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United States Government Accountability Office:
GAO:
Report to the Chairman, Committee on the Judiciary, U.S. Senate:
January 2015:
Whistleblower Protection:
Additional Actions Needed to Improve DOJ's Handling of FBI Retaliation
Complaints:
GAO-15-112:
GAO Highlights:
Highlights of GAO-15-112, a report to the Chairman, Committee on the
Judiciary, U.S. Senate.
Why GAO Did This Study:
federal government against waste, fraud, and abuse-—however, they also
risk retaliation by their employers. For example, in 2002, a former
FBI agent alleged she suffered retaliation after disclosing that
colleagues had stolen items from Ground Zero following the September
11, 2001, terrorist attacks. DOJ found in her favor over 10 years
after she reported the retaliation. GAO was asked to review DOJ's
process for handling such complaints.
GAO examined (1) the time DOJ took to resolve FBI whistleblower
retaliation complaints, (2) the extent to which DOJ took steps to
resolve complaints more quickly, and (3) the extent to which DOJ
complied with certain regulatory reporting requirements.
GAO reviewed all DOJ case files for FBI whistleblower retaliation
complaints DOJ closed from 2009 to 2013, and interviewed whistleblower
attorneys, advocates, and government officials about the complaint
process. The interview results are not generalizable.
What GAO Found:
The Department of Justice (DOJ) closed 44 of the 62 (71 percent)
Federal Bureau of Investigation (FBI) whistleblower retaliation
complaints we reviewed within 1 year, took up to 4 years to close 15
complaints, and took up to 10.6 years to close the remaining 3. DOJ
terminated 55 of the 62 complaints (89 percent) and awarded corrective
action for 3. (Complainants withdrew 4.) We found that DOJ terminated
many (48 of 62) complaints we reviewed because they did not meet
certain regulatory requirements. For example, DOJ terminated at least
17 complaints in part because a disclosure was made to someone in the
employee's chain of command or management, such as a supervisor, who
was not one of the nine high-level FBI or DOJ entities designated
under DOJ regulations to receive such disclosures. Unlike employees of
other executive branch agencies, FBI employees do not have a process
to seek corrective action if they experience retaliation based on a
disclosure of wrongdoing to their supervisors or others in their chain
of command who are not designated officials. This difference is due,
in part, to DOJ's decisions about how to implement the statute
governing FBI whistleblowers. In 2014, DOJ reviewed its regulations
and, in an effort to balance competing priorities, recommended adding
more senior officials in FBI field offices to the list of designated
entities, but did not recommend adding all supervisors. DOJ cited a
number of reasons for this, including concerns about the additional
resources and time needed to handle a possible increase in complaints
if DOJ added supervisors. However, DOJ is already taking other steps
to improve the efficiency of the complaint process. More importantly,
dismissing retaliation complaints made to an employee's supervisor or
someone in that person's chain of command leaves some FBI
whistleblowers—such as the 17 complainants we identified—without
protection from retaliation. By dismissing potentially legitimate
complaints in this way, DOJ could deny some whistleblowers access to
recourse, permit retaliatory activity to go uninvestigated, and create
a chilling effect for future whistleblowers.
We also found that DOJ and FBI guidance is not always clear that FBI
employees reporting alleged wrongdoing to a supervisor or someone in
their chain of command may not be a protected disclosure. Ensuring
that guidance always clearly explains to whom an FBI employee can
report wrongdoing will help FBI whistleblowers ensure that they are
fully protected from retaliation.
DOJ took from 2 to 10.6 years to resolve the 4 complaints we reviewed
that DOJ adjudicated, and DOJ did not provide complainants with
estimates of when to expect DOJ decisions throughout the complaint
process. Providing such estimates would enhance accountability to
complainants and provide additional assurance about DOJ management's
commitment to improve efficiency.
Further, DOJ offices responsible for investigating whistleblower
retaliation complaints have not consistently complied with certain
regulatory requirements, such as obtaining complainants' approvals for
extensions of time. One investigating office does not track
investigators' compliance with specific regulatory requirements and
does not have a formal oversight mechanism to do so. Effectively
monitoring investigators' compliance with such requirements could help
assure complainants that their cases are making progress and that they
have the information they need to determine next steps for their
complaints.
What GAO Recommends:
Congress may wish to consider whether FBI whistleblowers should have
means to seek corrective action if retaliated against for disclosures
to supervisors, among others. Further, GAO recommends that DOJ clarify
guidance to clearly convey to whom employees can make protected
disclosures, provide complainants with estimated complaint decision
timeframes, and develop an oversight mechanism to monitor regulatory
compliance. DOJ and the Office of the Inspector General concurred with
GAO's recommendations.
View [hyperlink, http://www.gao.gov/products/GAO-15-112]. For more
information, contact David Maurer at (202) 512-8777 or maurerd@gao.gov.
[End of section]
Contents:
Letter:
Background:
DOJ Closed Majority of Complaints within a Year, Some because Employee
Did Not Report Wrongdoing to Designated Official; Complaints DOJ
Adjudicated Took up to 10 Years:
DOJ Officials Have Taken Some Steps to Resolve Complaints More Quickly
but Have Limited Plans to Assess Impact:
OIG and DOJ-OPR Have Not Consistently Met Regulatory Requirements to
Provide Complainants with Information Needed to Determine Next Steps
for Their Complaints:
Conclusions:
Matter for Congressional Consideration:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Department of Justice's Reasons for Closing Federal
Bureau of Investigation Whistleblower Retaliation Complaints:
Appendix III: Department of Justice (DOJ) Investigating Offices'
Compliance with Selected Reporting Requirements:
Appendix IV: Comments from the Department of Justice Office of the
Inspector General:
Appendix V: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Final Outcome in Federal Bureau of Investigation (FBI)
Whistleblower Retaliation Complaints, by Final Department of Justice
(DOJ) Office to Review Complaint and Length of Complaint:
Table 2: Reasons for the Department of Justice's (DOJ) Final Decision
to Close Federal Bureau of Investigation (FBI) Whistleblower
Retaliation Complaints:
Figures:
Figure 1: The Department of Justice's (DOJ) Process for Investigating
and Adjudicating Federal Bureau of Investigation (FBI) Whistleblower
Retaliation Complaints:
Figure 2: Overall Length of Complaints the Department of Justice (DOJ)
Closed from 2009 to 2013 and Reasons for Case Closure:
Figure 3: Length of Cases the Department of Justice (DOJ) Adjudicated,
in Years:
Abbreviations:
DAG: Deputy Attorney General:
DOD-OIG: Department of Defense Office of the Inspector General:
DOJ: Department of Justice:
DOJ-OPR: DOJ Office of Professional Responsibility:
EEO: Equal Employment Opportunity:
FBI: Federal Bureau of Investigation:
FBI-INSD: FBI Inspection Division:
MSPB: U.S. Merit Systems Protection Board:
OARM: Office of Attorney Recruitment and Management:
ODAG: Office of the Deputy Attorney General:
OIG: Office of the Inspector General:
OSC: U.S. Office of Special Counsel:
[End of section]
United States Government Accountability Office:
GAO:
441 G St. N.W.
Washington, DC 20548:
January 23, 2015:
The Honorable Charles E. Grassley:
Chairman:
Committee on the Judiciary:
United States Senate:
Dear Mr. Chairman:
Whistleblowers play an important role in safeguarding the federal
government against waste, fraud, and abuse, and their willingness to
come forward can contribute to improvements in government operations.
However, whistleblowers also risk retaliation from their employers,
sometimes being demoted, reassigned, or fired as a result of their
actions. In 1998, the Department of Justice (DOJ) issued regulations
that set forth the process for Federal Bureau of Investigation (FBI)
whistleblowers to report complaints of retaliation for their
disclosures.[Footnote 1] These regulations require that FBI
whistleblower retaliation complaints be directed to DOJ's Office of
the Inspector General (OIG) or Office of Professional Responsibility
(DOJ-OPR) for investigation and provide specific timeliness and
reporting requirements for these offices to meet as they manage these
complaints. The regulations also establish roles for the Director of
DOJ's Office of Attorney Recruitment and Management (OARM) and the
Deputy Attorney General (DAG). In some instances, the total process
for resolving a complaint--including investigation, adjudication, and
appeals--has taken several years. For example, in 2002, former FBI
agent Jane Turner filed a whistleblower complaint with DOJ alleging
that her colleagues had stolen items from Ground Zero after the
September 11, 2001, terrorist attacks. After making this whistleblower
disclosure, she was given a "does not meet expectations" rating,
placed on leave, and given a notice of proposed removal. According to
Ms. Turner's attorneys, she retired from the FBI in order to avoid
formal termination being placed on her record. Ms. Turner filed a
whistleblower retaliation complaint that DOJ ultimately found in her
favor in 2013--over 10 years later. Members of Congress and
whistleblower advocates have raised questions about the length of time
it takes DOJ to investigate and adjudicate FBI whistleblower
retaliation complaints.
To assist Congress in overseeing DOJ's efforts to protect FBI
whistleblowers, you asked us to examine DOJ's process for handling FBI
whistleblower retaliation complaints. Specifically, our report
examines:
* how long DOJ has taken to resolve FBI whistleblower retaliation
complaints and what factors have affected these time frames;
* the extent to which DOJ has taken steps to resolve complaints more
quickly and determine the impact of any such efforts; and:
* the extent to which DOJ's OIG and DOJ-OPR have complied with
regulatory reporting requirements.
To determine how long DOJ has taken to resolve FBI whistleblower
retaliation complaints and the factors that affected these time
frames, we reviewed DOJ case files for all FBI whistleblower
retaliation complaints closed within the last 5 calendar years (from
2009 through 2013), and calculated the duration of each complaint from
initial filing to appeal, as applicable; the length of time between
interim steps throughout this process; and factors affecting the time
frames in each case, among other things. Specifically, we reviewed a
total of 62 closed cases representing 62 complaints. In addition, we
reviewed documentation, such as internal procedures and memos, and
interviewed senior DOJ officials in each of the four offices
responsible for investigating or adjudicating whistleblower
retaliation complaints--OIG, DOJ-OPR, OARM, and the Office of the
Deputy Attorney General (ODAG)--about the factors that affected these
time frames and DOJ's process for handling these complaints and
compared aspects of this process against standards in Standards for
Internal Control in the Federal Government.[Footnote 2] Because of the
sensitivity of FBI whistleblowers' identities, to obtain whistleblower
perspectives on these issues, we met with representatives of five
whistleblower advocacy groups knowledgeable about DOJ's process and
attorneys who have represented three FBI whistleblowers through this
process.[Footnote 3] We identified the representatives of five
whistleblower advocacy groups using an iterative process often
referred to as snowball sampling. At each interview, we solicited
names of additional groups to interview and selected for interviews
those that were most widely recognized as knowledgeable about DOJ's
process. The information we gathered from these groups and attorneys--
referred to throughout our report collectively as eight whistleblower
advocates and attorneys--is not generalizable, but provides
perspectives on whistleblowers' experiences with DOJ's process.
[Footnote 4]
To determine the extent to which DOJ has taken steps to resolve
complaints more quickly, we interviewed DOJ officials responsible for
handling these complaints about the factors that affect the timely
processing of these complaints and steps DOJ has taken to address
them. In addition, to identify any practices that have improved
timeliness in comparable federal settings, we interviewed senior
officials in the Department of Defense Office of the Inspector General
(DOD-OIG) as well as the U.S. Office of Special Counsel (OSC) and the
U.S. Merit Systems Protection Board (MSPB)--federal agencies that
handle whistleblower retaliation complaints for other federal
employees--about those agencies' processes for handling whistleblower
retaliation complaints. To identify the extent to which DOJ officials
have taken steps to determine the impact of their efforts to improve
timeliness, we interviewed DOJ officials and reviewed DOJ's April 2014
report to the President and compared DOJ's stated plans to standards
in Standards for Internal Control in the Federal Government.[Footnote
5]
To determine the extent to which OIG and DOJ-OPR have complied with
regulatory reporting requirements, we compared evidence we saw in
DOJ's case files with DOJ's regulations and analyzed the extent of any
discrepancies. Specifically, for each case file, we reviewed the
office's documented communication with the complainant including
initial and ongoing outreach, and any interim and final notices that
the agency closed or declined the case, as applicable. We also
reviewed documentation and interviewed OIG and DOJ-OPR officials
responsible for handling these complaints about any oversight
mechanisms to ensure compliance with regulatory requirements. Further,
we interviewed eight whistleblower advocates and attorneys, as noted
above, to obtain whistleblower perspectives on the extent and effects
of DOJ's compliance with regulatory requirements. In addition, because
OSC serves a comparable function to that of OIG and DOJ-OPR in
handling whistleblower complaints for most other federal employees and
has similar regulatory reporting requirements, we interviewed OSC
officials about their processes and mechanisms for ensuring compliance
with OSC's requirements.
Additional details on our scope and methodology are discussed in
appendix I.[Footnote 6]
We conducted this performance audit from September 2013 through
January 2015 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
Background:
As established by the Civil Service Reform Act of 1978, federal law
generally prohibits retaliation against federal government employees
or applicants for employment for reporting wrongdoing, or
whistleblowing.[Footnote 7] Under these provisions, most federal
employees pursue whistleblower retaliation complaints with OSC and
MSPB. However, the FBI, as well as other intelligence agencies, is
excluded from this process.[Footnote 8] Instead, the Attorney General
is required to establish regulations to ensure that FBI employees are
protected against retaliation for reporting wrongdoing, consistent
with certain statutory processes of OSC and MSPB.[Footnote 9] Since
the Civil Service Reform Act of 1978 was enacted, numerous amendments
have been made to the provisions governing most executive branch
whistleblowers, but corresponding amendments have generally not been
made to the statutory provision governing FBI employees.[Footnote 10]
Provisions providing recourse for employees of intelligence community
elements who are retaliated against for making disclosures of
protected information were established by Presidential Policy
Directive 19 in 2012,[Footnote 11] and in statute in 2014.[Footnote 12]
In order to implement the statute governing FBI whistleblower
protections, in 1998, DOJ issued regulations to protect FBI
whistleblowers from retaliation for reporting alleged wrongdoing, and
established the process for handling FBI whistleblower retaliation
complaints.[Footnote 13] Specifically, the regulations prohibit DOJ
employees from taking or failing to take (or threatening to take or
fail to take) a personnel action with respect to any FBI employee as a
reprisal for a protected disclosure (i.e., retaliation).[Footnote 14]
The regulations also define what disclosures by FBI employees qualify
as protected disclosures, entitling the employees to recourse should
they experience retaliation. Specifically, the regulations state that
disclosures are protected if the complainants:
1. reasonably believe that they are reporting wrongdoing, defined as a
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,[Footnote 15] and:
2. report the alleged wrongdoing to one of nine designated officials
or offices (e.g., the Attorney General, the DAG, and OIG, among other
entities).[Footnote 16]
If the FBI employee does not meet either of these two criteria, then
that person's disclosure is not protected and the person does not have
a right to recourse if the individual should experience retaliation as
a result. That is, for example, if the person reports wrongdoing to a
nondesignated entity and then experiences retaliation, the person will
not be eligible for corrective action for that retaliation. Further,
once the employee reported to a nondesignated entity and experienced
retaliation as a result, the employee cannot subsequently report the
alleged wrongdoing to a designated entity and obtain corrective action
for the retaliation that has already taken place.
Division of Responsibility for FBI Whistleblower Retaliation
Complaints:
The regulations lay out DOJ's process for handling FBI whistleblower
retaliation complaints and describe various offices' responsibilities
for investigating, adjudicating, and reviewing appeals related to
these complaints. See figure 1.
Figure 1: The Department of Justice's (DOJ) Process for Investigating
and Adjudicating Federal Bureau of Investigation (FBI) Whistleblower
Retaliation Complaints:
[Refer to PDF for image: process illustration]
Investigating office review:
1. FBI whistleblower retaliation complaint.
2. Investigating offices:
DOJ Office of Inspector General;
DOJ Office of Professional Responsibility.
After 120 days, the complainant may file directly with OARM,
regardless of the investigating office's findings.
3. Does the complaint meet DOJ's threshold regulatory requirements?[A]
Yes: Continue;
No: Terminate complaint. Complainant can file request for corrective
action with OARM within 60 days.
4. Does the complaint have reasonable grounds?[B]
Yes: Continue;
No: Terminate complaint. Complainant can file request for corrective
action with OARM within 60 days.
5. Investigating office forwards Investigative report and recommended
action(s).
Adjudicating office review:
1. DOJ Office of Attorney Recruitment and Management (OARM).
2. Does the complaint meet DOJ's threshold regulatory requirements,
including having been filed with an investigating office?
Yes: Continue;
No: Terminate complaint.
3. Does the complaint have merit?[C]
Yes: Continue;
No: Terminate complaint.
4. OARM orders corrective action.
Within 30 days of a final determination, parties may appeal OARM
decision to the Deputy Attorney General.
Source: GAO analysis of DOJ regulations. GAO-15-112.
[A] A complaint that did not meet threshold regulatory requirements
means a complaint where DOJ's decision to terminate the complaint was
not based on whether there was a reprisal taken because of a
disclosure, but on whether the allegations met threshold requirements.
For example, threshold regulatory requirements include the requirement
that the disclosure was made to one of nine designated entities, the
alleged retaliatory act was a personnel action as defined by the
regulations, and others.
[B] DOJ's Office of the Inspector General and Office of Professional
Responsibility are required by DOJ regulation to determine whether
there are reasonable grounds to believe that a reprisal has been or
will be taken against the complainant.
[C] OARM determines whether, on the basis of a preponderance of the
evidence, the employee made a protected disclosure, and if so, whether
the disclosure was a contributing factor in the personnel action at
issue. If the complainant meets that burden, then OARM considers
whether the FBI has demonstrated by clear and convincing evidence that
it would have taken the same personnel action in the absence of such
disclosure.
[End of figure]
* Investigation: OIG and DOJ-OPR are responsible for receiving and
investigating FBI whistleblower retaliation complaints to determine
whether there are reasonable grounds to believe that a retaliatory act
has been or will be taken ("reasonable grounds" determination).
