Whistleblower Protection:

Additional Actions Needed to Improve DOJ's Handling of FBI Retaliation Complaints

GAO-15-112: Published: Jan 23, 2015. Publicly Released: Feb 23, 2015.

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maurerd@gao.gov

 

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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.

Why GAO Did This Study

Whistleblowers help safeguard the 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 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.

For more information, contact David Maurer at (202) 512-8777 or maurerd@gao.gov.

Matter for Congressional Consideration

  1. Status: Closed - Implemented

    Comments: In January 2015, we reported on the Department of Justice's (DOJ) process for handling Federal Bureau of Investigation (FBI) whistleblower retaliation complaints (GAO-15-112). During the course of our review, we found that DOJ had terminated many (48 of 62) complaints we reviewed because they did not meet certain regulatory requirements. Specifically, we found that 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 did 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 was due, in part, to DOJ's decisions about how to implement the statute governing FBI whistleblowers. Consequently, we recommended that Congress 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 chains of command who are not already designated officials. In response to GAO's report, in December 2016, Congress passed and the President signed the FBI Whistleblower Protection Enhancement Act of 2016, Pub. L. No. 114-302, which, among other things, provides a means for FBI employees to obtain corrective action for retaliation for disclosures of wrongdoing made to supervisors and others in the employees' chain of command. This brings FBI whistleblower protection in line with the protection in place for employees of other executive branch agencies for reporting wrongdoing to their chain of command. This change will help ensure that whistleblowers have access to recourse, that retaliatory action does not go uninvestigated, and that other potential whistleblowers are not discouraged from coming forward. As a result, this matter for Congressional consideration is closed as implemented.

    Matter: 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

  1. Status: Open

    Priority recommendation

    Comments: In response to our report, in December 2016, Congress passed and the President signed the FBI Whistleblower Protection Enhancement Act of 2016, Pub. L. No. 114-302, which, among other things, provides a means for FBI employees to obtain corrective action for retaliation for disclosures of wrongdoing made to supervisors and others in the employees' chain of command. Following this, the FBI worked closely with the Department of Justice's Office of Inspector General (DOJ-OIG) to develop a training that clearly identifies to whom FBI employees may make protected disclosures. In addition, the FBI issued an aligned policy directive and two fact sheets detailing whistleblower rights. In October 2018, a DOJ official reported to us that the department was in the process of updating its regulations. However, as of October 2018, DOJ's regulations have not been updated and are inconsistent with the current statute and FBI's guidance and training; as such, the problem of unclear or conflicting guidance to FBI employees still needs to be addressed. To address this recommendation, DOJ would need to update its regulations and ensure that all relevant guidance is clear and consistent across the department.

    Recommendation: 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, the Attorney General should 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.

    Agency Affected: Department of Justice

  2. Status: Open

    Priority recommendation

    Comments: DOJ agreed with this recommendation but, as of October 2018, has not provided any updates on steps taken to address it. To address this recommendation, DOJ would need to develop an oversight mechanism to monitor DOJ-OPR's compliance with regulatory requirements and use that information to identify opportunities for improvement.

    Recommendation: 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, Counsel, DOJ-OPR should 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 Affected: Department of Justice: Office of Professional Responsibility

  3. Status: Open

    Priority recommendation

    Comments: DOJ agreed with this recommendation but, as of October 2018, has not provided any updates on steps taken to address it. To address this recommendation, DOJ would need to provide complainants with estimated time frames for returning decisions in FBI whistleblower retaliation cases.

    Recommendation: To better ensure that DOJ is fulfilling its commitment to improving efficiency in handling these complaints, Office of Attorney Recruitment and Management (OARM) and Office of the Deputy Attorney General (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.

    Agency Affected: Department of Justice: Office of the Deputy Attorney General

  4. Status: Open

    Priority recommendation

    Comments: DOJ agreed with this recommendation but, as of October 2018, has not provided any updates on steps taken to address it. To address this recommendation, DOJ would need to provide complainants with estimated time frames for returning decisions in FBI whistleblower retaliation cases.

