Whistleblower Protection For Federal Bureau of Investigation Employees

DEPARTMENT OF JUSTICE

28 CFR Parts 0 and 27

[A.G. Order No. 2264-99]

RIN 1105-AA60

Whistleblower Protection For Federal Bureau of Investigation

Employees

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice (Department) adopts as final, with

certain changes discussed below, the interim rule published last year

in the Federal Register establishing procedures under which employees

of the Federal Bureau of Investigation (FBI) may make disclosures of

information protected by the Civil Service Reform Act of 1978 and the

Whistleblower Protection Act of 1989. The interim rule also established

procedures under which the Department will investigate allegations by

FBI employees of reprisal for making such protected disclosures, and

under which it will take appropriate corrective action.

DATES: This rule is effective November 1, 1999.

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, 950 Pennsylvania Ave., NW, Washington, DC 20530;

telephone: (202) 514-3452; e-mail: John.C[email protected].

SUPPLEMENTARY INFORMATION:

A. Background

On November 10, 1998, the Department issued an interim rule

establishing procedures under which FBI employees may make disclosures

of information protected by the Civil Service Reform Act of 1978, Pub.

L. 95-454, and the Whistleblower Protection Act of 1989, Pub. L. 101-

12, codified at 5 U.S.C. 2303. The interim rule also established

procedures under which the Department will investigate allegations by

FBI employees of reprisal for making such protected disclosures and

under which it will take appropriate corrective action.

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

most federal employees who believe they have been subjected to a

prohibited personnel practice, including reprisal for whistleblowing,

may request an investigation by the Office of Special Counsel (OSC)

(section 1214) or, in appropriate circumstances, pursue an individual

right of action before the

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Merit Systems Protection Board (MSPB) (sections 1214(a)(3) and 1221).

Although Congress expressly excluded the FBI from the scheme

established by those provisions, see 5 U.S.C. 2302(a)(2)(C)(ii),

section 2303(a) of title 5 contains a separate provision that prohibits

reprisals against whistleblowers in the FBI. Section 2303(b) directs

the Attorney General to prescribe regulations to ensure that such

reprisal not be taken, and section 2303(c) directs the President to

provide 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 the ``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).

The interim rule implements section 2303(b) and (c) and the

President's April 1997 directive, superseding and replacing 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 against an FBI employee when he determined that there were

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

for whistleblowing. The interim rule designates specific offices--the

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

Department's Office of Inspector General (OIG), and the FBI's Office of

Professional Responsibility (FBI OPR) (collectively, Receiving

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. (Such

disclosures are referred to herein as ``whistleblower disclosures.'')

In accordance with section 2303(a), the interim rule prohibits

reprisals against persons who make such disclosures.

The interim rule further provides that OPR or OIG (the Conducting

Office) will investigate whistleblower reprisal claims and may

recommend corrective action, where appropriate, to the Director, Office

of Attorney Personnel Management (the Director). Under the interim

rule, the Director may decide whistleblower reprisal claims presented

to her by OPR or OIG (or, in appropriate circumstances, by a

complainant directly). The Director may also, among other things,

authorize a temporary stay, rule on evidentiary matters, and hold a

hearing. Under the interim rule, the roles and functions of the

Conducting Office and the Director are thus analogous to those of the

OSC and MSPB, respectively, in whistleblower cases involving federal

employees generally. In addition, the interim rule imports time frames

specified in the statute for the OSC/MSPB system whenever possible.

One fundamental difference, however, between the two systems is

that the procedures provided in the interim rule are entirely internal

to the Department. This is because section 2303 (the source of

authority for the interim rule) identifies the Attorney General or her

designee as recipients of protected whistleblower disclosures, rather

than any outside person or entity. In addition, the President's April

1997 directive, consistent with the statute and its legislative

history, directs that the Attorney General establish appropriate

processes within the Department of Justice. See, e.g., 124 Cong. Rec.

28770 (1978) (``We gave (the FBI) special authority * * * to let the

President set up their own whistle-blower (sic) system so that appeals

would not be to the outside but to the Attorney General.'') (statement

of Representative Udall).

