A recent inquiry to ClearanceJobs posed an unusual scenario:

“I reported that a current federal employee lied on their SF-86. Shortly after reporting this, the individual summoned me to magistrate court. The reason was because I reported anonymous information to their job to get them fired.”

The writer wanted to know whether they could be sued for this, and the answer is clear from the summons: yes, they can – and they were!

Lawsuits Don’t Equal Legal Merit

But before any reader who has done something similar has a panic attack, there is an important qualifier: someone can sue for conceivably anything. Just because a lawsuit is filed doesn’t mean there is any legal merit to the case: it may be tossed out by the judge as failing to state a claim upon which relief can be granted; or the plaintiff may be unable to prove their case; or the defendant may be able to rebut the plaintiff’s claim on the basis of truth or some other legal defense. Alternatively, it is possible such a case could have merit under the right circumstances. These types of cases are very fact-specific and normally based on state-law causes of action like defamation or intentional interference with economic advantage. Thus, the defenses and remedies available can vary widely. Therein lies the problem.

Without knowing a whole lot more about the specific circumstances at issue and the state in which this occurred it is impossible to offer even a guess as to the outcome. There are, however, a few general principles that may be applicable in similar situations.

SEAD 3

First, Security Executive Agent Directive-3, which applies to all U.S. government security clearance-holders, contains a little-known provision requiring clearance-holders to report colleagues to security who they believe pose a potential security concern based on certain, enumerated issues. This requirement, which has been called the “rat provision,” may help shield clearance-holders who report a colleague to security in good-faith compliance with SEAD-3 from successfully being sued based on a theory of federal pre-emption (i.e., that the federal policy trumps state law).

Relevant Considerations in Reporting

Of added relevancy here is potentially whether the reporter was making the report in furtherance of his or her job duties (e.g., security officer or supervisor required by employer policy to report certain information). That doesn’t mean the reported party won’t still sue if they discover the reporter’s identity; it just means that they may not succeed.

Another potential consideration is whether the reporter, clearance holder or not, has a reasonable, good-faith basis to believe that the reported information is true, or whether the report is made with a reckless or malicious disregard for the facts. Any whiff of the latter may make the case significantly more challenging to defend, while a pure case of the former may be tough for a plaintiff to succeed on.

Check with Legal Counsel

There may yet be other considerations that could tilt the balance one way or the other in any given case. All this complication and uncertainty is why many employers are looking warily at SEAD-3’s “rat provision.” The same concern about lawsuits, even frivolous ones, is why employers are increasingly refusing to provide job references for former employees, instead opting only to verify the bare minimum of the employee’s dates of employment, salary, and job title.

Individuals and employers need to determine for themselves, ideally with the assistance of legal counsel, whether to report or not report a colleague in any given scenario. Conceivably, however, a willful failure to report under SEAD-3 could result in adverse security clearance or disciplinary action against the non-reporting party, as well – although I’ve yet to see that. Thus, this is an area fraught with potential problems and one deserving of additional guidance from the Office of the Director of National Intelligence.

 

This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation. 

 

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Sean M. Bigley retired from the practice of law in 2023, after a decade representing clients in the security clearance process. He was previously an investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management) and served from 2020-2024 as a presidentially-appointed member of the National Security Education Board. For security clearance assistance, readers may wish to consider Attorney John Berry, who is available to advise and represent clients in all phases of the security clearance process, including pre-application counseling, denials, revocations, and appeals. Mr. Berry can be found at https://www.berrylegal.com/.