    Recommendation: To better ensure that DOJ is fulfilling its commitment to improving efficiency in handling these complaints, Office of Attorney Recruitment and Management (OARM) and Office of the Deputy Attorney General (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.

    Agency Affected: Department of Justice: Justice Management Division: Human Resources and Administration: Office of Attorney Recruitment and Management

  5. Status: Open

    Priority recommendation

    Comments: DOJ agreed with this recommendation but, as of October 2018, has not provided any updates on steps taken to address it. In January 2018, DOJ-OIG officials told us that they participate at least twice a year, with OARM, DOJ-OPR, and the FBI Office of Equal Employment Opportunity Affairs in efforts to assess and improve the FBI Whistleblower Mediation Program. This is the type of action called for in the recommendation, but the mediation program is just one of many efforts to be assessed. To fully address this recommendation, DOJ would need to assess the impact of ongoing and planned efforts to reduce the duration of FBI whistleblower retaliation complaints throughout the entire complaint process, including the investigation, adjudication and appeal.

    Recommendation: To better ensure that DOJ is fulfilling its commitment to improving efficiency in handling these complaints, DOJ Office of Professional Responsibility (DOJ-OPR), Office of the Inspector General, 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.

    Agency Affected: Department of Justice: Office of the Deputy Attorney General

  6. Status: Open

    Priority recommendation

    Comments: DOJ agreed with this recommendation but, as of October 2018, has not provided any updates on steps taken to address it. In January 2018, DOJ-OIG officials told us that they participate at least twice a year, with OARM, DOJ-OPR, and the FBI Office of Equal Employment Opportunity Affairs in efforts to assess and improve the FBI Whistleblower Mediation Program. This is the type of action called for in the recommendation, but the mediation program is just one of many efforts to be assessed. To fully address this recommendation, DOJ would need to assess the impact of ongoing and planned efforts to reduce the duration of FBI whistleblower retaliation complaints throughout the entire complaint process, including the investigation, adjudication and appeal.

    Recommendation: To better ensure that DOJ is fulfilling its commitment to improving efficiency in handling these complaints, DOJ Office of Professional Responsibility (DOJ-OPR), Office of the Inspector General, 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.

    Agency Affected: Department of Justice: Justice Management Division: Human Resources and Administration: Office of Attorney Recruitment and Management

  7. Status: Open

    Priority recommendation

    Comments: DOJ agreed with this recommendation but, as of October 2018, has not provided any updates on steps taken to address it. In January 2018, DOJ-OIG officials told us that they participate at least twice a year, with OARM, DOJ-OPR, and the FBI Office of Equal Employment Opportunity Affairs in efforts to assess and improve the FBI Whistleblower Mediation Program. This is the type of action called for in the recommendation, but the mediation program is just one of many efforts to be assessed. To fully address this recommendation, DOJ would need to assess the impact of ongoing and planned efforts to reduce the duration of FBI whistleblower retaliation complaints throughout the entire complaint process, including the investigation, adjudication and appeal.

    Recommendation: To better ensure that DOJ is fulfilling its commitment to improving efficiency in handling these complaints, DOJ Office of Professional Responsibility (DOJ-OPR), Office of the Inspector General, 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.

    Agency Affected: Department of Justice: Office of Professional Responsibility

  8. Status: Open

    Priority recommendation

    Comments: DOJ agreed with this recommendation but, as of October 2018, has not provided any updates on steps taken to address it. In January 2018, DOJ-OIG officials told us that they participate at least twice a year, with OARM, DOJ-OPR, and the FBI Office of Equal Employment Opportunity Affairs in efforts to assess and improve the FBI Whistleblower Mediation Program. This is the type of action called for in the recommendation, but the mediation program is just one of many efforts to be assessed. To fully address this recommendation, DOJ would need to assess the impact of ongoing and planned efforts to reduce the duration of FBI whistleblower retaliation complaints throughout the entire complaint process, including the investigation, adjudication and appeal.

    Recommendation: To better ensure that DOJ is fulfilling its commitment to improving efficiency in handling these complaints, DOJ Office of Professional Responsibility (DOJ-OPR), Office of the Inspector General, 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.

    Agency Affected: Department of Justice: Office of Inspector General

 

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