Although the interim rule was effective upon publication in the

Federal Register, the Department invited post-promulgation comments.

The Department received three sets of comments, which are discussed

below.

B. Discussion of Comments and Changes to the Interim Rule

1. Definition of Protected Disclosure

Unlike section 2303, section 2302 (which sets forth the scheme for

federal employees generally) creates two types of protected

disclosures. Section 2302(b)(8)(A) protects whistleblower disclosures,

regardless of whom they are made to, provided that they are not

otherwise specifically prohibited by law or required by Executive Order

to be kept secret. Section 2302(b)(8)(B), by contrast, protects

whistleblower disclosures, without qualification or exception, only if

they are made to certain specific persons or entities--the OSC, an

agency Inspector General, or other designee appointed by the head of

the agency. Section 2303 adopts the approach set forth in

2302(b)(8)(B), in that it protects whistleblower disclosures that are

made to particular persons or entities (namely, the Attorney General or

her designee).

One commenter suggested that the final rule should follow the

approach set forth in section 2302(b)(8)(A), under which disclosures

that do not otherwise violate law or Executive Order would be protected

regardless of to whom they are made. We have not adopted this

suggestion. The operative statutory provision, section 2303(a),

protects whistleblowing disclosures only if they are made to the

Attorney General or an employee whom she designates. Section 2303(a)

thus treats FBI whistleblowing activity differently from other agency

whistleblowing by channeling whistleblowers to designated agency

officials.

2. Recipients of Protected Disclosures

As stated earlier, the interim rule designates three entities to

receive whistleblower disclosures: OPR, OIG, and FBI OPR. All three

commenters suggested expanding the list of recipients for protected

disclosures. In particular, the commenters proposed the following

additional recipients: The FBI Director and Deputy Director; the FBI

Inspection Division; supervisors in the chain of command; co-workers;

and members of Congress.

We agree that whistleblower disclosures made to the head of an

employee's agency should be protected, and the final rule therefore

includes the FBI Director and Deputy Director, as well as the Attorney

General and Deputy Attorney General, as recipients for such

disclosures. We have also decided to designate the highest-ranking

official in each FBI field office as recipients of protected

disclosures. The highest-ranking official in each FBI field office is

generally a Special Agent in Charge (SAC). The exceptions are the FBI's

field offices in Los Angeles, CA, New York, NY, and Washington, DC,

where the highest-ranking official is an Assistant Director in Charge

(ADIC). These senior officials--whether SACs or ADICs--are generally in

a position to take action against and to correct management and other

problems within their respective field offices. In addition,

designating the heads of field offices as recipients of protected

disclosures permits employees in the field to have an opportunity to

make protected disclosures to officials with whom they may be more

familiar, and without the necessity of contacting officials at FBI

headquarters.

In response to suggestions that the Inspection Division,

supervisors, and co-workers also be designated recipients for

whistleblower disclosures, we note, as an initial matter, that section

2303(a) limits the universe of recipients of protected disclosures to

the Attorney

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General ``or an employee designated by the Attorney General for such

purpose.'' This statutory directive suggests that Congress contemplated

that recipients for whistleblower disclosures would be a relatively

restricted group. Given the size of the FBI, as well as the many

demands on the Attorney General's time, we believe that it is

appropriate, as well as within the Attorney General's authority, to

designate more than one employee of the Department as a recipient. On

the other hand, to designate a large (and in the case of supervisors,

arguably ill-defined) group of employees as recipients would be

inconsistent with Congress's decision, given the sensitivity of

information to which FBI employees have access, not to protect all

legal disclosures of wrongdoing, see 5 U.S.C. 2302(a)(2)(C)(ii), the

way it did with employees of other agencies, see 5 U.S.C. 2302(b)(8)

(discussed above).

