Rule2024-01934
Whistleblower Protection for Federal Bureau of Investigation Employees
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 2, 2024
Effective
March 4, 2024
Issuing agencies
Justice Department
Abstract
This rule updates the Department of Justice ("Department") regulations on the protection of whistleblowers in the Federal Bureau of Investigation ("FBI"). This update reflects changes resulting from an assessment conducted by the Department in response to Presidential Policy Directive-19 of October 10, 2012, "Protecting Whistleblowers with Access to Classified Information" ("PPD-19"), and the Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016 ("FBI WPEA of 2016"). This rule updates the description of protected whistleblower disclosures and covered personnel actions to conform to the FBI WPEA of 2016; provides for more equal access to witnesses; and specifies that compensatory damages may be awarded as appropriate. This rule also adds new provisions to formalize practices that have been implemented informally, including providing for the use of acknowledgement and show-cause orders, providing access to alternative dispute resolution ("ADR") through the Department's FBI Whistleblower Mediation Program, clarifying the authority to adjudicate allegations of a breach of a settlement agreement, and reporting information about those responsible for unlawful reprisals. This regulation reiterates that the determinations by the Director of the Office of Attorney Recruitment and Management ("OARM") must be independent and impartial.
Full Text
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<title>Federal Register, Volume 89 Issue 23 (Friday, February 2, 2024)</title>
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[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Rules and Regulations]
[Pages 7277-7287]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01934]
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DEPARTMENT OF JUSTICE
28 CFR Parts 0 and 27
[Docket No. JMD 154; AG Order No. 5872-2024]
RIN 1105-AB47
Whistleblower Protection for Federal Bureau of Investigation
Employees
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule updates the Department of Justice (``Department'')
regulations on the protection of whistleblowers in the Federal Bureau
of Investigation (``FBI''). This update reflects changes resulting from
an assessment conducted by the Department in response to Presidential
Policy Directive-19 of October 10, 2012, ``Protecting Whistleblowers
with Access to Classified Information'' (``PPD-19''), and the Federal
Bureau of Investigation Whistleblower Protection Enhancement Act of
2016 (``FBI WPEA of 2016''). This
[[Page 7278]]
rule updates the description of protected whistleblower disclosures and
covered personnel actions to conform to the FBI WPEA of 2016; provides
for more equal access to witnesses; and specifies that compensatory
damages may be awarded as appropriate. This rule also adds new
provisions to formalize practices that have been implemented
informally, including providing for the use of acknowledgement and
show-cause orders, providing access to alternative dispute resolution
(``ADR'') through the Department's FBI Whistleblower Mediation Program,
clarifying the authority to adjudicate allegations of a breach of a
settlement agreement, and reporting information about those responsible
for unlawful reprisals. This regulation reiterates that the
determinations by the Director of the Office of Attorney Recruitment
and Management (``OARM'') must be independent and impartial.
DATES: Effective March 4, 2024.
FOR FURTHER INFORMATION CONTACT: Morton J. Posner, General Counsel,
Justice Management Division; email: <a href="/cdn-cgi/l/email-protection#9ed3f1eceaf1f0b0d4b0cef1edf0fbecdeebedfaf1f4b0f9f1e8"><span class="__cf_email__" data-cfemail="d79ab8a5a3b8b9f99df987b8a4b9b2a597a2a4b3b8bdf9b0b8a1">[email protected]</span></a>;
telephone: 202-514-3452; Michael E. Stamp, Acting Director, Office of
Attorney Recruitment and Management; email: <a href="/cdn-cgi/l/email-protection#8dc0e4eee5ece8e1a3c8a3def9ece0fdcdf8fee9e2e7a3eae2fb"><span class="__cf_email__" data-cfemail="733e1a101b12161f5d365d2007121e03330600171c195d141c05">[email protected]</span></a>;
telephone: 202-598-7772.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
On November 1, 1999, the Department issued a final rule entitled
``Whistleblower Protection For Federal Bureau of Investigation
Employees,'' published in the Federal Register at 64 FR 58782,
establishing procedures under which (1) FBI employees or applicants for
employment with the FBI may make disclosures of information protected
by the Civil Service Reform Act of 1978, Public Law 95-454 (``CSRA''),
and the Whistleblower Protection Act of 1989 (``WPA''), Public Law 101-
12; and (2) the Department will investigate allegations by FBI
employees and applicants for employment of reprisal for making such
protected disclosures and take appropriate corrective action. The rule
is codified at 28 CFR part 27.
On January 9, 2008, the Department updated part 27 as well as 28
CFR 0.29d primarily to conform to organizational changes brought about
by a restructuring of relevant offices of the FBI. Technical Amendments
to the Regulations Providing Whistleblower Protection for Federal
Bureau of Investigation Employees, 73 FR 1493.
On October 10, 2012, President Barack Obama issued PPD-19, which,
in part, directed that the Department prepare a report that (1)
assesses the efficacy of the Department's FBI whistleblower protection
regulations found in 28 CFR part 27 in deterring the personnel
practices prohibited in 5 U.S.C. 2303, and in ensuring appropriate
enforcement of section 2303, and (2) describes any proposed revisions
to those regulations that would increase their effectiveness in
fulfilling the purposes of section 2303. PPD-19 at 5.
In response to this directive, the Office of the Deputy Attorney
General conducted a comprehensive review of the Department's
whistleblower regulations and historical experience with their
operation.\1\ As part of that process, the Department formed a working
group, seeking participation from the other key participants in
administering the Department's FBI whistleblower regulations--the FBI,
OARM, the Office of the Inspector General, and the Office of
Professional Responsibility--as well as the Justice Management
Division. In addition, the Department consulted with the Office of
Special Counsel (``OSC'') and FBI employees, as required by PPD-19. The
Department also consulted with representatives of non-governmental
organizations that support whistleblowers' rights and with private
counsel for whistleblowers (collectively, whistleblower advocates).\2\
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\1\ On November 27, 2012, President Obama signed the
Whistleblower Protection Enhancement Act of 2012, Public Law 112-
199, (``WPEA of 2012''). The Department considered the WPEA of 2012
as part of its PPD-19 review.
\2\ The Department convened a meeting with the following
whistleblower advocate organizations: Project on Government
Oversight; Kohn, Kohn & Colapinto; Government Accountability
Project; American Civil Liberties Union; and a former chief counsel
to the chairman of the Merit Systems Protection Board.
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With respect to consultation with FBI employees, the FBI's
representatives on the Department's working group consulted with
various FBI entities: the Ombudsman; the Office of Equal Employment
Opportunity Affairs; the Office of Integrity and Compliance; the Office
of Professional Responsibility; the Human Resources Division; and the
Inspection Division. The representatives also solicited the views of
each of the FBI's three official advisory committees that represent FBI
employees--the All-Employees Advisory Committee, the Agents Committee,
and the Middle-Management Committee.
