WASHINGTON – Documents received from the FBI regarding the employment and security clearance of Whistleblower Marcus Allen show clear retaliation for whistleblowing in violation of numerous statutes.
In a letter to Justice Department Inspector General Michael Horowitz and Office of Professional Responsibility Counsel Jeffrey Ragsdale, Empower President Tristan Leavitt asked the offices to investigate whether the FBI improperly suspended Mr. Allen indefinitely without pay and delayed the security clearance process in reprisal for protected whistleblower disclosures—in violation of 5 U.S.C. § 2303(a) and 28 C.F.R. § 27.2.
The letter comes as Allen approaches the two-year anniversary of when the FBI suspended him without pay and without a resolution to his case.
Leavitt previously wrote to Horowitz that the actions against Allen regarding his security clearance were in violation of Presidential Policy Directive 19 (“PPD-19”) and 50 U.S.C. § 3341(j)(1) as retaliation for his protected whistleblowing (Attachment A). Leavitt explains that since the April letter, the FBI has continued to prolong Allen’s improper suspension without pay, imposing further financial hardship on him and his family by, among other things, withholding the documents necessary to challenge the proposed revocation of his clearance for four months from May through September 2023.
Through those documents delivered more than four months late, Empower discovered that the FBI had actually recommended on September 30, 2021 that his clearance be renewed based on its normal periodic reinvestigation process—only to reverse course and launch a retaliatory clearance review outside that process in reaction to his September 29, 2021 protected disclosures raising questions about the accuracy of the FBI Director’s testimony to Congress regarding law enforcement infiltration of groups involved in the January 6th riot at the U.S. Capitol.
Leavitt explains in the letter how the FBI violated the whistleblower protection laws:
“Rather it is the illegality of the FBI’s personnel actions taken before a security clearance determination had been made, and during the extended time when the FBI was still considering whether to revoke Mr. Allen’s clearance. In other words, the decision to suspend Mr. Allen indefinitely from duty without pay and delay of the security clearance process, while also preventing him from taking another job and accepting charitable contributions, constructively terminated Mr. Allen from FBI employment for all practical purposes without ever needing to reach a final determination on his security clearance.
“Those personnel decisions to suspend him indefinitely without pay and delay the security clearance process are separate and apart from the security clearance determination itself and independently constitute statutorily prohibited whistleblower retaliation.”
Leavitt went on to write:
“Apart from the FBI’s misuse of the security clearance process as a pretext for otherwise prohibited personnel practices and its false claims to the contrary, the FBI’s suspension of Mr. Allen without pay is illegitimate because:
- The FBI has no authority to “suspend” a security clearance before revocation (as opposed to suspending the employee’s access to classified information);
2. The FBI has no authority to make a security clearance a condition of FBI employment;
3. FBI employees can be assigned to duties that do not require access to classified material;
4. There is no basis for the FBI to suspend an employee from duty while waiting for an adjudication or re-adjudication of their security clearance; and
5. Pursuant to 5 U.S.C. § 6329b, the FBI has the authority to place employees whose clearances are being reevaluated on investigative leave, but the FBI appears to suspend these employees without pay to cause them additional financial distress and evade congressional oversight.
“Thus, if the FBI had not been substantially motivated to retaliate against Mr. Allen for his protected whistleblower disclosures, it could have vindicated its interests in re-adjudicating his security clearance without taking the various adverse personnel actions that it did.”
For the full background about Allen’s case and the letter click here. The text of the letter is below.
To read the October letter regarding the request for reconsideration of revocation of Allen’s security clearance click here.
Note: Marcus Allen is being represented in this matter by both Empower Oversight and the American Center for Law and Justice.
January 22, 2024
Via Electronic Transmission
Inspector General Michael Horowitz
U.S. Department of Justice
Office of the Inspector General
950 Pennsylvania Avenue NW
Washington, DC 20530-0001
Counsel Jeffrey Ragsdale
U.S. Department of Justice
Office of Professional Responsibility
950 Pennsylvania Avenue NW, Suite 3266
Washington, DC 20530-0001
RE: Complaint of Reprisal Against Federal Bureau of Investigation Employee for Making a Protected Disclosure in Violation of 5 U.S.C. § 2303(a) and 28 C.F.R. § 27.2.
Dear Inspector General Horowitz and Counsel Ragsdale:
I write on behalf of Mr. Marcus Allen, a suspended employee of the Federal Bureau of Investigation (“FBI”). Pursuant to 28 C.F.R. § 27.3(a)(1), we request that you investigate whether the FBI improperly suspended Mr. Allen indefinitely without pay and delayed the security clearance process in reprisal for protected whistleblower disclosures—in violation of 5 U.S.C. § 2303(a) and 28 C.F.R. § 27.2. It is also important to point out that the FBI has compounded the severe financial distress Mr. Allen and his family have suffered while he is suspended without pay by preventing him from taking “outside” employment or accepting charitable contributions solicited for his family. While these decisions are may not individually constitute “personnel actions” under 5 U.S.C. § 2303, in combination with the personnel actions of his indefinite suspension without pay and delay of the security clearance process, they create an untenable financial position for Mr. Allen that appears to be designed to force him to resign.
About nine months ago, I argued in a letter to Inspector General Horowitz dated April 26, 2023, that the FBI suspended Mr. Allen’s security clearance in violation of Presidential Policy Directive 19 (“PPD-19”) and 50 U.S.C. § 3341(j)(1) as retaliation for his protected whistleblowing (Attachment A). During those nine months, the FBI has continued to prolong Mr. Allen’s improper suspension without pay, imposing further financial hardship on him and his family by, among other things, withholding the documents necessary to challenge the proposed revocation of his clearance for four months from May through September 2023.[1]
Once the FBI finally met its obligation to provide those documents, we discovered that the FBI had actually recommended on September 30, 2021 that his clearance be renewed based on its normal periodic reinvestigation process—only to reverse course and launch a retaliatory clearance review outside that process in reaction to his September 29, 2021 protected disclosures raising questions about the accuracy of the FBI Director’s testimony to Congress regarding law enforcement infiltration of groups involved in the January 6th riot at the U.S. Capitol. Based on this and other evidence, we filed with the FBI a request to reconsider its proposed revocation of Mr. Allen’s clearance on October 20, 2023 (Attachment B). That request argued that the evidence in the FBI’s files contradicted the alleged basis for the revocation, and thus the clearance decision was wrong on the merits.
