would naturally err on the side of national security.
4. Whistleblowing laws prescribe very specific procedures – failure to follow those procedures exactingly exposes the informant.
5. Once the report is in the system – especially if it is simply inaccurate – save your money. You’re going to need a lawyer.
* D.C. attorney John V. Berry kindly responded to the author’s queries regarding this complicated topic, and his responses were integrated into the article. More of his insights are available at the Security Clearance Law Blog. Any misrepresentations about specific laws surrounding this subject, though completely unintended, are the responsibility of the author.