Given these concerns, we do not believe Congress intended to

include all FBI employees in the class of those to whom protected

whistleblowing disclosures may be made. Moreover, there is a difference

between complaining to a fellow employee about alleged misconduct, on

the one hand, and affirmatively bringing an allegation of wrongdoing to

the attention of one in a position to do something about it, on the

other. Even supervisors in the chain of command--though a subset of all

employees--comprise a sufficiently large group in the aggregate that we

do not believe Congress intended to include them as recipients of

protected disclosures. Designating supervisors as recipients of

protected disclosures raises the additional problem of including as

recipients the very individuals against whom the prohibition on

reprisal is directed, i.e., individuals who have authority to take,

direct others to take, recommend, or approve personnel actions against

whistleblowers. Designating the highest ranking official in each field

office, but not all supervisors, as recipients of protected disclosures

(as discussed above) provides a way to channel such disclosures to

those in the field who are in a position to respond and to correct

management and other problems, while also providing an on-site contact

in the field for making protected disclosures. We therefore decline to

adopt the suggestion that all employees and supervisors be designated

recipients of protected disclosures.

The FBI Inspection Division conducts periodic inspections of FBI

offices and workplaces and, as part of those inspections, conducts

extensive interviews of employees at those locations. Virtually all FBI

employees must therefore, as part of their duties, participate from

time to time in interviews with the Inspection Division and provide

requested information. Required participation in such inspections is,

however, distinct from whistleblowing. The provisions that apply to

other federal employees recognize this distinction by providing for

separate protection for required participation in an investigation:

employees are protected under section 2302(b)(8) from reprisal for

whistleblowing, but are protected under section 2302(b)(9)(C) from

reprisal for cooperating in an Inspector General or OSC investigation.

Federal employees of applicable agencies who claim reprisal under

section 2302(b)(9) for cooperating in an investigation may report their

allegations to the OSC, which may investigate and pursue those

allegations. See 5 U.S.C. 1212, 1214. Such employees, however, are not

entitled to bring an individual right of action under section 1221.

Likewise, it is the FBI's policy that if an employee is subject to

reprisal for any disclosure made during an inspection interview, the

matter is referred to FBI OPR for review and appropriate action. Thus,

there is already in place within the FBI a procedure, analogous to that

provided to federal employees generally, to protect FBI employees from

reprisal for disclosures made during an inspection. We therefore

decline to adopt the suggestion that the FBI Inspection Division be

included as a recipient of protected disclosures.

One commenter suggested that the procedures set forth in the rule

should apply to disclosures made to Congress, citing several statutes

relating to the right of federal employees to communicate with

Congress--the Lloyd-Lafollette Act of 1912, 5 U.S.C. 7211; section 625

of the Treasury, Postal Service and General Government Appropriations

Act of 1998, Pub. L. 105-61; and the Intelligence Community

Whistleblower Protection Act of 1998, Pub. L. 105-272. Section 2303

(the enabling statute), however, protects whistleblower disclosures

only to the extent they are made to the Attorney General or to an

employee designated by the Attorney General for such purposes. As

stated earlier, this indicates that, for purposes of section 2303,

Congress specifically intended that protected FBI disclosures be

internal to the Department. We have therefore not adopted this

suggestion. We note, however, that individuals remain free to report

violations by a Department official of any of the above-listed statutes

to OPR, OIG, or FBI OPR. These offices are authorized to investigate

the alleged violation and to recommend appropriate corrective action.

The final rule has been changed to incorporate the additional

designated recipients discussed above. We anticipate that the

designated recipients, upon receiving a whistleblower disclosure, will

take appropriate action within their discretion and authority,

including, where appropriate, forwarding the disclosure to one of the

Receiving Offices.

3. Protection Against Threats To Take a Personnel Action and From

``Other Significant Change in Duties, Responsibilities or Working

Conditions''

Section 2303(a) prohibits ``tak(ing), or fail(ing) to take'' a

personnel action as a reprisal for a protected disclosure. By contrast,

section 2302(b)(8), the statute applicable to federal employees

generally, also prohibits ``threaten(ing)'' to take or fail to take

personnel action. All three commenters urged that the rule also protect

FBI employees from threats to take or fail to take personnel action.

The Department accepts this suggestion and has revised Sec. 27.2(a)

accordingly.