Today’s submission to you, however, is not about the FBI’s security clearance process.
Rather it is about the illegality of the FBI’s personnel actions taken before a security clearance determination had been made, and during the extended time when the FBI was still considering whether to revoke Mr. Allen’s clearance. In other words, the decision to suspend Mr. Allen indefinitely from duty without pay and delay of the security clearance process, while also preventing him from taking another job and accepting charitable contributions, constructively terminated Mr. Allen from FBI employment for all practical purposes without ever needing to reach a final determination on his security clearance.
Those personnel decisions to suspend him indefinitely without pay and delay the security clearance process are separate and apart from the security clearance determination itself and independently constitute statutorily prohibited whistleblower retaliation.
Apart from the FBI’s misuse of the security clearance process as a pretext for otherwise prohibited personnel practices and its false claims to the contrary, the FBI’s suspension of Mr. Allen without pay is illegitimate because:
- The FBI has no authority to “suspend” a security clearance before revocation (as opposed to suspending the employee’s access to classified information);
2. The FBI has no authority to make a security clearance a condition of FBI employment;
3. FBI employees can be assigned to duties that do not require access to classified material;
4. There is no basis for the FBI to suspend an employee from duty while waiting for an adjudication or re-adjudication of their security clearance; and
5. Pursuant to 5 U.S.C. § 6329b, the FBI has the authority to place employees whose clearances are being reevaluated on investigative leave, but the FBI appears to suspend these employees without pay to cause them additional financial distress and evade congressional oversight.
Thus, if the FBI had not been substantially motivated to retaliate against Mr. Allen for his protected whistleblower disclosures, it could have vindicated its interests in re-adjudicating his security clearance without taking the various adverse personnel actions that it did.
For example, the FBI could have assigned Mr. Allen to other duties not requiring access to classified information, or it could have placed him on investigative leave with pay until it decided in a timely, efficient manner whether to revoke his clearance or terminate his employment. Instead, the FBI decided to constructively terminate Mr. Allen, while holding him in administrative purgatory for the 27 months between launching its retaliatory security clearance review on October 19, 2021 and today—when it is ostensibly still considering final action on Mr. Allen’s pending request for reconsideration.
The FBI has done all of this while engaging in other conduct that severely hurt Mr. Allen and his family. The FBI violated its own standards for timely responding to requests for approval of outside employment, interfering with Mr. Allen’s ability to mitigate the severe financial hardship caused by the FBI’s removal of his income. The FBI has also denied him the opportunity to accept charitable contributions.[2]
The FBI exploited its financial vice grip on Mr. Allen by taking the personnel action of needlessly withholding his security clearance file for four months after it proposed revoking his clearance, thus blocking Mr. Allen’s ability to file a request for reconsideration and extending the time Mr. Allen was forced to survive without pay and without outside income.
The FBI decisions to suspend Mr. Allen without pay and delay the security clearance process are personnel actions that violate 5 U.S.C. § 2303(a) and 28 C.F.R. § 27.2. Taken together, and in combination with the other decisions, they constitute gratuitous retaliation and were totally unnecessary for the FBI to vindicate its legitimate interests in protecting classified information. In short, under FBI whistleblower protections, the personnel decisions suspending Mr. Allen without pay and delaying the security clearance process cannot be justified on their own merits.
BACKGROUND
Mr. Allen served honorably in the United States Marine Corps from 2000 to 2005 as an intelligence analyst and rifleman. He received a Top Secret security clearance in 2001. Mr. Allen was deployed to Kuwait and served two tours in Iraq, contributing to Operation Iraqi Freedom. During those deployments Mr. Allen was exposed to live enemy fire on multiple occasions despite being there to serve in intelligence and analytical roles. The Marine Corps recognized his outstanding military service by awarding him the Navy and Marine Corps Commendation Medal and the Navy and Marine Corps Achievement Medal. In 2004 he was the Marine Corps Intelligence Activity Runner-Up for Intelligence Non-Commissioned Officer of the year.
After being honorably discharged from the Marine Corps in 2005, Mr. Allen worked as an intelligence analyst for several civilian contractors. One of them, SM Consulting/SAIC, provided a support role for the FBI. Through this work, Mr. Allen was hired by the FBI in 2015 as a Staff Operations Specialist in the FBI’s Charlotte Field Office. He also accepted collateral duties as a Critical Incident Operation Specialist. Among other responsibilities, he was assigned to provide ad hoc all-source analytic support to Charlotte FBI’s Joint Terrorism Task Force (“JTTF”), helping provide it with strategic awareness on any issues that might impact its work.
Mr. Allen has consistently received an “Exceeds Fully Successful” rating on his performance evaluations since he was hired by the FBI. In 2019 the Charlotte Field Office recognized him with its Employee of the Year Award. He also received a time-off award that year. From 2015 to 2021, Mr. Allen was never disciplined or counseled in any form by the FBI.
APPLICABLE LAW AND REGULATIONS
Under 5 U.S.C. § 2303:
(a) Any employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—
(1) made—
(A) in the case of an employee, to a supervisor in the direct chain of command of the employee, up to and including the head of the employing agency;
…
(2) which the employee or applicant reasonably believes evidences—
(A) any violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Under § 2303(a), a “personnel action” means any action described in clauses (i) through (x) of 5 U.S.C. § 2302(a)(2)(A), which includes “an action under chapter 75 of this title or other disciplinary or corrective action,” “a detail, transfer, or reassignment,” and “a decision concerning pay, benefits, or awards….”
These statutory protections are implemented in the Code of Federal Regulations at 28 C.F.R. § 27.2(a):
Any employee of the FBI, or of any other component of the Department [of Justice (“DOJ”)], who has authority to take, direct others to take, recommend, or approve any personnel action shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, a personnel action, as defined below, with respect to any FBI employee as a reprisal for a protected disclosure.
Under 28 C.F.R. § 27.2(b), a “personnel action” means any action described in clauses (i) through (xi) of 5 U.S.C. 2302(a)(2)(A), which includes an additional action not relevant here.
