Whistleblower Protection for Federal Bureau of Investigation Employees, 7277-7287 [2024-01934]
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Federal Register / Vol. 89, No. 23 / Friday, February 2, 2024 / Rules and Regulations
comply with the requirements of the
SAFE Act, including the licensing and
registration of its employees in the
Nationwide Mortgage Licensing System
(NMLS).
III. Findings and Certifications
Regulatory Review—Executive Orders
12866, 13563, and 14094
Under Executive Order 12866
(Regulatory Planning and Review), a
determination must be made whether a
regulatory action is significant and,
therefore, subject to review by the Office
of Management and Budget (OMB) in
accordance with the requirements of the
order. Executive Order 13563
(Improving Regulation and Regulatory
Review) directs executive agencies to
analyze regulations that are ‘‘outmoded,
ineffective, insufficient, or excessively
burdensome, and to modify, streamline,
expand, or repeal them in accordance
with what has been learned.’’ Executive
Order 13563 also directs that, where
relevant, feasible, and consistent with
regulatory objectives, and to the extent
permitted by law, agencies are to
identify and consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public. Executive Order
14094 entitled ‘‘Modernizing Regulatory
Review’’ (hereinafter referred to as the
‘‘Modernizing E.O.’’) amends section
3(f) of Executive Order 12866
(Regulatory Planning and Review),
among other things.
The final rule will revise 24 CFR
202.5 (i) and (k) to update HUD’s
regulation to conform with the mortgage
industry’s evolving business practices.
Additionally, the rule will lessen the
administrative burden on lenders and
mortgagees. This rule was determined
not to be a ‘‘significant regulatory
action’’ as defined in section 3(f) of
Executive Order 12866 as amended by
Executive Order 14094 and is not an
economically significant regulatory
action and therefore was not subject to
OMB review.
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Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4;
approved March 22, 1995) (UMRA)
establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on state, local, and
tribal governments, and on the private
sector. This final rule does not impose
any Federal mandates on any state,
local, or tribal government, or on the
private sector, within the meaning of the
UMRA.
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7277
Environmental Review
This final rule does not direct,
provide for assistance or loan and
mortgage insurance for, or otherwise
govern or regulate real property
acquisition, disposition, leasing,
rehabilitation, alteration, demolition, or
new construction, or establish, revise, or
provide for standards for construction or
construction materials, manufactured
housing, or occupancy. Accordingly,
under 24 CFR 50.19(c)(1), this rule is
categorically excluded from
environmental review under the
National Environmental Policy Act of
1969 (42 U.S.C. 4321).
approved by OMB under the Paperwork
Reduction Act and assigned OMB
control number 2502–0059.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.), generally requires
an agency to conduct a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements, unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. The rule will
remove the requirement that lenders
and mortgagees register with HUD each
branch office where they conduct FHA
business. This will not create an undue
burden on small entities, instead it will
eliminate the burden for all lenders and
mortgagees of having to register branch
offices with HUD and pay the associated
fees. HUD has determined that this rule
will not have a significant economic
impact on a substantial number of small
entities.
■
Executive Order 13132, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits an agency from
publishing any rule that has Federalism
implications if the rule either imposes
substantial direct compliance costs on
state and local governments or is not
required by statute, or the rule preempts
state law, unless the agency meets the
consultation and funding requirements
of section 6 of the Executive Order. This
rule will not have Federalism
implications and will not impose
substantial direct compliance costs on
state and local governments or preempt
state law within the meaning of the
Executive Order.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520), an agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information,
unless the collection displays a
currently valid Office of Management
and Budget (OMB) control number. The
information collection requirements
contained in this final rule have been
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List of Subjects in 24 CFR Part 202
Administrative practice and
procedure, Home improvement,
Manufactured homes, Mortgage
insurance, Reporting, and recordkeeping
requirements.
Accordingly, for the reasons stated in
the preamble above, HUD amends 24
CFR part 202 as follows:
PART 202—APPROVAL OF LENDING
INSTITUTIONS AND MORTGAGEES
1. The authority citation for part 202
continues to read as follows:
Authority: 12 U.S.C. 1703, 1709 and
1715b; 42 U.S.C. 3535(d).