A related comment, made by all commenters, involves the definition

of ``personnel action.'' Section 2303(a) defines ``personnel action''

to mean any action described in subsections (i) through (x) of section

2302(a)(2)(A). When Congress enacted section 2303, section

2302(a)(2)(A) contained only ten subsections, the last of which, (x),

defined ``personnel action'' to include ``any other significant change

in duties, responsibilities, or working conditions.'' Later, in 1994,

Congress added another personnel practice to section 2302(a)(2)(A): ``a

decision to order psychiatric testing or examination.'' This new

provision was made subsection (x), and the ``other significant change''

provision became subsection (xi). Because Congress did not also change

section 2303(a), the net effect was to substitute the psychiatric

testing provision (the new subsection (x)) for the ``other significant

change'' provision (the old subsection (x)) in the definition of

``personnel action,'' as it applied to the FBI. All commenters

suggested that the final rule make the ``other significant change''

provision applicable to FBI employees. We believe that the Attorney

General has authority under 5 U.S.C. 301 to expand the definition of

``personnel action'' for purposes of these regulations. Section 301

authorizes the Attorney General to ``prescribe regulations for the

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government of (her) department (and) the conduct of its employees.''

Accordingly, the Department accepts this suggestion and has revised

Sec. 27.2(b).

4. Absence of Confidentiality Provisions Analogous to Those Found in

Sections 1212(g) and 1213(h)

One commenter expressed concern that the interim rule does not

contain ``confidentiality provisions,'' such as those found in sections

1212(g) and 1213(h). Section 1212(g) prohibits OSC from disclosing

information about a person who alleges a reprisal, except in accordance

with the Privacy Act or as required by other applicable federal law.

Section 1213(h) prohibits OSC from disclosing the identity of a person

making a disclosure, unless necessary because of imminent danger to

public health or safety or imminent violation of any criminal law.

As an initial matter, section 2303(c) requires the procedures set

forth in the rule to be ``consistent with the applicable provisions of

sections 1214 and 1221.'' Because section 2303(c) is silent as to

sections 1212 and 1213, we decline to adopt the suggestion that the

rule include the confidentiality provisions of those sections. We note

in passing, however, that nothing in the interim rule suggests that a

Conducting Office, the Director, or anyone else may release the

identity of a whistleblower, or any other information, to the public in

contravention of the Privacy Act or any other federal non-disclosure

statute. To the extent the comment may have been prompted in part by

Sec. 27.4(c)(1) of the interim rule, which provided for release of

Conducting Office memoranda of interview in certain circumstances, we

have removed that provision.

5. Proof of Reprisal

One commenter suggested that the regulations should not require

proof of reprisal, noting that section 2302(b)(8) prohibits taking

certain personnel actions ``because of'' a protected disclosure,

without explicitly mentioning reprisals. Section 2302(a), however, does

not contain the ``because of'' construction of section 2302(b)(8).

Rather, it specifically prohibits taking or failing to take personnel

action ``as a reprisal'' for a protected disclosure. In any event, the

interim rule incorporates the same standard of proof for reprisal as

that set forth in section 1221(e) for the OSC/MSPB scheme. We therefore

believe we have adopted the appropriate standard of proof.

6. Absence of Conflict of Interest Provisions for Receiving Offices

One commenter asserted that having OPR or OIG investigate

whistleblower disclosures raised the potential for conflicts of

interest, because those offices also may be responsible for

investigating sources of leaks, which could themselves be protected

whistleblower disclosures. A protected disclosure could not be a

``leak,'' however, because protected disclosures, by definition, are

made to designated offices and officials that are internal to the

Department. Moreover, to the extent one of these offices may have a

conflict in investigating the substance of a whistleblower disclosure

because of an ongoing leak investigation, Sec. 27.1(b) of the rule

provides that ``(w)hen a Receiving Office receives a protected

disclosure, it shall proceed in accordance with existing procedures

establishing jurisdiction among the respective Receiving Offices.''

Those existing procedures include consideration of conflicts of

interest.