I. PROTECTED DISCLOSURE
A. Many Members of the Media Questioned the Truthfulness of FBI Director Christopher Wray’s March 2, 2021 Testimony to Congress About the FBI’s Infiltration of January 6 Groups.
On March 2, 2021, two months after the January 6, 2021 attack on the Capitol, FBI Director Christoper Wray testified before the Senate Committee on the Judiciary for a hearing titled “Oversight of the Federal Bureau of Investigation: the January 6 Insurrection, Domestic Terrorism, and Other Threats.”[3] This was Director Wray’s first appearance before Congress since the events of January 6, 2021.
During a round of questioning by Senator Amy Klobuchar, she had the following exchange with Director Wray:
KLOBUCHAR: Our witnesses now all agree that there is clear evidence that supports the conclusion that this insurrection was planned and a coordinated attack on the Capitol, that white supremacists and extremist groups were involved, and that what happened would have been much more dangerous if not for the brave actions of law enforcement. Would you agree with that?
WRAY: Certainly there were aspects of it that were planned and coordinated, but—yes.
KLOBUCHAR: . . . [O]n Monday, a complaint was filed against a member of the Proud Boys in Washington State, where federal prosecutors alleged that, in fact, there were plans made for many different entries into the Capitol. Is that correct?
WRAY: Yes. There have been a growing number of charges as we continue to build out the investigation. Either individuals who are now starting to get arrested involving charges that involved more things like planning and coordination, or in some instances, individuals were charged with more simple offenses but now we’re superseding as we build out more of an understanding of what people were involved. And there were clearly some individuals involved, which I would consider the most dangerous, most serious cases among the group, who did have plans and intentions and some level of coordination.
* * *
KLOBUCHAR: [T]hey show up, we now know in this complaint, with encrypted two-way Chinese radios in military gear. There must be moments where you think, “If we would have known, if we could have infiltrated this group or found out what they were doing . . . .” Do you have those moments?
WRAY: Absolutely. I will tell you Senator, and this is something I feel passionately about, that any time there is an attack, our standard at the FBI is we aim to bat a thousand, right? And we aim to thwart every attack that’s out there. So any time there’s an attack, especially one that’s this horrific, that strikes right at the heart of our system of government, right at the time the transfer of power is being discussed, you can be darn tooting that we are focused very, very hard on how can we get better sources, better information, better analysis so that we can make sure something like what happened on January 6 never happens again. (emphasis added)
Director Wray’s congressional testimony soon came under scrutiny, however. An April 26, 2021 Reuters article titled “Before Jan. 6, FBI collected information from at least 4 Proud Boys” began:
Among the far-right groups whose members are suspected of planning the Jan. 6 attack on the U.S. Capitol are the Proud Boys. In March, the Federal Bureau of Investigation’s director told the Senate Judiciary Committee that he “absolutely” wished the agency had penetrated the group beforehand, or knew its plans.
“I do not consider what happened on January 6th to be an acceptable result,” Director Christopher Wray said. “We are focused very, very hard on how we can get better sources, better information, better analysis.”
The FBI had deeper insight into the group than Wray disclosed, however.
Bureau agents maintained connections with key Proud Boys leaders starting as early as 2019, a Reuters examination has found. At least four Proud Boys have provided information to the FBI, Reuters learned.[4]
According to the Reuters story, “The FBI declined to answer written questions for this story or to comment on the four Proud Boy connections detailed here.”[5] However, FBI headquarters did tell Reuters that Director Wray’s testimony “reinforced ‘the need to detect and deter acts of violence.’”[6]
On September 25, 2021, The New York Times published a story alleging that, “according to confidential records” it had reviewed, the FBI had an informant texting a real-time account of the march to the Capitol on January 6, 2021.[7] The individual had reportedly started working with the FBI in July 2020.[8] The New York Times further reported:
[T]he records indicate that F.B.I. officials in Washington were alerted in advance of the attack that the informant was traveling to the Capitol with several other Proud Boys.
The F.B.I. also had an additional informant with ties to another Proud Boys chapter that took part in the sacking of the Capitol, according to a person familiar with the matter, raising questions about the quality of the bureau’s informants and what sorts of questions they were being asked by their handlers before Jan. 6.
Christopher A. Wray, the bureau’s director, acknowledged to Congress in March that the F.B.I. was studying the quality of the intelligence it had gathered about Jan. 6.[9]
The FBI provided a comment for The New York Times’story: “While the FBI’s standard practice is not to discuss its sources and methods, it is important to understand that sources provide valuable information regarding criminal activity and national security matters.”[10] The article’s headline appeared above the fold on the front page of The New York Times’ Sunday, September 26 print edition.[11]
The New York Times’ reporting received significant attention and was covered by several other media outlets.[12] Business Insider reported based on the Times’ story: “[T]he [FBI] had real-time knowledge that a pro-Trump mob was headed toward the building.”[13] Slate concluded: “[T]he records do suggest law enforcement officials had a much clearer understanding of what was happening on the ground than what was previously known.”[14]
In a subsequent video a reporter named Darren Beattie from Revolver News discussed the New York Times story.[15] Beattie stated:
The New York Times story revealed a very problematic . . . dilemma . . . that
the . . . media finds itself in, and this goes all the way back to Christopher Wray. The very first Revolver.News article that started it all began with a sort-of question posed by Senator Klobuchar to Wray. I say ‘sort-of question’ because she addresses the issue of informants, but she assumes the answer to her question. . . . And because she did him the courtesy of not asking the question directly, he dodged the question. But now we know for a fact that there were at least two and likely many, many more informants embedded in the militia groups who were on the ground that day and in the Capitol.[16]
Subsequent reporting has indicated Mr. Beattie’s suspicion about more FBI informants being present for the January 6 attack was correct,[17] and continued attention on the issue (including by The New York Times) has demonstrated its enduring significance in our understanding of the events of that day.[18]
B. Mr. Allen Disclosed to His Chain of Command Concerns About the Truthfulness of FBI Executives Based on the Public Doubts About Director Wray’s Testimony.
