Federal Register: November 1, 1999 (Volume 64, Number 210)
Rules and Regulations
Page 58782-58788
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.Caterini@usdoj.gov.
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
[[Page 58783]]
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
[[Page 58784]]
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
[[Page 58785]]
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
[[Page 58786]]
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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