Whistleblower Protection For Federal Bureau of Investigation Employees

DEPARTMENT OF JUSTICE

28 CFR Parts 0 and 27

[A.G. Order No. 2190-98]

RIN 1105-AA60

Whistleblower Protection For Federal Bureau of Investigation

Employees

AGENCY: Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule establishes procedures under which employees

of the Federal Bureau of Investigation may make disclosures of

information protected by the Civil Services Reform Act of 1978 (Pub. L.

No. 95-454) and the Whistleblower Protection Act of 1989 (Pub. L. No.

101-12), codified at 5 U.S.C. 2303. It also establishes procedures

under which the Department of Justice (the Department) will investigate

allegations by Federal Bureau of Investigation (FBI) employees of

retaliation for making such disclosures and provide appropriate

corrective action.

DATES: Effective date: November 10, 1998.

Comment Date: Comments are due on or before January 11, 1999.

ADDRESSES: Interested parties should submit written comments to: Stuart

Frisch, General Counsel, Office of the General Counsel, Justice

Management Division, United States Department of Justice, 10th and

Pennsylvania Ave., N.W., Washington, D.C., 20530.

E-mail comments submitted over the Internet should be addressed to

[email protected].

FOR FURTHER INFORMATION CONTACT:

Stuart Frisch, General Counsel, or John Caterini, Attorney-Advisor,

Office of the General Counsel, Justice Management Division, U.S.

Department of Justice, (202) 514-3452.

SUPPLEMENTARY INFORMATION:

A. Background

Under sections 1214 and 1221 of title 5 of the United States Code,

most Federal employees who believe they have been the victim of a

prohibited personnel practice, including retaliation for

whistleblowing, have the right to request an investigation by the

Office of Special Counsel (OSC) (section 1214) or, in appropriate

circumstances, to pursue an individual right of action before the Merit

Systems Protection Board (MSPB) (sections 1214(a)(3) & 1221). Under 5

U.S.C. 2302(a)(2)(C)(ii), the FBI is expressly excluded from the scheme

established by sections 1214 and 1221. Section 2303(a) of title 5,

however, separately prohibits employees of the FBI from retaliating

against whistleblowers. Section 2303(b) charges the Attorney General

with prescribing regulations to ensure that such retaliation not be

taken, and section 2303(c) charges the President with providing for the

enforcement of section 2303 ``in a manner consistent with applicable

provisions of section 1214 and 1221.''

On April 14, 1997, the President delegated to the Attorney General

his ``functions concerning employees of the Federal Bureau of

Investigation vested in [him] by . . . section 2303(c) of title 5,

United States Code,'' and directed the Attorney General to establish

``appropriate processes within the Department of Justice to carry out

these functions.'' See 62 FR 23123 (1997).

Accordingly, this interim rule implements 5 U.S.C. 2303 (b) & (c).

It supersedes and replaces 28 CFR 0.39c, which gave the Counsel for the

Department's Office of Professional Responsibility authority to request

a stay of a personnel action when he determined that there were

reasonable grounds to believe that the action was taken as a reprisal

for whistleblowing.

The rule designates the Department's Office of Professional

Responsibility (OPR), the Department's Office of Inspector General

(OIG), and the FBI's Office of Professional Responsibility as offices

to which an FBI employee (or applicant for employment with the FBI) may

disclose information that the employee or applicant reasonably believes

evidences: violation of any law, rule or regulation; mismanagement; a

gross waste of funds; an abuse of authority; or a substantial and

specific danger to public health or safety. Any such disclosure to one

of these offices is protected, and the rule prohibits retaliation for

making it. The rule further provides that OPR and OIG will investigate

whistleblower retaliation claims, recommend stays of personnel actions,

and recommended corrective action where appropriate. The Director,

Office of Attorney Personnel Management (the Director), or his

designee, will decide whistleblower retaliation claims presented to him

by OPR or OIG, as well as those claims brought to him directly by an

employee or applicant in appropriate circumstances. He will also grant

stays

[[Page 62938]]

of personnel actions and order corrective action when appropriate. The

rule grants powers and functions to the investigating offices (i.e.,

OPR or OIG) and to the Director that are consistent with those granted

to the OSC and MSPB in sections 1214 and 1221. Time frames specified in

the statute generally were imported from those provided for in the OSC/

MSPB system. The regulations allow for an extension of any time limit

in extenuating circumstances.