As the FBI’s investigations surrounding January 6 progressed throughout 2021, Mr. Allen periodically shared with his colleagues on the JTTF open source news articles regarding the topic. For example, on July 16, 2021, Mr. Allen sent a lengthy list of FBI employees an email with the subject “FBI Director, Agents Sued in Aftermath Of Jan. 6, Reports Freedom Watch.” The email body stated, “Situational awareness,” included a link to a Yahoo News story and the following excerpt from the story:
The complaint, which Is filed as a class action for all persons who were in the nation’s capital to peacefully protest, but who in the aftermath of January 6, 2021, have been rounded up, had their homes and businesses violated and broken into, their property such as cell phones and computers seized without probable cause, arrested, prosecuted, denied bail, or some even thrown into solitary confinement while awaiting trial, alleges the violation of First, Fifth and Fourteenth constitutional rights by the defendants.
Shortly after sending the email, Mr. Allen forwarded it to Chief Division Counsel (“CDC”) John Ireland. Mr. Allen received no response from CDC Ireland.
After seeing the Mr. Beattie’s video regarding Director Wray’s testimony, including its reference to the September 25, 2021 New York Times article, on September 29, 2021 at 7:51 AM, Mr. Allen sent an email with the subject “6 Jan awareness vid link” to nine of his colleagues: JTTF Supervisory Special Agent Dean Harp, JTTF Principal Relief Special Agent Crecentia Curran, and Supervisory Intelligence Analyst (“SIA”) Michael Costanzo, with a CC to CDC Ireland, Associate Division Counsel Kathryn Swinkey, JTTF Intelligence Analyst Amanda Shuford, JTTF Intelligence Analyst Alexis Court, JTTF Special Agent Felix Del Toro Silva, and Raleigh Resident Agency Intelligence Analyst Colleen Hickman. The link was to Mr. Beattie’s video.
Mr. Allen emailed the same recipients approximately one hour later, at 8:47 AM, with the subject “6 Jan awareness.” This email read:
There is a significant counter-story to the events of 6 January 2021 at the US Capitol. There is a good possibility the DC elements of our organization are not being forthright about the events of the day or the influence of government assets. . . . The information presented in the linked video and seconded by the New York Times raises serious questions about the nature of government involvement at the US Capitol on 6 January 2021.
In contrast to its responses to Mr. Allen’s previous emails about January 6 investigations, his leadership reacted dramatically to his September 29, 2021 emails.
Following Mr. Allen’s second email, SIA Costanzo asked Mr. Allen to come to his office. When he entered, his Assistant Special Agent in Charge (“ASAC”) Jason Kaplan was also in the office. In that meeting, ASAC Kaplan told Mr. Allen that CDC Ireland was very upset about Mr. Allen’s emails that day. Mr. Allen proceeded to disclose in even more detail his concerns about the truthfulness of Director Wray’s testimony to Congress because of his failure to correct the premise in Senator Klobuchar’s question and because her premise—that the FBI had failed to infiltrate the groups at the Capitol on January 6—was now being debunked as false. Mr. Allen said he was merely trying to ensure the Charlotte JTTF had strategic awareness of potential problems within the FBI.
At the end of the meeting, ASAC Kaplan and SIA Costanzo communicated to Mr. Allen that they appreciated his point of view, and they considered the matter resolved. After the meeting, SIA Costanzo further divulged to Mr. Allen on-on-one that CDC Ireland had been so upset he contacted ASAC Kaplan directly without involving SIA Costanzo, Mr. Allen’s supervisor. SIA Costanzo gave Mr. Allen a friendly warning that the situation could lead to further issues for Mr. Allen in the future.
C. Mr. Allen Reasonably Believed He Was Reporting a Violation of Law, Rule, or Regulation, or Gross Mismanagement or an Abuse of Authority.
Mr. Allen’s email and follow-up conversation with SIA Costanzo and ASAC Kaplan constituted a disclosure of his belief that the FBI Director may have violated a law, rule, or regulation, or engaged in gross mismanagement or an abuse of authority. Lying to Congress is a violation of 18 U.S.C. 1001, which prohibits, “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully . . . falsif[y], conceal[], or cover[] up by any trick, scheme, or device a material fact; [or] make[] any materially false, fictitious, or fraudulent statement or representation.” Even if Director Wray did not commit a crime, he may have lacked candor in his testimony, abused his authority, or engaged in gross mismanagement by negligently misleading Congress.
Mr. Allen’s own ASAC observed that Mr. Allen’s concern over the Director’s testimony was reasonable. In fact, ASAC Kaplan reported that Mr. Allen had firsthand knowledge calling Director Wray’s testimony into question. According to the record the FBI provided in support of its proposed security clearance revocation (“Clearance File”), the ASAC recounted in an interview with the FBI’s Security Division (SecD): “For the most part, Allen’s stated motivation for sending the email appeared reasonable . . . . Allen’s position on the matter was likely influenced by his knowledge [Charlotte Field Office] did have a source at the Capitol, who was reporting as the events unfolded on January 6.” Clearance Fileat 99 (emphasis added).
That the FBI understood Mr. Allen to have made a protected disclosure on September 29, 2021 is indicated by ASAC Kaplan’s statement in a November 17, 2021 interview: “Allen remains assigned to the JTTF, as the FBI Office of General Counsel cautioned [Charlotte] to avoid taking action which could be interpreted as retaliatory.” Id. at 99-100.
II. SUSPENSION FROM DUTY WITHOUT PAY AS REPRISAL FOR MAKING A PROTECTED DISCLOSURE
A. The Sole Basis for Mr. Allen’s Suspension from Duty Without Pay Was Reprisal for His Protected Disclosure.
By disclosing in good faith to supervisors in his direct chain of command his reasonable belief that Director Wray may have misled Congress, Mr. Allen’s September 29, 2021 communications were protected under 5 U.S.C. § 2303 and 28 C.F.R. § 27.2. However, as a reprisal for Mr. Allen’s protected disclosure, the FBI not only initiated an investigation into his security clearance and suspended his clearance, it also suspended him from duty indefinitely without pay—a “personnel action” as defined by 5 U.S.C. § 2302(a)(2)(A)(ix). Nothing in any law or rule requires the FBI to suspend an employee from duty without pay pending an investigation of that employee. The FBI can place an employee on administrative leave with pay and Congress has explicitly authorized “investigative leave” with pay.