In April 2014, after completion of the PPD-19 review, the
Department issued a report, ``Department of Justice Report on
Regulations Protecting FBI Whistleblowers'' (``PPD-19 Report''). The
report considered the historical context of the Department's efforts to
protect FBI whistleblowers from reprisal and the Department's current
policies and procedures for adjudicating claims of reprisal against FBI
whistleblowers; summarized and analyzed statistics regarding the use of
these policies and procedures in recent years; and identified desired
changes to existing policies and procedures as a result of this
assessment.
The Department issued a notice of proposed rulemaking on March 29,
2023, to reflect the PPD-19 Report's findings and recommendations, as
modified to comply with the FBI WPEA of 2016, discussed in further
detail below, which President Obama signed on December 16, 2016.
II. Historical Background on FBI Whistleblower Protection
Legislative protection of civilian Federal whistleblowers from
reprisal began in 1978 with passage of the CSRA, and was expanded by
the WPA and the Whistleblower Protection Enhancement Act of 2012,
Public Law 112-199 (``WPEA of 2012''). Currently, Federal employees
fall into three categories. Most civilian Federal employees are fully
covered by the statutory regime established by the CSRA, which permits
them to challenge alleged reprisals through the OSC and the Merit
Systems Protection Board (``MSPB''). By contrast, some Federal agencies
that deal with intelligence are expressly excluded from the
whistleblower protection scheme established by these statutes.
The FBI is in an intermediate position: Although it is one of the
agencies expressly excluded from the scheme established for Federal
employees generally, its employees nevertheless are protected by a
separate statutory provision and special regulations promulgated
pursuant to that provision, which forbid reprisals against FBI
whistleblowers and provide an administrative remedy within the
Department. See 28 CFR part 27.
To elaborate, the CSRA sets forth ``prohibited personnel
practices,'' which are a range of personnel actions that the Federal
Government may not take against Federal employees. One such prohibited
personnel practice is retaliating against an employee for revealing
certain agency information. Specifically, the CSRA originally made it
illegal for an agency to take or fail to take a personnel action with
respect to any employee or applicant for employment as a reprisal for
disclosure
[[Page 7279]]
of information that the employee or applicant reasonably believed
evidenced a violation of any law, rule, or regulation, or
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Public Law
95-454, sec. 101(a), codified at 5 U.S.C. 2302(b)(8). The CSRA also
created the MSPB and OSC to enforce the prohibitions on specified
personnel practices.
The CSRA, however, expressly excluded from this scheme the FBI, the
Central Intelligence Agency, various intelligence elements of the
Department of Defense, and any other executive agency or unit thereof
as determined by the President with the principal function of
conducting foreign intelligence or counterintelligence activities.
Public Law 95-454, sec. 101(a), codified at 5 U.S.C. 2302(a)(2)(C)(ii).
For the FBI alone, the CSRA specifically prohibited taking a
personnel action against employees or applicants for employment as a
reprisal for disclosing information that the employee or applicant
reasonably believed evidenced a violation of any law, rule, or
regulation, or mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety. Id., codified at 5 U.S.C. 2303(a)(1), (2). The CSRA defined a
``personnel action'' for the purpose of the FBI-specific prohibition as
any action specifically described in clauses (i) through (x) of 5
U.S.C. 2302(a)(2)(A), taken with respect to an employee in--or an
applicant for--a position other than one of a confidential, policy-
determining, policymaking, or policy-advocating character. Id.,
codified at 5 U.S.C. 2303(a). In addition, the CSRA limited the
protection of the FBI-specific prohibition to only those disclosures
that the FBI employee made through narrowly defined internal channels--
i.e., to the Attorney General or the Attorney General's designee. Id.
Finally, the CSRA directed the President to provide for the enforcement
of the provision relating to FBI whistleblowers in a manner consistent
with applicable provisions of 5 U.S.C. 1206, the section of the CSRA
that originally set out the responsibilities of the OSC, the MSPB, and
agency heads in response to a whistleblower complaint and provided for
various remedies. Id., codified at 5 U.S.C. 2303(c).
In April, 1980, the Department published a final rule implementing
section 2303. The rule provided, among other things, for a stay of any
personnel action if there were reasonable grounds to believe that the
personnel action was taken, or was to be taken, as a reprisal for a
disclosure of information by the employee to the Attorney General or
the Attorney General's designee that the employee reasonably believed
evidenced wrongdoing covered by section 2303. Office of Professional
Responsibility; Protection of Department of Justice Whistleblowers, 45
FR 27754, 27755 (Apr. 24, 1980).
In 1989, the statutory scheme for most civilian employees changed
in some respects when Congress passed the WPA, which significantly
expanded the avenues of redress generally available to civilian Federal
employees. In doing so, it replaced section 1206 with sections 1214 and
1221; these new sections set forth the procedures under which OSC would
investigate prohibited personnel practices and recommend or seek
corrective action, and the circumstances under which an individual
right of action before the MSPB would be available. Public Law 101-12,
sec. 3. Consistent with this change, the WPA amended section 2303,
governing FBI whistleblowers, to replace the requirement that
enforcement of whistleblower protections be consistent with applicable
provisions of section 1206 with a requirement that enforcement be
consistent with applicable provisions of newly added sections 1214 and
1221. Public Law 101-12, sec. 9(a)(1).
The WPA also amended the regime generally applicable to civil
service employees by revising section 2302 to protect only disclosures
of information the employee reasonably believes evidences ``gross
mismanagement,'' rather than ``mismanagement,'' as originally provided
by the CSRA. Public Law 101-12, sec. 4(a). However, the WPA did not
make a corresponding change to section 2303, the statute applicable to
FBI whistleblowers.
On April 14, 1997, President William J. Clinton issued a memorandum
delegating to the Attorney General the functions concerning employees
of the FBI vested in the President by the CSRA, and directing the
Attorney General to establish appropriate processes within the
Department to carry out these functions. Delegation of Responsibilities
Concerning FBI Employees Under the Civil Service Reform Act of 1978, 62
FR 23123 (Apr. 28, 1997). In November, 1999, the Department published a
final rule establishing procedures under which FBI employees or
applicants for employment may make disclosures of wrongdoing. 64 FR
58782 (Nov. 1, 1991). The rule created a remedial scheme within the
Department through which FBI employees can seek redress when they
believe they have suffered reprisal for making a protected disclosure.
Subject to minor amendments in 2001 and 2008, the rule, codified at 28
CFR part 27, remains in force.
On November 27, 2012, the month following President Obama's
issuance of PPD-19, he signed the WPEA of 2012 into law. That act,
among other things, amended 5 U.S.C. 1214 and 5 U.S.C. 1221 to
authorize awards of compensatory damages. Although the FBI is expressly
excluded from coverage under these statutory provisions and is instead
covered by 5 U.S.C. 2303, section 2303 directs that the President
ensure enforcement of section 2303 in a ``manner consistent with the
applicable provisions of sections 1214 and 1221.'' 5 U.S.C. 2303(c).
The WPEA of 2012 also expanded the number of prohibited personnel
actions set out in section 2302(a)(2), but made no corresponding change
to the cross-reference in section 2303(a). Accordingly, the Department
has considered the WPEA of 2012's changes to sections 1214, 1221, and
2302(a) and their impact on the FBI's whistleblower protection program
under section 2303 and has concluded that corresponding technical
amendments to the current regulations are appropriate, as described
further below.