[Footnote 17] The office that investigates the complaint (referred to
as the investigating office) first reviews the complaint to determine
whether it meets threshold regulatory requirements. A complaint that
did not meet threshold regulatory requirements means a complaint where
DOJ's decision to terminate the complaint was not based on whether
there was a reprisal taken because of a disclosure, but on whether the
allegations met threshold requirements. For example, the investigating
office may determine that the complaint does not meet threshold
regulatory requirements because the complainant did not make his or
her underlying disclosure to one of the nine entities designated in
the regulations; or because the alleged retaliatory personnel action
occurred before the complainant made a protected disclosure and
therefore could not have been caused by the protected disclosure. If
the complaint does not meet threshold regulatory requirements, then
the investigating office closes the complaint.[Footnote 18] However,
if the investigating office determines that the complaint met
threshold regulatory requirements, then the office investigates the
merits of the complaint by, for example, conducting interviews and
requesting and reviewing documentation, such as employee statements
and records from the FBI.[Footnote 19] At the conclusion of an
investigation, if OIG or DOJ-OPR finds that there are reasonable
grounds, it then forwards its investigative report with any
recommended actions to OARM for adjudication. In cases in which OIG or
DOJ-OPR has not found in the complainant's favor or has not completed
its investigation, the complainant may go directly to OARM to request
corrective action.[Footnote 20]
* Adjudication: OARM is responsible for adjudicating FBI whistleblower
retaliation cases. OARM receives these cases from OIG or DOJ-OPR where
either office has determined there are reasonable grounds to believe
that there has been or will be reprisal for a protected disclosure, or
else directly from the complainant.[Footnote 21] As with the
investigating offices, when OARM receives the complaint, OARM first
determines whether the complaint meets threshold regulatory
requirements, before proceeding to review the merits of the complaint.
For OARM, considering the merits of the complaint entails reviewing
the supporting evidence (e.g., documents and testimony), as well as
the arguments each party--the complainant and the FBI--submits, and
then determining, based on all of the evidence, if the individual
substantiated the claim of retaliation. If the complaint is
substantiated and the FBI is unable to prove by clear and convincing
evidence that it would have taken the same personnel action even if
the complainant had not made the protected disclosure, OARM will order
that the FBI take corrective action, such as providing the complainant
back pay or reimbursement for attorney's fees.
* Appeals: DOJ's DAG is responsible for reviewing and ruling on
parties' appeals of OARM decisions. Once OARM rules on a case, the
parties have 30 days to file an appeal with the DAG. The DAG has the
authority to set aside or modify OARM's decisions when 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 DAG has full discretion to review and modify
the corrective action ordered.[Footnote 22]
DOJ's Regulatory Timeliness and Reporting Requirements:
DOJ's regulations also set forth timeliness and reporting requirements
for the investigating offices.[Footnote 23] Specifically, the
investigating offices must:
* provide written notice to the complainant acknowledging receipt of
the complaint within 15 calendar days of either investigating office
receiving it;[Footnote 24]
* update the complainant on the status of the investigation within 90
days of the written acknowledgment, and continue providing such
updates every 60 days thereafter;[Footnote 25] and:
* determine within 240 calendar days of receiving the complaint
whether there are reasonable grounds to believe that there has been or
will be a reprisal for a protected disclosure, unless the complainant
agrees to an extension.[Footnote 26]
Additionally, if OIG or DOJ-OPR decides to terminate an investigation,
the office must provide a written status report to the complainant at
least 10 business days prior to the office's final termination
report.[Footnote 27] The final report must summarize the relevant
facts of the case, provide reasons for terminating the investigation,
and respond to any comments the complainant submits in response to the
above-mentioned status report.[Footnote 28]
DOJ Closed Majority of Complaints within a Year, Some because Employee
Did Not Report Wrongdoing to Designated Official; Complaints DOJ
Adjudicated Took up to 10 Years:
DOJ closed the majority of the 62 complaints we reviewed within 1
year, generally because the complaints did not meet DOJ's threshold
regulatory requirements. The most common reason these complaints did
not meet DOJ's threshold regulatory requirements was because the
complainants made their disclosures to individuals or offices not
designated in the regulations. Further, FBI whistleblowers may not be
aware that they must report an allegation of wrongdoing to certain
designated officials to qualify as a protected disclosure, in part
because information DOJ has provided to its employees has not
consistently explained to whom an employee must report protected
disclosures. The 4 complaints we reviewed that met DOJ's threshold
regulatory requirements and OARM ultimately adjudicated on the merits
lasted from 2 to just over 10.6 years from the initial filing of the
complaints with OIG or DOJ-OPR to the final OARM or DAG ruling. In
some cases, parties have waited a year or more for a DOJ decision
without information on when they might receive it. Figure 2 shows the
duration and outcome of all 62 complaints we reviewed.
Figure 2: Overall Length of Complaints the Department of Justice (DOJ)
Closed from 2009 to 2013 and Reasons for Case Closure:
[Refer to PDF for image: vertical bar graph]
1. Complaint does not meet threshold regulatory requirements[B]: 0.002
years.
2. Complaint does not meet threshold regulatory requirements[B]: 0.01
years.
3. Complaint does not meet threshold regulatory requirements[B]: 0.01
years.
4. Complaint does not meet threshold regulatory requirements[B]: 0.01
years.
5. Complaint does not meet threshold regulatory requirements[B]: 0.02
years.
6. Complaint does not meet threshold regulatory requirements[B]: 0.03
years.
7. Complaint does not meet threshold regulatory requirements[B]: 0.03
years.
8. Complaint does not meet threshold regulatory requirements[B]: 0.04
years.
9. Complaint does not meet threshold regulatory requirements[B]: 0.04
years.
10. Complaint does not meet threshold regulatory requirements[B]: 0.04
years.
11. Complaint does not meet threshold regulatory requirements[B]: 0.05
years.
12. Complaint does not meet threshold regulatory requirements[B]: 0.05
years.
13. Complaint does not meet threshold regulatory requirements[B]: 0.06
years.
14. Complaint does not meet threshold regulatory requirements[B]: 0.06
years.
15. Complaint does not meet threshold regulatory requirements[B]: 0.07
years.
16. Complaint does not meet threshold regulatory requirements[B]: 0.07
years.
17. Complaint does not meet threshold regulatory requirements[B]: 0.07
years.
18. Complaint does not meet threshold regulatory requirements[B]: 0.08
years.
19. Complaint does not meet threshold regulatory requirements[B]: 0.08
years.
20. Complaint does not meet threshold regulatory requirements[B]: 0.09
years.
21. Complaint does not meet threshold regulatory requirements[B]: 0.09
years.
22. Complaint does not meet threshold regulatory requirements[B]: 0.10
years.
23. Complaint does not meet threshold regulatory requirements[B]: 0.11
years.
24. Complaint does not meet threshold regulatory requirements[B]: 0.11
years.
25. Complaint does not meet threshold regulatory requirements[B]: 0.12
years.
26. Complaint does not meet threshold regulatory requirements[B]: 0.13
years.
27. Complaint does not meet threshold regulatory requirements[B]: 0.16
years.
28. Complaint does not meet threshold regulatory requirements[B]: 0.17
years.
29. Complainant withdrew complaint[D]: 0.18 years.
30. Complaint does not meet threshold regulatory requirements[B]: 0.23
years.
31. Complaint does not meet threshold regulatory requirements[B]: 0.24
years.
32. Complaint does not meet threshold regulatory requirements[B]: 0.31
years.
33. Complaint does not meet threshold regulatory requirements[B]: 0.35
years.
34. Complaint does not meet threshold regulatory requirements[B]: 0.43
years.
35. Complaint does not meet threshold regulatory requirements[B]: 0.47
years.
36. Complaint does not meet threshold regulatory requirements[B]: 0.54
years.
37. Complaint does not meet threshold regulatory requirements[B]: 0.54
years.
38. Complaint does not meet threshold regulatory requirements[B]: 0.54
years.
39. No reasonable grounds or no reprisal found[C]: 0.57 years.
40. Complaint does not meet threshold regulatory requirements[B]: 0.66
years.
41. Complaint does not meet threshold regulatory requirements[B]: 0.79
years.
42. No reasonable grounds or no reprisal found[C]: 0.92 years.
43. No reasonable grounds or no reprisal found[C]: 0.93 years.
44. Complaint does not meet threshold regulatory requirements[B]: 0.95
years.
[44 complaints closed within a year (71 percent)]
45. Complaint does not meet threshold regulatory requirements[B]: 1.02
years.
46. Complaint does not meet threshold regulatory requirements[B]: 1.0
years.
47. No reasonable grounds or no reprisal found[C]: 1.1 years.
48. Complaint does not meet threshold regulatory requirements[B]: 1.1
years.
49. Complaint does not meet threshold regulatory requirements[B]: 1.1
years.
50. No reasonable grounds or no reprisal found[C]: 1.5 years.
51. Complaint does not meet threshold regulatory requirements[B]: 1.5
years.
52. Complainant withdrew complaint[D]: 1.5 years.
53. No reasonable grounds or no reprisal found[C]: 1.8 years.
54. Complaint does not meet threshold regulatory requirements[B]: 1.8
years.
55. No reasonable grounds or no reprisal found[C]: 2.0 years.
56. Complaint does not meet threshold regulatory requirements[B]: 2.1
years.
57. Complainant withdrew complaint[D]: 2.2 years.
58. Complainant withdrew complaint[D]: 2.3 years.
59. Complaint does not meet threshold regulatory requirements[B]: 3.2
years.
60. Corrective action ordered[A]: 8.1 years.
61. Corrective action ordered[A]: 10.3 years.
62. Corrective action ordered[A]: 10.6 years.
Source: GAO analysis of DOJ case files. GAO-15-112.
[A] In the 3 complaints we reviewed where DOJ's Office of Attorney
Recruitment and Management (OARM) ordered corrective action, it did
not always order all of the corrective action the complainant sought
where OARM determined that the complainant failed to establish
entitlement to the corrective relief sought under 28 C.F.R. § 27.4(f).
[B] The "does not meet threshold regulatory requirements" category
includes 48 complaints ultimately found by either an investigating
office or OARM as not meeting DOJ's threshold regulatory requirements
because, for example, the disclosure was not made to one of nine
designated entities or the alleged retaliatory act was not a personnel
action as defined by the regulations.
[C] The "no reasonable grounds or no reprisal found" category includes
6 complaints where the investigating office opened an investigation
into at least one allegation made by the complainant but the
investigating office did not find reasonable grounds to believe that a
reprisal had been or will be taken against the complainant. It also
includes 1 complaint where OARM found the disclosure was not a
contributing factor in the personnel action based on a preponderance
of the evidence or the FBI demonstrated by clear and convincing
evidence that it would have taken the same personnel action in the
absence of such disclosure.
[D] The "complainant withdrew complaint" category includes 4
complaints that were voluntarily withdrawn by the complainant.
[End of figure]
DOJ Closed Majority of Complaints within a Year; Some Because the
Employee Did Not Report Wrongdoing to a Designated Official:
DOJ closed 44 of the 62 complaints (71 percent) that we reviewed
within 1 year, most often because the complaint did not meet DOJ's
threshold regulatory requirements. Specifically, for 40 of these 44
cases (91 percent), DOJ found that the complaint did not meet
threshold regulatory requirements.[Footnote 29] In 15 of the 32 (47
percent) complaints closed within a year where documentation in the
case files was sufficient for us to determine why DOJ determined
threshold requirements were not met, the fact that the complainant
made a disclosure to the wrong person--someone not designated in the
regulations to receive whistleblower complaints--was at least a
partial basis for DOJ deciding the complaint did not meet threshold
regulatory requirements.[Footnote 30] In at least 12 of these 15
instances, the complainant reported the alleged wrongdoing to someone
in management or within the complainant's chain of command, such as
the complainant's supervisor, who was not one of the nine designated
entities.[Footnote 31]
For all 54 complaints we reviewed where documentation in the case
files was sufficient for us to determine a specific reason DOJ closed
the complaint, regardless of how long DOJ took to close the complaint,
23 (43 percent) had at least one claim dismissed because the
complainant made his or her disclosure to an official or entity not
designated in the regulations.[Footnote 32] Of these, in at least 17
cases, we were able to determine that a disclosure was made to someone
in the employee's chain of command or management.[Footnote 33]
See appendix II for a summary of DOJ's final determinations in all
cases we reviewed.
FBI Employees Are Not Protected for Reporting Wrongdoing to Their
Supervisors or Others in Their Chain of Command Not Designated in DOJ
Regulations:
Unlike employees of other executive branch agencies--including
intelligence agencies--FBI employees do not have a process to seek
corrective action if they experience retaliation based on a disclosure
of wrongdoing to their supervisors or others in their chain of command
who are not designated officials.[Footnote 34] In 1978, federal law
excluded the FBI, as well as other intelligence agencies, from the
prohibited personnel practices system in place for employees of other
executive branch agencies in part because of the sensitive nature of
these agencies' operations and the information they handle. Instead
the law required the Attorney General to develop regulations to ensure
that FBI employees are not retaliated against for disclosures of
wrongdoing.[Footnote 35]
When issuing its interim and final regulations in 1998 and 1999,
respectively, DOJ considered which individuals and offices the
Attorney General would designate to receive protected disclosures from
FBI employees. DOJ officials who developed these regulations included
eight designated entities but did not include supervisors at that time
because the officials maintained that Congress intended DOJ to limit
the universe of recipients of protected disclosures, in part because
of the sensitive information to which FBI employees have access.
[Footnote 36] In issuing its final rule, DOJ responded to commenter
suggestions to add additional entities to receive such disclosures--
including FBI-INSD, supervisors, and coworkers. Among other things,
DOJ stated its view that Congress contemplated that recipients for
whistleblower disclosures would be a relatively restricted group and
"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." In addition, DOJ's rule explained that
"designating the highest ranking official in each field office, but
not all supervisors, as recipients of protected disclosures . . .
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."
In October 2012, the President issued Presidential Policy Directive
19, which established whistleblower protections for employees serving
in the intelligence community, including, among other things,
explicitly providing protection to employees who are retaliated
against for reporting wrongdoing "to a supervisor in the employee's
direct chain of command up to and including the head of the employing
agency." Presidential Policy Directive 19 excluded the FBI from the
scope of these protections, and instead required DOJ to report to the
President on the efficacy of its regulations pertaining to FBI
whistleblower retaliation and describe any proposed revisions to these
regulations to increase their effectiveness.[Footnote 37]
In response to this requirement, ODAG officials led an effort to
review FBI whistleblower retaliation complaints filed from January 1,
2005, through March 15, 2014, and, consistent with our review, found
that DOJ had terminated a significant portion of complaints because
they were not made to the proper individual or office. In addition,
DOJ officials met with whistleblower advocates and OSC officials to
solicit their views and found that these individuals and officials
recommended that DOJ broaden its regulations to protect disclosures to
any supervisor in the employee's chain of command. According to DOJ's
April 2014 report in response to Presidential Policy Directive 19, the
whistleblower advocates noted that the directive instructs
intelligence community elements to protect disclosures to any
supervisor in the employee's direct chain of command and that this is
consistent with whistleblower protection laws that similarly protect
other civil service employees. Further, DOJ's report notes that OSC
officials believe that to deny employees protection unless their
disclosure is made to the high-ranked supervisors in the office would
undermine a central purpose of whistleblower protection laws.
In response to PPD-19, DOJ officials led by ODAG revisited their 1999
regulations and in April 2014 recommended expanding the persons to
whom individuals can make protected disclosures to include--in
addition to the highest-ranking official in FBI field offices, who is
already included--the second highest ranking tier of officials in
these field offices, which includes the two or three assistant special
agents in charge in 53 field offices and the special agents in charge
in the 3 largest field offices. Senior DOJ officials told us that DOJ
leadership has approved this change and the agency is beginning the
public notice and comment process; as of December 2014, DOJ has not
issued any notice of proposed rulemaking or publicly moved forward on
these stated plans. DOJ officials reported that they plan to evaluate
the impact of this expansion, and they may choose subsequently to
further expand the set of persons to whom an employee can make a
protected disclosure, if DOJ determines that such expansion is
warranted. However, as of December 2014, senior FBI and ODAG officials
report that they do not have an estimated date or specific plans for
this evaluation and could not provide specifics on how this evaluation
would be conducted.
DOJ officials gave us several explanations about why DOJ did not
recommend expanding the list to include supervisors and others in the
employee's chain of command, a change that would bring the FBI into
line with other executive branch agencies. First, in DOJ's April 2014
report, DOJ officials state that "the Department believes the set of
persons to whom a protected disclosure can be made is extensive and
diverse, and has seen no indication that the list has impeded
disclosures of wrongdoing." However, when we asked officials how they
arrived as this conclusion--particularly in light of our and DOJ's
previous findings that numerous complainants had at least one claim
dismissed for making a disclosure to someone in management or their
chain of command--they could not provide supporting evidence or
analysis for their conclusions. Rather, these officials cited concerns
about striking the right balance between the benefits of an expanded
list and the level of resources the department would have to expend
assessing more complaints if the department added more designated
officials, and the potential impact of these additional complaints on
the timeliness of the process. While DOJ's focus on the timeliness of
complaint processing is important, dismissing retaliation complaints
made to an employee's supervisor or someone in his or her chain of
command who is not a designated entity leaves some FBI whistleblowers
with no recourse if they experience retaliation. We found at least 17
whistleblowers whose cases were dismissed--at least in part--for
making a disclosure of wrongdoing to someone in their chain of command
or management.[Footnote 38] Our findings are similar to those of the
ODAG-led review in which the department found that in a "significant
portion" of OIG cases the claim was closed because it was not made to
a proper individual or office under the regulations.[Footnote 39] This
means that these employees had no recourse for retaliation they may
have experienced for making those disclosures. Moreover, with respect
to DOJ's concerns about resources and timeliness, DOJ has discretion
in determining its regulatory process for enforcing protections for
FBI whistleblowers and, as described in more detail later this report,
is taking other steps to improve the timeliness of the process.
Senior FBI and ODAG officials also explained that the department plans
to provide FBI employees with additional training on the list of
entities designated to receive whistleblower complaints. While
training could help provide information on how to make a protected
disclosure, this planned training would have little effect for
employees who initially raise a concern to their supervisors not
expecting that this action would ever be a whistleblower disclosure.
All seven of the whistleblower advocates and attorneys we interviewed
who had relevant personal and professional experience stated that it
is common practice for employees to report wrongdoing to their
supervisors before reporting it to a more senior official, such as
those designated in DOJ's regulations.[Footnote 40] Further, two
advocates we met with stressed that very few people intend to become
whistleblowers. Rather, it is typical for employees who become aware
of a problem to report it to their supervisors, expecting to resolve
the issue at that level. In one FBI whistleblower case file we
reviewed, the complainant wrote that "there is a practice in the FBI
that a person is to go through his or her chain of command first."
Further, senior FBI officials we spoke with emphasized that FBI policy
encourages employees to report allegations of wrongdoing to a broader
group of entities than those designated in regulation as recipients of
protected disclosures--including any supervisor in the chain of
command of the person reporting.[Footnote 41]
Last, senior FBI and ODAG officials noted that the statute
establishing whistleblower protections for FBI employees differs from
the statute governing protections for other federal employees, so
there is no legal requirement that DOJ designate supervisors or others
in an employee's chain of command to receive protected disclosures.