The Clearance File demonstrates that the entire security investigation into Mr. Allen was predicated solely upon his protected disclosure because it reversed a favorable security clearance recommendation the Bureau had just made in Mr. Allen’s favor. The FBI appears to have completed a Tier 5 reinvestigation of Mr. Allen on September 29, 2021. Id. at 550. It concluded: “Based on this review, it is recommended that captioned subject’s reinvestigation be closed favorably. Subject remains eligible for a Top Secret security clearance and continued access to FBI space.” Id. This document was approved by SecD on September 30, 2021. Id. at 549.
Yet on the same day, Charlotte’s CDC forwarded Mr. Allen’s September 29, 2021 email to FBI’s Office of General Counsel, which in turn forwarded the email to SecD. Id. at 70. The FBI’s “Opening EC – Marcus O’Ryan Allen” states that Mr. Allen’s September 29, 2021 email was the sole basis for the Charlotte Field Office’s Chief Security Officer sending a security referral on September 30, 2021. Id. at 4-5. SecD appears to have initiated its “Opening EC” on October 19, 2021. Id. at 3, 1679.
In a series of phone interviews on November 17, 2021, Mr. Allen’s supervisory chain all made clear that they had no concerns about Mr. Allen’s allegiance to the United States. Id. at 82, 89, 94, 99. Rather, they objected to his September 29 email because it accused FBI leadership of wrongdoing—the very heart of protected whistleblower activity.
SIA Costanzo stated he believed the September 29 email “crossed the line” because “it was inappropriate for Allen to have included accusatory language toward the leadership of the FBI . . . .”
Mr. Allen’s Supervisory Special Agent (“SSA”) stated he “felt it was out of line for Allen to have insinuated in the [September 29] email FBI leadership was lying,” and that Mr. Allen “overstepped.” Id. at 94.
Mr. Allen’s ASAC indicated his concern was specifically about Mr. Allen disclosing his concern about FBI leadership forthrightness—even though, as he told the interviewer, “Allen’s stated motivation for sending the email appeared reasonable.” Id. at 98-99.
The Charlotte CDC told SecD that “what was unusual to [him] regarding the September 29, 2021 email he received from Allen regarding January 6[] was it included conclusions and direction as opposed to simply relaying open source information”—specifically, his statement about the forthrightness of the FBI’s “DC elements.” Id. at 88-89. Yet this conclusion was precisely what made the email a protected disclosure, and therefore an impermissible basis on which to base an investigation and subsequent personnel action. The CDC told SecD the disclosure “created potential discovery implications which could negatively impact ongoing investigations,” id. at 89, yet this legal concern has nothing to do with Mr. Allen’s loyalty and everything to do with the FBI’s institutional interests—interests superseded by various whistleblower protection laws with the purpose of encouraging employees to speak up about potential government wrongdoing.
Just as Mr. Allen’s protected disclosure was the sole predication for the clearance investigation, it was the central basis for the FBI’s suspension of his security clearance, as evidenced by the eight-page “Clearance Suspension EC” of January 10, 2022. Every substantive page of the Clearance Suspension EC references Mr. Allen’s September 29, 2021 email. Id. at 321-28. The EC cited “his questioning of the honesty of FBI leadership,” id. at 325, and expanded on the fact Mr. Allen believed Director Wray might have perjured himself in his testimony before Congress, id. at 326. While the analysis in the Clearance Suspension EC does not explicitly cite Mr. Allen’s questioning of Director Wray’s honesty, it makes a series of sweeping and unfounded statements about his reasons for disseminating the email. Id. at 326-27. It is impossible to separate this analysis, such as its assertions that Mr. Allen held “hostile views towards the government” and that “given Allen’s hoax-based conspiratorial beliefs, his judgment is impaired,” id. at 327, from his protected disclosure criticizing FBI leadership.[19]
Similarly, SecD’s September 23, 2022 “Summary EC for Marcus Allen” centered on Mr. Allen’s protected disclosure:
Allen explained . . . he wanted to make certain [Charlotte] employees working Domestic Terrorism matters were exposed to alternative viewpoints. Allen was also concerned the FBI Director perjured himself in a Congressional hearing regarding January 6, 2021. (Id. at 527.)
* * *
[Redacted] felt the [protected disclosure] did not seem objective and Allen was possibly biased regarding the events of January 6. . . . (Id. at 528.)
* * *
[Redacted’s] concern with Allen’s 09/29/2021 email was it contained conclusions . . . as opposed to simply referencing open source information. Allen’s statements doubting the truthfulness of the FBI’s “DC elements” . . . created potential discovery implications, and portrayed Allen as biased. (Id.)
* * *
[Redacted] felt it was out of line for Allen to suggest FBI leadership was lying in his 09/29/2021 email . . . . (Id. at 529.)
* * *
[Redacted] said Allen’s 09/29/2021 was an exception as it included what he described as accusatory language toward the leadership of the FBI . . . . (Id.)
* * *
[Redacted] . . . wonders where things would have gone had Allen not sent the email on 09/29/2021. (Id. at 538.)
* * *
Allen was asked about the email he sent to various [Charlotte] employees on 09/29/2021. . . . Allen believed he had a moral imperative to share the
information . . . . (Id. at 540.)
Given the centrality of Mr. Allen’s protected whistleblower disclosure of September 29, 2021 to his security clearance investigation and given that the FBI chose to indefinitely suspend Mr. Allen from duty without pay relying solely on that clearance review, its decision to suspend his pay is a separate personnel action in reprisal and retaliation for that disclosure that cannot be independently justified.
B. Court Precedent Does Not Preclude Review of Mr. Allen’s Suspension from Duty Without Pay Merely Because the FBI Also Suspended his Security Clearance.
Although the Supreme Court has held that security clearance determinations are not directly reviewable in appeals to the MSPB, Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988), Mr. Allen is not asking for review of a security clearance determination here.