On December 16, 2016, President Obama signed Public Law 114-302,
the FBI WPEA of 2016. That statute made two changes to the statutory
whistleblower protection scheme applicable to FBI employees. First, it
expanded the list of recipients set forth in 5 U.S.C. 2303(a) to whom a
disclosure could be made to be protected (assuming the substantive
requirements are met). Protected disclosures now may be made to an
employee's supervisor in the employee's direct chain of command, up to
and including the Attorney General; the Inspector General; the
Department's Office of Professional Responsibility; the FBI Office of
Professional Responsibility; the FBI Inspection Division; Congress, as
described in 5 U.S.C. 7211; OSC; or an employee designated to receive
such disclosures by any officer, employee, office, or division of the
listed entities. See Public Law 114-302, sec. 2.
Second, the FBI WPEA of 2016 changed the substantive requirement
for a protected disclosure, requiring that the disclosure be one that
the discloser reasonably believes evidences ``any violation''
(previously, ``a violation'') of any law, rule, or regulation, or
``gross mismanagement'' (previously, just ``mismanagement''), in
addition to the
[[Page 7280]]
previous (and unchanged) provision for disclosures of a gross waste of
funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id.
On December 23, 2022, President Joseph Biden signed Public Law 117-
263, which amended 5 U.S.C. 2303 to afford FBI whistleblowers with the
right to (1) appeal a final determination or corrective action order to
the MSPB, and (2) subject to certain conditions, seek corrective action
directly from the MSPB pursuant to 5 U.S.C. 1221. Public Law 117-263,
sec. 5304(a), codified at 5 U.S.C. 2303(d)(1), (2).
Finally, on March 29, 2023, the Department published a proposed
rule, which intended to (1) improve, pursuant to PPD-19 and consistent
with the Department's recommendations in the PPD-19 Report, the
internal investigation and adjudication of whistleblower retaliation
claims by FBI employees and applicants for employment under the
remedial scheme initially established in 1999 and codified at 28 CFR
part 0 and part 27; and (2) ensure that this process is consistent with
changes enacted by the WPEA of 2012 and the FBI WPEA of 2016. See 88 FR
18487 (March 29, 2023). Through the proposed rule, the Department
invited specific comments on and recommendations for how the Department
might further revise the regulations to increase fairness,
effectiveness, efficiency, and transparency, including to provide
enhanced protections for whistleblowers, in addition to the proposed
changes. Id.
III. Comments to the Proposed Rule and Department Responses
Following a period for public comment on the March 29, 2023,
proposed rule, the Department received a number of comments, many of
which generally endorsed the rulemaking proposal. Comments on the
proposed rule, and the Department's responses, are included in this
section, where they apply to specific subsections of the rule.
Definition of a ``Protected Disclosure''
In the proposed rule, the Department proposed several changes to
the definition of a ``protected disclosure'' under 28 CFR 27.1(a) to
conform to the requirements of the FBI WPEA of 2016. Under the current
rule, 28 CFR 27.1(a), a disclosure is considered protected if (1) it
was made to an office or individual designated to receive a protected
disclosure, and (2) the person making the disclosure reasonably
believed the disclosure evidenced a specific type of wrongdoing listed
in Sec. 27.1(a)(1) and (a)(2). The current rule lists the following
entities and individuals as designated recipients of a protected
disclosure:
<bullet> the Department's Office of Professional Responsibility;
<bullet> the Department's Office of the Inspector General;
<bullet> the FBI Office of Professional Responsibility;
<bullet> the FBI Inspection Division Internal Investigations
Section;
<bullet> the Attorney General;
<bullet> the Deputy Attorney General;
<bullet> the Director of the FBI;
<bullet> the Deputy Director of the FBI; or
<bullet> the highest ranking official in any FBI field office.
The proposed rule proposed to expand the list to comply with the
change made by the FBI WPEA of 2016. Specifically, the proposed
amendment to Sec. 27.1(a) would require that, to be protected, a
disclosure must be made to:
<bullet> a supervisor in the direct chain of command of the
employee, up to and including the Attorney General;
<bullet> the Department's Inspector General;
<bullet> the Department's Office of Professional Responsibility;
<bullet> the FBI Office of Professional Responsibility;
<bullet> the FBI Inspection Division;
<bullet> Congress, as described in 5 U.S.C. 7211;
<bullet> OSC; or
<bullet> an employee of any of the above entities, when designated
by any officer, employee, office, or division thereof for the purpose
of receiving such disclosures.
With respect to Sec. 27.1(a)(2), the current rule requires that
the person making the disclosure reasonably believe that it evidences:
``Mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.'' In the
proposed rule, the Department proposed to amend Sec. 27.1(a)(2) to
conform to the FBI WPEA of 2016 by removing ``Mismanagement'' and
replacing it with ``Gross mismanagement.''
Several commenters expressed concern with the revised definition of
a ``protected disclosure'' under 28 CFR 27.1(a) in the proposed rule.
One commenter expressed concern with the expanded list of offices and
officials designated to receive a protected disclosure under 28 CFR
27.1(a) in the proposed rule, noting that additional recipients ``may
result in a game of telephone where information may be misconstrued
when it gets passed up the chain.'' Another commenter wanted to remove
the limited list of recipients entirely. Several commenters expressed
concern with the proposed change to Sec. 27.1(a)(2) to remove
``Mismanagement'' and replace it with ``Gross mismanagement.'' These
commenters were concerned that the change would narrow the protections
currently afforded FBI whistleblowers or create difficulties in
interpretation.
Notwithstanding these concerns, the Department adopts in this final
rule the changes to 28 CFR 27.1(a) set forth in the proposed rule. The
designated recipients for protected disclosures are mandated by
statute, as is the requirement that only ``gross mismanagement''--as
opposed to any other type of ``mismanagement''--constitutes a protected
disclosure under the FBI WPEA of 2016, 5 U.S.C. 2303(a)(1) and
(a)(2)(B). Because the purpose of this proposed rule is to conform 28
CFR part 27 to the FBI WPEA of 2016, the Department declines to adopt
the changes sought by the commenters.
Modifying the Definition of a ``Personnel Action''
One commenter suggested amending the ``personnel action''
definition under 28 CFR 27.2(b) to include all twelve actions currently
listed in 5 U.S.C. 2302(a)(2)(A). The Department notes that this final
rule updates the description of protected whistleblower disclosures and
covered personnel actions to conform to the FBI WPEA of 2016. The
commenter also suggested that the Department further expand the
definition of ``personnel action'' in the rule to include retaliatory
investigations and the denial, suspension, or revocation of a security
clearance. Because the term ``personnel action'' is defined in 5 U.S.C.
2302(a)(2)(A), and the purpose of this proposed rule is to conform 28
CFR part 27 to the FBI WPEA of 2016, the Department declines to adopt
this suggestion.
