Whistleblower Complaint: In the Matter of MURPHY, BRIAN PRINCIPAL DEPUTY UNDER SECRETARY DEPARTMENT OF HOMELAND SECURITY OFFICE OF INTELLIGENCE & ANALYSIS
Whistleblower Reprisal Complaint
September 8, 2020
INTRODUCTION
This complaint concerns retaliatory actions taken or threatened to be taken against a longtime public servant, Brian Murphy (“Mr. Murphy”). The retaliatory actions were taken and/or threatened to be taken in light of at least five sets of protected disclosures made by Mr. Murphy between March 2018 and August 2020. The protected disclosures that prompted the retaliatory personnel actions at issue primarily focused on the compilation of intelligence reports and threat assessments that conflicted with policy objectives set forth by the White House and senior Department of Homeland Security (“DHS”) personnel.
As set forth below, the identified protected communications were made through Mr. Murphy’s chain of command, as well as to the DHS Office of Inspector General (“OIG”). Notably, Mr. Murphy made protected communications to his immediate supervisor and some of the very Responsible Management Officials (“RMOs”) who ultimately took (or threatened to take) retaliatory action against Mr. Murphy.
A thorough investigation will establish that the actions taken or threatened to be taken against Mr. Murphy were done in reprisal for his protected disclosures. Therefore, we respectfully request that DHS OIG promptly institute the required investigation. The relief requested is set forth below.
JURISDICTION
As a Senior Executive Service employee within DHS, Mr. Murphy is protected by the implementing regulations of PPD-19, as well as the Whistleblower Protection Enhancement Act of 2012 and the National Defense Authorization Act of 2013. DHS OIG possesses clear jurisdiction over these matters. 2
ELEMENTS OF STANDARDS OF PROOF
The elements of reprisal are the following: (1) the information at issue is that which the individual reasonably believes is evidence of a violation of law, rule or regulation, or is an abuse of authority; (2) the individual made a protected disclosure regarding this information, namely to the OIG or an authorized official at DHS; (3) a personnel action is taken, threatened or withheld in reprisal for the protected disclosure; and (4) a causal connection exists between the protected communication and the personnel action. The elements must be established by a preponderance of the evidence for a complaint to be deemed substantiated. Mr. Murphy’s complaint satisfies all four elements. The burden is on DHS officials to prove that the same adverse personnel actions (whether taken or threatened to be taken) would have occurred even if there had been no protected communications. See, e.g., Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012); Figueroa v. Nielsen, 423 F. Supp. 3d 21 (S.D.N.Y. 2019); Miller v. Dep’t of Justice, 842 F.3d 1252 (Fed. Cir. 2016)(once complainant establishes prima facia case, burden of proof shifts to U.S. Government to establish personnel actions taken, threatened, or withheld would have occurred absent protected communication).
BACKGROUND OF THE COMPLAINANT
From March 2018, until July 31, 2020, Mr. Murphy held the DHS position of Principal Deputy Under Secretary in the Office of Intelligence and Analysis (“DHS I&A”). Effective August 1, 2020, however, he was retaliatorily demoted to the role of Assistant to the Deputy Under Secretary for the DHS Management Division.
In his DHS I&A position, Mr. Murphy was responsible for all intelligence activities in DHS and was the principal advisor to the Secretary for Homeland Security and the Director of National Security. Mr. Murphy’s primary mission sets included Counterterrorism, Cyber, 3 Transnational Organized Crime, Counterintelligence, Economic Security, Support to State and Local Officials, and Training.
Prior to joining DHS, Mr. Murphy had more than two decades’ worth of public service experience. He served on active duty in the United States Marine Corps (“USMC”) from 1994 until 1998, and received an honorable discharge with the rank of 1st Lieutenant. He joined the Federal Bureau of Investigation (“FBI”) on August 15, 1998, and served as a Special Agent, where he worked on a variety of criminal and national security matters, including assignment to the New York Field Office on September 11, 2001, when our country was attacked by terrorists. With a Master’s degree in Islamic Studies almost completed, Mr. Murphy volunteered to be reactivated by the USMC and subsequently served for six months in Iraq in 2004, where he saw extensive combat and received the Combat Action Ribbon. He returned to the FBI in March 2005, completed his Master’s degree in May of 2005, and served without incident at the Bureau until his transition to DHS on March 5, 2018. His final title at the FBI was that of Section Chief for Partner Engagement in the Intelligence Division.
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DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR GENERAL
In the Matter of MURPHY, BRIAN PRINCIPAL DEPUTY UNDER SECRETARY DEPARTMENT OF HOMELAND SECURITY OFFICE OF INTELLIGENCE & ANALYSIS Complainant.
Whistleblower Reprisal Complaint September 8, 2020