Sections 1214(c) and 1221(h) of title 5 provide for judicial review

by the Court of Appeals for the Federal Circuit. Section 2303(c),

however, authorizes the Executive Branch to resolve allegations of

whistleblower reprisal involving the FBI without reference to judicial

review. Because only Congress is empowered to waive sovereign immunity,

and section 2303 does not include such a waiver, this rule does not

provide for judicial review. The rule provides for review of the

Director's decision by the Deputy Attorney General or his designee, who

will review the decision under the standard set forth in 5 U.S.C.

7703(c). That is, the Deputy Attorney General shall review the record

and modify or set aside the Director's actions, findings, or

conclusions found to be: (1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained

without procedures required by law, rule, or regulation having been

followed; or (3) 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.

The regulation provides this discretionary review because the Attorney

General, as head of the Department, must retain ultimate authority over

any decision that might relate to or affect the management of the FBI;

under 28 CFR 0.15, the Deputy Attorney General is generally authorized

to exercise all the power and authority of the Attorney General.

This interim rule is effective upon publication in the Federal

Register, although the Department invites post-promulgation comments

and will address any such comments in a final rule. The Department

finds that good cause exists under 5 U.S.C. 553(b) and (d)(3) for

adopting this as an interim rule without the prior notice and comment

period ordinarily required by 5 U.S.C. 553. This rule provides formal

procedures under which employees of, or applicants for employment with,

the FBI may make certain protected disclosures of information and

establishes procedures under which the Department will investigate

allegations of reprisal for making any such disclosure. It provides a

benefit to FBI employees or applicants for employment with the FBI.

These procedures provide additional protection to such employees and

applicants, and it is in the public interest to provide such protection

without delay.

B. Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it

certifies that it will not have a significant economic impact on a

substantial number of small entities. This rule merely establishes

procedures under which employees or applicants for employment with the

FBI, may make certain protected disclosures of information and

establishes procedures under which the Department will investigate

allegations of retaliation against such individuals.

C. Executive Order 12866

This regulation has been drafted and reviewed in accordance with

Executive Order 12866. The Department has determined that this rule is

not a ``significant regulatory action'' under section 3(f) of Executive

Order 12866, Regulatory Planning and Review, and accordingly this rule

has not been reviewed by the Office of Management and Budget.

D. Executive Order 12612

This regulation will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

E. Unfunded Mandates Reform Act of 1995

This rule will not, in the aggregate, result in the expenditure by

State, local and tribal governments, or by the private sector, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

F. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by the Small Business

Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete with foreign-based companies in domestic and export markets.

List of Subjects in 28 CFR Part 27

Government Employees; Justice Department; Organization and

functions (Government agencies); Whistleblowing.

For the reasons stated in the preamble, title 28 of the Code of

Federal Regulations is amended as follows:

Sec. 0.39c [Removed]

1. In Subpart G-2 of Part 0, remove section 0.39c.

2. Add Part 27 to read as follows:

PART 27--WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF

INVESTIGATION EMPLOYEES

Subpart A--Protected Disclosures of Information

Sec. 27.1 Making a protected disclosure.

Sec. 27.2 Prohibition against reprisal for making a protected

disclosure.

Subpart B--Investigating Reprisal Allegations and Ordering Corrective

Action

Sec. 27.3 Investigations: Office of Professional Responsibility and

Office of the Inspector General.

Sec. 27.4 Corrective action and other relief: Director, Office of

Attorney Personnel Management.

Sec. 27.5 Review.

Sec. 27.6 Extensions of time.

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).

Subpart A--Protected Disclosures of Information

Sec. 27.1 Making a protected disclosure.