Statement of Independence and Impartiality of OARM Determinations
During the Department's PPD-19 review, whistleblower advocates
expressed concern with the internal Department adjudication of FBI
reprisal cases brought under part 27. To address this concern, the
Department added language to 28 CFR 27.4(e)(1) in the proposed rule
that the determinations by the Director of OARM (``OARM Director'')
shall be independent and impartial.
One commenter suggested that the rule be further updated to apply
the statement of independence and impartiality to the OARM Director's
decision on a Conducting Office's request to stay a personnel action
under
[[Page 7281]]
28 CFR 27.4(b). That provision states, in relevant part: ``[T]he
Conducting Office may request the Director to order a stay of any
personnel action for 45 calendar days if it determines that there are
reasonable grounds to believe that a reprisal has been or is to be
taken. The Director shall order such stay . . . unless the Director
determines that, under the facts and circumstances involved, such a
stay would not be appropriate.'' Section 27.4(d) similarly addresses
the OARM Director's authority to grant a complainant's request for a
stay of a personnel action ``if the Director determines that such a
stay would be appropriate.''
Because the commenter's request for a statement of the OARM
Director's independent and impartial determination on a request for a
stay of a personnel action is consistent with the concerns raised by
whistleblower advocates during the Department's PPD-19 review regarding
the OARM Director's determinations under Sec. 27.4(e), the Department
adopts the commenter's suggestion, and also applies it to Sec.
27.4(d). This final rule thus changes Sec. 27.4(e)(1) to read: ``The
determination made by the Director under this section shall be
independent and impartial.''
Right to a Hearing
One commenter recommended that the rule provide a party with the
right to a hearing after OARM finds that it has jurisdiction over a
matter. Presently, neither party has an automatic right to a hearing
before the OARM Director; however, under Sec. 27.4(e)(3), either party
may request a hearing. The OARM Director currently has the discretion
to grant or deny a party's request for a hearing. Under current
practice, the request will be granted when the complainant has
presented a cognizable legal claim and there are disputed issues of
material fact that need resolution through live, testimonial evidence.
In determining whether a hearing is appropriate in a particular case,
the OARM Director currently considers whether a hearing would result in
unnecessary delay, needless expenditure of administrative resources, or
unnecessary burdens on the parties, and whether live testimony or
argument would be helpful in reaching a decision. The Department
concludes that automatically granting a right to a hearing after a
finding of OARM jurisdiction would not be an efficient means of
resolving all matters over which OARM has jurisdiction. The Department
therefore declines to adopt the recommendation.
Equalizing Access to Witnesses
During the Department's PPD-19 review, whistleblower advocate
groups raised concerns that, in some cases, the FBI has obtained
evidence from FBI management officials or employees as witnesses,
either through affidavits or testimony at a hearing, but that
complainants were unable to obtain similar access to FBI witnesses,
particularly former employees. Because the OARM Director lacks the
authority to compel attendance at a hearing, appearance at a
deposition, or the production of documentary evidence from individuals
not currently employed by the Department, the groups asked the
Department to consider implementing a regulatory provision that would
help equalize access to witnesses. Because the Department agreed with
that concern, the Department added a sentence to 28 CFR 27.4(e)(3) in
the proposed rule to give the OARM Director the discretion to prohibit
a party from adducing or relying on evidence from a person whom the
opposing party does not have an opportunity to examine or to give less
weight to such evidence.
Two commenters suggested changes to the proposed rule that would
eliminate the OARM Director's discretion and automatically preclude the
use of evidence that complainants do not have access to or relying on
evidence from a witness the opposing party is unable to examine.
In the Department's view, eliminating the Director's discretion by
requiring that unavailable witnesses be excluded in all cases would
unfairly disadvantage whistleblowers when, through no fault of their
own, witnesses who initially provided affidavits or other evidence in
support of the whistleblower later become unable or unwilling to
cooperate further. Under the proposed rule, depending on the
circumstances of each case, the Director may exercise discretion in
allowing a whistleblower to present such evidence, despite the
witness's unavailability to the FBI. Because the exercise of discretion
is necessary to conduct fair and just proceedings, the Department
declines to adopt the suggestion to eliminate the OARM Director's
discretion regarding how best to address the parties' unequal access to
witnesses.
Another commenter expressed a concern that the OARM Director's
discretion in the proposed revision to 28 CFR 27.4(e)(3) should include
stipulations, or, alternatively, a standard specifying the
circumstances in which the OARM Director would exercise his or her
discretion.
The Department agrees that it should describe some of the factors
that the OARM Director will consider when exercising the OARM
Director's discretion. But because we cannot know with certainty the
circumstances in which the OARM Director may decide to prohibit a party
from relying on witness evidence when the other party did not have
equal access to it, the Department declines to adopt the commenter's
suggestion as proposed. The Department will, however, modify Sec.
27.4(e)(3) in the final rule to specify some factors that the OARM
Director may consider in the OARM Director's decision to exclude such
evidence.
One commenter agreed with the proposed provision, but asserted that
the Department should implement adequate security to protect witnesses
from possible reprisal. OARM currently uses procedures that protect
certain information obtained during the course of discovery containing
personally identifiable information that could potentially impair the
safety or privacy rights of past and current employees. OARM's
protective procedures include the use of protective orders, redaction
of documents, and closed hearings for the presentation of any live
testimonial evidence. Given the OARM procedures already in place, the
Department declines to adopt this suggestion.
Finally, one commenter suggested that the rule be modified to
require the FBI to attempt to secure the testimony from employees in
Federal service who are employed by other Federal agencies at the time
of adjudication of the whistleblower reprisal complaint.
Requiring the FBI to attempt to secure the testimony from Federal
employees working at other Federal agencies, however, would require the
FBI to communicate directly with potentially adverse witnesses on
behalf of complainants. The proposed rule helps to equalize the
parties' access to witnesses. The commenter's suggested change does not
further that goal. The Department declines to adopt this suggestion.
Acknowledgement and Show-Cause Orders
In the proposed rule, the Department added a new paragraph (f) to
Sec. 27.4 to formalize the OARM Director's existing practice of
issuing acknowledgement and show-cause orders similar to those issued
by the MSPB. Under proposed 28 CFR 27.4(f)(1), the acknowledgment
orders issued by the OARM Director shall include: information on the
relevant case processing procedures and timelines, including the manner
of designation of a representative; the time
[[Page 7282]]
periods for and methods of discovery; the process for resolution of
discovery disputes; and the form and method of filing of pleadings. The
proposed provision further specified that the Acknowledgement Order
shall inform the parties of the jurisdictional requirements for full
adjudication of the request for corrective action and their respective
burdens of proof.
In cases where the OARM Director determines that there is an
initial question of the OARM Director's jurisdiction to review a
request for corrective action, the OARM Director shall issue, along
with the Acknowledgement Order, a Show-Cause Order explaining the
grounds for such determination and directing that, within 10 calendar
days of receipt of the order, the complainant submit a written response
explaining why the request should not be dismissed for lack of
jurisdiction. The FBI's reply to the complainant's response to the
Show-Cause Order is due within 20 calendar days within its receipt of
the complainant's response under proposed Sec. 27.4(f)(3).
