In 2016, Darin Jones exposed illicit activity transpiring within the Federal Bureau of Investigation (“FBI”). He disclosed over $40 million worth of cases detailing improper spending. Whistleblower Network News explains how the FBI then fired him from his position as a Supervisory Contract Specialist, a clear retaliatory act against Jones. The FBI then rejected Jones’ claims to whistleblower protection on the basis that for whistleblower status to be apply, Jones must have reported criminal activity to the highest-ranking FBI official in his department, as opposed to reporting it to his immediate supervisor as Jones did. This is despite the fact that it is common practise to report to immediate FBI supervisors. As a consequence, Jones did not receive whistleblower protections.
The question in the legal case was whether the Constitution’s Fifth Amendment permits the government to prosecute someone who lacks necessary connections to government officials.
On December 6th, the National Whistleblower Center (NWC) filed a motion for leave to file an amicus curiae brief in support of Darin Jones. The NWC argues that whistleblower protections should apply. As long as FBI officials have the authority to hire or fire personnel, they are necessarily acting in the shoes of the Attorney General of the U.S., as is described by the law protecting whistleblowing. By consequence, the Whistleblower Protection Act (“WPA”) prohibits these officials from retaliating against a whistleblower if they are aware of the whistleblower’s legal reporting activities. This is because under current law, FBI employees are protected if they disclose wrongdoing to the Attorney General. In Jones’ situation, the FBI officials who fired him were acting on behalf of the Attorney General and therefore are not permitted to retaliate against Jones. The argument of the NWC insists that actions such as Jones’ should be entitled to legal protection.
Darin’s case was not reviewed by the Supreme Court, which marks a loss for the whistleblowing community.
This is not the first time the NWC have attempted to tackle the dysfunctional nature of the FBI whistleblower protection system. In a hearing before the Senate Judiciary Committee, the Senators focused on a report by the Government Accountability Office (GAO-15-112), which found that whistleblower protections at the FBI are weaker than at any other agency.
Stephen M. Kohn, then-Executive Director of the National Whistleblower Center, testified before the Committee stating that “The Department of Justice’s program for protecting FBI whistleblowers is broken.”
“Whistleblowers should not have to fear retaliation for speaking up, and they should not have to wait a decade for relief,” Senator Chuck Grassley (R-Iowa) said during the hearing.
In April 2016, the Senate Judiciary Committee unanimously passed the FBI Whistleblower Protection Enhancement Act (WPEA) which is a first step in tightening provisions for federal employees. Click here to read more about protecting federal employee whistleblowers.
NWC continues to fight to stop retaliation against FBI whistleblowers. In January 2015, the Government Accountability Office identified four priority recommendations regarding whistleblowers and the FBI. The Department of Justice concurred with each of these recommendations but has not updated its regulations to provide clarity, given complainants timeframes for returning decisions, developed an oversight mechanism to ensure compliance with requirements, or assessed the impact of efforts to reduce the duration of complaints or requirements. For FBI agents, whistleblowers both current and future, this is a crisis. The law provides for FBI employees to make protected disclosures without retaliation; the practical reality must so as well.