Darin Jones of Bethesda, Maryland, is struggling to have his whistleblower case heard on the merits, but a loophole in the FBI’s regulations may prevent that from ever happening.
His case raises questions of fairness at a time when the scope of whistleblower protections in the intelligence community are coming under scrutiny at the highest levels of government. Although at first glance Jones’ case resembles that of any contracting officer in any civilian agency, the lack of due process rights—and a possible untimely change in the law—may cost him his day in court.
Jones, 42, married, a former Navy officer, licensed engineer, trained lawyer, and now father-to-be, was a four-year rising star at the General Services Administration when he was recruited by the FBI’s Facilities Contracts Unit in August 2011.
The offer: a GS-15 unit chief and supervisory contract specialist position, in charge of 22 employees and contractors and all of FCU contracting functions (building, maintaining, or renovating FBI facilities).
In spring 2012, less than a year into the job, Jones disclosed to numerous supervisors that a high-level FBI official improperly took a position with an IT contractor that won a $40 million no-bid contract—when the official was allegedly involved with overseeing the solicitation, according to documents filed with the FBI.
Jones later expressed concerns about a departmental award ceremony, held in September 2012 in downtown Washington, for which the Bureau paid $300,000 partly to transport overseas agents and their families. This was shortly after GSA officials came under fire for spending $822,000 for a conference in Las Vegas.
These allegations caught the attention of Senator Claire McCaskill (D-Mo.), prompting her office to send a letter of inquiry to the Justice Department’s Office of Inspector General, which is now looking into the matter.
During Jones’ time with the FBI, two individuals who apparently raised questions about FBI procurement operations were reassigned or transferred out, including the supervisor who hired him, Jones said.
Jones told this author that after he raised concerns with his supervisor’s replacement, the latter warned him that unless he wanted what happened to the recruiting supervisor to happen to him, he better not follow up on any of his disclosures. Further, because Jones was a probationary employee, he could be fired with ease.
And that’s just what happened: he was let go just before completing a year with the Bureau.
After filing and exhausting a complaint for whistleblower reprisal with the Inspector General, Jones appealed to the DOJ’s Office of Attorney Recruitment and Management (OARM). OARM resembles an administrative court, but the proceedings are not open to the public and case decisions are not published anywhere.
Further, although OARM looks to the body of civil service case law developed by the U.S. Merit Systems Protection Board and the U.S. Court of Appeals for the Federal Circuit, it is not bound by it, according to an FBI filing.
OARM dismissed Jones’ complaint in December 2013, ruling that it lacked jurisdiction because he did not make his disclosures high enough up the chain of command. Jones appealed the complaint to David Margolis, the Justice Department’s Deputy Attorney General, where the complaint currently resides. There are no further appeal rights.
Among the officials who received Jones’ disclosures were his supervisors, financial officers, a procurement section chief, a supervisory attorney in the general counsel’s office, and a compliance official.
Under the current version of FBI’s whistleblower protection regulations, found at 28 C.F.R. 27, whistleblower disclosures are protected if made to entities as low in the chain of command as the ranking official in an FBI field office, the FBI Deputy Director, the DOJ Deputy Attorney General, or several inspector general-type offices.
Jones did not reach this high, in part because of lack of familiarity with the FBI’s whistleblower provisions—a sentiment apparently shared by his former colleagues, he said.
Jones also said FBI officials told him not to proceed further with his whistleblowing.
In a 2001 case, OARM apparently exercised discretion to extend protection to a disclosure made to an official not listed in 28 C.F.R. 27.1 when the disclosure was intended to be forwarded to the appropriate officials. And in 1997, the regulations came into existence at President Clinton’s direction, following a long and successful legal campaign waged by FBI whistleblower Dr. Frederic Whitehurst. The regulations’ non-existence at the time of Dr. Whitehurst’s disclosures in the early ‘90s did not prevent him from securing a $1 million settlement for his mistreatment.
Jones argues the 2001 precedent should be applied here, meriting the DOJ’s extension of jurisdiction over his disclosures, especially in light of his supervisors’ efforts to silence him.
Otherwise, his case might fall victim to a belated change in the law.
In October 2012, President Obama signed Presidential Policy Directive 19, which, for the first time, calls for most intelligence community agencies to provide regulatory protections for whistleblowing employees, and for the Attorney General to assess the efficacy of the FBI’s whistleblower protections by April 2013.
PPD-19 defines a protected disclosure as “a disclosure of information by the employee to a supervisor in the employee’s direct chain of command up to and including the head of the employing agency.”
Under the directive, therefore, employees at the NSA or CIA could soon make the same disclosures to the same group of employees that Jones approached but be protected—unless Deputy AG Margolis exercises a measure of discretion and applies jurisdiction in Jones’ case.
As it stands, OARM receives only a handful of cases each year, if the docket number in his case — 13-4 — is any indication.