Two commenters suggested an extension of the 10-calendar day
deadline for the complainant's response to the Show-Cause Order under
Sec. 27.4(f)(2). The Department adopts the proposal to extend that
deadline and modifies Sec. 27.4(f)(2) of this final rule to provide
the complainant with 15 calendar days to respond to a Show-Cause Order.
Damages
One commenter suggested modifying 28 CFR 27.4(g) in the proposed
rule to make an award of attorney's fees and costs mandatory whenever
corrective action is ordered.
Section 27.4(f) currently provides the OARM Director with the
authority to order certain corrective action to place the complainant,
as nearly as possible, in the position he or she would have been in had
the reprisal not taken place. Such corrective action ``may include,''
but is not limited to, reimbursement for attorney' fees and reasonable
costs. Under section 2303(c), the Department is charged with enforcing
28 CFR part 27 ``consistent with applicable provisions of 1214 and
1221.'' Corrective action ordered by the MSPB to a prevailing party in
an Individual Right of Action appeal under 5 U.S.C. 1221(g)(1)(B)
``shall include'' attorney's fees and costs provided that other
requirements are met. Because the Department already enforces its
corrective action authority in FBI whistleblower cases ``consistent
with'' section 1221(g)(1)(B), and there are circumstances where an
award of attorney's fees would not be mandatory (e.g., where the
complainant is a pro se litigant), the Department declines to adopt
this suggestion as stated. However, this final rule, in new Sec.
27.4(g), authorizes the OARM Director to order corrective action to a
prevailing complainant that ``shall, as appropriate,'' include
attorney's fees and reasonable costs, among other things.
Transparency Regarding OARM and Deputy Attorney General Decisions, and
the Publication of Reprisal Findings
In the proposed rule, the Department added Sec. 27.4(h) to
formalize OARM's policy of forwarding to the FBI Office of Professional
Responsibility, the FBI Inspection Division, and the FBI Director a
copy of the final determination in cases where the OARM Director finds
reprisal.
One commenter endorsed the proposal, but suggested that the
Department also report findings of reprisal to ``any other appropriate
law enforcement authority.''
Under current practice, the OARM Director refers findings of
reprisal internally within the FBI, and, as discussed below, the
Department has decided to publish in redacted form all dispositive OARM
decisions and Deputy Attorney General decisions reversing or remanding
OARM decisions, including those involving reprisal findings. The
Department believes these actions will help to hold those responsible
for unlawful reprisal accountable and deter others from violating the
protections afforded FBI whistleblowers. Because there is no other
``law enforcement authority'' that would accomplish these goals, the
Department declines to adopt this recommendation.
Another commenter endorsed the proposal, but suggested that
internal reporting alone is likely insufficient to deter retaliatory
conduct by FBI officials. The commenter suggested that the Department
consider publishing redacted or sanitized findings ``to ensure that
[the] individuals responsible understand the importance of respecting
whistleblower protections and the significant consequences for
violating them.'' Two other commenters also recommended that the
proposed regulation require that OARM publish its decisions, and one
suggested prohibiting OARM from citing or relying on a citation to an
unpublished decision that all parties do not have access to.
In response, the Department has decided to publish in redacted form
any decisions in closed cases on the merits, as well as procedural
decisions showing how the OARM Director and the Deputy Attorney General
have analyzed and decided issues relating to jurisdiction, discovery,
merits, corrective relief, and other issues of relevance to FBI
whistleblowers. All future decisions meeting these criteria will be
made public in redacted form, as will decisions issued after January 1,
2018. This is a Departmental policy decision, subject to revision or
rescission, and is therefore not memorialized in this final rule. The
Department also adopts the recommendation to specify in this final
rule, in a new Sec. 27.4(j), that the OARM Director will not
specifically cite or rely on any unpublished FBI whistleblower
decisions in OARM issuances.
Expanding the Availability of ADR
In the proposed rule, the Department proposed to add 28 CFR 27.7
(Sec. 27.8 in this final rule) to formalize inclusion of the
Department's FBI Whistleblower Mediation Program, which was implemented
in 2014. One commenter suggested that the provision be modified to
expand the availability of ADR to ``unprotected or potential''
whistleblowers who have not obtained ``protected status'' under 28 CFR
part 27.
As discussed in the proposed rule, mediation through the FBI
Whistleblower Mediation Program may be requested by the complainant at
any stage of proceedings under 28 CFR part 27--i.e., from the initial
filing of the complaint with the Conducting Office and at any
subsequent point thereafter while the complaint is being investigated
or adjudicated. The rule does not require that the complainant be
deemed a ``protected'' whistleblower by the OARM Director under the
adjudicative procedures set forth in 28 CFR 27.4 before electing ADR
through the FBI Whistleblower Mediation Program. However, the FBI
Whistleblower Mediation Program is only available to complainants who
have availed themselves of the protections provided in 28 CFR part 27.
To the extent the commenter suggests that the program be widely
available to FBI employees generally, the Department declines to adopt
this comment. The program was created, resourced, and implemented for
FBI whistleblower complainants only, and was not intended to be
accessible to all FBI employees.
Claims Involving a Breach of a Settlement Agreement
In the proposed rule, the Department proposed to add 28 CFR 27.8,
which would authorize the OARM Director to
[[Page 7283]]
adjudicate claims involving a breach of a settlement agreement.
Proposed Sec. 27.8 provides that a party may file with the OARM
Director a claim of a breach of a settlement agreement reached in
proceedings under 28 CFR part 27. Any claim of a breach of a settlement
agreement must be filed with the OARM Director ``within 30 days of the
date on which the grounds for the claim of breach were known.''
One commenter suggested that there is a conflict of interest
presented by proposed Sec. 27.8, ``by reserving to the Department the
right to decide whether the Department itself breached the settlement
agreement.'' The commenter suggested that the provision should be
modified to allow breach claims to be adjudicated in an external forum.
The Department declines to adopt this comment because other
Department components, and not the FBI, adjudicate breach claims. Just
as OARM has fairly decided FBI whistleblower retaliation claims, it can
also fairly decide claims involving a breach of a settlement agreement.
The commenter additionally suggested that proposed Sec. 27.8(a) be
modified to include either a ``reasonable suspicion'' or ``knew/should
have known'' standard, as, according to the commenter, ``those
standards are more extensively construed in precedent and thus clearer
in their application.''
The Department agrees with and adopts the latter comment. This
final rule, which designates proposed Sec. 27.8(a) as Sec. 27.9(a) in
the final rule, adds the words ``or should have been known'' after the
word ``known'' in that paragraph.
Reference to 2303(d) MSPB Appeal Rights in the Final Rule
In the preamble to the proposed rule, the Department referenced the
recent enactment of 5 U.S.C. 2303(d), which affords FBI whistleblowers
the right to (1) appeal a final determination or corrective action
order to the MSPB, and (2) subject to certain conditions, seek
corrective action directly from the MSPB pursuant to 5 U.S.C. 1221. See
5 U.S.C. 2303(d)(1) and (d)(2).
Several commenters suggested that the final rule include specific
reference to the MSPB appeal rights provided to FBI whistleblowers in 5
U.S.C. 2303(d). One commenter additionally suggested that the final
rule add new paragraphs under 28 CFR 27.4 and 27.5 to require notice to
the complainant of the right to file an Individual Right of Action
appeal with the MSPB pursuant to 5 U.S.C. 2303, specify the time frames
for doing so, and make clear that the complainant's filing of a request
for review by the Deputy Attorney General under 28 CFR 27.5 does not
affect the complainant's rights under 5 U.S.C. 2303(d).
