Judge Rejects CIA Whistleblower’s Bid for the Right to Advance His Case Privately

A CIA employee who has been battling his agency over alleged retaliation for his whistleblowing lost a round in court this week, when a judge sided with the CIA in rejecting his bid to establish a private right to action to move his case forward.

The employee, known by the agency-provided pseudonym James Pars, has been working for three years to obtain an inspector general’s probe into his complaint—first publicized last summer by the nonprofit Project on Government Oversight.

Several lawmakers (among them Sen. Chuck Grassley, R-Iowa) and nonprofits have been monitoring the case as an example of what they see as inaction by inspectors general in the intelligence community.

The three-year-old complaint by Pars, a Cuban-American whose 16 years with the agency included time in Latin America, began with his one-year assignment for the Directorate of Operations to an unidentified war zone. He said he raised concerns to supervisors about “inappropriate behaviors” of the chief of the base that endangered the lives of personnel. “For example,” the judge’s opinion noted, the chief “allegedly often spent time cooking, baking, socializing, entertaining, exercising, and shopping, and insisted on travelling in areas of indirect fire attack to perform certain of these activities.”

Pars said he was abruptly sent home after complaining, and later assigned to an intelligence community IG troubleshooting task force at the same time he had his own complaint in the pipeline. (He was later removed.) His argument was that President Obama’s 2012 Presidential Policy Directive 19, designed to provide intelligence community employees a legal venue for whistleblowing, requires that the CIA open a probe into his complaint.

Pars and his attorneys attempted to use the Administrative Procedure Act to establish a right to end-run the stalled PPD-19 process by establishing a private right of action. The CIA had a different interpretation of its obligations under the directive.

Judge Trevor McFadden issued a Feb. 28 ruling granting the agency’s motion to dismiss, citing past opinions. “Without a [private remedy derived from congressional authority],” he wrote, “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.”

Pars’ hopes may lie with an ombudsman operation run by Dan Meyer, executive director of Intelligence Community Whistleblowing and Source Protection, an operation currently on hold while Meyer undergoes a disciplinary process.

Pars sent Government Executive materials noting that in December, he arrived at CIA headquarters for a meeting but was denied entry by security guards. He is now on administrative leave.

“The only place where Pars can go now is to Congress or the intel community IG,” said Irvin McCullough, an investigator for the Government Accountability Project, which represents whistleblowers. The judge’s finding of no private right of action is “coupled with executive and legislative inaction on whistleblower problems throughout the intelligence community,” McCullough told Government Executive. GAP will continue to “fight for a right to judicial review” of national security whistleblower cases, he said.  “We’re looking at a system that’s broken.”

POGO resident journalist Adam Zagorin wrote last year that the Pars case “highlights the need to strengthen whistleblower protections in the intelligence community. The Trump administration wants to crack down on government leaks, but with a broken system for intelligence officials to report dangerous practices as well as waste, fraud and abuse, the incentives for employees to go to the media anonymously, instead of using official channels, are out of balance.”