The separate statutory provision for the FBI has existed since
enactment of the CSRA in 1978, but has generally not been revisited by
Congress when passing amendments to legislation governing other
executive branch whistleblowers. Over the years, Congress has passed
amendments to the legislation covering employees in other executive
branch agencies that explicitly strengthen and expand protections for
other federal whistleblowers. For example, Congress added language
clarifying that disclosures to supervisors who participated in the
misconduct are protected disclosures. The Whistleblower Act of 1989
provides, among other things, that employees should not suffer adverse
consequences as a result of prohibited personnel practices.[Footnote
42] The Senate report accompanying the Whistleblower Protection
Enhancement Act of 2012 explained that, with regard to whistleblower
retaliation matters, the focus should not be on whether or not
disclosures of wrongdoing were protected, but rather whether the
personnel action at issue in the case occurred because of the
protected disclosure.[Footnote 43] However, changes to laws affecting
other executive branch whistleblowers did not automatically extend to
the FBI since the law governing FBI employees was in a separate
provision of the original legislation. DOJ's current regulations and
its recommended changes deny FBI employees protection provided to
employees of other executive branch agencies--including those in the
intelligence community.[Footnote 44] Thus, DOJ risks dismissing, and
potentially not addressing, instances of actual retaliation against
individuals who reported their disclosure to their supervisors, or
another entity not designated in the regulations. Dismissing these
whistleblower retaliation complaints could deny whistleblowers access
to recourse, could permit retaliatory activity to go uninvestigated,
and may have a chilling effect on other potential whistleblowers.
DOJ Guidance Is Not Always Clear:
In the course of our review, in addition to several DOJ and FBI
guidance documents that accurately describe DOJ's FBI whistleblower
regulations, we also found instances of DOJ guidance that could lead
FBI employees to believe that reporting an allegation of wrongdoing to
a supervisor in their chain of command would be a protected disclosure
when that is not the case.[Footnote 45] First, FBI's guidance--the FBI
Domestic Investigations and Operations Guide, specifically--states
that, in general, the FBI requires employees to report known or
suspected failures to adhere to the law, rules, or regulations to any
supervisor in the employees' chain of command, or others, but does not
clarify that such disclosures are protected only if reported to
certain designated individuals or offices.[Footnote 46] Second, an
April 2014 memo from the DAG to all DOJ employees--including FBI
employees--encouraged employees to watch a video on whistleblower
rights and protections and stated that employees may report waste,
fraud, or abuse within the department to supervisors within their
offices or the OIG, or outside the department to OSC.[Footnote 47] The
memo did not clarify that FBI employees who report such allegations to
their supervisors or OSC may not have the right to pursue corrective
action should they experience retaliation for their disclosure. Senior
ODAG officials acknowledged that if taken in isolation, this memo
could cause some confusion for FBI employees but stressed that FBI
employees should already be familiar with the FBI-specific policy from
FBI-offered training and resources. However, we reviewed the two
trainings FBI officials cited as educating FBI employees on the
procedures to follow when making a whistleblower complaint, and
neither training mentions DOJ's regulations related to FBI
whistleblower retaliation or the specific steps FBI employees need to
take to ensure their disclosures are protected.[Footnote 48] OIG and
FBI officials report that they are currently developing a training
video that will address FBI-specific issues and will be required for
all FBI employees. This planned training could improve employee
awareness of the FBI-specific procedures, but such an effort could be
undercut if unclear written policies and communications continue to be
provided to FBI employees.
Standards for Internal Control in the Federal Government provides that
agencies should distribute pertinent information so employees may
efficiently carry out their duties.[Footnote 49] Without clear
information on the process for making a protected disclosure,
including the individuals to whom a claimant can make a protected
disclosure, FBI whistleblowers may not be aware that, depending on how
they report their allegation, they may not be able to seek corrective
action should they experience retaliation.
DOJ Took up to 10 Years to Resolve the 4 Complaints It Adjudicated on
the Merits and Did Not Provide Parties with Expected Time Frames for
Its Decisions:
OARM adjudicated the merits of 4 of the 62 complaints we reviewed (6
percent), and these 4 cases lasted from 2 to just over 10.6 years,
from the initial filing of the complaints with OIG or DOJ-OPR to the
final OARM or ODAG ruling.[Footnote 50] In 3 of these 4 cases, DOJ
ultimately ruled in favor of the whistleblower. As shown in figure 3,
these 3 cases lasted from just over 8 to 10.6 years. In the fourth
case, DOJ ruled in favor of the FBI and this case lasted approximately
2 years.
Figure 3: Length of Cases the Department of Justice (DOJ) Adjudicated,
in Years:
[Refer to PDF for image: horizontal bar graph]
Case 1:
Investigating office review (DOJ's Office of the Inspector General or
Office of Professional Responsibility): 0.2 years;
Office of Professional Responsibility): 1.6 years;
DOJ ruled in favor of: FBI.
Case 2:
Investigating office review (DOJ's Office of the Inspector General or
Office of Professional Responsibility): 3.2 years;
Office of Professional Responsibility): 5.3 years;
Deputy Attorney General adjudication of appeals: 1.8 years;
DOJ ruled in favor of: Complainant[A].
Case 3:
Investigating office review (DOJ's Office of the Inspector General or
Office of Professional Responsibility): 1.1 years;
Office of Professional Responsibility): 4.0 years;
Deputy Attorney General adjudication of appeals: 0.2 years;
DOJ ruled in favor of: Complainant[A].
Case 4:
Investigating office review (DOJ's Office of the Inspector General or
Office of Professional Responsibility): 1.1 years;
Office of Professional Responsibility): 6.8 years;
Deputy Attorney General adjudication of appeals: 2.0 years;
DOJ ruled in favor of: Complainant[A].
Source: GAO analysis of DOJ case files. GAO-15-112.
Notes: For the investigating office's review, the graph reflects the
time between the date the investigating office received the complaint
and the date the office sent a termination report to the complainant
(or in 1 case the date the complainant informed the investigating
office that the complainant intended to go to OARM after receiving the
proposed termination report). For OARM's adjudication, the graph
reflects the time between the date the complainant filed a request for
corrective action with OARM and OARM's final decision or corrective
action order, whichever was later. For the Deputy Attorney General's
adjudication of appeals, the graph reflects the time between the first
party's appeal following OARM's final decision and the final
adjudication on any appeals associated with that case. Each phase
depicted in the graph includes all activity during that phase, such as
extensions of time requested by the parties and time awaiting DOJ
decisions. The gaps in the bars reflect time between the conclusion of
one office's handling of the case and the complainant--or FBI in the
case of some appeals--bringing the complaint to the attention of the
next office.
[A] In these cases, DOJ ruled in favor of the complainant on at least
one claim, but not necessarily on all of the complainant's claims.
[End of figure]
According to DOJ officials responsible for handling these complaints,
case-specific factors, including competing staff priorities at any
given time, case complexity, and parties' requests for extensions,
affected the length of investigating and adjudicating complaints.
* Competing priorities: These OIG, DOJ-OPR, OARM, and ODAG officials
report that competing priorities for staff and senior management
attention affect the length of FBI whistleblower retaliation cases.
For example, a senior ODAG official explained that competing
priorities is the biggest factor affecting the timeliness of ODAG's
handling of appeals. This official explained that the DAG (who, under
DOJ's regulations, personally decides on appeals) and ODAG staff (who
prepare the DAG to discuss and decide the matter) handle issues of
national importance and security so the office often has more time-
sensitive and important issues that delay its decisions on FBI
whistleblower retaliation cases.[Footnote 51] The ODAG officials
explained that to address this in part, in September 2014, they
finalized an agreement to obtain assistance from Justice Management
Division attorneys on future FBI whistleblower retaliation appeals,
but ODAG officials acknowledged that this will not address the issue
of competing priorities for the DAG. Further, we reviewed some OIG and
DOJ-OPR investigative case files that included no evidence of agency
activity for as long as 8 months for OIG and 12 months for DOJ-OPR.
OIG and DOJ-OPR officials cited competing priorities--for the
Inspector General and for the assigned investigator, respectively--as
the biggest factor affecting the identified periods of apparent
inactivity. Senior ODAG and OIG officials stress that the fact that
the DAG and Inspector General personally review each complaint
highlights the importance these offices place on these complaints, but
note that competing priorities for these individuals' time do result
in delays.
* Case complexity: OIG, DOJ-OPR, and OARM officials report that case
complexity--such as numerous disclosures and allegations of
retaliation, many witnesses, and voluminous documents--can cause a
case to take longer. At the investigation stage, case complexity
increases the need for cooperation and information from various people
involved, including the complainant, witnesses, and the FBI--all of
which can contribute to the length of the investigation, according to
DOJ-OPR officials. OARM officials report that, at the adjudication
stage, case complexity is a major factor affecting how quickly they
can consider all of the relevant evidence and write decisions.
* Parties' requests for extensions: Once a case is at the adjudication
stage, the FBI or the complainant may request extensions of time, such
as an extension of an OARM deadline to collect evidence. In 9 of 16
cases we reviewed that OARM or ODAG handled, parties filed a total of
69 requests for extensions--the FBI requested 43, complainants
requested 19, and 7 were joint requests.[Footnote 52] The median
length of extensions that both the FBI and complainants requested was
15 days. In the 4 adjudicated cases shown in figure 3, parties'
requests for extensions accounted for 45 days of the shortest case and
over 19 months of the longest case.
In addition to affecting overall case length, competing priorities and
case complexity specifically affect how long OARM and ODAG take to
issue individual decisions on whether complaints met threshold
regulatory requirements, merits, and appeals throughout the process.
In the cases we reviewed, the longest wait for a decision was just
over a year and a half for OARM to issue a decision on the merits of a
case and the shortest was 4 days for OARM to rule on whether a
complaint met threshold regulatory requirements.[Footnote 53] Parties
at some point waited a year or more for a decision by either OARM or
ODAG in 6 of 15 complaints we reviewed that progressed to the point of
an OARM decision on whether the complaint met threshold regulatory
requirements.
OARM and ODAG do not routinely provide parties with an estimate for
when they expect to return decisions in these cases, though OARM
officials responsible for handling these complaints report that they
have provided estimates in some cases where the parties specifically
requested them. These OARM officials explained that they do not
routinely provide such estimates because time frames can be difficult
to judge, in part because of the complexity of the cases and the
volume of evidence. Similarly, senior ODAG officials stated that such
estimates would be guesses that could raise expectations the offices
cannot meet because, for example, they cannot predict the Deputy
Attorney General's schedule.
Other federal agencies and offices that handle whistleblower
retaliation cases provide complainants with an estimate for when their
cases will conclude. MSPB--which DOJ officials have looked to in the
past for best practices in handling whistleblower retaliation cases--
is statutorily required to provide parties with an estimate for when
MSPB will make a decision. Accordingly, MSPB developed a goal to
decide cases in 120 days, and where MSPB officials anticipate missing
this goal by 30 days or more, it is MSPB's policy to publicly announce
a new date for completion.[Footnote 54] Legislative history suggests
that this requirement was intended to reduce delays.[Footnote 55]
Similarly, DOD-OIG is statutorily required to complete reports of its
investigations into whistleblower retaliation complaints within 180
days, and if officials need additional time, they must inform the
complainant as to why and provide a new date by which the
investigation report will be completed.[Footnote 56] A senior DOD-OIG
official told us that, at a minimum, a status update regarding
progress toward case completion provides the complainant with an
element of assurance that the case is being actively worked on and has
not slipped through the cracks. An estimate also reinforces a sense of
urgency and serves as an accountability measure for DOD-OIG
investigative personnel, who understand that individuals with great
interest in the outcome of the investigation are expecting timely
results, according to the DOD official.
Further, all eight whistleblower advocates and attorneys we met with
agreed that it would be helpful for DOJ to provide such estimates. Six
of the advocates and attorneys we met with explained that not having
an estimate for when OARM or ODAG will return a decision in these
cases may hurt complainants' morale and confidence in the process.
Further, five advocates and attorneys noted that other FBI employees
witness the uncertainty and professional limbo whistleblowers
experience while DOJ considers a whistleblower retaliation complaint,
and five further noted that this potentially has a chilling effect on
prospective whistleblowers.
In February 2013 two of the advocacy groups we interviewed--the
American Civil Liberties Union and the National Whistleblowers Center--
sent a memo to the Attorney General asking DOJ to require that OARM
issue merit decisions within 90 days and the DAG issue appeals
decisions within 60 days, among other changes. In its April 2014
report to the President, DOJ officials responded to this
recommendation, stating that the department does not support these
revisions at this time because, given the volume of evidence and
complexity of these cases, it would be very difficult, if not
impossible, to meet a strict deadline for adjudication. We understand
that given the great variability among these cases, a single fixed
deadline may be impractical, but this limitation should not preclude
these offices from providing complainants with case-specific estimates
that take into account the specifics of each particular complaint.
In June 2012, DOJ stated a commitment to making every effort to
improve the efficiency of the department's adjudication of these
complaints.[Footnote 57] Internal control standards reinforce the
position that agencies need to have ways of ensuring such management
directives are carried out.[Footnote 58] Providing parties with
estimated time frames for returning DOJ's decisions in FBI
whistleblower retaliation cases (whether a complaint meets threshold
regulatory requirements, merits, and appeals) and timely updates when
OARM and ODAG officials cannot meet estimated time frames would
enhance accountability to the complainants and provide additional
assurance about DOJ management's commitment to improve efficiency.
DOJ Officials Have Taken Some Steps to Resolve Complaints More Quickly
but Have Limited Plans to Assess Impact:
In the last 3 years, and in light of the Presidential Policy Directive
19 requirement that DOJ assess the efficacy of its current process,
DOJ officials have identified some opportunities to improve their
timeliness in resolving whistleblower retaliation complaints and have
taken some steps to do so. However, DOJ officials have limited plans
to assess the impacts of these actions. Specifically, OARM has
developed a mediation program, hired an additional staff person, and
developed procedures with stricter time frames, while DOJ-OPR and OIG
have taken steps to streamline their intake procedures. DOJ leadership
is also considering taking steps to revise DOJ's regulations to
streamline OARM's process upon receiving a new complaint.
* Developing a mediation program: In the spring of 2014, OARM launched
an alternative dispute resolution program that will provide
complainants with the option to pursue mediation with the FBI at any
point from initial filing of the complaint to appeal. OARM officials
anticipate that this option will help to expedite processing of some
complaints that can be more quickly resolved through mediation and
permit DOJ to focus limited resources on the remaining cases. As of
October 1, 2014, two complainants had pursued mediation, but,
according to OARM officials, because these cases are pending, it is
too soon to analyze the impact of the mediation program.[Footnote 59]
* Hiring additional staff: To reduce the impact of competing
priorities for limited staff, in November 2013, OARM senior officials
stated that they hired a part-time attorney to help write OARM
decisions in FBI whistleblower retaliation cases. OARM officials
report that they have been able to reduce overall case-processing
times, in good part because of the work of the part-time attorney.
[Footnote 60]
* Developing procedures with stricter time frames: Senior OARM
officials report that in June 2011 they met with an MSPB
administrative judge and an MSPB senior executive to gather ideas for
shortening the time frames in OARM's cases. These officials further
report that in response to the input from MSPB, in October of that
same year OARM issued procedures that included stricter time frames
for the complainant and FBI, such as shortening the period of time
OARM initially provides for parties to gather evidence. In addition,
OARM officials report that around this same time, they revised their
practice of generally approving parties' requests for extensions. The
OARM officials report that they began reviewing requests for an
extension more critically and often do not approve the full length of
the extension requested.
* Streamlining intake procedures: Senior OIG officials report that
they could improve their timeliness in processing initial complaints
and have since taken steps to ensure that complaints are transmitted
for initial review within 1 to 2 days of receipt, if possible. DOJ-OPR
officials report that in the last 2 years, they have established a new
intake procedure so that an intake attorney handles the initial notice
to the whistleblower instead of waiting until the complaint is
assigned to an investigator.
* Streamlining OARM's process: DOJ's April 2014 report to the
President included a recommendation intended to expedite OARM's
process upon receiving new complaints. DOJ's report states: "Under
OARM's current process, when a complainant files a request for
corrective action with OARM, OARM usually forwards it to the FBI and
provides the FBI 25 calendar days to file its response. In some
instances, however, the allegations in a complainant's request are so
deficient that neither OARM nor the FBI can reasonably construe the
specific claims raised." Under the recommended revised procedures,
where it appears that a complaint may not meet DOJ's threshold
regulatory requirements, OARM would give the complainant a very short
time period to clarify why the case should not be dismissed. DOJ
officials state that this could allow for quick resolution of cases
that plainly fail to meet the threshold regulatory requirements and
increase efficiency of case adjudication.
As DOJ implements these changes intended to improve the efficiency of
DOJ's handling of FBI whistleblower retaliation complaints, as
detailed above, assessing the impact would help DOJ officials ensure
that these changes are in fact shortening total case length without
sacrificing quality, and identify any additional opportunities to
improve efficiency. OARM officials report that given the length of
these cases, it is too early to assess whether the efforts implemented
thus far are having the desired impact on the timeliness of OARM's
adjudication process, but they explained that in the future, they
could use their case docket to determine impact. For example, they
could review the number of cases resolved through mediation and
whether the revised procedures from 2011 have made a difference in the
time needed to adjudicate large cases. OARM's stated plans to monitor
the impact is a good first step by one of the relevant offices, but
assessing the impact on timeliness and quality throughout the entire
investigation, adjudication, and appeal process to determine the
impact on total complaint-processing time will require a joint effort
among OIG, DOJ-OPR, OARM, and ODAG.
In DOJ's April 2014 report to the President, DOJ stated plans to
evaluate the impact of two policy changes to increase the
effectiveness of DOJ's regulations, but stated no such plans for the
policy changes intended to improve DOJ's timeliness in handling these
complaints. Standards for Internal Control in the Federal Government
calls for agencies to compare actual performance with planned or
expected results and analyze significant differences.[Footnote 61]
Without assessing the impact of its policy changes on the complete
process, DOJ will not be in a position to gauge progress in fulfilling
DOJ's commitment to improving its efficiency in handling these
complaints and correct course, if needed. Without assessment, it will
be difficult for DOJ to know whether its various efforts to improve
timeliness are working as intended.