In response, the Department agrees that 28 CFR part 27 should
reference section 2303(d), which will be included in this final rule,
as a new Sec. 27.7 (which, in turn, requires changing proposed
Sec. Sec. 27.7 and 27.8 to Sec. Sec. 27.8 and 27.9, respectively).
The Department declines to adopt the suggestion that the final rule
make clear that the complainant's filing of a request for review by the
Deputy Attorney General does not affect the complainant's section
2303(d) rights. By citing to section 2303(d) in new Sec. 27.7, the
Department clearly informs complainants of the right to file an appeal
with the MSPB.
Citation to MSPB Case Precedent as Binding
One commenter suggested that, given the recent passage of 5 U.S.C.
2303(d), the final rule should include a new provision specifying that
``all adjudications'' under 28 CFR part 27 will follow the case
precedent of the MSPB and its reviewing courts. Relatedly, the
commenter also suggests that, consistent with MSPB case precedent, the
final rule should modify 28 CFR 27.1(a) to make clear that the
whistleblower protections extend to ``perceived'' whistleblowers.
In response, the Department declines to adopt the suggestion that
the Department adopt as binding the case law of the MSPB and its
reviewing courts. While the Department looks to MSPB and related
Federal cases as persuasive, the Deputy Attorney General has the
ultimate authority to review and decide FBI whistleblower reprisal
appeals under 28 CFR part 27.
Procedural Case Processing Information
One commenter suggested that the Department include a new
procedural provision to clarify certain routine aspects of
administrative litigations. The Department declines to adopt the
suggestion, as case procedures and processing items are currently
publicly available in case procedure and processing documents issued by
the Office of the Deputy Attorney General and OARM and so need not be
memorialized in this final rule.
Rewording ``Whistleblower''
One commenter suggests developing ``an alternate title for the term
`whistleblower''' because it ``seems to always have a negative
connotation when used.''
In response, the Department declines to adopt the suggestion
because the updated regulations are intended to reflect changes
resulting from an assessment conducted by the Department in response to
PPD-19, and the FBI WPEA of 2016, both of which use that terminology,
and changing the term would lead to unnecessary confusion. Moreover,
the Department does not perceive the term ``whistleblower'' as having
any negative connotation.
The FBI's Prepublication Review Process
One commenter suggests that the Department add a provision to the
final rule to modify the FBI's prepublication review process to allow
for the disclosure of content that the commenter believes may otherwise
be protected by the First Amendment's Free Speech Clause. The
Department understands the suggestion to be directed at the FBI's
prepublication review process in general, and not specifically directed
at issues related to FBI whistleblower claims of unlawful reprisal.
Because the FBI's prepublication process is outside the scope of 28 CFR
part 27, the Department declines to adopt the suggested change.
Suspension of Security Clearances
One commenter suggested that the Department ``[p]rovide a
regulation stopping the FBI from suspending security clearances of
employees or suspending them from duty without pay until legal or
administrative action is taken against them.'' The National Security
Act of 1947 and PPD-19 make it unlawful for an agency (including the
FBI) to take any action affecting an employee's eligibility for access
to classified information in reprisal for making a protected
disclosure. These protections against revocations of security
clearances apply to FBI employees. The investigation and adjudication
of allegations that the suspension or revocation of security clearances
held by Department employees was in retaliation for making protected
disclosures are governed by different laws than those governing FBI
whistleblower reprisal allegations, including 50 U.S.C. 3341, PPD-19,
and DOJ Instruction 1700.00.01. Security clearance suspensions are
outside the scope of 28 CFR part 27, and the Department therefore
declines to adopt this suggestion.
IV. Regulatory Analyses
In developing this final rule, the Department considered numerous
statutes and executive orders applicable to rulemaking. The
Department's analysis of the applicability of those
[[Page 7284]]
statutes and executive orders to this rule is summarized below.
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory Review)
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, as supplemented by Executive
Order 13563 and amended by Executive Order 14094. This rule makes
procedural changes to the existing regulatory framework for resolving
claims of whistleblower retaliation by FBI employees and applicants.
The changes do not materially affect the number of claims or the time,
cost, or resources required to address them. Accordingly, this rule
does not require an assessment of potential costs and benefits under
section 6(a)(3) of Executive Order 12866. The Office of Management and
Budget has not reviewed this rule under these Orders.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-12, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. 5 U.S.C. 601.
The Department certifies under 5 U.S.C. 605(b) that this final rule
does not have a significant economic impact on a substantial number of
small entities. This rule addresses the Department's internal process
for addressing allegations of retaliation for protected whistleblowing
by FBI employees and applicants. It has no application to small
entities as defined above. This rule will perhaps have a tangential,
indirect, and transitory impact on law firms and advocacy organizations
representing FBI whistleblowers inasmuch as they would have to become
familiar with the changes in procedure.
C. Paperwork Reduction Act
This final rule does not call for a new collection of information
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-20.
Specifically, this rule regulates administrative actions or
investigations involving an agency against specific individuals or
entities and thus falls outside the scope of the Paperwork Reduction
Act. See 44 U.S.C. 3518(c)(1)(B)(ii).
D. Executive Order 13132 (Federalism)
A rule has federalism implications under Executive Order 13132 if
it has a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
E.O. 13132, sec. 1(a). The Department has analyzed this final rule
under that order and determined that this rule does not have federalism
implications.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-38,
requires Federal agencies to determine whether a rule, if promulgated,
will result in the expenditure by State, local, or Tribal Governments,
in the aggregate, or by the private sector, of $100 million (adjusted
for inflation) or more in any one year. 2 U.S.C. 1532(a). This final
rule does not require or result in expenditures by any of the above-
named entities. This rule addresses the Department's internal
procedures related to protected disclosures.
F. Executive Order 12988 (Civil Justice Reform), Plain Language
This final rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This final rule does not have tribal implications under Executive
Order 13175 because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
H. Congressional Review Act
The reporting requirements of the Congressional Review Act
(Subtitle E of the Small Business Regulatory Enforcement Fairness Act
of 1996), 5 U.S.C. 801-08, do not apply to this final rule. First, this
rule relates primarily to agency management, personnel, and
organization. 5 U.S.C. 804(3)(B). Second, to the extent that this rule
affects non-agency parties such as applicants for employment and former
employees, these parties are a small subset of the cases subject to the
rule, and the rule does not substantially affect such parties'
substantive rights or obligations. Id., 803(3)(C). Instead, this rule
makes changes primarily related to administrative processing of
whistleblower retaliation cases. This action is accordingly not a
``rule'' as that term is used by the Congressional Review Act, see 5
U.S.C. 804(3), and the reporting requirement of 5 U.S.C. 801 does not
apply. However, the Department is submitting a copy of this final rule
to both houses of Congress and to the Comptroller General.