§ 202.5
[Amended]
2. Amend § 202.5 by:
a. In paragraph (i) removing
‘‘authorized to originate Title I loans or
submit applications for mortgage
insurance’’ and adding in its place ‘‘that
the lender or mortgagee registers with
the Department’’;
■ b. In paragraph (k), adding ‘‘or
mortgagee’’ after ‘‘A lender’’ in the first
sentence of paragraph (k), and removing
the second sentence.
■
■
Julia R. Gordon,
Assistant Secretary of Office of Housing—
Federal Housing Administration.
[FR Doc. 2024–02023 Filed 2–1–24; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF JUSTICE
28 CFR Parts 0 and 27
[Docket No. JMD 154; AG Order No. 5872–
2024]
RIN 1105–AB47
Whistleblower Protection for Federal
Bureau of Investigation Employees
Department of Justice.
Final rule.
AGENCY:
ACTION:
This rule updates the
Department of Justice (‘‘Department’’)
regulations on the protection of
whistleblowers in the Federal Bureau of
Investigation (‘‘FBI’’). This update
reflects changes resulting from an
assessment conducted by the
Department in response to Presidential
Policy Directive–19 of October 10, 2012,
‘‘Protecting Whistleblowers with Access
to Classified Information’’ (‘‘PPD–19’’),
and the Federal Bureau of Investigation
Whistleblower Protection Enhancement
Act of 2016 (‘‘FBI WPEA of 2016’’). This
SUMMARY:
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rule updates the description of
protected whistleblower disclosures and
covered personnel actions to conform to
the FBI WPEA of 2016; provides for
more equal access to witnesses; and
specifies that compensatory damages
may be awarded as appropriate. This
rule also adds new provisions to
formalize practices that have been
implemented informally, including
providing for the use of
acknowledgement and show-cause
orders, providing access to alternative
dispute resolution (‘‘ADR’’) through the
Department’s FBI Whistleblower
Mediation Program, clarifying the
authority to adjudicate allegations of a
breach of a settlement agreement, and
reporting information about those
responsible for unlawful reprisals. This
regulation reiterates that the
determinations by the Director of the
Office of Attorney Recruitment and
Management (‘‘OARM’’) must be
independent and impartial.
DATES: Effective March 4, 2024.
FOR FURTHER INFORMATION CONTACT:
Morton J. Posner, General Counsel,
Justice Management Division; email:
Morton.J.Posner@usdoj.gov; telephone:
202–514–3452; Michael E. Stamp,
Acting Director, Office of Attorney
Recruitment and Management; email:
Michael.E.Stamp@usdoj.gov; telephone:
202–598–7772.
SUPPLEMENTARY INFORMATION:
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I. Executive Summary
On November 1, 1999, the Department
issued a final rule entitled
‘‘Whistleblower Protection For Federal
Bureau of Investigation Employees,’’
published in the Federal Register at 64
FR 58782, establishing procedures
under which (1) FBI employees or
applicants for employment with the FBI
may make disclosures of information
protected by the Civil Service Reform
Act of 1978, Public Law 95–454
(‘‘CSRA’’), and the Whistleblower
Protection Act of 1989 (‘‘WPA’’), Public
Law 101–12; and (2) the Department
will investigate allegations by FBI
employees and applicants for
employment of reprisal for making such
protected disclosures and take
appropriate corrective action. The rule
is codified at 28 CFR part 27.
On January 9, 2008, the Department
updated part 27 as well as 28 CFR 0.29d
primarily to conform to organizational
changes brought about by a
restructuring of relevant offices of the
FBI. Technical Amendments to the
Regulations Providing Whistleblower
Protection for Federal Bureau of
Investigation Employees, 73 FR 1493.
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On October 10, 2012, President
Barack Obama issued PPD–19, which, in
part, directed that the Department
prepare a report that (1) assesses the
efficacy of the Department’s FBI
whistleblower protection regulations
found in 28 CFR part 27 in deterring the
personnel practices prohibited in 5
U.S.C. 2303, and in ensuring
appropriate enforcement of section
2303, and (2) describes any proposed
revisions to those regulations that
would increase their effectiveness in
fulfilling the purposes of section 2303.
PPD–19 at 5.