OIG and DOJ-OPR Have Not Consistently Met Regulatory Requirements to
Provide Complainants with Information Needed to Determine Next Steps
for Their Complaints:
OIG and DOJ-OPR have not consistently provided complainants with
status updates or obtained the complainant's approval for an extension
when the investigator reviewing the complaint needed more time, as
stipulated under agency regulations. In the last 2 years, OIG
developed a database to increase management oversight of
investigators' compliance with requirements to provide updates and
obtain the complainants' approval for extensions, but DOJ-OPR does not
have a similar mechanism in place. In addition, OIG did not inform
complainants of its intent before closing complaints it declined to
investigate and did not consistently explain the basis for its
decisions to complainants, but plans to begin doing so.
OIG and DOJ-OPR Have Not Consistently Provided Complainants with
Required Status Updates and Extension Requests; OIG Has Begun Tracking
Compliance, but DOJ-OPR Has Not:
OIG and DOJ-OPR have not consistently provided complainants with
periodic status updates nor have they always obtained complainants'
approvals for extensions when the investigator reviewing the complaint
needed more time, as required under DOJ's FBI whistleblower
regulations.[Footnote 62] Specifically, in 65 percent of the
complaints we reviewed (37 of 57), the investigating office did not
meet the regulatory requirement to contact the complainant to
acknowledge that the office had received the complaint within 15 days
of the date either OIG or DOJ-OPR received the complaint. In
particular, OIG did not meet the requirement in 20 of 36 complaints
(56 percent) and DOJ-OPR did not meet the requirement in 17 of 21
complaints (81 percent). See appendix III for more detail on the
number and percentage of complaints in which OIG and DOJ-OPR met each
reporting requirement.
After the deadline to acknowledge that the office received the
complaint, we saw evidence in the case files for the majority of
complaints we reviewed (27 of 37, or 73 percent) that OIG and DOJ-OPR
provided the first status update within the 90-day time frame;
however, both offices were less consistent about meeting the time
frames for subsequent status updates, which are required at least
every 60 days.[Footnote 63] In 20 of 27 complaints we reviewed (74
percent)--including 8 of 12 OIG complaints and 12 of 15 DOJ-OPR
complaints--we saw at least one period of more than 60 days during
which the case file did not contain evidence that the investigating
office had communicated with the complainant. In 8 of these 20
complaints, we identified only one 60-day period in which the case
file did not contain evidence of communication with the complainant.
However, in the other 12 complaints, we identified more than one 60-
day period in which the case file did not demonstrate that the
investigating office had communicated with the complainant.
In addition, OIG and DOJ-OPR did not always obtain the complainant's
approval for an extension when the investigator needed more time. As
discussed previously, the regulations require that the investigating
office determine within 240 days of receiving the complaint if there
are reasonable grounds to believe whistleblower retaliation occurred,
unless the complainant agrees to an extension.[Footnote 64] We found
that the investigating offices met this requirement in most of the
complaints we reviewed (47 of 57, or 82 percent), generally because
the offices closed the majority of complaints within 240 days (40 of
57, or 70 percent).[Footnote 65] However, the case files for over half
(10 of 17) of the complaints that exceeded 240 days--including 6 of 7
OIG complaints and 4 of 10 DOJ-OPR complaints--did not contain
documentation that the complainant had agreed to an extension.
The regulatory requirements help ensure that both complainants and the
investigating office receive information necessary to make decisions
regarding the complaint. For example, the requirement to send notice
to the complainant within 15 days acknowledging that the office has
received the complaint ensures that the complainant is aware of whom
to contact within OIG or DOJ-OPR if he or she has questions or
additional information to provide regarding their complaint. Further,
three of the eight whistleblower advocates and attorneys we spoke with
stated that regular communication between investigators and
complainants ensures that complainants provide the investigating
office with follow-up information that the office needs to make a
timely and appropriate decision. In addition, as previously discussed,
the regulations provide complainants the right to bring their
complaints directly to OARM after 120 days if they have not received
notice that the investigating office will seek corrective action. Two
of the whistleblower advocates we spoke with said that it is generally
beneficial to the complainant to wait for OIG or DOJ-OPR to complete
their investigations so that these offices can obtain a complete
factual record, which is helpful if the complainant pursues his or her
case with OARM. However, according to these whistleblower advocates,
if the complainant is not satisfied with the investigating office's
progress, the complainant may prefer to go directly to OARM.
Regulatory requirements to provide periodic status updates and receive
the complainant's approval for an extension when investigations are
running long helps ensure complainants have the information they need
to make this decision.
More broadly, regular status updates provide reassurance to
complainants during the investigative process. Four of the eight
whistleblower advocates and attorneys we spoke with said that regular
status updates reassure complainants that the investigating office is
continuing to make progress on their complaints. Further, six of the
attorneys and advocates said that, without regular status updates,
complainants can become discouraged and develop a negative view of the
process. Five of these attorneys and advocates said that, as a result
of these negative experiences, potential whistleblowers may be less
likely to come forward to report wrongdoing.
At the time the case files we reviewed were open, OIG and DOJ-OPR did
not have oversight mechanisms in place to ensure compliance with the
status update and extension requirements. According to senior OIG
officials and a DOJ-OPR official responsible for managing these
complaints, managers regularly discussed individual complaints with
the investigator assigned to the complaint, but the investigator was
responsible for setting due dates to ensure compliance with the
regulations. The OIG and DOJ-OPR officials we spoke with said that
their investigators were frequently in communication with
complainants, but these communications were not always documented
within their case files. Without documentation of these
communications, managers could not verify that investigators had
communicated with complainants, as required. In addition, senior OIG
officials and the DOJ-OPR official said that they maintained
information on the dates whistleblower retaliation complaints were
opened and closed within their case management systems; however, these
systems were not specific to whistleblower retaliation complaints and
did not contain dates of interim communications. As a result, managers
could not use these systems to oversee investigators' compliance with
requirements to provide status updates within prescribed time frames
or obtain the complainant's approval for an extension, if required.
OIG has taken steps to begin tracking compliance with these
requirements; however, DOJ-OPR has not yet taken similar action.
Specifically, in July 2014, during the course of our review, an OIG
manager informed staff responsible for these complaints of the
importance of documenting status updates within case files to ensure
documentation of OIG's compliance with regulatory requirements to
update complainants within prescribed time frames. Further, over the
last 2 years, OIG has developed a database it now uses as a management
tool to oversee investigators' compliance with requirements for
communicating with complainants. According to senior OIG officials we
spoke with, OIG decided to develop this database to help ensure that
OIG meets its regulatory requirements. OIG managers use the database
to track dates of interim communications, such as status updates, and
the database calculates regulatory deadlines for subsequent updates
and for closing the complaint. In addition, according to senior OIG
officials, managers can use the database to run reports, such as to
see upcoming deadlines for all open complaints. Although it is too
soon to tell how effective this database will be, if used
consistently, this database could help OIG managers ensure
investigators communicate with complainants in accordance with
regulatory requirements.
According to a DOJ-OPR official responsible for managing these
complaints, DOJ-OPR could place an even greater emphasis on the
deadlines for these complaints and take additional steps to oversee
communications with complainants. This official stated that DOJ-OPR
investigators may lose track of deadlines for status updates in FBI
whistleblower retaliation cases because similar requirements are not
in place for other cases DOJ-OPR typically handles. Further, as
discussed previously, in many of the case files we reviewed we did not
see evidence of communication between the DOJ-OPR investigator and the
complainant within required time frames. For example, in one case file
we reviewed, the complainant listed numerous attempts to contact DOJ-
OPR over the prior year and expressed frustration at not receiving the
required status updates.
According to senior DOJ-OPR officials, DOJ-OPR has taken some steps to
improve its management of whistleblower retaliation cases, but does
not track investigators' compliance with specific regulatory
requirements and does not have a formal oversight mechanism to do so.
In the last year and a half, DOJ-OPR managers have started to receive
weekly reports with information on all open complaints, according to a
DOJ-OPR official responsible for managing these complaints. However,
the official said that the reports do not contain information on
status updates. A senior DOJ-OPR official reported that DOJ-OPR is in
the initial stages of upgrading its case management system, and DOJ-
OPR officials expect that the new system could eventually be tailored
to allow them to capture additional information on the office's
handling of FBI whistleblower retaliation complaints, such as the
dates of communications between investigators and complainants.
Standards for Internal Control in the Federal Government calls for
agencies to conduct ongoing monitoring in the course of normal
operations, such as when investigating whistleblower retaliation
complaints, to help managers ensure compliance with applicable
regulations and achieve desired results.[Footnote 66] DOJ-OPR has
begun taking steps to upgrade its case management system but is very
early in this process. As DOJ-OPR upgrades its case management system,
tailoring the system to capture data specific to FBI whistleblower
retaliation complaints, or developing some other mechanism, could
provide DOJ-OPR managers and investigators information necessary to
track compliance with regulatory requirements. Further, using that
information to conduct ongoing monitoring of DOJ-OPR attorneys'
compliance with regulatory requirements could help DOJ-OPR ensure
complainants receive the periodic updates that they are entitled to
and that they need to determine next steps for their complaints.
OIG Has Not Informed Complainants before Closing Complaints It
Declined to Investigate or Consistently Communicated Reasons for Its
Decision, but Plans to Begin Doing So:
OIG has not informed complainants before closing complaints it
declines to investigate and has not always communicated the reasons
for its decision not to investigate because, according to senior OIG
officials, OIG does not view the regulations as requiring them to do
so. Specifically, these officials said that the regulations state that
the office must provide the complainant with a written statement that
indicates the office's intention to close the complaint when the
investigating office decides to terminate an investigation. As a
result, according to these officials, this provision does not apply if
OIG declines the complaint before initiating an investigation.
Similarly, these officials said that OIG does not view the requirement
to send a final termination report including a summary of relevant
facts and the reasons for terminating an investigation as applying to
complaints OIG declines to investigate. Unlike in OIG's process, a DOJ-
OPR official responsible for managing these complaints said that DOJ-
OPR provides a draft report to the complainant when DOJ-OPR decides to
close a complaint, including when DOJ-OPR makes this decision without
initiating an investigation.
We found that OIG provided a proposed termination report including the
factual findings and conclusions that justified terminating the
investigation before OIG finalized its decision to close the complaint
in 8 of the 9 complaints OIG investigated.[Footnote 67] In addition,
we found that OIG sent the complainant a final termination report when
OIG terminated most of these investigations (7 of 8).[Footnote 68]
Further, OIG generally included information required under the
regulations, such as a summary of relevant facts, OIG's reasons for
terminating in the investigation, and a response to the complainant's
comments, in these final termination reports.[Footnote 69]
We found that OIG did not send a proposed termination report in any of
the 27 complaints OIG declined to investigate, in accordance with
OIG's interpretation of the regulations. In addition, although OIG
sent a final termination report in most of the complaints (25 of 27,
or 93 percent) OIG declined to investigate, OIG did not always include
the reasons for its decision in the report. Specifically, we found
that in 15 of the 24 final termination reports (63 percent) we
reviewed for complaints OIG declined to investigate, OIG did not
clearly explain the reasons for this decision.[Footnote 70] Seven of
these 15 reports indicated that OIG found that the complaint did not
meet threshold regulatory requirements under the FBI whistleblower
regulations, but the report did not communicate why. For example, in
one instance, OIG's report to the complainant explained the general
finding that the allegations, even if accepted as true, did not
demonstrate a personnel action in retaliation for a protected
disclosure. Information we reviewed elsewhere in this case file
specified that OIG found that the complainant had not made the
underlying disclosure to a designated entity under the regulations.
However, OIG did not include this information in its final report to
the complainant. In the 8 other complaints, OIG's final report to the
complainant stated that another office should review the complaint,
such as the FBI Inspections Division, but did not indicate the reason
for this decision. In particular, the report did not indicate that OIG
had considered the complaint as a whistleblower retaliation matter and
determined the complaint did not meet threshold regulatory
requirements for OIG to conduct an investigation.
In contrast, DOJ-OPR generally provided complainants proposed
termination reports before closing their complaints and included
required information in its final termination reports, including in
complaints DOJ-OPR closed without conducting an investigation.
Specifically, we found that DOJ-OPR sent a proposed termination report
in 17 of 19 complaints (89 percent) that DOJ-OPR terminated, and
included the office's findings and conclusions that justified
terminating the investigation in all 17 of these reports.[Footnote 71]
In addition, we found that DOJ-OPR sent a final termination report in
all 19 complaints and included relevant facts and the reasons for
terminating the investigation in all 19 of these reports. Further, in
all 9 complaints in which the complainant provided comments on the
proposed termination report, DOJ-OPR responded to the complainant's
comments in the final termination report.
Providing the complainant a proposed termination report describing the
investigating office's findings and conclusions ensures that the
complainant is aware of the office's rationale for the decision and
has an opportunity to provide additional information or written
comments before the office closes the complaint. According to two
senior OSC officials we spoke with about their process for reviewing
whistleblower retaliation complaints for most federal employees, OSC
provides the complainant a letter when OSC intends to close a
complaint that does not meet threshold requirements without conducting
an investigation. In some instances, according to these officials, the
complainant's response to OSC's proposed termination report has caused
OSC to reconsider its initial decision to terminate the complaint. As
with OIG and DOJ-OPR, if OSC intends to terminate a whistleblower
retaliation investigation, OSC is required to provide the complainant
a written statement including the facts and OSC's conclusions and
provide the complainant an opportunity to provide comments. As
previously discussed, OIG and DOJ-OPR are required to provide for the
enforcement of whistleblower protection in a manner consistent with
certain OSC processes.[Footnote 72]
In addition, the requirement to provide specific information in the
office's final report to the complainant, including the basis for the
office's decision to close the complaint, helps ensure that
complainants have the information they need to make decisions about
their complaints. As discussed previously, the regulations provide
complainants the option of bringing their complaints to OARM after the
investigating office has notified them that it has closed the
complaint.[Footnote 73] However, without information on the reasons
for OIG's decision to decline to investigate, complainants may not
have sufficient information to determine if they would like to
continue to pursue their complaints through OARM. Further, the
regulations require complainants to bring their complaints to OARM
within 60 days of receiving notification from the investigating
office. If complainants need to request additional information from
OIG, such as the rationale for OIG's decision, they may not have
sufficient time to bring their complaints to OARM.
Senior OIG officials said that although they have not provided
proposed termination reports in complaints they declined to
investigate, they considered any additional information complainants
provided after receiving notice of OIG's decision not to investigate.
However, when we met with these officials in October 2014, they said
that they recognize the benefits of always providing complainants the
opportunity to comment on OIG's decision to terminate a complaint
without initiating an investigation because the complaint does not
meet threshold regulatory requirements. In addition, these officials
said that they need to be more specific about the reasons a complaint
does not meet regulatory requirements. In light of our review, these
OIG officials said that they have decided to implement these practices
and have instructed their investigators to do so going forward. We
believe that, if implemented effectively, these planned actions will
help OIG ensure that all complainants have an opportunity to provide
additional information or written comments before OIG closes their
complaints and that complainants will receive the information they
need to make decisions about their complaints.
Conclusions:
Whistleblowers play an important role in safeguarding the federal
government against waste, fraud, and abuse, but they often risk
retaliation from their employers as a result of their actions. DOJ has
established a process by which FBI whistleblowers can seek recourse
should they experience such retaliation, and DOJ generally has the
discretion to revise this process, as needed. We found that DOJ has
terminated many FBI whistleblower complaints based on complainants'
failure to meet threshold regulatory requirements rather than whether
the retaliation occurred. In particular, FBI employees are protected
if they report wrongdoing to certain high-level FBI or DOJ officials
and other specified entities, and--unlike employees of other executive
branch agencies--are not protected if they report wrongdoing to their
supervisors. DOJ officials have stated plans to partially address this
by adding several more senior officials in FBI field offices to the
list of individuals to whom complainants may report protected
disclosures, but the timing and outcome of this stated plan are
uncertain. DOJ officials said they do not plan to expand the list to
include supervisors or others in an employee's chain of command in
part because of their concerns about the additional resources that
would be needed to handle a possible increase in complaints and the
potential effect on the timeliness of DOJ's process to handle these
complaints. While DOJ officials' concern about timeliness is
important, they are already taking other steps to improve the
efficiency of this process. More importantly, dismissing retaliation
complaints made to an employee's supervisor or someone in that
person's chain of command leaves some FBI whistleblowers with no
recourse if they allege retaliation, as our review of case files
demonstrated. Training that DOJ officials plan to provide to FBI
employees could help provide information on how to make a protected
disclosure; however, this planned training will not address the fact
that some employees report alleged wrongdoing first to their
supervisors or others in their chain of command without ever expecting
that this will lead to retaliation and a whistleblower claim.
As a result, congressional consideration of whether the purposes of 5
U.S.C. § 2303, which prohibits a personnel action taken against an FBI
employee as a reprisal for a protected disclosure, are being met--in
particular, whether FBI employees should, like employees of other
executive branch agencies, have a means to obtain corrective action
for retaliation for disclosures of wrongdoing made to supervisors and
others in the employees' chain of command--could help ensure that
DOJ's process for handling these complaints is consistent with
congressional action to strengthen and expand protections for other
federal whistleblowers. Further, it is important that, regardless of
what changes DOJ may make to the list of entities designated to
receive protected disclosures, information DOJ and the FBI provide to
FBI employees on the process for making a protected disclosure is
clear and consistent so FBI employees who consult such guidance make
decisions based on accurate information.
In some instances--particularly where OARM ordered corrective action
in favor of the complainant--the process for resolving these
complaints has taken many years, and DOJ has stated a commitment to
improving its efficiency in handling these cases. Committing to
specific time frames for returning DOJ decisions on the outcomes of
FBI whistleblower retaliation cases could help DOJ achieve its
commitment to improving efficiency in handling these complaints.
Additionally, assessing the impacts of DOJ actions to improve
timeliness could help ensure that these actions are achieving the
intended results. Finally, establishing an oversight mechanism to
monitor DOJ-OPR investigators' compliance with regulatory reporting
requirements--either by tailoring DOJ-OPR's case management system or
another means--can assist DOJ in ensuring that complainants receive
timely information they need to make informed decisions regarding
their complaints, such as whether or not to seek corrective action
from OARM.
Matter for Congressional Consideration:
To ensure that the purposes of 5 U.S.C. § 2303--which prohibits a
personnel action taken against an FBI employee as a reprisal for a
protected disclosure--are met, Congress may wish to consider whether
FBI employees should have a means to obtain corrective action for
retaliation for disclosures of wrongdoing made to supervisors and
others in the employee's chain of command who are not already
designated officials.
Recommendations for Executive Action:
We recommend the following four actions.