List of Subjects
28 CFR Part 0
Authority delegations (Government agencies), Government employees,
National defense, Organization and functions (Government agencies),
Privacy, Reporting and recordkeeping requirements, Whistleblowing.
28 CFR Part 27
Government Employees; Justice Department; Organization and
functions (Government agencies); Whistleblowing.
Authority and Issuance
For the reasons stated above, the Department of Justice amends 28
CFR parts 0 and 27 as follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
Sec. 0.29d [Amended]
0
2. In Sec. 0.29d(a), remove the words ``a violation of any law, rule,
or regulation, or mismanagement'' and add, in their place, the words
``any violation of any law, rule, or regulation, or gross
mismanagement.''
PART 27--WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF
INVESTIGATION EMPLOYEES
0
3. The authority citation for part 27 is revised to read as follows:
Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; 5
U.S.C. 2303; President's Memorandum to the Attorney General,
Delegation of Responsibilities Concerning FBI Employees Under the
Civil Service Reform Act of 1978, 3 CFR p. 284 (1997); Presidential
Policy Directive 19, ``Protecting Whistleblowers with Access to
Classified Information'' (October 10, 2012).
0
4. Amend Sec. 27.1 by revising paragraph (a) and adding paragraph (c)
to read as follows:
Sec. 27.1 Making a protected disclosure.
(a) When an employee of, or applicant for employment with, the
Federal
[[Page 7285]]
Bureau of Investigation (FBI) (FBI employee) makes a disclosure of
information to a supervisor in the direct chain of command of the
employee, up to and including the Attorney General; to the Department
of Justice's (Department's) Office of the Inspector General (OIG), the
Department's Office of Professional Responsibility (OPR), the FBI
Office of Professional Responsibility (FBI OPR), or the FBI Inspection
Division (FBI-INSD) (collectively, Receiving Offices); to Congress as
described in 5 U.S.C. 7211; to the Office of Special Counsel; or to an
employee of any of the foregoing entities when designated by any
officer, employee, office, or division named in this subsection for the
purpose of receiving such disclosures, the disclosure will be a
``protected disclosure'' if the person making it reasonably believes
that it evidences:
(1) Any violation of any law, rule or regulation; or
(2) Gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety.
* * * * *
(c) To be a ``protected disclosure'' under this part, the
disclosure must be made to an office or official specified in paragraph
(a) of this section.
Sec. 27.2 [Amended]
0
5. In Sec. 27.2, paragraph (b), remove the reference ``(xi)'' and add,
in its place, the reference ``(xii)''.
0
6. Amend Sec. 27.4 by:
0
a. Revising paragraphs (a), (c)(1), (e)(1), (e)(3), (f), and (g); and
0
b. Adding paragraphs (e)(4), (h), (i), and (j).
The revisions and additions read as follows:
Sec. 27.4 Corrective action and other relief; Director, Office of
Attorney Recruitment and Management.
(a) If, in connection with any investigation, the Conducting Office
determines that there are reasonable grounds to believe that a reprisal
has been or will be taken, the Conducting Office shall report this
conclusion, together with any findings and recommendations for
corrective action, to the Director, Office of Attorney Recruitment and
Management (the Director). If the Conducting Office's report to the
Director includes a recommendation for corrective action, the Director
shall provide an opportunity for comments on the report by the FBI and
the Complainant. The Director, upon receipt of the Conducting Office's
report, shall proceed in accordance with paragraphs (e) and (f) of this
section. A determination by the Conducting Office that there are
reasonable grounds to believe that a reprisal has been or will be taken
shall not be cited or referred to in any proceeding under these
regulations, without the Complainant's consent.
* * * * *
(c)(1) The Complainant may present a request for corrective action
directly to the Director within 60 calendar days of receipt of
notification of termination of an investigation by the Conducting
Office or at any time after 120 calendar days from the date the
Complainant first notified an Investigative Office of an alleged
reprisal if the Complainant has not been notified by the Conducting
Office that it will seek corrective action. Within 5 business days of
the receipt of the request, the Director shall issue an Acknowledgement
Order in accordance with paragraph (f)(1) of this section.
* * * * *
(e)(1) The Director shall determine based upon all the evidence,
whether a protected disclosure was a contributing factor in a personnel
action taken or to be taken. Subject to paragraph (e)(2) of this
section, if the Director determines that a protected disclosure was a
contributing factor in a personnel action taken or to be taken, the
Director shall order corrective action as the Director deems
appropriate. The Director may conclude that the disclosure was a
contributing factor in the personnel action based upon circumstantial
evidence, such as evidence that the employee taking the personnel
action knew of the disclosure and that the personnel action occurred
within a period of time such that a reasonable person could conclude
that the disclosure was a contributing factor in the personnel action.
The determination made by the Director under this section shall be
independent and impartial.
* * * * *
(3) In making the determinations required under this paragraph, the
Director may hold a hearing at which the Complainant may present
evidence in support of his or her claim, in accordance with such
procedures as the Director may adopt. The Director is hereby authorized
to compel the attendance and testimony of, or the production of
documentary or other evidence from, any person employed by the
Department if doing so appears reasonably calculated to lead to the
discovery of admissible evidence, is not otherwise prohibited by law or
regulation, and is not unduly burdensome. The Director may prohibit a
party from adducing or relying on evidence from a person whom the
opposing party does not have an opportunity to examine, or the Director
may give less weight to such evidence. In excluding such evidence, the
Director may consider certain factors, including, but not limited to:
the probative value of the evidence; whether the evidence is supported
by sufficient guarantees of trustworthiness after considering the
totality of the circumstances under which it was made and any
corroborating evidence; and whether the evidence is duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive. Any privilege available in judicial and
administrative proceedings relating to the disclosure of documents or
the giving of testimony shall be available before the Director. All
assertions of such privileges shall be decided by the Director. The
Director may, upon request, certify a ruling on an assertion of
privilege for review by the Deputy Attorney General.
(4) Subject to paragraph (f) of this section, the Director may
establish such procedures as the Director deems reasonably necessary to
carry out the functions assigned under this paragraph.
(f)(1) Within 5 business days of receipt by the Director under
paragraph (a) of this section of a report from a Conducting Office, or
a request for corrective action from a Complainant under paragraph
(c)(1) of this section, the Director shall issue an Acknowledgement
Order that:
(i) Acknowledges receipt of the report or request;
(ii) Informs the parties of the relevant case processing procedures
and timelines, including the manner of designation of a representative,
the time periods for and methods of discovery, the process for
resolution of discovery disputes, and the form and method of filing of
pleadings;
(iii) Informs the parties of the jurisdictional requirements for
full adjudication of the request; and
(iv) Informs the parties of their respective burdens of proof.