In response to this directive, the
Office of the Deputy Attorney General
conducted a comprehensive review of
the Department’s whistleblower
regulations and historical experience
with their operation.1 As part of that
process, the Department formed a
working group, seeking participation
from the other key participants in
administering the Department’s FBI
whistleblower regulations—the FBI,
OARM, the Office of the Inspector
General, and the Office of Professional
Responsibility—as well as the Justice
Management Division. In addition, the
Department consulted with the Office of
Special Counsel (‘‘OSC’’) and FBI
employees, as required by PPD–19. The
Department also consulted with
representatives of non-governmental
organizations that support
whistleblowers’ rights and with private
counsel for whistleblowers (collectively,
whistleblower advocates).2
With respect to consultation with FBI
employees, the FBI’s representatives on
the Department’s working group
consulted with various FBI entities: the
Ombudsman; the Office of Equal
Employment Opportunity Affairs; the
Office of Integrity and Compliance; the
Office of Professional Responsibility;
the Human Resources Division; and the
Inspection Division. The representatives
also solicited the views of each of the
FBI’s three official advisory committees
that represent FBI employees—the AllEmployees Advisory Committee, the
Agents Committee, and the MiddleManagement Committee.
In April 2014, after completion of the
PPD–19 review, the Department issued
a report, ‘‘Department of Justice Report
1 On November 27, 2012, President Obama signed
the Whistleblower Protection Enhancement Act of
2012, Public Law 112–199, (‘‘WPEA of 2012’’). The
Department considered the WPEA of 2012 as part
of its PPD–19 review.
2 The Department convened a meeting with the
following whistleblower advocate organizations:
Project on Government Oversight; Kohn, Kohn &
Colapinto; Government Accountability Project;
American Civil Liberties Union; and a former chief
counsel to the chairman of the Merit Systems
Protection Board.
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on Regulations Protecting FBI
Whistleblowers’’ (‘‘PPD–19 Report’’).
The report considered the historical
context of the Department’s efforts to
protect FBI whistleblowers from reprisal
and the Department’s current policies
and procedures for adjudicating claims
of reprisal against FBI whistleblowers;
summarized and analyzed statistics
regarding the use of these policies and
procedures in recent years; and
identified desired changes to existing
policies and procedures as a result of
this assessment.
The Department issued a notice of
proposed rulemaking on March 29,
2023, to reflect the PPD–19 Report’s
findings and recommendations, as
modified to comply with the FBI WPEA
of 2016, discussed in further detail
below, which President Obama signed
on December 16, 2016.
II. Historical Background on FBI
Whistleblower Protection
Legislative protection of civilian
Federal whistleblowers from reprisal
began in 1978 with passage of the
CSRA, and was expanded by the WPA
and the Whistleblower Protection
Enhancement Act of 2012, Public Law
112–199 (‘‘WPEA of 2012’’). Currently,
Federal employees fall into three
categories. Most civilian Federal
employees are fully covered by the
statutory regime established by the
CSRA, which permits them to challenge
alleged reprisals through the OSC and
the Merit Systems Protection Board
(‘‘MSPB’’). By contrast, some Federal
agencies that deal with intelligence are
expressly excluded from the
whistleblower protection scheme
established by these statutes.
The FBI is in an intermediate
position: Although it is one of the
agencies expressly excluded from the
scheme established for Federal
employees generally, its employees
nevertheless are protected by a separate
statutory provision and special
regulations promulgated pursuant to
that provision, which forbid reprisals
against FBI whistleblowers and provide
an administrative remedy within the
Department. See 28 CFR part 27.
To elaborate, the CSRA sets forth
‘‘prohibited personnel practices,’’ which
are a range of personnel actions that the
Federal Government may not take
against Federal employees. One such
prohibited personnel practice is
retaliating against an employee for
revealing certain agency information.
Specifically, the CSRA originally made
it illegal for an agency to take or fail to
take a personnel action with respect to
any employee or applicant for
employment as a reprisal for disclosure
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of information that the employee or
applicant reasonably believed
evidenced a violation of any law, rule,
or regulation, or mismanagement, a
gross waste of funds, an abuse of
authority, or a substantial and specific
danger to public health or safety. Public
Law 95–454, sec. 101(a), codified at 5
U.S.C. 2302(b)(8). The CSRA also
created the MSPB and OSC to enforce
the prohibitions on specified personnel
practices.