To better ensure that FBI whistleblowers have access to recourse under
DOJ's regulations should the individuals experience retaliation, and
to minimize the possibility of discouraging future potential
whistleblowers, we recommend that the Attorney General clarify in all
current relevant DOJ guidance and communications, including FBI
guidance and communications, to whom FBI employees may make protected
disclosures and, further, explicitly state that employees will not
have access to recourse if they experience retaliation for reporting
alleged wrongdoing to someone not designated in DOJ's regulations.
To better ensure that DOJ is fulfilling its commitment to improving
efficiency in handling these complaints, we recommend the following to
the heads of the relevant offices:
* OARM and ODAG should provide parties with an estimated time frame
for returning each decision, including whether the complaint meets
threshold regulatory requirements, merits, and appeals. If the time
frame shifts, OARM and ODAG should timely communicate a revised
estimate to the parties.
* DOJ-OPR, OIG, OARM, and ODAG should jointly assess the impact of
ongoing and planned efforts to reduce the duration of FBI
whistleblower retaliation complaints throughout the entire
investigation, adjudication, and appeal process to ensure that these
changes are in fact shortening total complaint length, without
sacrificing quality.
To ensure that complainants receive the periodic updates that they are
entitled to and need to determine next steps for their complaint, such
as whether or not to seek corrective action from OARM, we recommend
that Counsel, DOJ-OPR tailor its new case management system or
otherwise develop an oversight mechanism to capture information on the
office's compliance with regulatory requirements and, further, use
that information to monitor and identify opportunities to improve DOJ-
OPR's compliance with regulatory requirements.
Agency Comments and Our Evaluation:
We provided a draft of this report to DOJ and OIG for review and
comment. On January 16, 2015, an official with DOJ's Justice
Management Division sent us an email stating that the department
concurred with our recommendations. DOJ also provided technical
comments which we incorporated, as appropriate. In its technical
comments, DOJ stated a commitment to monitoring the implementation of
its April 2014 recommendations to ensure that FBI employees are not
unfairly excluded from whistleblower protection because they had
disclosed information to their immediate supervisor. DOJ also reported
that DOJ-OPR is taking steps, such as developing a report template and
upgrading its case management system which, when completed, could help
the agency begin systematically tracking investigators' compliance
with regulatory reporting requirements. These initial steps position
the agency to satisfy our recommendation that DOJ-OPR tailor its new
case management system or otherwise develop an oversight mechanism to
capture information on the office's compliance with regulatory
reporting requirements.
In written comments provided by OIG, (reproduced in app. IV) the
Inspector General concurred with our recommendation to OIG and
provided technical comments which we incorporated, as appropriate. In
its comment letter, OIG stated that OIG has consistently supported and
continues to support broadening the list of persons to whom protected
disclosures can be made. Further, with regard to guidance provided to
FBI employees, the OIG fully supports providing clear and
comprehensive guidance as to all aspects of whistleblower rights and
protections. To this end, OIG's letter stated that the office is
working with the FBI to create a specialized training program that
highlights the specific requirements and procedures for FBI
whistleblowers and on enhancements to OIG's website to include
additional information specific to FBI employees.
The OIG letter also raised several additional issues. First, OIG's
letter stated that, with regard to the total duration of Jane Turner's
complaint, for example, the GAO draft does not distinguish between the
responsibilities of OIG and the department. We appreciate the
differing roles and responsibilities of each office and describe these
in our report. In reporting our findings, we clearly distinguish
between the separate offices' timeframes and records of compliance
with certain regulatory requirements. However, it is important for us
to also consider the total length of cases, which is particularly
important to the whistleblowers. Second, the OIG letter mentioned that
GAO's analysis excluded more recent complaints. Given the sensitive
nature of open cases, we reviewed only complaints closed as of
December 31, 2013. Third, the OIG letter commented that the GAO report
failed to fully acknowledge the high priority and personal attention
OIG senior staff give to FBI whistleblower retaliation matters. We
disagree. Our report explains that the Inspector General personally
reviews each complaint, but also recognizes that competing priorities
for this high level of attention has resulted in delays. Fourth, OIG's
letter noted that in many instances OIG has relied on telephone
contact with complainants to meet regulatory notification requirements
and because such contacts were not consistently documented, we would
not always have identified them in our case file review. In our review
of both DOJ and OIG case files, we noted all evidence of contact with
the complainants, including evidence of written and oral
communication, but it is correct that we would not have identified
undocumented contact with complainants. As OIG acknowledged in its
letter, it is important that evidence of contact be documented in case
files to demonstrate compliance with the regulations. As discussed in
our report, OIG has taken steps to address this.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies to the
Attorney General, the DOJ Inspector General, appropriate congressional
committees, and other interested Member of Congress. In addition, the
report will be available at no charge on the GAO website at
[hyperlink, http://www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-8777 or maurerd@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. GAO staff who made key contributions
to this report are listed in appendix V.
Sincerely yours,
Signed by:
David C. Maurer:
Director, Homeland Security and Justice:
[End of section]
Appendix I: Scope and Methodology:
This appendix discusses in detail our methodology for addressing the
following three objectives:
* determining how long the Department of Justice (DOJ) has taken to
resolve Federal Bureau of Investigation (FBI) whistleblower
retaliation complaints and what factors have affected these time
frames,
* determining the extent to which DOJ has taken steps to resolve
complaints more quickly and determine the impact of any such efforts;
and:
* determining the extent to which DOJ's Office of the Inspector
General (OIG) and Office of Professional Responsibility (DOJ-OPR) have
complied with regulatory reporting requirements.
To determine how long DOJ has taken to resolve FBI whistleblower
retaliation complaints and the factors that affected these time
frames, we reviewed DOJ case files for all FBI whistleblower
retaliation complaints closed within the last 5 calendar years (from
2009 through 2013). Specifically, we reviewed the case files for a
total of 62 closed whistleblower retaliation complaints to calculate
the duration of each complaint from initial filing to DOJ's final
decision, including, for example, the length of time from initial
filing to the investigating office's final decision; the length of
time from filing a request for corrective action with the Office of
Attorney Recruitment and Management (OARM) to OARM's decision; and the
length of the appeals process.[Footnote 74] We did this by creating a
data collection instrument to identify the key characteristics of
whistleblower retaliation cases, determine the completeness of the
files, and assess time frames for each case in accordance with DOJ's
regulations.[Footnote 75] We also gathered information on the outcome
of each complaint and factors that could affect timeliness, such as
the length and frequency of parties' requests for extensions of time.
In addition, to better understand DOJ's process for handling these
complaints, we reviewed relevant documentation, including DOJ's
whistleblower regulations and internal guidance on the process for
making a protected disclosure. To obtain DOJ officials' perspectives
on DOJ's process, time frames for handling these complaints, and
factors affecting these time frames, we also interviewed senior agency
officials from offices responsible for investigating--OIG and DOJ-OPR--
or adjudicating--OARM and the Office of the Deputy Attorney General
(ODAG)--FBI whistleblower retaliation complaints. We compared aspects
of DOJ's process against standards in Standards for Internal Control
in the Federal Government to identify the extent to which DOJ's
process was in alignment with these standards.[Footnote 76]
Because of the sensitivity of FBI whistleblowers' identities, to
obtain whistleblower perspectives about DOJ's process and time frames,
we met with representatives of whistleblower advocacy groups
knowledgeable about DOJ's process and attorneys who have represented
FBI whistleblowers through this process. Specifically, we identified
and interviewed representatives of five whistleblower advocacy groups
using an iterative process often referred to as snowball sampling. At
each interview, we solicited names of additional groups to interview
and selected for interviews those that were most widely recognized as
knowledgeable about DOJ's process.[Footnote 77] We also interviewed
attorneys who had represented FBI whistleblowers in three of five
cases where complainants have alleged retaliation and obtained
corrective action.[Footnote 78] These attorneys discussed their
experience with DOJ's process and factors affecting the length of
their cases. We analyzed the results of all of these interviews to
distill themes and patterns. The information we gathered from these
groups and attorneys--referred to throughout our report collectively
as eight whistleblower advocates and attorneys--is not generalizable,
but provides perspectives on whistleblowers' experiences with DOJ's
process.[Footnote 79]
To determine the extent to which DOJ has taken steps to resolve
complaints more quickly, we interviewed senior DOJ officials in each
of the four offices responsible for investigating or adjudicating
whistleblower retaliation complaints--OIG, DOJ-OPR, OARM, and ODAG. We
asked about the factors that affect the timely processing of these
complaints and any efforts to address them. In addition, to identify
any practices that have improved timeliness in comparable federal
settings, we interviewed senior officials in the Department of
Defense's Office of the Inspector General as well as the U.S. Office
of Special Counsel (OSC) and the U.S. Merit Systems Protection Board
(MSPB)--federal agencies that handle whistleblower retaliation
complaints for other federal employees--about those agencies'
processes for handling whistleblower retaliation complaints. To
identify the extent to which DOJ officials have taken steps to
determine the impact of their efforts to improve timeliness, we
interviewed DOJ officials and reviewed DOJ's April 2014 report to the
President[Footnote 80] and compared DOJ's stated plans with standards
in Standards for Internal Control in the Federal Government.[Footnote
81]
To determine the extent to which OIG and DOJ-OPR have complied with
regulatory reporting requirements, we compared evidence we saw in
DOJ's case files with DOJ's regulations and analyzed the extent of any
discrepancies. Specifically, for each case file, we reviewed OIG's and
DOJ-OPR's documented communications with the complainants, including
initial and ongoing outreach, and recorded the dates of all
communications in our data collection instrument. We calculated the
length of time between all documented communications to determine the
number of complaints in which OIG and DOJ-OPR complied with the
deadlines for reporting requirements in DOJ's regulations. In
addition, we reviewed the content of the investigating office's final
notice to the complainant that the office had closed its investigation
or declined to open an investigation, as applicable, as well as the
content of any interim notices stating the office's decision. We
compared the content of these communications with DOJ's regulatory
requirements. We also reviewed documentation and interviewed OIG and
DOJ-OPR officials responsible for handling these complaints about any
oversight mechanisms to ensure compliance with regulatory
requirements. For example, we reviewed an electronic copy of an OIG
spreadsheet for tracking regulatory deadlines for these complaints. We
then compared these mechanisms against standards in Standards for
Internal Control in the Federal Government to determine the extent to
which OIG and DOJ-OPR met the relevant standards related to
oversight.[Footnote 82] Further, we interviewed eight whistleblower
advocates and attorneys, as noted above, to obtain whistleblower
perspectives on the extent of DOJ's compliance with regulatory
requirements and the effects of this compliance. In addition, because
OSC serves a function comparable to those of OIG and DOJ-OPR in
handling whistleblower complaints for most other executive branch
employees and has similar regulatory reporting requirements, we
interviewed OSC officials about OSC's processes and mechanisms for
ensuring compliance with its requirements.
We conducted this performance audit from September 2013 to January
2015 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Department of Justice's Reasons for Closing Federal
Bureau of Investigation Whistleblower Retaliation Complaints:
This appendix provides information on the Department of Justice's
(DOJ) reasons for closing the 62 Federal Bureau of Investigation (FBI)
whistleblower retaliation complaints we reviewed. These 62 complaints
represent the universe of FBI whistleblower retaliation complaints
that were closed within the last 5 calendar years (from 2009 through
2013) by the final DOJ office to review the complaint.[Footnote 83] We
reviewed case files at both of the offices responsible for
investigating these complaints--the Office of the Inspector General
(OIG) and the Office of Professional Responsibility (DOJ-OPR)--as well
as at the office responsible for adjudicating these complaints--the
Office of Attorney Recruitment and Management (OARM)--and identified
the final outcome in each complaint.[Footnote 84]
The DOJ office reviewing a whistleblower retaliation complaint may
close the complaint before conducting an investigation (in the case of
OIG and DOJ-OPR) or considering the merits of the complaint (in the
case of OARM) if the office determines that the complaint does not
meet threshold requirements under the FBI whistleblower regulations.
If the investigating office finds that a complaint meets threshold
regulatory requirements, the office will open an investigation to
determine if there are reasonable grounds to believe that a personnel
action had been taken or will be taken in retaliation for a protected
disclosure. If OARM first determines that a complaint meets threshold
requirements, OARM adjudicates the complaint to determine whether the
disclosure was a contributing factor in the personnel action based on
a preponderance of the evidence and whether the FBI has demonstrated
by clear and convincing evidence that it would have taken the same
personnel action in the absence of such disclosure. If the complaint
is substantiated and the FBI is unable to meet its burden of proof,
OARM will order that the FBI take appropriate corrective action. In
addition complainants may voluntarily withdraw their complaints. Table
1 summarizes the final outcome of the 62 complaints we reviewed,
sorted by the final DOJ office to review the complaint and the overall
length of the complaint.[Footnote 85]
Table 1: Final Outcome in Federal Bureau of Investigation (FBI)
Whistleblower Retaliation Complaints, by Final Department of Justice
(DOJ) Office to Review Complaint and Length of Complaint:
Final office to review complaint: Investigating office-Office of the
Inspector General (OIG) or Office of Professional Responsibility (DOJ-
OPR):
Final outcome: Complaint did not meet threshold regulatory
requirements - The office found that the complaint did not meet
threshold requirements under the FBI whistleblower regulations;
Number of complaints closed in less than 1 year: 33;
Number of complaints closed after 1 year: 6[A];
Total number of complaints: 39.[B]
Final outcome: No reasonable grounds - The office investigated at
least one allegation made by the complainant and found that there were
not reasonable grounds to believe that a personnel action had been
taken in retaliation for a protected disclosure;
Number of complaints closed in less than 1 year: 3;
Number of complaints closed after 1 year: 3;
Total number of complaints: 6[C].
Final outcome: Complainant withdrew complaint;
Number of complaints closed in less than 1 year: 1;
Number of complaints closed after 1 year: 0;
Total number of complaints: 1.
Total number of complaints closed by the investigating office;
Number of complaints closed in less than 1 year: 37;
Number of complaints closed after 1 year: 9;
Total number of complaints: 46.
Final office to review complaint: Adjudicating office-Office of
Attorney Recruitment and Management (OARM):
Final outcome: Complaint did not meet threshold regulatory
requirements - OARM found that the complaint did not meet threshold
requirements for OARM to review the merits of the complaint under the
FBI whistleblower regulations;
Number of complaints closed in less than 1 year: 7;
Number of complaints closed after 1 year: 2;
Total number of complaints: 9.
Final outcome: No reprisal found - OARM reviewed the merits of at
least one allegation made by the complainant and found either that the
protected disclosure was not a contributing factor in the personnel
action, or that FBI had demonstrated by clear and convincing evidence
that it would have taken the same action in the absence of the
disclosure;
Number of complaints closed in less than 1 year: 0;
Number of complaints closed after 1 year: 1;
Total number of complaints: 1.
Final outcome: Complainant withdrew complaint;
Number of complaints closed in less than 1 year: 0;
Number of complaints closed after 1 year: 3[D];
Total number of complaints: 3.
Final outcome: OARM found reprisal and ordered corrective action;
Number of complaints closed in less than 1 year: 0;
Number of complaints closed after 1 year: 3;
Total number of complaints: 3[E].
Total number of complaints closed by OARM:
Number of complaints closed in less than 1 year: 7;
Number of complaints closed after 1 year: 9[F];
Total number of complaints: 16.
Total number of complaints closed by DOJ:
Number of complaints closed in less than 1 year: 44;
Number of complaints closed after 1 year: 16;
Total number of complaints: 62.
Source: GAO review of OIG, DOJ-OPR, and OARM case files. GAO-15-112.
[A] In 1 of these complaints, OIG found that the complaint did not
meet threshold requirements under the FBI whistleblower regulations
but investigated the complaint under its preexisting authority.
[B] In most instances, the investigating office determined that the
complaint did not meet threshold regulatory requirements based on
initial information submitted by the complainant; however, in some
instances, the investigating office made this determination after
taking some investigative steps, such as interviewing the complainant
or requesting additional information. We included those complaints in
this category.
[C] Some complaints we reviewed included multiple disclosures or
alleged acts of retaliation. In some instances, OIG or DOJ-OPR
investigated one allegation but determined other aspects of the
complaint did not meet threshold requirements. We included those
complaints in this category.
[D] In 2 of these complaints, the complainants withdrew after OARM
determined that the complaints met threshold regulatory requirements.
In the third complaint, the complainant withdrew before OARM
determined whether the complaint met threshold regulatory requirements.
[E] In all 3 of these complaints, an investigating office had
previously reviewed and terminated the complaint because, among other
reasons, there was sufficient evidence to conclude that the personnel
action would have been taken absent the disclosure. However, in all 3
complaints, OARM determined that at least one personnel action had
been taken in reprisal for a protected disclosure. Figure 3 shows the
overall length of these complaints, including the length of each
office's review.
[F] These 9 complaints were reviewed by an investigating office before
being reviewed by OARM. The investigating office completed its review
of 6 of the complaints in less than a year and exceeded 1 year in 3 of
the complaints.
[End of table]
In addition to determining the final outcome in each complaint, we
reviewed the case files to determine the reasons for the final DOJ
office's decision to close the complaint.[Footnote 86] For example, in
some complaints, the final office determined that the complaint did
not meet threshold regulatory requirements because the complainant's
underlying disclosure had been made to an individual or entity not
designated in the regulations and therefore the disclosure was not
protected. In other complaints, the investigating office found that
there were not reasonable grounds to believe the personnel action had
been taken in reprisal for a protected disclosure because the evidence
indicated that the personnel action would have been taken in the
absence of the disclosure. Table 2 summarizes the reasons DOJ offices
cited in their case files as reasons for closing whistleblower
retaliation complaints and the number of complaints in which the final
DOJ office to review the complaint cited each.[Footnote 87]
Table 2: Reasons for the Department of Justice's (DOJ) Final Decision
to Close Federal Bureau of Investigation (FBI) Whistleblower
Retaliation Complaints:
One or more of the disclosures did not meet the definition of
"protected disclosure" under 28 C.F.R. § 27.1(a);
Total number of complaints: 30.
The complainant made the disclosure to an individual or entity not
listed in the regulations;
Total number of complaints: 23.
The disclosure did not evidence a violation of any law, rule or
regulation or other subject covered by the regulations;
Total number of complaints: 7.
The complainant did not have a reasonable belief of wrongdoing when
making the disclosure;
Total number of complaints: 2.
The complainant did not claim to have made a protected disclosure;
Total number of complaints: 1.
One or more of the alleged acts of retaliation did not meet the
definition of "personnel action" under 28 C.F.R. § 27.2(b) or the
complainant did not claim to have experienced a personnel action
related to the disclosure;
Total number of complaints: 14.
The facts of the complaint did not demonstrate that the alleged
retaliation had been taken in reprisal for the disclosure;
Total number of complaints: 16.