7. Absence of Provisions for Disciplinary Proceedings

One commenter suggested that the rule should provide for

disciplinary proceedings in accordance with section 1215. Section 2303

(the source of authority for the rule) requires implementation of its

substantive protections ``in a manner consistent with applicable

provisions of sections 1214 and 1221,'' but is silent as to section

1215. Moreover, the Department retains its own independent authority to

take appropriate disciplinary action if it determines such action to be

necessary. The interim rule does not prohibit or preclude the

Department from taking appropriate disciplinary action under its

existing authority. We do not believe, therefore, that the rule needs

to address disciplinary action.

8. Availability of a Hearing

Section 27.4(d) of the interim rule provides that ``(w)here 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.'' One commenter noted that this language makes hearings

discretionary and suggested that complainants should have a right to a

hearing. We have not adopted this suggestion. Although an employee who

makes a proper appeal to the MSPB has a right ``to a hearing for which

a transcript will be kept,'' this provision appears in 5 U.S.C.

7701(a)(1). Section 2303 (the source of authority for the rule)

requires the rule to implement applicable provisions of only sections

1214 and 1221. Because sections 1214 and 1221 are silent on the right

to a hearing, the interim rule does not require (though it permits) the

Director to hold a hearing where a complainant presents a request for

corrective action directly to her. Accordingly, although the interim

rule gives the Director discretion to hold a hearing when a complainant

presents a request for corrective action under Sec. 27.4(d), it does

not provide for a right to a hearing in that circumstance.

The interim rule does not address whether the Director has

discretion to hold a hearing when a Conducting Office reports findings

and recommendations to the Director pursuant to Sec. 27.4(a). Although

sections 1214 and 1221 are silent on this issue, we believe the

Director should have discretion to hold a hearing in those

circumstances if doing so would assist in her decisionmaking.

Accordingly, the final rule has been modified to give the Director

discretion to hold a hearing without regard to whether a whistleblower

reprisal matter is before the Director as a result of a complainant's

request (under Sec. 27.4(c)(1)) or as a result of a Conducting Office

recommendation (under Sec. 27.4(a)). The procedures for such hearings

are to be determined by the Director in the first instance (see

Sec. 27.4(e)(3)).

9. Performance of OSC and MSPB Functions by External Entities; Judicial

Review

One commenter suggested that the interim rule is invalid in its

entirety, because it fails to establish entities external to and

independent of the Department to perform the functions of the OSC and

MSPB (whose functions, under the rule, are performed by the Conducting

Offices and the Director, respectively). Adopting this suggestion,

however, would require the Attorney General to take an action that is

beyond her authority. The President's April 1997 directive ordered the

Attorney General to establish ``appropriate processes within the

Department of Justice,'' 62 FR 23123 (1997) (emphasis added). We do not

believe that section 2303 requires the creation of external entities to

carry out the OSC/MSPB functions. If Congress had wanted to provide FBI

employees with fora outside the Department to address their

whistleblower reprisal claims, it could have included them in the OSC/

MSPB scheme. The fact that Congress did not do so, see 5 U.S.C.

2302(a)(2)(C)(ii), strongly suggests that Congress, in enacting section

2303, did not envision

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the creation of external entities to perform the OSC/MSPB functions.

Two commenters requested that we provide for judicial review of

decisions made under the rule, because sections 1214(c)(1) and 1221(h)

provide for it. We have not accepted this suggestion. Section 2302 (the

source of authority for the rule) does not provide for judicial review,

and Congress has therefore not waived sovereign immunity for this

purpose. Under the doctrine of separation of powers, neither the

President nor the Attorney General has the authority to waive sovereign

immunity; only Congress has that authority.