The CSRA, however, expressly
excluded from this scheme the FBI, the
Central Intelligence Agency, various
intelligence elements of the Department
of Defense, and any other executive
agency or unit thereof as determined by
the President with the principal
function of conducting foreign
intelligence or counterintelligence
activities. Public Law 95–454, sec.
101(a), codified at 5 U.S.C.
2302(a)(2)(C)(ii).
For the FBI alone, the CSRA
specifically prohibited taking a
personnel action against employees or
applicants for employment as a reprisal
for disclosing information that the
employee or applicant reasonably
believed evidenced a violation of any
law, rule, or regulation, or
mismanagement, a gross waste of funds,
an abuse of authority, or a substantial
and specific danger to public health or
safety. Id., codified at 5 U.S.C.
2303(a)(1), (2). The CSRA defined a
‘‘personnel action’’ for the purpose of
the FBI-specific prohibition as any
action specifically described in clauses
(i) through (x) of 5 U.S.C. 2302(a)(2)(A),
taken with respect to an employee in—
or an applicant for—a position other
than one of a confidential, policydetermining, policymaking, or policyadvocating character. Id., codified at 5
U.S.C. 2303(a). In addition, the CSRA
limited the protection of the FBIspecific prohibition to only those
disclosures that the FBI employee made
through narrowly defined internal
channels—i.e., to the Attorney General
or the Attorney General’s designee. Id.
Finally, the CSRA directed the President
to provide for the enforcement of the
provision relating to FBI whistleblowers
in a manner consistent with applicable
provisions of 5 U.S.C. 1206, the section
of the CSRA that originally set out the
responsibilities of the OSC, the MSPB,
and agency heads in response to a
whistleblower complaint and provided
for various remedies. Id., codified at 5
U.S.C. 2303(c).
In April, 1980, the Department
published a final rule implementing
section 2303. The rule provided, among
other things, for a stay of any personnel
action if there were reasonable grounds
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to believe that the personnel action was
taken, or was to be taken, as a reprisal
for a disclosure of information by the
employee to the Attorney General or the
Attorney General’s designee that the
employee reasonably believed
evidenced wrongdoing covered by
section 2303. Office of Professional
Responsibility; Protection of
Department of Justice Whistleblowers,
45 FR 27754, 27755 (Apr. 24, 1980).
In 1989, the statutory scheme for most
civilian employees changed in some
respects when Congress passed the
WPA, which significantly expanded the
avenues of redress generally available to
civilian Federal employees. In doing so,
it replaced section 1206 with sections
1214 and 1221; these new sections set
forth the procedures under which OSC
would investigate prohibited personnel
practices and recommend or seek
corrective action, and the circumstances
under which an individual right of
action before the MSPB would be
available. Public Law 101–12, sec. 3.
Consistent with this change, the WPA
amended section 2303, governing FBI
whistleblowers, to replace the
requirement that enforcement of
whistleblower protections be consistent
with applicable provisions of section
1206 with a requirement that
enforcement be consistent with
applicable provisions of newly added
sections 1214 and 1221. Public Law
101–12, sec. 9(a)(1).
The WPA also amended the regime
generally applicable to civil service
employees by revising section 2302 to
protect only disclosures of information
the employee reasonably believes
evidences ‘‘gross mismanagement,’’
rather than ‘‘mismanagement,’’ as
originally provided by the CSRA. Public
Law 101–12, sec. 4(a). However, the
WPA did not make a corresponding
change to section 2303, the statute
applicable to FBI whistleblowers.
On April 14, 1997, President William
J. Clinton issued a memorandum
delegating to the Attorney General the
functions concerning employees of the
FBI vested in the President by the
CSRA, and directing the Attorney
General to establish appropriate
processes within the Department to
carry out these functions. Delegation of
Responsibilities Concerning FBI
Employees Under the Civil Service
Reform Act of 1978, 62 FR 23123 (Apr.