The alleged retaliation occurred before the disclosure;
Total number of complaints: 7.
The timing of the personnel action was not reasonably close to the
timing of the disclosure;
Total number of complaints: 3.
The personnel action would have occurred had the complainant not made
the disclosure;
Total number of complaints: 6.
The evidence did not show that the alleged retaliator was aware of
the disclosure;
Total number of complaints: 4.
The evidence did not demonstrate a causal connection between the
alleged retaliation and the disclosure;
Total number of complaints: 2.
The complainant did not demonstrate that the disclosure was a
contributing factor in the personnel action based on a preponderance
of the evidence;
Total number of complaints: 1.
The complainant did not respond to requests for information necessary
to show that the complaint met threshold regulatory requirements;
Total number of complaints: 3.
The complaint related to Equal Employment Opportunity (EEO) matters and
should be addressed through that process[A];
Total number of complaints: 7.
The allegations had previously been addressed by another office;
Total number of complaints: 1.
The complainant was not an FBI employee or applicant for employment
with the FBI, as required by 28 C.F.R. § 27.1(a);
Total number of complaints: 2.
The complainant filed a request for corrective action with the Office
of Attorney Recruitment and Management (OARM) before bringing their
complaint to an investigating office, as required by 28 C.F.R. §
27.4(c)(1);
Total number of complaints: 3.
The complainant brought their complaint to OARM but did not file a
request for corrective action;
Total number of complaints: 2[B].
The case file did not provide sufficient information to determine the
reason DOJ determined that one or more of the complainant's allegations
did not meet threshold regulatory requirements;
Total number of complaints: 10[C].
Source: GAO review of Office of the Inspector General (OIG), DOJ Office
of Professional Responsibility (DOJ-OPR), and OARM case files.
GAO-15-112.
Notes:
This includes all reasons cited in the case files for complaints DOJ
closed because the complaint did not meet threshold regulatory
requirements, complaints the investigating office closed after finding
no reasonable grounds, and complaints OARM closed after finding no
reprisal. The number of reasons exceeds the number of complaints we
reviewed because, in some complaints, the final DOJ office cited
multiple reasons in its decision to close the complaint. For example,
in some instances, the final office found that the complaint did not
meet threshold regulatory requirements but also noted that the facts
did not demonstrate that the alleged retaliation had been taken in
reprisal. Similarly, because some complainants alleged multiple
disclosures, in some instances the final DOJ office determined that
one or more of the disclosures did not meet the definition of a
protected disclosure but opened an investigation with regard to one or
more disclosures that it determined were protected. We counted
complaints under each reason cited within the case files.
[A] Federal law protects federal employees and job applicants from
discrimination because of race, color, religion, sex, national origin,
age (40 or older), disability, or genetic information. These laws also
make it illegal to fire, demote, harass, or otherwise "retaliate"
against applicants or employees because they filed a charge of
discrimination, because they complained to their employer or other
covered entity about discrimination on the job, or because they
participated in an employment discrimination proceeding (such as an
investigation or lawsuit). Federal employees who believe that they
have been retaliated against for a protected activity may file a
complaint with the Equal Employment Opportunity Commission for
corrective action. DOJ-OPR and OARM officials told us that they
generally do not have jurisdiction over complaints of EEO-related
reprisal, while OIG officials told us they generally do not exercise
jurisdiction over complaints of EEO-related reprisal.
[B] In one of these complaints, the complainant had previously
submitted the complaint to an investigating office and the
investigating office found that the complaint did not meet threshold
regulatory requirements. The complainant then submitted a letter to
OARM stating an intention to file a request for corrective action but
did not respond to OARM's request for additional information required
to file the request for corrective action. In the second complaint,
the complainant e-mailed OARM but did not file a request for
corrective action after OARM informed the complainant that the
complaint must first be filed with an investigating office before the
complainant can file such a request with OARM.
[C] In these 10 complaints, we were not able to determine a specific
reason for the investigating office's finding that one or more of the
complainant's allegations did not meet threshold requirements based on
information contained in the case file. For example, in some of these
complaints, the investigating office's final letter to the complainant
stated that the matters were more appropriate for review by another
office or agency, but the case file did not indicate the office's
basis for this determination.
[End of table]
[End of section]
Appendix III: Department of Justice (DOJ) Investigating Offices'
Compliance with Selected Reporting Requirements:
Requirement: Acknowledgment of complaint: The investigating office must
notify the complainant that it has received the complaint and provide
the name of a contact person within the office within 15 days of either
OIG or DOJ-OPR receiving the complaint;
Percentage and number of complaints that met requirement, by
investigating office:
Office of the Inspector General (OIG): 44 percent; (16 of 36)[A,B];
Office of Professional Responsibility (DOJ-OPR): 19 percent; (4 of
21)[A,B].
Requirement: First status update: The investigating office must provide
the complainant with the first status update within 90 calendar days of
acknowledging receipt of the complaint;
Percentage and number of complaints that met requirement, by
investigating office:
Office of the Inspector General (OIG): 82 percent; (14 of 17)[C];
Office of Professional Responsibility (DOJ-OPR): 65 percent; (13 of
20)[C].
Requirement: Subsequent status updates: The investigating office must
provide the complainant with a status update at least every 60 calendar
days after the first status update;
Percentage and number of complaints that met requirement, by
investigating office:
Office of the Inspector General (OIG): 33 percent; (4 of 12)[C,D];
Office of Professional Responsibility (DOJ-OPR): 20 percent; (3 of
15)[C,D].
Requirement: Overall timeliness: The investigating office must
determine within 240 days of receiving the complaint if there are
reasonable grounds to believe whistleblower retaliation occurred,
unless the complainant agrees to an extension;
Percentage and number of complaints that met requirement, by
investigating office:
Office of the Inspector General (OIG): 84 percent; (31 of 37)[E];
Office of Professional Responsibility (DOJ-OPR): 80 percent; (16 of
20)[E].
Requirement: Closed complaint within 240-days;
Percentage and number of complaints that met requirement, by
investigating office:
Office of the Inspector General (OIG): 81 percent; (30 of 37)[E];
Office of Professional Responsibility (DOJ-OPR): 50 percent; (10 of
20)[E.F].
Requirement: Obtained complainant's approval for an extension;
Percentage and number of complaints that met requirement, by
investigating office:
Office of the Inspector General (OIG): 14 percent; (1 of 7)[G];
Office of Professional Responsibility (DOJ-OPR): 60 percent; (6 of
10)[G].
Source: GAO analysis of Department of Justice (DOJ) regulations and
information contained in OIG and DOJ-OPR case files. GAO-15-112.
Notes: We determined whether the investigating office met each
requirement based on information contained in the case file for each
complaint. In some complaints, the office may have met the requirement
but not retained documentation in the case file.
[A] This excludes 1 OIG complaint in which we could not determine the
date of the first notice to the complainant from information contained
in the case file. We counted all complaints in which the investigating
office communicated with the complainant within 15 days of the date
either OIG or DOJ-OPR received the complaint as meeting this
requirement, including 1 OIG complaint in which the communication was
not written, as required by 28 C.F.R. § 27.3(c). In 14 of the 16
instances in which OIG communicated with the complainant within 15
days, the communication included the name or contact information of a
specific OIG staff person. We could not determine from the case files
for 2 complaints if OIG included a contact in its first notice to the
complainant because the content of the communication was not contained
in the case files. DOJ-OPR included the name of a specific DOJ-OPR
staff person in its first notice to the complainant in all 4
complaints in which DOJ-OPR communicated with the complainant within
15 days.
[B] In 2 DOJ-OPR complaints and 1 OIG complaint we reviewed, the
investigating office received the complaint from the other office
after more than 15 days had passed, but provided notice to the
complainant within 15 days of the date the investigating office
received the complaint. In an additional 2 DOJ-OPR complaints, DOJ-OPR
received the complaint from OIG within 15 days of the date OIG
received the complaint and DOJ-OPR provided notice to the complainant
within 15 days of the date DOJ-OPR received the complaint, although
more than 15 days had passed since the date OIG received the
complaint. Because in these 5 complaints, more than 15 days had passed
since either office received the complaint before the investigating
office sent the complainant notice, these 5 complaints did not comply
with the regulatory requirement.
[C] This excludes complaints closed before the deadline for the notice
or update.
[D] In 3 of the 8 OIG complaints and 5 of the 12 DOJ-OPR complaints in
which we did not see evidence that the office communicated with the
complainant every 60 days, as required, we identified only one period
of more than 60 days in which the case file did not contain evidence
of communication between the investigator and the complainant.
[E] We considered a complaint to have met the 240-day requirement if
the investigating office provided the complainant a final termination
report or otherwise closed the complaint within 240 days from the date
the office received the complaint.
[F] In 1 DOJ-OPR complaint we reviewed, the complainant initially
provided an incorrect address and DOJ-OPR sent both a proposed and
final termination report to the incorrect address within 240 days, but
closed the complaint after more than 240 days because of the time
needed to obtain the correct address. We excluded that complaint from
our analysis of the number of complaints that met this requirement.
[G] In 1 OIG complaint and 1 DOJ-OPR complaint, the case file did not
contain documentation that the complainant agreed to an extension, but
did contain evidence of ongoing communication between the complainant
or complainant's attorney and the investigating office after the 240-
day deadline. We counted these 2 complaints as meeting the requirement.
[End of table]
[End of section]
Appendix IV: Comments from the Department of Justice Office of the
Inspector General:
U.S. Department of Justice
Office of the Inspector General
January 9, 2015:
David C. Maurer:
Director, Homeland Security and Justice:
United States Government Accountability Office:
Re: GAO-15-112:
Dear Mr. Maurer:
Thank you for the opportunity to comment on the draft Government
Accountability Office (GAO) report entitled "Whistleblower Protection -
Additional Actions Needed to Improve DOJ's Handling of FBI Retaliation
Complaints." (Draft). GAO has represented to the Office of the
Inspector General (OIG) that this letter will be attached in full to
the final GAO report released to Congress and the public.
We want to first acknowledge the hard work and professionalism of the
GAO investigators involved in this project. As an independent
oversight entity, we fully understand the difficulty and value of this
important work. The OIG strongly believes that whistle blowers perform
a service to their agency and the public when they come forward with
information about potential wrongdoing, and that they should never be
subject to reprisal for doing so. We have and will continue to
implement reforms, before, during, and as a result of this review, in
order to continue to make every effort to improve our efforts in this
important area. Whistleblower rights and protections have been one of
my highest priorities since becoming Inspector General in 2012.
Overview:
The OIG is a statutorily independent entity within the Department of
Justice and its role in the process for addressing FBI whistleblower
retaliation complaints is discrete and separate from the roles of
other DOJ components. Accordingly, as an independent entity, once our
investigative responsibilities are complete and we submit our report
to the Department, the OIG has no further role in the adjudication
process. As such, it is important to distinguish between the
investigative role of the OIG and the adjudicative role played by the
Department in order not to leave any misimpression that the OIG has a
continuing role in the process, or control over any delays that may
occur after the conclusion of our investigation, which of course we do
not.
For example, the GAO Draft begins by describing the Jane Turner case,
which the Draft notes took over 10 years from investigation to final
adjudication, as an example of the lengthy time it takes the DOJ to
resolve some retaliation complaints. The Draft later repeatedly
references the fact that the "DOJ" can take 10 or more years to
resolve FBI retaliation cases. However, it is important to note that
the OIG completed our draft report in the Turner case in a timely
manner, within about 10 months from receiving the complaint. We are
concerned that, in stressing the 10 years it took to ultimately
resolve the Turner matter, the Draft does not adequately distinguish
between the investigative role of the OIG, which was completed in a
timely fashion, and that of other Department offices with roles in the
process.
The OIG's role in processing FBI whistleblower retaliation complaints is
prescribed by regulation and consists of receiving, reviewing, and, in
appropriate cases, investigating complaints to determine whether there
is a "reasonable basis" to conclude that a reprisal for a protected
disclosure has occurred. Under the regulations, the OIG has no role in
the adjudication phase of the process, which occurs before the
Department's Office of Attorney Recruitment and Management (OARM), or
in the appellate phase of the case involving the Office of the Deputy
Attorney General (ODAG).
In the Turner case highlighted in the Draft, after the OIG as
Conducting Office completed its investigation in a timely fashion of
approximately 10 months, we provided a draft of our report to the
complainant for her comments as required under the FBI whistleblower
regulations. Turner responded by submitting 300 pages of comments, and
then withdrew her complaint to the OIG before we could address the
comments. As permitted under the FBI whistleblower regulations, she
then filed her complaint with OARM. Those post-OIG proceedings
consumed the great bulk of the 10 years GAO cites.Footnote l] In sum, by
not distinguishing between the OIG and the Department, we believe that
the GAO Draft fails to acknowledge the OIG's strong and consistent
record of timely completion of its discrete responsibilities under the
FBI whistleblower regulations, 28 C.F.R. Part 27.
The OIG is fully committed to furthering the rights and protections of
whistle blowers throughout the Department of Justice. To advance this
work, we have established a Whistleblower Ombudsperson Program,
created at my direction shortly after my arrival as Inspector General
and before such positions were required by the Whistle blower
Protection Enhancement Act and going well beyond the requirements of
that statute. To lead this program, I assigned a member of my Front
Office staff, with whom I consult regularly regarding whistleblower
issues. We helped to create and we continue to chair the government-
wide working group of federal whistleblower ombudsmen established
through the Council of the Inspectors General on Integrity and
Efficiency. Within the past year, we found that there were reasonable
grounds to believe that two individual FBI employees had suffered
reprisal for making protected disclosures in connection with an
ongoing DIG review, and we referred the results of our investigation
to DOJ's Office of Attorney Recruitment and Management for
adjudication, as we publicly reported in our "Review of the Organized
Crime Drug Enforcement Task Forces Fusion Center" in March 2014.
While the OIG has always pursued FBI whistle blower matters with the
utmost dedication and commitment, we have been making important
improvements to our process for handling such matters since the
initiation of our Whistleblower Ombudsperson Program in mid-2012, and
we will continue to make every effort to improve our processes,
including based upon recommendations from external sources such as
this GAO review, as well as independent outreach we have done with
leading whistle blower organizations. For example, we have determined
that there are areas for potential improvement in our processing of
these complaints, and we have taken concrete steps to effect such
improvements. Specifically, although we have been providing notice to
complainants when we receive and are reviewing their complaints, we
believe that the OIG can improve its compliance with the regulatory
requirement to provide a written notice to the complainant within 15
days of receiving the complaint indicating that the allegation has
been received and identifying a point of contact. See 28 CFR §
27.3(c). Similarly, while our investigators regularly and routinely
have communicated with complainants about the status of our
investigations, such communications have most often been through
telephone contacts. Accordingly, we have found room for improvement
in documenting the periodic status notifications that we provide to
complainants pursuant to 28 CFR § 27.3(e), and in documenting the
agreement of complainants to extend the time for making our
"reasonable grounds" determinations should investigations continue
beyond 240 days from the receipt of the original complaint under 28
CFR § 27.3(f). And, even before the GAO review was complete, the OIG
adopted oversight mechanisms to improve our performance on these
important matters. We appreciate GAO's careful review of this
important topic, and will continue to make every effort to perform
and document our role in the process for reviewing reprisal claims in
the best possible manner.
The OIG has a strong and consistent record of timely completion of its
responsibilities with respect to FBI whistleblower retaliation
complaints:
Our review of available data relating specifically to the OIG's
performance of its discrete role in addressing FBI whistleblower
retaliation complaints confirms that the OIG has a consistent record
of timely completion of its responsibilities. The OIG has processed a
total of 73 Whistle blower retaliation complaints that were received
in the six years since January 1, 2009. Of these, the OIG closed 52
complaints without conducting an investigation, most commonly because
an investigation would not be fruitful because the facts alleged in the
complaint, if accepted as true, would not meet one of the requirements
for establishing a prohibited reprisal for making a protected
disclosure under the regulation.[Footnote 2] The OIG completed
investigations of 10 other complaints. In 2 cases, the complainant
withdrew the complaint before the OIG completed its investigation. In
9 cases, the OIG's investigation was still underway as of December 31,
2014. The median time it took for the OIG to determine that a
complaint should be closed without an investigation was 23 days.
[Footnote 3] The longest was 142 days. The median time for the OIG to
complete an investigation (including writing a report of investigation
or final termination report) was 363 days. The longest was 478 days.
We are committed to continued improvement, but these numbers reflect
the strong commitment of the OIG to complete its role as Conducting
Office efficiently and expeditiously.
The methodology in the Draft report excluded many of the more recent
complaints that were included in calculating the foregoing numbers.
However, the Draft provided relevant data in a footnote confirming the
success of the OIG in completing its determinations in the
investigation phase. The Draft states that the OIG closed 81 percent
of its complaints within 240 days, with a median length of just 35
days.[Footnote 4] (Draft at 28, fn. 65.) We believe that this
record further confirms our ongoing efforts to expeditiously carry out
our responsibilities.
Although we have worked to achieve significant success in completing the
investigative phase in a timely fashion, the OIG has, as discussed
above, identified opportunities for improving our processes before,
during, and as a result of the GAO review. For example, we recognized
that we could do better in processing initial complaints faster,
including by ensuring that they are transmitted to the OIG's Oversight
and Review Division more quickly for initial review, and by conducting
those initial reviews within 1 or 2 days of receipt when possible. We
took further action to improve the timeliness of investigations and
reports by creating a specialized Access database and SharePoint Site
to facilitate case tracking, and by adopting model report language to
make report writing more efficient. These steps are referenced in
the report, but we believe that they are highly significant in
demonstrating our continuing proactive efforts to handling these
matters appropriately.
The Draft report references, but fails to fully acknowledge the high
priority and personal attention that my senior staff and I have given
to FBI whistleblower retaliation matters. My senior staff and I are
regularly and directly involved in the discussion of these matters,
and I personally review and approve every declination decision,
termination report, and report to OARM.[Footnote 5] I firmly believe
that any additional time required by such involvement is well spent to
ensure that these important matters receive the attention and priority
that they deserve. Moreover, my Whistleblower Ombudsperson and I have
met personally with representatives of the leading nongovernmental
organizations active on whistleblower issues to discuss in detail
their views as to how we can best perform our role in the process and
further the protection of whistleblowers within the Department.
The OIG has taken steps to improve its documentation of required status
updates and extension requests:
The FBI whistleblower regulations require that the Conducting Office
provide periodic status notifications and obtain the consent of the
complainant to any extensions of the 240-day period for completion of
the investigation. The regulations do not require that the updates or
agreements be in writing. See 22 C.F.R. §§ 27.3(e) and (f). In
practice, the OIG is typically in frequent telephone contact with
complainants during the investigation. In many instances, the OIG has
relied on these conversations to satisfy the notification requirement
of the regulation and in obtaining complainants' consent to
extensions. However, we have not consistently documented these
communications in our case files. The finding in the Draft report that
the OIG has not consistently met the statutory requirement to provide
such status notifications (Draft at 27) is based entirely on a file
review, and does not account for previously undocumented oral
communications that our investigators regularly have with complainants.