Rather, he is requesting review of the FBI’s constructive termination of his employment in retaliation for protected whistleblowing. The FBI achieved the functional equivalent of a retaliatory termination through (a) the ultra vires suspension of his security clearance, (b) the FBI’s ultra vires claim that all employees must maintain a security clearance, (c) the FBI’s failure to reassign Mr. Allen to duties that did not require access to classified material, (d) the FBI’s failure to timely approve Mr. Allen’s requests to accept other income opportunities, and (e) the FBI’s repeated and interminable delay tactics resulting in prolonging his suspension from duty without pay for two years now with no timeframe for any resolution in sight. The FBI orchestrated these circumstances and controls the ultimate timing of any internal appeals and final determination with regard to Mr. Allen’s security clearance. Accordingly, its separate personnel and other retaliatory actions combine to create the effect of financially pressuring Mr. Allen to surrender to injustice in the face of an indefinite administrative limbo that could literally never end.
Although the FBI referenced its security clearance process as a pretext for these actions, they were actually in reprisal for his protected disclosure and constitute prohibited personnel practices in violation of 5 U.S.C. § 2303 and 28 C.F.R. § 27.2.
1. The FBI Has No Authority to Suspend a Security Clearance.
Under Executive Order No. 12,968 § 1.2(a), in order to access classified information, an employee must be “eligible” or have a clearance, and he/she must “possess a need-to-know.” While Executive Order No. 12,968 § 5.1 provides that a determination “that an employee does not have, or no longer has, a need for access is a discretionary determination and shall be conclusive,” § 5.2 provides mandatory review proceedings before an employee’s eligibility, or clearance, to access classified material is revoked. There is no procedure to “suspend” an employee’s eligibility to access classified material under the Executive Order.
The applicability of Executive Orders regarding classified material to DOJ personnel is codified in the C.F.R. “All employees, contractors, grantees, and others granted access to classified information by the [DOJ] are governed by this part, and by the standards in Executive Order 12958, Executive Order 12968, and directives promulgated under those Executive Orders. If any portion of this part conflicts with any portion of Executive Order 12958, Executive Order 12968, or any successor Executive Order, the Executive Order shall apply. This part supersedes the former rule and any [DOJ] internal operating policy or directive that conflicts with any portion of this part.” 28 C.F.R. § 17.2(a).
Under 28 C.F.R. § 17.11(c), “[t]he [DOJ] Security Officer may grant, deny, suspend, or revoke employee access to classified information pursuant to and in accordance with Executive Order 12968. The [DOJ] Security Officer may delegate the authority under this paragraph to qualified Security Programs Managers when the operational need justifies the delegation and when the [DOJ[ Security Officer is assured that such officials will apply all access criteria in a uniform and correct manner in accord with the provisions of Executive Order 12968 and subpart C of this part.”
Thus, although DOJ may suspend an employee’s access to classified material, nothing in the C.F.R. or Executive Orders authorizes DOJ to suspend a security clearance—an employee’s eligibility to access classified material—without going through the required revocation procedures. Obviously, DOJ cannot delegate to the FBI any authority that it does not have itself.
Under the FBI Employment Agreement[20], its “provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information….” So, although the FBI may have authority to suspend an employee’s access to classified information, it has no authority to suspend an employee’s clearance. That action may only be taken through the procedures in Executive Order 12,968 and the C.F.R.
The FBI was acting ultra vires when it suspended Mr. Allen’s security clearance. Thus, the personnel actions that FBI chose to take based on this unlawful action are reviewable under 5 U.S.C. § 2303 and 28 C.F.R. § 27.2.
2. The FBI Has No Authority to Make a Security Clearance a Required Condition in its Employment Agreements.
The FBI Employment Agreement does not require employees to maintain a security clearance. The FBI has no authority to impose that condition of employment after-the-fact when it has been omitted from the agreement.
Even if the FBI could do so, the FBI Employment Agreement states that it does not supersede, conflict with, or otherwise alter employee obligations, rights, or liabilities created by Executive Orders relating to classified information. As discussed above, under Executive Order, an employee shall not be granted access to classified information unless they have a need-to-know. Executive Order No. 12,968 § 1.1(h) defines “need-to-know” as “a determination made by an authorized holder of classified information that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.”
Also, under Executive Order No. 12,968 § 2.1(b), “The number of employees that each agency determines are eligible for access to classified information shall be kept to the minimum required for the conduct of agency functions.” Under § 2.1(b)(1), “Eligibility for access to classified information shall not be requested or granted solely to permit entry to, or ease of movement within, controlled areas when the employee has no need for access and access to classified information may reasonably be prevented.” Section 2.1(b)(2) provides an exception “where eligibility for access is a mandatory condition of employment,” but as discussed above, the FBI Employment Agreement does not require employees to maintain a security clearance. Furthermore, because the FBI is a joint intelligence and law enforcement agency, many FBI employees have no need to access classified material in order to perform FBI duties.
Furthermore, the C.F.R. specifically bars DOJ agencies from requiring employees to have clearances when it is not necessary for DOJ functions. See 28 C.F.R. § 17.44(b). (“The number of employees eligible for access to classified information shall be kept to the minimum required for the conduct of [DOJ] functions.”) Also, the C.F.R. mandates that “[e]ligibility for access to classified information shall be limited to classification levels for which there is a need for access. No person shall be granted eligibility higher than his or her need.” 28 C.F.R. § 17.44(c).
Thus, the FBI is acting ultra vires, outside of its own employment agreement and contrary to Executive Orders and the C.F.R. when it requires Mr. Allen to maintain a security clearance as a condition of employment. So, even if it could suspend Mr. Allen’s clearance, the FBI cannot suspend him indefinitely without pay based on the clearance suspension alone.
3. There Are Duties Not Requiring Access to Classified Information that Mr. Allen Can Perform.
Notwithstanding the FBI’s ultra vires actions, in Egan, the Supreme Court opined that the Civil Service Reform Act authorized review of “whether transfer to a nonsensitive position was feasible” when an employee was denied access to classified material. 484 U.S. at 530. Here, although Mr. Allen may have needed access to classified information as a member of the FBI’s Charlotte Division JTTF, there are many duties involving criminal investigations, such as drugs, gangs, violent crime, white collar crime, and public corruption that do not require access to classified information for the conduct of DOJ functions.[21] The FBI’s suspension of Mr. Allen from duty without pay was in reprisal for his protected disclosure because it could have easily reassigned him to other duties if it had a legitimate reason to suspend his access to classified material. Under Egan, this personnel action is reviewable under statutory civil service protections including 5 U.S.C. § 2303.