(a) When an employee of, or applicant for employment with, the

Federal Bureau of Investigation (FBI) (FBI employee) makes a disclosure

of information to either the Department of Justice's (Department's)

Office of Professional Responsibility (OPR), the Department's Office of

Inspector

[[Page 62939]]

General (OIG), or the FBI Office of Professional Responsibility

(collectively, Receiving Offices), the disclosure will be a ``protected

disclosure'' if the person making it reasonably believes that it

evidences:

(1) A violation of any law, rule or regulation; or

(2) Mismanagement, a gross waste of funds, an abuse of authority,

or a substantial and specific danger to public health or safety.

(b) When a Receiving Office receives a protected disclosure, it

shall proceed in accordance with existing procedures establishing

jurisdiction among the respective Receiving Offices.

Sec. 27.2 Prohibition against reprisal for making a protected

disclosure.

(a) Any employee of the FBI, or of any other component of the

Department, 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, as defined

below, with respect to any FBI employee as a reprisal for a protected

disclosure.

(b) Personnel action means any action described in clauses (i)

through (x) of 5 U.S.C. 2302(a)(2)(A) taken with respect to an FBI

employee other than one in a position which the Attorney General has

designated in advance of encumbrance as being a position of a

confidential, policy-determining, policy-making, or policy-advocating

character.

Subpart B--Investigating Reprisal Allegations and Ordering

Corrective Action

Sec. 27.3 Investigations: Office of Professional Responsibility and

Office of the Inspector General.

(a)(1) An FBI employee who believes that another employee of the

FBI, or of any other Departmental component, has taken or has failed to

take a personnel action as a reprisal for a protected disclosure

(reprisal), may report the alleged reprisal to either the Department's

OPR or the Department's OIG (collectively, Investigative Offices). The

report of an alleged reprisal must be made in writing.

(2) For purposes of this Subpart, references to the FBI include any

other Departmental component in which the person or persons accused of

the reprisal were employed at the time of the alleged reprisal.

(b) The Investigative Office that receives the report of an alleged

reprisal shall consult with the other Investigative Office to determine

which office is more suited, under the circumstances, to conduct an

investigation into the allegation. The Attorney General retains final

authority to designate or redesignate the Investigative Office that

will conduct an investigation.

(c) Within 15 calendar days of the date the allegation of reprisal

is first received by an Investigative Office, the office that will

conduct the investigation (Conducting Office) shall provide written

notice to the person who made the allegation (Complainant) indicating--

(1) That the allegation has been received; and

(2) The name of a person within the Conducting Office who will

serve as a contact with the Complainant.

(d) The Conducting Office shall investigate any allegation of

reprisal to the extent necessary to determine whether there are

reasonable grounds to believe that a reprisal has been or will be

taken.

(e) Within 90 calendar days of providing the notice required in

paragraph (c) of this section, and at least every 60 calendar days

thereafter (or at any other time if the Conducting Office deems

appropriate), the Conducting Office shall notify the Complainant of the

status of the investigation.

(f) The Conducting Office shall determine whether there are

reasonable grounds to believe that there has been or will be a reprisal

for a protected disclosure. The Conducting Office shall make this

determination within 240 calendar days of receiving the allegation of

reprisal.

(g) If the Conducting Office decides to terminate an investigation,

it shall provide, no later than 10 business days before providing the

written statement required by paragraph (h) of this section, a written

status report to the Complainant containing the factual findings and

conclusions justifying the termination of the investigation. The

Complainant may submit written comments on such report to the

Conducting Office. The Conducting Office shall not be required to

provide a subsequent written status report after submission of such

comments.

(h) If the Conducting Office terminates an investigation, it shall

prepare and transmit to the Complainant a written statement notifying

him/her of--

(1) The termination of the investigation;

(2) A summary of relevant facts ascertained by the Conducting

Office;

(3) The reasons for termination of the investigation; and

(4) A response to any comments submitted under paragraph (g) of

this section.

(i) Such written statement prepared pursuant to paragraph (h) of

this section may not be admissible as evidence in any subsequent

proceeding without the consent of the Complainant.

(j) Nothing in this part shall prohibit the Receiving Offices, in

the absence of a reprisal allegation by an FBI employee under this

part, from conducting an investigation, under their pre-existing

jurisdiction, to determine whether a reprisal has been or will be

taken.