As noted above, we have acknowledged that improvement in our
documentation of contacts with complainants is necessary to
demonstrate our compliance with the regulations, and as a means of
ensuring such compliance.
We have already taken steps to effectuate this. As the GAO
acknowledged,
In July 2014, during the course of our review, an OIG manager informed
staff responsible for the complaints of the importance of documenting
status updates within case files to ensure documentation of OIG's
compliance with regulatory requirements to update complainants within
prescribed time frames. Further, over the last 2 years, OIG has
developed a database it now uses as a management tool to oversee
investigators' compliance with requirements for communicating with
complainants. According to senior OIG officials we spoke with, OIG
decided to develop this database to help ensure that DIG meets its
regulatory requirements. DIG managers use the database to track dates
of interim communication, such as status updates, and the database
calculates regulatory deadlines for subsequent updates and for closing
the complaint. In addition, according to senior DIG officials, managers
can use the database to run reports, such as to see upcoming deadlines
for all open complaints. Although it is too soon to tell how effective
this database will be, if used consistently, this database could help
OIG managers ensure investigators communicate with complainants in
accordance with regulatory requirements. (Draft at 30.)
The OIG can represent that these measures have substantially improved
its documentation of status notifications and agreements for
extensions.
The OIG has modified its procedures with respect to decisions not to
initiate an investigation:
As noted above, many complaints submitted to the OIG do not require or
call for the opening of an investigation because the facts alleged in
the complaint, even if accepted as true, would not be sufficient to
satisfy an essential element of a retaliation claim under the
regulation.[Footnote 6] The OIG has closed such complaints by means of
brief declination letters, not more detailed termination reports,
which are only required for matters we investigate.[Footnote 7]
Nevertheless, in the interest of enhancing the transparency of our
review process and giving whistleblowers the fullest possible
opportunity to provide additional information that may be relevant to
our determinations, the OIG has begun providing more detailed
information in our declination letters identifying the deficiencies in
their complaints, including identifying the specific element or
elements of a claim of reprisal under the regulation that are absent
based on our review of the initial complaint.
We also now inform the employee filing the complaint that we are
providing them with 10 business days to submit any additional relevant
information or comment on the OIG's initial determination prior to the
OIG's declination of the complaint becoming final. We agree with GAO
these changes in practice, which we believe go beyond the regulatory
requirement, "will help OIG ensure that all complainants have an
opportunity to provide additional information or written comments
before OIG closes their complaints and that complainants will receive
the information they need to make decisions about their complaints."
(Draft at 35.)
GAO Recommendations:
Only one of the recommendations made by GAO in the Draft Report pertains
specifically to the OIG. It recommends that OIG work with the other
relevant DOJ component to jointly assess the impact of ongoing and
planned efforts to reduce the time for resolving retaliation
complaints. (Draft at 37.) The OIG concurs with this recommendation.
[Footnote 8]
The Draft addresses at length the list of designated recipients of
protected disclosures, and recommends that the Department provide
recourse to FBI employees "who experience for reporting alleged
wrongdoing to someone not designated in DOJ's regulations." (Draft at
13-17 and 37.) The OIG has consistently supported and continues to
support broadening the list of persons to whom protected disclosures
can be made.[Footnote 9] With regard to guidance to FBI employees on
the question of whom a disclosure must be made in order to be
protected, the OIG fully supports providing clear and comprehensive
guidance as to all aspects of whistleblower rights and protections.
The Draft mentions the video prepared through the OIG's Whistleblower
Ombudsperson Program, which points out where the rules for FBI
employees differ from those applicable to other DOJ employees, as well
as the OIG's related ongoing work: with the FBI to create a
specialized training program that highlights the specific requirements
and procedures for FBI whistleblowers. (Draft at 18, 19.) The OIG also
has a dedicated "Whistle blower Protection" page on its website,
available to FBI employees and others at [hyperlink,
http://www.justice.gov/oig/hotline/whistleblower-protection.htm]. with a
section on FBI Whistleblowers that we have enhanced to include
additional links to the applicable regulation and other information
specific to FBI employees.
Appendices:
Footnote 82 of the Draft may create a misimpression that the OIG will
not investigate a complaint under the FBI whistle blower regulations
if the complainant submitted the complaint to the FBI Inspection
Division rather than to the OIG. That is not the case. The OIG reviews
all complaints received by the FBI Inspection Division. The OIG
identifies any such complaint that may be cognizable under the FBI
whistle blower regulations, and then forwards them for consideration
to the appropriate OIG personnel to examine more closely. Although the
regulations require that retaliation complaints be filed directly with
the OIG or DOJ-OPR, the OIG nevertheless will conduct a retaliation
investigation of a complaint referred to us from the FBI if the
complaint alleges facts that, if accepted as true, would otherwise be
sufficient to establish the elements of a retaliation claim under the
regulations. The OIG was unable to investigate the 18 complaints
mentioned in footnote 82 because they were legally deficient under the
regulation (in that they did not meet "threshold requirements," in the
terminology used in the Draft report), not because they were
originally submitted to the FBI rather than to the OIG. Thank you
again for the opportunity to comment on the Draft report on this
very important topic.
Sincerely,
Signed by:
Michael E. Horowitz:
Inspector General:
Comment letter footnotes:
[1] The GAO noted one additional case out of the 62 complaints it
examined where the matter took the Department more than 10 years to
complete. (See Figure 2.) The OIG was not the investigating office in
this other retaliation matter. The Draft identifies a third complaint
that took over 8 years to resolve. (See Figures 2 and 3.) The OIG was
the investigating office for this matter, and as shown in Figure 3 of
the Draft, we completed our phase of the matter in approximately one
year.
[2] GAO's Draft refers to this determination as a "failure to meet
threshold regulatory requirements."
[3] The calculations in this paragraph exclude four complaints for
which available records did not permit us to make a determination of
their duration.
[4] The GAO sample also included one OIG matter, initiated in 2005,
that was not resolved in the OIG phase until January 2009. This matter
was not taken to OARM. Although this particular case was clearly not
resolved in a timely fashion, it is not remotely representative of the
OIG's performance over the past 6 years.
[5] The Draft acknowledges that I personally review "each complaint."
(Draft at 21.) This understates, however, the personal and substantial
involvement of my senior staff and I in every aspect of the OIG's
involvement in these matters.
[6] For example, the complaint may fail to allege a "protected
disclosure" because the subject matter is not within the scope of
protected disclosures under the regulation. or the disclosure was not
made to one of the persons or offices designated in the regulation to
receive such disclosures.
[7] Under the FBI whistleblower regulation, a proposed termination
report and final termination report is required "[i]f the Conducting
Office terminates an investigation." See 28 C.F.R. §§ 27.3(g) and (h).
Where no investigation has been initiated, the regulation does not
require the issuance of a termination report, and the OIG instead
issues a declination letter. The Draft states that the OIG failed to
provide "proposed termination reports" to complainants in this
situation (Draft at 33), however, no proposed termination reports were
required because no investigations were opened.
[8] Although it is not listed as a formal recommendation, the Draft
report states at page 26 that "assessing the impact on timeliness and
quality throughout the entire investigation, adjudication, and appeal
process to determine the impact on total complaint processing time
will require a joint effort among OIG, DOJ-OPR, OARM, and ODAG." We
fully support the goal, but with the understanding that, as noted at
the outset of this letter, the OIG is a statutorily independent entity
within the Department of Justice and its role in the process for
addressing FBI whistleblower retaliation complaints is discrete and
separate from the roles of other Department components.
[9] To the extent the summary findings at the outset of the Draft
report suggest that there is discretion as to whether to pursue an
allegation on this basis, that is not the case - as the body of the
Draft explains, the regulation sets forth to whom protected
disclosures may be made, and there is therefore no basis to pursue an
investigation under the regulation for disclosures made to other
persons.
[End of section]
Appendix V: GAO Contact and Staff Acknowledgments:
GAO Contact:
David C. Maurer, (202) 512-8777 or maurerd@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Eileen Larence (Director),
Dawn Locke (Assistant Director), Claudia Becker (Analyst-in-Charge),
Vanessa Dillard, Michele Fejfar, Eric Hauswirth, Susan Hsu, Tom
Lombardi, Signora May, Erin McLaughlin, Linda Miller, Jan Montgomery,
and Janet Temko-Blinder made key contributions to this report.
[End of section]
Footnotes:
[1] Whistleblower Protection For Federal Bureau of Investigation
Employees, 63 Fed. Reg. 62,937 (Nov. 10, 1998). DOJ initially issued
these regulations as an interim rule effective upon publication in the
Federal Register; however, DOJ invited postpromulgation comments that
were addressed in a final rule issued in 1999. Whistleblower
Protection For Federal Bureau of Investigation Employees, 64 Fed. Reg.
58,782 (Nov. 1, 1999) (codified as amended at 28 C.F.R. pts. 0, 27).
[2] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: Nov. 1, 1999). These standards define the minimum
level of quality acceptable for internal control in government and
provide the basis against which internal control is to be evaluated.
Internal control refers to the plans, methods, and procedures used to
achieve missions, goals, and objectives.
[3] The five whistleblower advocacy groups we interviewed were the
American Civil Liberties Union, the Brennan Center for Justice at New
York University School of Law, the Government Accountability Project,
the National Whistleblowers Center, and the Project on Government
Oversight. The attorneys we interviewed represented FBI whistleblowers
in 3 of 5 cases where complainants have alleged retaliation and
obtained corrective action since DOJ issued its regulations in 1998.
(In 1 case the complainant represented his/her self and so did not
have an attorney, and in another case, the attorney was unable to meet
because of schedule conflicts.)
[4] Two representatives of a whistleblower advocacy group also
represented an FBI whistleblower who obtained corrective action.
Therefore, the eight whistleblower advocates and attorneys referred to
throughout our report include four representatives of whistleblower
advocacy groups, two attorneys who represented FBI whistleblowers, and
two attorneys who represent a whistleblower advocacy group and have
also represented an FBI whistleblower who obtained corrective action.
[5] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[6] In the course of our review, we identified additional issues
concerning DOJ's whistleblower regulations for FBI employees beyond
the scope of this report. We are continuing to address these issues
with DOJ and may report on these results later.
[7] Pub. L. No. 95-454, §§ 101, 202, 92 Stat. 1111, 1113-8, 1121-31
(codified as amended at 5 U.S.C. §§ 2301-2306, 1201-1222,
respectively).
[8] 5 U.S.C. §§ 2302-2303.
[9] 5 U.S.C. § 2303(b). In particular, the President is required to
provide for the enforcement of whistleblower protections for FBI
employees and applicants in a manner consistent with applicable
provisions of sections 1214 and 1221 of title 5. Section 1214 relates
to OSC's authority for investigating whistleblower retaliation
complaints and seeking corrective action, and section 1221 relates to
MSPB's authority to entertain whistleblower reprisal appeals and order
corrective action. The President has delegated his enforcement
authority to the Attorney General. Delegation of Responsibilities
Concerning FBI Employees Under the Civil Service Reform Act of 1978,
Memorandum for the Attorney General, 62 Fed. Reg. 23,123 (Apr. 14,
1997). For purposes of this report, "employees" includes applicants
for employment unless otherwise specified.
[10] For example, under the statutory provision governing most
executive branch employees--5 U.S.C. § 2302--the definition of
"personnel action" under the CSRA consisted of 10 clauses; the section
governing FBI employees--5 U.S.C. § 2303--refers back to these 10
clauses for the definition of "personnel action." Congress has twice
added additional clauses to the section for most employees, but
corresponding changes were not made to the section applicable to the
FBI. In another example, in 1989, the Whistleblower Protection Act
made an amendment to one type of information subject to protection
under section 2302, including "gross mismanagement" as a protected
disclosure, as opposed to "mismanagement." However, the Whistleblower
Protection Act did not make a corresponding change to 2303, the
section related to FBI employees.
[11] The White House, Presidential Policy Directive 19/PPD-19
(Washington, D.C.: Oct. 10, 2012).
[12] Intelligence Authorization Act for Fiscal Year 2014, 113-126,
tit. VI, 128 Stat. 1390, 1414-1422.
[13] 28 C.F.R. pt. 27.
[14] A personnel action includes a promotion, detail, transfer or
reassignment, a removal or suspension action, or a decision concerning
pay or benefits, among other actions. 5 U.S.C. §§ 2302(a)(2)(A),
2303(a); 28 C.F.R. § 27.2(b).
[15] 28 C.F.R. § 27.2(a)(1)-(2). We refer to these generally as
allegations of wrongdoing throughout this report.
[16] Under 5 U.S.C. § 2303(a), FBI employees may make protected
disclosures to "the Attorney General (or an employee designated by the
Attorney General for such purpose)." DOJ has designated nine entities
as the appropriate officials to receive protected disclosures. These
entities include DOJ-OPR, OIG, the FBI Office of Professional
Responsibility, the FBI Inspection Division (FBI-INSD) Internal
Investigations Section, the Attorney General, the Deputy Attorney
General, the Director of the FBI, the Deputy Director of the FBI, and
the highest ranking official in any FBI field office. 28 C.F.R. §
27.1(a)
[17] 28 C.F.R. § 27.3(d), (f). Although the regulations specify that
complainants must submit allegations of FBI whistleblower retaliation
in writing to OIG or DOJ-OPR, § 27.3(a)(1), these two offices also
review such allegations from other sources, most notably FBI-INSD.
[18] The office may still investigate issues raised in the complaint
as a nonwhistleblower matter if it falls within the office's
preexisting jurisdiction. 28 C.F.R. § 27.3(j). Alternatively, the
investigating offices may forward the complaint to the FBI if, for
example, the office determines that the complaint relates to a
management matter or other issue under the FBI's jurisdiction.
[19] DOJ-OPR attorneys are assigned to investigate FBI whistleblower
retaliation complaints because DOJ-OPR does not have investigators. We
refer to the DOJ-OPR attorneys assigned to investigate these
complaints as investigators throughout this report.
[20] This can occur within 60 days of being notified of the
termination of the investigation, or at any time after 120 calendar
days from the date the complainant first notified an investigating
office of an alleged retaliation if the complainant has not been
notified that the office will seek corrective action. 28 C.F.R. §
27.4(c)(1).
[21] If OIG or DOJ-OPR determines that there are reasonable grounds to
believe that a reprisal has been or will be taken against the
complainant it is required to report this conclusion, along with any
findings and recommendations for corrective action, to OARM. 28 C.F.R.
§ 27.4(a). OARM determines whether, on the basis of a preponderance of
the evidence, the employee made a protected disclosure, and if so,
whether the disclosure was a contributing factor in the personnel
action at issue. If the complainant meets that burden, then OARM
considers whether the FBI has demonstrated by clear and convincing
evidence that it would have taken the same personnel action in the
absence of such disclosure. § 27.4(e)(1)-(2).
[22] 28 C.F.R. § 27.5. The DAG must order appropriate corrective
action if the DAG upholds a finding that there has been a reprisal.
[23] DOJ's regulations establish no such timeliness and reporting
requirements for OARM or the DAG.
[24] The office that will investigate the complaint must provide this
notice within 15 days of the date either of the investigating offices
receives the complaint. In addition, the written notice must state the
name of the person within the office who will serve as the point of
contact for the complainant. 28 C.F.R. § 27.3(c).
[25] 28. C.F.R. § 27.3(e).
[26] 28 C.F.R. § 27.3(f).
[27] This status report must include the factual findings and
conclusions that justify the office's decision to terminate the
investigation. 28 C.F.R. § 27.3(g).
[28] 28 C.F.R. § 27.3(h).
[29] DOJ closed 4 additional complaints within 1 year for reasons
other than a finding that the complaint did not meet threshold
regulatory requirements under the regulations. Of these 4, DOJ closed
1 because the complainant withdrew before the DOJ office made a
determination and 3 because, although the complaint met threshold
regulatory requirements, the investigating office found that there
were not reasonable grounds to believe the alleged retaliation had
been taken in reprisal for a protected disclosure. For some
complaints, we were not able to determine a specific reason for the
investigating office's finding that one or more of the complainant's
allegations did not meet threshold requirements based on information
contained in the case file. For example, in some complaints, the
investigating office's final letter to the complainant stated that the
matters were more appropriate for review by another office of agency,
but the case file did not indicate the office's basis for this
determination. We discuss efforts to improve the documentation in
investigating office case files later in this report.
[30] In some case files we reviewed, the final DOJ office to review
the complaint cited multiple reasons for the decision to close the
complaint. For example, the office may have found that the
complainant's underlying allegation was not protected because it did
not relate to a "violation of any law, rule, or regulation" or another
issue covered by the regulations, or the alleged retaliation was not a
personnel action as defined by the regulations. In some complaints we
reviewed, the case file did not contain sufficient information to
determine the basis for DOJ's decision that the complaint did not meet
threshold regulatory requirements. See app. II for a summary of DOJ's
reasons for closing all complaints we reviewed.
[31] This constitutes 38 percent of all cases closed within a year for
failure to meet threshold regulatory requirements where we were able
to determine the basis for dismissal. All 15 instances involved a
disclosure, but in 1 case we were not able to identify from the case
files the position of the individual or entity to whom the complainant
made a disclosure, such as whether the individual was the
complainant's supervisor. In the remaining 2 cases, a disclosure was
made to the FBI Inspections Division, but not the Internal
Investigations Section, and to a fellow agent.
[32] In some case files we reviewed, the final DOJ office to review
the complaint cited multiple reasons for the decision to close the
complaint.
[33] This constitutes 31 percent of all cases we reviewed where we
could determine the basis for DOJ closing the complaint. For some
cases we were not able to identify from the case files the position of
the individual or entity to whom the complainant made a disclosure,
such as whether the individual was the complainant's supervisor.
Accordingly, this number is at least 17 cases, given available
documentation in the case files we reviewed.
[34] Under 5 U.S.C. § 2302, employees of executive branch agencies may
generally make disclosures of information to supervisors, their agency
inspector general, OSC, the media, Members of Congress, and others, if
the disclosure is not specifically prohibited by law and not required
by executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs. Presidential Policy
Directive 19 prohibits reprisals against employees serving in an
intelligence community element for disclosures by the employee to a
supervisor in the employee's direct chain of command, among others.