(2) In cases where the Director determines that there is a question
about the Director's jurisdiction to review a request from the
Complainant, the Director shall, simultaneously with the issuance of
the Acknowledgement Order, issue a Show-Cause Order explaining the
grounds for such determination and directing that the Complainant,
within 15 calendar days of receipt of such order, submit a written
statement, accompanied by evidence, to explain why the request should
not be dismissed for lack of jurisdiction. The Complainant's written
[[Page 7286]]
statement must provide the following information as necessary to
address the jurisdictional question or as otherwise directed:
(i) The alleged protected disclosure or disclosures;
(ii) The date on which the Complainant made any such disclosure;
(iii) The name and title of any individual or office to whom the
Complainant made any such disclosure;
(iv) The basis for the Complainant's reasonable belief that any
such disclosure evidenced any violation of law, rule, or regulation;
gross mismanagement; a gross waste of funds; an abuse of authority; or
a substantial and specific danger to public health or safety;
(v) Any action the FBI allegedly took or failed to take, or
threatened to take or fail to take, against the Complainant because of
any such disclosure, the name and title of all officials responsible
for each action, and the date of each action;
(vi) The basis for the Complainant's belief that any official
responsible for an action knew of any protected disclosure, and the
date on which the official learned of the disclosure;
(vii) The relief sought; and
(viii) The date the reprisal complaint was filed with the
Investigative Office and the date on which the Conducting Office
notified the Complainant that it was terminating its investigation into
the complaint, or if the Complainant has not received such notice,
evidence that 120 days have passed since the Complainant filed a
complaint of reprisal with the Investigative Office.
(3) The FBI shall file a reply to the Complainant's response to the
Show-Cause Order within 20 calendar days of receipt of such reply.
(i) The reply shall address issues identified by the Director in
the Show-Cause Order and matters raised in the Complainant's response
to that order under paragraph (f)(2) of this section, and shall
include: a statement identifying any FBI actions taken against the
Complainant and the reasons for taking such actions; designation of and
signature by the FBI legal representative; and any other documents or
information requested by the Director.
(ii) The reply may also include any and all documents contained in
the FBI record of the action or actions.
(4) After receipt of the FBI's response, the record on the
jurisdictional issue will close, absent a request from either party
establishing exigent circumstances requiring the need for the
presentation of additional evidence or arguments.
(g) If the Director orders corrective action, such corrective
action shall, as appropriate, include: placing the Complainant, as
nearly as possible, in the position the Complainant would have been in
had the reprisal not taken place; reimbursement for attorney's fees,
reasonable costs, medical costs incurred, and travel expenses; back pay
and related benefits; compensatory damages to the extent authorized by
law; and any reasonable and foreseeable consequential damages.
(h) Whenever the Director determines that there has been a reprisal
prohibited by Sec. 27.2 of this part, the Director, in addition to
ordering any corrective action as authorized by Sec. 27.4(g), shall
forward to FBI OPR, FBI-INSD, and the Director of the FBI, a copy of
the Director's written opinion finding that there has been a prohibited
reprisal. FBI OPR shall make an independent determination of whether
disciplinary action is warranted.
(i) If the Director determines that there has not been any reprisal
prohibited by Sec. 27.2, the Director shall report this finding in
writing to the Complainant, the FBI, and the Conducting Office.
(j) The Director will not cite or rely upon any unpublished FBI
whistleblower decision issued by the Director or Deputy Attorney
General in rendering any decision under Sec. 27.4.
0
7. Revise Sec. 27.5 to read as follows:
Sec. 27.5 Review.
(a) Within 30 calendar days of a finding of a lack of jurisdiction,
a final determination on the merits, or corrective action ordered by
the Director, the Complainant or the FBI may request review by the
Deputy Attorney General of that determination or order. The Deputy
Attorney General shall set aside or modify the Director's actions,
findings, or conclusions found to be arbitrary, capricious, and abuse
of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been
followed; or unsupported by substantial evidence. The Deputy Attorney
General has full discretion to review and modify corrective action
ordered by the Director, provided, however that if the Deputy Attorney
General upholds a finding that there has been a reprisal, then the
Deputy Attorney General shall order appropriate corrective action.
(b) The parties may not file an interlocutory appeal to the Deputy
Attorney General from a procedural ruling made by the Director during
proceedings pursuant to Sec. 27.4 of this part. The Deputy Attorney
General has full discretion to review such rulings by the Director
during the course of reviewing an appeal of the Director's finding of a
lack of jurisdiction, final determination, or corrective action order
brought under paragraph (a) of this section.
(c) In carrying out the functions set forth in this section, the
Deputy Attorney General may issue written directives or orders to the
parties as necessary to ensure the efficient and fair administration
and management of the review process.
0
8. Add Sec. 27.7 to read as follows:
Sec. 27.7 Right to appeal to or seek corrective relief from the U.S.
Merit Systems Protection Board.
An FBI whistleblower may appeal to, or seek corrective relief from,
the U.S. Merit Systems Protection Board in accordance with the
provisions of 5 U.S.C. 2303(d).
0
9. Add Sec. 27.8 to read as follows:
Sec. 27.8 Alternative dispute resolution.
(a) At any stage in the process set forth in Sec. Sec. 27.3
through 27.5 of this part, the Complainant may request Alternative
Dispute Resolution (ADR) through the Department of Justice Mediator
Corps (DOJMC) Program. The Complainant may elect to participate in ADR
by notifying in writing the office before which the matter is then
pending.
(b) If the Complainant elects mediation, the FBI, represented by
the Office of General Counsel, will participate.
(c) When the Complainant requests to engage in ADR, the process set
forth in Sec. Sec. 27.3 through 27.5, as applicable, including all
time periods specified therein, will be stayed for an initial period of
90 days, beginning on the date of transmittal of the matter to the
DOJMC Program office. Upon joint request by the parties to the office
before which the matter is stayed, the period of the stay may be
extended up to an additional 45 days. Further requests for extension of
the stay may be granted only by the Director, regardless of the office
before which the matter is pending, upon a joint request showing good
cause. The stay otherwise will be lifted if the DOJMC Program notifies
the office before which the matter is stayed that the Complainant no
longer wishes to engage in mediation, or that the parties are unable to
reach agreement on resolution of the complaint and that continued
efforts at mediation would not be productive.
0
10. Add Sec. 27.9 to read as follows:
[[Page 7287]]
Sec. 27.9 Authority of the Director to review and decide claims of a
breach of a settlement agreement.
(a) Any party to a settlement agreement reached in proceedings and
in a forum under this part may file a claim of a breach of that
settlement agreement with the Director within 30 days of the date on
which the grounds for the claim of breach were known or should have
been known.
(b) The Director shall adjudicate any timely claim of a breach of a
settlement agreement. The Director shall exercise the authority granted
under Sec. 27.4(e)(4) to ensure the efficient administration and
management of the adjudication of the breach claim, pursuant to any
procedures the Director deems reasonably necessary to carry out the
functions assigned under this paragraph.
(c) A party may request, within 30 calendar days of a decision on a
claim of a breach of a settlement agreement by the Director, review of
that decision by the Deputy Attorney General.
Dated: January 25, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-01934 Filed 2-1-24; 8:45 am]
BILLING CODE 4410-AR-P
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</html>Indexed from Federal Register on February 2, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.