Sec. 27.4 Corrective action and other relief: Director, Office of

Attorney Personnel 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 Personnel

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 paragraph (f) of this section.

(b) At any time, the 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 within

three business days of receiving the request for stay, unless the

Director determines that, under the facts and circumstances involved,

such a stay would not be appropriate. The Director may extend the

period of any stay granted under this paragraph for any period that the

Director considers appropriate. The Director shall allow the FBI an

opportunity to comment to the Director on any proposed extension of a

stay. The Director may terminate a stay at any time, except that no

such termination shall occur until the Complainant and the Conducting

Office shall first have had notice and an opportunity to comment.

(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

[[Page 62940]]

Office that it will seek corrective action. The Director shall notify

the FBI of the receipt of the request and allow the FBI 25 calendar

days to respond in writing. If the Complainant presents a request for

corrective action to the Director under this paragraph, the Conducting

Office may continue to investigate the reprisal allegation only with

the consent of the Complainant. If the Complainant refuses such

consent, the Conducting Office will discontinue investigation of the

reprisal allegation and will not prepare a report for the Director. In

such event, however, the Conducting Office may continue to investigate

any separate violation of law, rule, or regulation discovered during

the investigation of reprisal that is otherwise within the Conducting

Office's pre-existing jurisdiction. When the Complainant presents a

request for corrective action directly to the Director and does not

consent to the Conducting Office continuing an independent

investigation of the reprisal allegation, the Conducting Office shall

submit to the Complainant and to the FBI its Memoranda of Interviews

(or portions thereof) that relate to the reprisal investigation,

consistent with the Conducting Office's obligations regarding

confidentiality and privacy.

(2) The Director may not direct the Conducting Office to reinstate

an investigation that the Conducting Office has terminated in

accordance with section 27.3(h).

(d) Where a Complainant has presented a request for corrective

action directly to the Director under paragraph (c)(1) of this section,

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. Any privilege available in

judicial and administrative proceedings relating to the release of

documents or the giving of testimony shall be available to the parties

in the hearing before the Director. All assertions of such privileges

shall be decided by the Director. Upon the request of either the

Complainant, the Conducting Office, or the FBI, the Director may

certify a ruling on an assertion of privilege for review by the Deputy

Attorney General.

(e) Where a Complainant has presented a request for corrective

action to the Director under paragraph (c) of this section, the

Complainant may at any time request the Director to order a stay of any

personnel action allegedly taken or to be taken in reprisal for a

protected disclosure. The request for a stay must be in writing, and

the FBI shall have an opportunity to respond. The request shall be

granted within 10 business days of the receipt of any response by the

FBI if the Director determines that such a stay would be appropriate. A

stay granted under this paragraph shall remain in effect for such

period as the Director deems appropriate. The Director may modify or

dissolve a stay under this paragraph at any time if the Director

determines that such a modification or dissolution is appropriate.

(f) 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. If the Director determines that a

protected disclosure was a contributing factor in a personnel action

taken or to be taken, he shall order corrective action as he 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 or 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.

Corrective action may not be ordered, however, if the FBI demonstrates

by clear and convincing evidence that it would have taken the same

personnel action in the absence of such disclosure.

(g) If the Director orders corrective action, such corrective

action may include: placing the Complainant, as nearly as possible, in

the position he would have been in had the reprisal not taken place;

reimbursement for attorneys fees, reasonable costs, medical costs

incurred, and travel expenses; back pay and related benefits; and any

other reasonable and foreseeable consequential damages.

(h) If the Director determines that there has not been a reprisal,

the Director shall report this finding in writing to the Complainant,

the FBI, and the Conducting Office.

Sec. 27.5 Review.

The Complainant or the FBI may request from the Deputy Attorney

General a review of the Director's decision within 30 calendar days.

The Deputy Attorney General (or a designee) shall set aside or modify

the Director's actions, findings, or conclusions found to be arbitrary,

capricious, an 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.

Sec. 27.6 Extensions of time.

The Director may extend, for extenuating circumstances, any of the

time limits provided in these regulations relating to proceedings

before him and to requests for review by the Deputy Attorney General.

Dated: October 29, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98-29700 Filed 11-9-98; 8:45 am]

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