Thus, because the FBI has no authority to suspend clearances or make them a condition of employment, and the FBI could have reassigned Mr. Allen to duties that did not require access to classified material, there was no basis for the FBI to suspend Mr. Allen from duty without pay while it was re-adjudicating his security clearance. The decision regarding pay, benefits, and awards is reviewable under Egan. Since the sole basis for this personnel action was actually his protected disclosure, it violated 5 U.S.C. § 2303 and 28 C.F.R. § 27.2.
4. Alternatively, the FBI Could Have Placed Mr. Allen on Paid Administrative or Investigative Leave.
Even if the FBI had the authority to take the actions it did and all FBI employees needed access to classified material to perform their duties, the FBI has placed others on paid administrative leave and has specific statutory authority to place employees on paid investigative leave pending the outcome various types of inquiries. Its failure to do so here as reprisal for Mr. Allen’s protected disclosure is reviewable under Egan and violates statutory FBI whistleblower protections.
Under 5 U.S.C. § 6329b, agencies can place employees on investigative leave where they continue to receive pay but do not perform duties during the course of an investigation. Through different levels of internal approval, the agency can approve 130 work days of investigative leave. Id. § 6329b(b)(1),(b)(3)(A),(c). After that 130-work day period, the agency can approve additional 30-day periods of leave, as long as it notifies two congressional committees of those extensions. Id. § 6329b(d)(1).
Thus, the FBI has the authority to place individuals like Mr. Allen on investigative leave, but—by suspending those employees indefinitely without pay instead—it can cause them severe financial distress and attempt to force them to resign while simultaneously avoiding reporting its abuse of the security clearance process to Congress.
Under § 6329b, a nonsensitive position, investigative leave, was, and still is, available for Mr. Allen. In Egan, the Court observed that the CSRA authorized the review of whether an employee without a clearance could be transferred to a nonsensitive position. 484 U.S. at 530. So, the FBI’s failure to assign him to this nonsensitive position is reviewable. Considering the sole basis for the FBI’s failure to place Mr. Allen on investigative leave—a decision affecting his pay, benefits, and awards—was his protected disclosure, the personnel action violated 5 U.S.C. § 2303 and 28 C.F.R. § 27.2.
III. DELAY OF SECURITY CLEARANCE PROCESS AS REPRISAL FOR MAKING A PROTECTED DISCLOSURE.
In addition to suspending Mr. Allen without pay, the FBI has unnecessarily delayed the security clearance appeal process. These two personnel actions—together with decisions preventing him from taking outside employment and accepting charitable contributions—have forced him and his family to suffer severe financial distress which appears to be designed to force him to resign. By delaying the clearance appeal process, the FBI has prevented Mr. Allen from resolving the matter while the FBI deprives him of both his pay and approval for other means of income.
Mr. Allen’s security clearance was suspended on January 10, 2022. He was indefinitely suspended without pay on February 17, 2022 and, after using his accrued leave, last received pay from the FBI for the pay period ending February 26, 2022. After placing him on this unpaid status, the FBI did not decide whether it would seek to revoke Mr. Allen’s clearance until May 3, 2023, more than fifteen months later. Only then did the FBI offer Mr. Allen his Clearance File which he requested within thirty days. The FBI did not provide Mr. Allen with his Clearance File until September 20, 2023. On October 20, 2023, Mr. Allen requested reconsideration of the FBI’s decision to revoke his clearance, which is the next step in the process. Three months later and counting, the FBI has failed respond to the request for reconsideration. There is no time certain on the horizon for any final decision on the revocation of Mr. Allen’s security clearance.
The FBI’s dilatory security clearance process has caused Mr. Allen severe financial distress. This delayed process is a personnel action as it relates to “an action under Chapter 75 of [Title 5] or other disciplinary or corrective action,” “a reinstatement,” “a restoration,” “a reemployment,” and a “decision concerning pay, benefits, or awards….” 5 U.S.C. § 2302(a)(2)(A)(iii),(v)-(vii), and (ix).
CONCLUSION
As described above, the FBI’s decision to suspend Mr. Allen indefinitely without pay through the suspension of his security clearance in reprisal for disclosing that Director Wray may have testified to Congress untruthfully is in violation of 5 U.S.C. § 2303 and 28 C.F.R. § 27.2. Even though the FBI used a security clearance decision to engage in this reprisal, the action is reviewable under statute and the C.F.R., because the FBI has no authority to suspend security clearances, no authority to require employees to maintain a security clearance, and Mr. Allen could have been transferred to duties not requiring access to classified information. Meanwhile, the FBI has taken other actions that, although they do not alone constitute personnel actions under 5 U.S.C. § 2303, have caused Mr. Allen severe financial distress, specifically preventing him from taking outside employment or accepting charitable contributions. Also, the FBI’s dilatory handling of the security clearance appeal process, another personnel action taken in reprisal for his protected disclosure, further aggravated his financial distress.
Mr. Allen should be immediately returned to duty and provided back pay and benefits for his time on unpaid leave.
Cordially,
/Tristan Leavitt/
Tristan Leavitt
President
[1] The FBI revoked Mr. Allen’s clearance on May 3, 2023, although the decision would not become final for thirty days to give Mr. Allen the opportunity to request reconsideration of the decision. As discussed below, Mr. Allen filed that request and the revocation decision is not final.
[2] Nearly three months ago, on November 1, 2023, counsel for Mr. Allen asked the FBI for its position on allowing Mr. Allen’s family to accept charitable contributions solicited by others without his knowledge or acquiescence. Following a month with no reply, counsel reiterated and escalated the request. The FBI responded on December 8, 2023, referencing various general guidelines and prohibitions regarding gifts to federal employees that failed to address the specific questions raised in Mr. Allen’s circumstances. Counsel for Mr. Allen and the FBI then exchanged a series of emails through December 21, 2023 seeking clarity on the FBI’s position. On December 20, 2023 the FBI asserted: “Given that Mr. Allen is an FBI employee, he is subject to the Standards of Ethical Conduct as issued by the Office of Government Ethics (OGE).” On December 21, 2023, it informed counsel: “We are consulting with the Departmental Ethics Office (DEO) and the Office of Government Ethics (OGE) and will reach out when we have further information to share.” A month later, the FBI has provided no further information. It has failed to respond to proposals from counsel to screen donations to ensure compliance with all applicable regulations as if those regulations applied. Instead, the FBI has merely asserted that Mr. Allen must comply with prohibitions on gifts to federal employees and then gone silent.