The FBI's February 11, 2008, Policy Directive 0032D, "Non-Retaliation
for Reporting Compliance Risks," and the September 23, 2014, 0727D
update, prohibit retaliation against anyone who reports compliance
risks to certain designated officials--including any supervisor in the
chain of command of the person reporting the compliance risk--but does
not offer any means of pursuing corrective action if an employee
experiences retaliation for such a disclosure. According to FBI
officials, the FBI has the authority to punish those who violate this
policy and could, at its discretion, provide remedies to those who are
retaliated against.
[35] Minimal legislative history exists explaining the separate
statutory provision for the FBI. Comments made by Members of Congress
at the time suggest a compromise was adopted given the sensitive
nature of the agency but also in recognition of past improprieties and
the need to ensure public confidence that there are channels within
the FBI to raise whistleblower matters, among other things. See 124
CONG. REC. S14300 (daily ed. Aug. 24, 1978) (statement of Sen. Percy);
124 CONG. REC. H9359 (daily ed. Sept. 11, 1978) (statement of Rep.
Derwinski); 124 Cong. Rec. H9359-60 (daily ed. Sept. 11, 1978)
(statement of Rep. Udall); 124 Cong. Rec. H11822 (daily ed. Oct. 6,
1978) (statement of Rep. Schroeder).
[36] DOJ added FBI-INSD's Internal Investigations Section in 2008 in
response to a restructuring of the FBI Office of Professional
Responsibility in 2004.
[37] At the time the President issued Presidential Policy Directive
19, on October 10, 2012, DOJ had in place its current process whereby
FBI whistleblowers could seek remedy for retaliation whereas the rest
of the intelligence community had no such mandated process in place.
Therefore, Presidential Policy Directive 19 required that within 180
days, DOJ report to the President on the efficacy of its regulations
pertaining to FBI whistleblower retaliation and describe any proposed
revisions to these regulations to increase their effectiveness. DOJ
submitted the required report to the President in April 2014, a year
after the due date.
[38] For the cases we reviewed, where we were able to determine the
basis for closing the complaint from available documentation, we
identified 17 cases out of 54 where a claim was dismissed on this
basis (31 percent). The final office closing the complaint may cite
more than one reason for closure.
[39] DOJ reported that it reviewed a total of 89 OIG cases (4
pending), of which 69 were closed based on threshold requirements; "a
significant portion" of those were closed as not made to the proper
individual or office. DOJ reported reviewing 24 resolved OPR
complaints, 16 of which were closed by OPR for failure to meet
threshold regulatory requirements for one or more reasons: (1) the
complaint made a disclosure to a supervisor or other entity not
covered by the regulations; (2) the disclosure did not evidence a
violation of any law, rule, or regulation or other subject covered by
the regulations; or (3) the protected disclosure occurred after the
alleged reprisal. DOJ did not characterize what portion of these 16
had a claim dismissed for reporting to the wrong official or entity.
[40] The eighth advocate or attorney we interviewed stated that he did
not have personal knowledge sufficient to comment on this issue but
clarified that he supports amending the FBI's definition of a
protected disclosure to include any disclosure to any individual up
the chain of command.
[41] These officials referred to FBI's February 11, 2008, Policy
Directive 0032D, "Non-Retaliation for Reporting Compliance Risks," and
the September 23, 2014, 0727D update. This FBI policy specifically
prohibits retaliation against employees who report compliance risks to
any supervisor in the employees' chain of command, as well as
additional specified officials, but does not offer any means of
pursuing corrective action if an employee experiences retaliation for
such a disclosure. A senior FBI Office of Integrity and Compliance
official reported that the FBI does not have authority to amend DOJ's
regulations to provide for such relief. DOJ's proposed revisions to
the list of designated officials will similarly not provide this
relief.
[42] Pub. L. No. 101-12, § 2, 103 Stat. 16.
[43] S. Rep. No. 112-155, at 5.
[44] Among other provisions, Presidential Policy Directive 19 requires
the head of each intelligence community element to provide a process
for employees serving in the intelligence community to seek review of
personnel actions they allege were taken as a reprisal for a protected
disclosure. The requirements contained in this directive differ in
some respects from the processes provided for in DOJ's whistleblower
regulations, in addition to including that protected disclosures may
be made to a supervisor in the employee's direct chain of command.
[45] We reviewed additional guidance documents on this topic that
varied in terms of accuracy and clarity. We reviewed whistleblower
guidance DOJ provided to FBI employees (1) that was complete and
accurate; (2) that was outdated, such as by referencing regulations
that are no longer in force; and (3) that accurately described some,
but not all, of the nine entities designated in DOJ's regulations as
recipients of protected disclosures.
[46] The FBI's October 15, 2011, Domestic Investigations and
Operations Guide states: "In general, the FBI requires employees to
report known or suspected failures to adhere to the law, rules or
regulations by themselves or other employees, to any supervisor in the
employees' chain of command; any Division Compliance Officer; any
Office of the General Counsel Attorney; any FBI-INSD personnel; any
FBI Office of Integrity and Compliance staff; or any person designated
to receive disclosures pursuant to the FBI Whistleblower Protection
Regulation (28 Code of Federal Regulations 27.1), including the
Department of Justice Inspector General."
[47] The OIG-produced video discusses whistleblower rights and
protections for DOJ employees and notes that the rules for FBI
employees differ, but does not provide any additional clarifying
information on this point.
[48] The two trainings FBI officials referred us to were a Skillsoft
course called "Workplace Safety" and a mandatory 2012 Sexual
Harassment Prevention and No Fear Act training.
[49] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[50] Of the remaining 58 complaints, 46 were closed by OIG or DOJ-OPR
or withdrawn by the complainant at the investigation stage and 12 were
closed by OARM or withdrawn by the complainant while pending at OARM,
but before reaching the adjudication stage.
[51] DOJ's regulations specify that the DAG is the deciding official
for review of OARM decisions, and there is no language allowing the
DAG to delegate his or her decision-making authority to a designee.
See Whistleblower Protection For Federal Bureau of Investigation
Employees, 64 Fed. Reg. at 58782 (stating the language "(or a
designee)" after "Deputy Attorney General" has been stricken because
the department does not "believe that the authority of the Deputy
Attorney General to conduct a review should be delegated").
[52] Nine of the 16 complaints we reviewed that were filed with OARM
had at least 1 associated request for extension. These requests for
extension of time were generally unopposed by the other party. We saw
evidence that 6 of the 69 requests (9 percent) we reviewed were
opposed. Officials in the FBI's Office of the General Counsel--the
office that represents the FBI in FBI whistleblower retaliation cases-
-report treating these cases like any other employment cases, in terms
of the level of FBI resources and number of requests for extension.
[53] In 15 complaints we reviewed, OARM made decisions on whether the
complaints met threshold regulatory requirements. If we exclude the 2
complaints where the complainant never filed a request for corrective
action, parties waited from 4 to 475 days for OARM to issue these
decisions. In the 4 cases where OARM made merit decisions, parties
waited from 151 to 598 days for OARM to issue its decisions. The DAG
took nearly a year or more to make half (3 of 6) of the appeals
decisions in the cases we reviewed. The DAG's fastest appeal decision
was rendered in 12 days and the longest in 499 days. We calculated
these wait times from the day of the last complainant or FBI action on
the complaint to the time DOJ provided the relevant decision.
[54] Under 5 U.S.C. § 7701(i)(1), for appeals submitted to MSPB, MSPB
is required to "establish and announce publicly the date by which it
intends to complete action on the matter. Such date shall assure
expeditious consideration of the appeal, consistent with the interests
of fairness and other priorities of the [MSPB]. If [MSPB] fails to
complete action on the appeal by the announced date, and the expected
delay will exceed 30 days, [MSPB] shall publicly announce the new date
by which it intends to complete action on the appeal."
[55] The Senate report accompanying the Civil Service Reform Act of
1978--which established this requirement for MSPB--explained that the
Committee on Governmental Affairs had completed a study on delay in
the regulatory process, which identified better agency management and
planning as one of the prime ways regulatory delays could be reduced
and, as a result, the committee "unanimously adopted a recommendation
that agencies make greater use of deadlines as a way to help eliminate
delay." In addition, the committee noted that "administrative delay of
cases before [MSPB] is especially troublesome because it directly
affects in significant ways employees who may not even have a job
while the appeal is pending." S. Rep. No. 95-969, at 61 (1978).
[56] 10 U.S.C. § 1034(e)(3). This information must also be reported to
the Secretary of Defense and the Secretary of the military department
concerned (or to the Secretary of Homeland Security where applicable).
[57] In June 2012, DOJ stated in questions for the record for the
Senate Committee on the Judiciary that "the Department ... is
committed to making every effort to improve the efficiency of the
Department's adjudication of FBI whistleblower cases."
[58] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[59] According to OARM officials, OARM initially provided written
notice of the mediation program to all parties with whistleblower
retaliation complaints pending before OARM, except for a select few in
which OARM was in the process of finalizing a decision dismissing the
complaint because it did not meet threshold regulatory requirements,
or where the parties were already engaged in settlement discussions
pertaining to an outstanding issue related to the amount of corrective
relief due to the complainant. These officials stated that OARM
currently notifies all parties with complaints pending before OARM
about this option and the mediation program is also available and
being used by OIG and DOJ-OPR during the investigation stage.
[60] OARM officials report that since the part-time attorney joined
the staff, the number of OARM issuances has increased from 39 in
fiscal year 2013 to 90 issuances in fiscal year 2014. Issuances refer
to decisions on whether complaints meet threshold regulatory
requirements, final determinations, and more routine initial orders
including orders to show cause, orders on motions for extensions of
time, and others.
[61] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[62] We reviewed 58 investigating office complaints--37 OIG complaints
and 21 DOJ-OPR complaints. (In 4 of the 62 total complaints we
reviewed, the complainant filed his or her complaint directly with
OARM before filing with an investigating office; therefore we did not
review investigating office case files associated with these
complaints.) The number of complaints included in our analysis for
each requirement may not total 58 because, in some instances, we were
not able to determine whether a complaint met the requirement from the
information contained in the case file or the investigating office
closed the complaint before the deadline for the requirement. In these
instances, we excluded the complaint from our analysis.
[63] In addition to letters informing the complainant of the status of
the investigation, we counted as status updates all evidence of
communication from the investigating office to the complainant,
including evidence of phone calls, e-mails, and interviews with the
complainant. Senior OIG officials and a DOJ-OPR official responsible
for managing these complaints told us that they consider both letters
and less formal communications, such as phone calls and e-mails, to be
status updates under the regulations since they provide the
complainant with information about the status of his or her complaint.
[64] We considered a complaint to have met the 240-day requirement if
the investigating office provided the complainant a final termination
report or otherwise closed the complaint within 240 days from the date
the office received the complaint. In 1 DOJ-OPR complaint we reviewed,
the complainant initially provided an incorrect address and DOJ-OPR
sent both a proposed and final termination report to the incorrect
address within 240 days, but closed the complaint after more than 240
days because of the time needed to obtain the correct address. We
excluded that complaint from our analysis with regard to this
requirement.
[65] OIG closed 30 of 37 complaints (81 percent) within 240 days, and
DOJ-OPR closed 10 of 20 complaints (50 percent) within 240 days. We
found that the median length of the 37 OIG complaints we reviewed was
35 days and the median length of the 20 DOJ-OPR complaints we reviewed
was 281 days.
[66] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[67] In addition to these 9 complaints, we reviewed 1 other complaint
OIG investigated. Because the complainant withdrew the complaint
before OIG determined whether to terminate the complaint, we excluded
that complaint from our analysis.
[68] This excludes 1 complaint in which the complainant brought the
complaint to OARM after receiving OIG's proposed termination report.
In the 1 complaint in which OIG did not send a final termination
report, OIG opened a separate investigation into additional
allegations made by the complainant in comments on the proposed
termination report.
[69] Specifically, we found that OIG included a summary of relevant
facts and reasons for terminating the investigation in 6 of 7 final
termination reports. OIG included a response to the complainant's
comments in the final termination report for 5 of the 6 complaints in
which the complainant provided comments on the proposed termination
report. In the 1 complaint in which OIG did not address the
complainant's comments in the final termination report, OIG wrote a
separate letter responding to the comments. In 1 complaint, OIG did
not provide the complainant a proposed termination report; therefore,
the complainant could not have provided comments in response to the
proposed termination report.
[70] This excludes 1 complaint in which we could not determine if the
final termination report included the reasons for closing the
complaint because the case file did not include a copy of the report.
[71] In addition to these 19 complaints, we reviewed 2 other DOJ-OPR
complaints. Because those 2 complainants went to OARM before DOJ-OPR
determined whether to terminate the complaints, we excluded those 2
complaints from our analysis.
[72] In particular, pursuant to presidential delegation, DOJ is
required to provide for the enforcement of the prohibition against
personnel practices taken in retaliation for protected disclosures
consistent with 5 U.S.C. § 1214, which governs OSC's authority to
investigate allegations of prohibited personnel practices and make
recommendations for corrective action, among other things. As DOJ
explained in issuing its regulations, the investigating offices (OIG
and DOJ-OPR) have been granted powers and functions that are
consistent with those granted to OSC under section 1214.
[73] Officials with both OIG and OARM told us that OIG's decision not
to investigate a complaint is sufficient for the complainant to have
met the requirement to bring the complaint to an investigating office-
-either OIG or DOJ-OPR--before filing it with OARM.
[74] The regulations require that whistleblower retaliation complaints
be filed directly with OIG or DOJ-OPR. However, OIG officials report
that OIG will investigate a retaliation complaint referred by the FBI
if the complaint is sufficient to establish the elements of a
retaliation claim under the regulations. Therefore, in addition to
these 62 complaints, we also reviewed case files for 18 complaints
that OIG received from the FBI. OIG officials told us that OIG reviews
all complaints submitted to the FBI to determine if any complaints
submitted to the FBI fall under OIG's jurisdiction, such as complaints
that appear to allege FBI whistleblower retaliation. Because these 18
complaints were not submitted directly to OIG or DOJ-OPR, as required
by § 27.3(a)(1), and OIG did not investigate these complaints as
whistleblower retaliation complaints (or the complaint was withdrawn
by the complainant before OIG made a determination), we excluded these
18 complaints from our analysis.
[75] In 1998, DOJ issued regulations that set forth the process for
FBI whistleblowers to report complaints of retaliation for their
disclosures. Whistleblower Protection For Federal Bureau of
Investigation Employees, 63 Fed. Reg. 62,937 (Nov. 10, 1998). DOJ
initially issued these regulations as an interim rule effective upon
publication in the Federal Register; however, DOJ invited
postpromulgation comments that were addressed in a final rule issued
in 1999. Whistleblower Protection For Federal Bureau of Investigation
Employees, 64 Fed. Reg. 58,782 (Nov. 1, 1999) (codified as amended at
28 C.F.R. pts. 0, 27).
[76] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: Nov. 1, 1999). These standards define the minimum
level of quality acceptable for internal control in government and
provide the basis against which internal control is to be evaluated.
Internal control refers to the plans, methods, and procedures used to
achieve missions, goals, and objectives.
[77] The five whistleblower advocacy groups we interviewed were the
American Civil Liberties Union, the Brennan Center for Justice at New
York University School of Law, the Government Accountability Project,
the National Whistleblowers Center, and the Project on Government
Oversight.
[78] This includes all five closed cases in which DOJ ordered
corrective action in favor of an FBI whistleblower since DOJ issued
its regulations in 1998. In all of these cases, DOJ substantiated the
complaint and ordered that the FBI take corrective action, such as
providing the complainant back pay or restoring that person to a prior
position. In one case, the complainant represented his/her self and so
did not have an attorney and in another case we attempted to meet with
the attorney numerous times but the attorney was unable to meet
because of schedule conflicts.
[79] Two representatives of a whistleblower advocacy group also
represented an FBI whistleblower who obtained corrective action.
Therefore, the eight whistleblower advocates and attorneys referred to
throughout our report include four representatives of whistleblower
advocacy groups, two attorneys who represented FBI whistleblowers, and
two attorneys who represent a whistleblower advocacy group and have
also represented an FBI whistleblower who obtained corrective action.
[80] Presidential Policy Directive 19, dated October 10, 2012,
required that within 180 days, DOJ report to the President on the
efficacy of its regulations pertaining to FBI whistleblower
retaliation and describe any proposed revisions to these regulations
to increase their effectiveness. DOJ submitted the required report to
the President in April 2014, a year after the due date.
[81] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[82] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[83] The regulations require that whistleblower retaliation complaints
be filed directly with OIG or DOJ-OPR. However, OIG officials report
that OIG will investigate a retaliation complaint referred by the FBI
if the complaint is sufficient to establish the elements of a
retaliation claim under the regulations. Therefore, in addition to
these 62 complaints, we also reviewed case files for 18 complaints
that OIG received from the FBI. OIG officials told us that OIG reviews
all complaints submitted to the FBI to determine if any complaints
submitted to the FBI fall under OIG's jurisdiction, such as complaints
that appear to allege FBI whistleblower retaliation. Because these 18
complaints were not submitted directly to OIG or DOJ-OPR, as required
by § 27.3(a)(1), and OIG did not investigate these complaints as
whistleblower retaliation complaints (or the complaint was withdrawn
by the complainant before OIG made a determination), we excluded these
18 complaints from our review.
[84] We also reviewed Office of the Deputy Attorney General (ODAG)
case files for the 4 complaints that were appealed to that office.
Because the Deputy Attorney General either upheld OARM's decision or
returned the complaint to OARM for review, we determined that OARM
made the final determination in each complaint and, therefore, we
included OARM's final determination for complaints that were appealed.
[85] As discussed previously in this report, if the investigating
office finds that there are reasonable grounds to believe that there
had been retaliation for a protected disclosure, the office forwards
its investigative report with any recommended actions to OARM for
adjudication. In certain circumstances in which OIG or OPR has not
found in the complainant's favor or has not completed its
investigation, the complainant may go directly to OARM to request
corrective action. We did not identify any complaints in which the
investigating office found reasonable grounds; however, in 12 of the
complaints we reviewed, the complainant brought the complaint to OARM
directly after submitting the complaint to an investigating office. In
these 12 complaints, we considered the reasons cited in OARM's case
file as the final reasons for closing the complaint, although, in some
instances, OARM's determination differed from the investigating
office's determination.
[86] We did not assess whether the evidence in the case file supported
the office's determination.
[87] In some instances, the office did not inform the complainant of
the reasons it determined that the complaint did not meet threshold
regulatory requirements, such as through a final report, but discussed
its rationale elsewhere in the case file. We included in table 2 all
reasons noted in the case file for the final office's determination,
including reasons cited in internal documents as well as reasons
communicated to the complainant.
[End of section]
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