Ms. Knapp has a straight-forward complaint. She maintains that the U.S. Army retaliated against her for whistleblowing. When the Office of Special Counsel (OSC), following a preliminary review, notified Knapp that it had closed its file and advised her of her right to seek review by the Merit Systems Protection Board (MSPB), she filed an appeal. However, the Board found that it had no jurisdiction over her complaint. She challenged that (Knapp v Merit Systems Protection Board (CAFC No. 2020-2122 (nonprecedential) 11/17/2021).
Knapp was a Civilian Sexual Harassment/Assault Response and Prevention Victim Advocate as USASOC in Ft. Bragg, North Carolina. She wrote a U.S. Senator alleging retaliation occurred against soldiers who reported incidents of sexual harassment or sexual assault during the time she worked in this position. She then emailed classified information over an unclassified network (referred to in security circles as “spillage”). USASOC officials took away her computer, quarantined it, and erased the hard drive. About a month later, Ms.Knapp apparently sent her earlier email, classified information included, to the Equal Employment Opportunity Commission (EEOC). Hence a second “spillage” incident. In no time at all, Knapp’s security clearance was suspended, she was placed on administrative leave and eventually she was indefinitely suspended as a result of the two spillage incidents. (Pp. 2-3)
Knapp argued to the OSC and then to the MSPB that the various actions taken against her—losing her clearance, administrative leave, and indefinite suspension—were all in retaliation for her whistleblowing.
The MSPB asked Ms. Knapp to show facts indicating that the Board had jurisdiction over her complaint, noting that the actions she outlined were taken by the agency based on the Army’s determinations on national security matters and therefore not within the Board’s jurisdiction. When she failed to present facts other than her mishandling of classified information, the Board dismissed her complaint since it has no jurisdiction over such matters.
Knapp turned to the federal appeals court. Citing Eagan, the court now rules that the MSPB “lacks jurisdiction to consider the merits of an agency’s security clearance determination….Here, Ms. Knapp asks the Board to do exactly that.” (p. 5)exactly that.” (p. 5) The court states further, “Because the personnel actions taken against Ms. Knapp all related to her access to classified information and spillage, Eagan is controlling.” (P. 5)