[3] https://www.judiciary.senate.gov/committee-activity/hearings/oversight-of-the-federal-bureau-of-investigation-the-january-6-insurrection-domestic-terrorism-and-other-threats.
[4] Aram Roston, EXCLUSIVE Before Jan. 6, FBI collected information from at least 4 Proud Boys, Reuters (Apr. 26, 2021), available at https://www.reuters.com/world/us/exclusive-before-jan-6-fbi-collected-information-least-4-proud-boys-2021-04-26.
[5] Id.
[6] Id.
[7] Alan Feuer and Adam Goldman, Among Those Who Marched Into the Capitol on Jan. 6: An F.B.I. Informant, New York Times (Sept. 25, 2021), available at https://www.nytimes.com/2021/09/25/us/politics/capitol-riot-fbi-informant.html.
[8] Id.
[9] Id.
[10] Id.
[11] See https://www.nytimes.com/issue/todayspaper/2021/09/26/todays-new-york-times.
[12] See, e.g., Jordan Williams, FBI had informant in crowd during Capitol riot: report, The Hill (Sept. 25, 2021), available at https://thehill.com/policy/national-security/fbi/573915-fbi-had-informant-in-crowd-during-capitol-riot-report; Daniel Politi, FBI Reportedly Had Informant in the Crowd During Capitol Riot, Slate (Sept. 25, 2021), available at https://slate.com/news-and-politics/2021/09/fbi-informant-crowd-capitol-riot-january.html; Connor Perrett, A Proud Boys member and FBI informant was texting his handler during the January 6 Capitol riot, report says, Business Insider (Sept. 25, 2021), available at https://www.businessinsider.com/proud-boys-member-was-fbi-informant-at-capitol-riot-nyt-2021-9; Megan VerHelst, FBI Informant Among Those Who Joined Jan. 6 Capitol Riot: Report, Patch (Sept. 25, 2021), available at https://patch.com/us/across-america/fbi-informant-among-those-who-joined-jan-6-capitol-riot-report.
[13] Business Insider (Sept. 25, 2021), available at https://www.businessinsider.com/proud-boys-member-was-fbi-informant-at-capitol-riot-nyt-2021-9.
[14] Slate (Sept. 25, 2021), available at https://slate.com/news-and-politics/2021/09/fbi-informant-crowd-capitol-riot-january.html.
[15] https://rumble.com/vn2jzj-capitol-had-uniquely-poor-security-on-jan.-6.html.
[16] Id.
[17] See, e.g., Alan Feuer and Zach Montague, In Proud Boys Jan. 6 Sedition Trial, F.B.I. Informants Abound, New York Times (Mar. 24, 2023), available at https://www.nytimes.com/2023/03/24/us/proud-boys-fbi-informants.html (“Over the past two months, one subject has repeatedly come up at the trial of five Proud Boys accused of sedition in connection with the storming of the Capitol: the unusual number of informants that the F.B.I. had in or near the group.”); Miranda Devine, FBI lost count of how many paid informants were at Capitol on Jan. 6, and later performed audit to figure out exact number: ex-official, New York Post (Sept. 19, 2023), available at https://nypost.com/2023/09/19/fbi-lost-count-of-number-of-informants-at-capitol-on-jan-6-ex-official (“The FBI had so many paid informants at the Capitol on Jan. 6, 2021, that it lost track of the number and had to perform a later audit to determine exactly how many ‘Confidential Human Sources’ run by different FBI field offices were present that day, a former assistant director of the bureau has told lawmakers.”).
[18] See, e.g., Alan Feuer and Adam Goldman, F.B.I. Had Informants in Proud Boys, Court Papers Suggest, New York Times (Nov. 14, 2022), available at https://www.nytimes.com/2022/11/14/us/politics/fbi-informants-proud-boys-jan-6.html; Ryan J. Reilly, Informant warned FBI weeks before Jan. 6 that the far right saw Trump tweet as ‘a call to arms’, NBC News (Dec. 21, 2022), available at https://www.nbcnews.com/politics/justice-department/informant-warned-fbi-weeks-jan-6-far-right-saw-trump-tweet-call-arms-rcna62683; Tess Owen, FBI Informants Who Marched With Proud Boys on Jan. 6 Will Testify for Their Defense, Vice News (Jan. 13, 2023), available at https://www.vice.com/en/article/5d3vyd/proud-boys-trial-fbi-informants-testify-defense; Michael Kunzelman and Lindsay Whitehurst, Federal prosecutors reveal Proud Boys witness was informant, Associated Press (Mar. 22, 2023), available at https://apnews.com/article/proud-boys-enrique-tarrio-capitol-riot-informant-ce0a1cf20c17c95b1ea3306fb70d93c4.
[19] In a post hoc effort to excuse the FBI’s reprisals, FBI SecD’s retaliatory security review collected extensive evidence in an effort target Mr. Allen. Among other things, it obtained and scoured his text messages seeking anything that might buttress its baseless claims that Mr. Allen is disloyal and hostile to the U.S. government. The Bureau’s May 3, 2023 “Revocation EC” mischaracterized an exchange Mr. Allen had with a colleague six days after the January 6th Capitol riot (p. 9) to falsely suggest that Mr. Allen endorsed or advocated for, among other things, the invocation of the Insurrection Act by then-President Trump. But see, Statement of Marcus Allen (Jan. 19, 2024) (Attachment C).
[20] https://www.fbi.gov/file-repository/fd-291.pdf/view.
[21] According to the FBI’s website, it investigates terrorism (including “domestic extremists” and “terrorist networks worldwide”), counterintelligence, cyber crime, public corruption, civil rights, organized crime, white-collar crime, violent crime, and weapons of mass destruction. FBI, What We Investigate, available at https://www.fbi.gov/investigate (last visited Jul. 14, 2022).