10. Other Changes to the Interim Rule

a. For the sake of clarity, we changed the order of paragraphs (d),

(e) and (f) of Sec. 27.4, and divided the former paragraph (f) (now

paragraph (e)) into subparagraphs.

b. In Sec. 27.1(b), to reflect current practice and policy see 28

CFR 0.29d(a), we added a sentence regarding the referral of

whistleblowing allegations by OPR and OIG to FBI OPR.

c. In Sec. 27.3(f), to be consistent with an applicable provision

of section 1214, we added language to clarify that a complainant may

agree to extend the 240-day time limit for the Conducting Office to

make its determination of whether there are reasonable grounds to

determine that there has been or will be a reprisal for a protected

disclosure.

d. In Sec. 27.4(a), to be consistent with an applicable provision

of section 1214 (section 1214(b)(2)(E)), we added the following

sentence: ``A determination by the Conducting Office that there are

reasonable grounds to believe 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.'' We did not

incorporate the provision in section 1214(b)(2)(E) relating to ``any

other administrative or judicial proceeding,'' because we lack

authority to prescribe what courts and other agencies may or may not

cite or reference. In addition, because the Conducting Office may

continue to investigate any violation of law, rule, or regulation (see

Sec. 27.4(c)) and may report its findings to appropriate Department

officials, the restriction in Sec. 27.4(a) does not apply to such

further proceedings conducted by OIG or OPR.

e. In Sec. 27.4(b), we have added language to permit the Director,

when considering comments on a Conducting Office request for an

extension of a stay, to request additional information as the Director

deems necessary. The interim rule did not preclude the Director from

seeking additional information in those circumstances. We believe that

the Director has such authority and therefore made it explicit.

f. We modified Sec. 27.4(c)(1) to make it more consistent with

applicable provisions of section 1214.

g. We revised Sec. 27.4(e)(3) to clarify the process by which

assertions of privilege are to be decided.

h. In the second sentence of Sec. 27.5, to clarify a potential

ambiguity, we have stricken ``(or a designee)'' after ``Deputy Attorney

General.'' The Deputy Attorney General may designate a Department

official to assist or advise him in conducting a review. We do not,

however, believe that the authority of the Deputy Attorney General to

conduct a review should be delegated. We also clarified a possible

ambiguity in the first sentence of that section concerning the time

within which a complainant or the FBI may seek review of a

determination or corrective action order by the Director.

C. 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 FBI 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 reprisal against such individuals.

D. 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.

E. 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.

F. 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.

G. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of 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, the interim rule amending

28 CFR part 0 and adding 28 CFR Part 27, which was published at 63 FR

62937, November 10, 1998, is adopted as a final rule with the following

changes:

1. Revise 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.

27.2 Prohibition against reprisal for making a protected

disclosure.

Subpart B--Investigating Reprisal Allegations and Ordering Corrective

Action

27.3 Investigations: The Department of Justice's Office of

Professional Responsibility and Office of the Inspector General.

27.4 Corrective action and other relief: Director, Office of

Attorney Personnel Management.

27.5 Review.

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).

[[Page 58787]]

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 the Department of Justice's (Department's) Office of

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

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

(collectively, Receiving Offices), the Attorney General, the Deputy

Attorney General, the Director of the FBI, the Deputy Director of the

FBI, or to the highest ranking official in any FBI field office, 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. OPR and OIG shall

refer such allegations to FBI OPR for investigation unless the Deputy

Attorney General determines that such referral shall not be made.

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, or threaten to 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 (xi) 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: The Department of Justice's 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 unless the Complainant agrees to an extension.

(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 (e) of this section.

A determination by the Conducting Office that there are reasonable

grounds to believe a reprisal

[[Page 58788]]

has been or will be taken shall not be cited or referred to in any

proceeding under these regulations, without the Complainant's consent.

(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, and may request additional information as the Director deems

necessary. 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

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 seek corrective action specific to the

Complainant, including the submission of a report to the Director, only

with the Complainant's consent. Notwithstanding the Complainant's

refusal of such consent, the Conducting Office may continue to

investigate any violation of law, rule, or regulation.

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

an investigation that the Conducting Office has terminated in

accordance with Sec. 27.3(h).

(d) 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.

(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 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.

(2) Corrective action may not be ordered if the FBI demonstrates by

clear and convincing evidence that it would have taken the same

personnel action in the absence of such disclosure.

(3) In making the determinations required under this subsection,

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 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.

(f) 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.

(g) 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, within 30 calendar days of

a final determination or corrective action order by the Director,

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, 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 6, 1999.

Janet Reno,

Attorney General.

[FR Doc. 99-27898 Filed 10-29-99; 8:45 am]

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