28, 1997). In November, 1999, the
Department published a final rule
establishing procedures under which
FBI employees or applicants for
employment may make disclosures of
wrongdoing. 64 FR 58782 (Nov. 1,
1991). The rule created a remedial
scheme within the Department through
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7279
which FBI employees can seek redress
when they believe they have suffered
reprisal for making a protected
disclosure. Subject to minor
amendments in 2001 and 2008, the rule,
codified at 28 CFR part 27, remains in
force.
On November 27, 2012, the month
following President Obama’s issuance of
PPD–19, he signed the WPEA of 2012
into law. That act, among other things,
amended 5 U.S.C. 1214 and 5 U.S.C.
1221 to authorize awards of
compensatory damages. Although the
FBI is expressly excluded from coverage
under these statutory provisions and is
instead covered by 5 U.S.C. 2303,
section 2303 directs that the President
ensure enforcement of section 2303 in a
‘‘manner consistent with the applicable
provisions of sections 1214 and 1221.’’
5 U.S.C. 2303(c). The WPEA of 2012
also expanded the number of prohibited
personnel actions set out in section
2302(a)(2), but made no corresponding
change to the cross-reference in section
2303(a). Accordingly, the Department
has considered the WPEA of 2012’s
changes to sections 1214, 1221, and
2302(a) and their impact on the FBI’s
whistleblower protection program under
section 2303 and has concluded that
corresponding technical amendments to
the current regulations are appropriate,
as described further below.
On December 16, 2016, President
Obama signed Public Law 114–302, the
FBI WPEA of 2016. That statute made
two changes to the statutory
whistleblower protection scheme
applicable to FBI employees. First, it
expanded the list of recipients set forth
in 5 U.S.C. 2303(a) to whom a
disclosure could be made to be
protected (assuming the substantive
requirements are met). Protected
disclosures now may be made to an
employee’s supervisor in the employee’s
direct chain of command, up to and
including the Attorney General; the
Inspector General; the Department’s
Office of Professional Responsibility;
the FBI Office of Professional
Responsibility; the FBI Inspection
Division; Congress, as described in 5
U.S.C. 7211; OSC; or an employee
designated to receive such disclosures
by any officer, employee, office, or
division of the listed entities. See Public
Law 114–302, sec. 2.
Second, the FBI WPEA of 2016
changed the substantive requirement for
a protected disclosure, requiring that the
disclosure be one that the discloser
reasonably believes evidences ‘‘any
violation’’ (previously, ‘‘a violation’’) of
any law, rule, or regulation, or ‘‘gross
mismanagement’’ (previously, just
‘‘mismanagement’’), in addition to the
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previous (and unchanged) provision for
disclosures of a gross waste of funds, an
abuse of authority, or a substantial and
specific danger to public health or
safety. Id.
On December 23, 2022, President
Joseph Biden signed Public Law 117–
263, which amended 5 U.S.C. 2303 to
afford FBI whistleblowers with the right
to (1) appeal a final determination or
corrective action order to the MSPB, and
(2) subject to certain conditions, seek
corrective action directly from the
MSPB pursuant to 5 U.S.C. 1221. Public
Law 117–263, sec. 5304(a), codified at 5
U.S.C. 2303(d)(1), (2).
Finally, on March 29, 2023, the
Department published a proposed rule,
which intended to (1) improve,
pursuant to PPD–19 and consistent with
the Department’s recommendations in
the PPD–19 Report, the internal
investigation and adjudication of
whistleblower retaliation claims by FBI
employees and applicants for
employment under the remedial scheme
initially established in 1999 and
codified at 28 CFR part 0 and part 27;
and (2) ensure that this process is
consistent with changes enacted by the
WPEA of 2012 and the FBI WPEA of
2016. See 88 FR 18487 (March 29,
2023). Through the proposed rule, the
Department invited specific comments
on and recommendations for how the
Department might further revise the
regulations to increase fairness,
effectiveness, efficiency, and
transparency, including to provide
enhanced protections for
whistleblowers, in addition to the
proposed changes. Id.
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III. Comments to the Proposed Rule and
Department Responses
Following a period for public
comment on the March 29, 2023,
proposed rule, the Department received
a number of comments, many of which
generally endorsed the rulemaking
proposal. Comments on the proposed
rule, and the Department’s responses,
are included in this section, where they
apply to specific subsections of the rule.
Definition of a ‘‘Protected Disclosure’’
In the proposed rule, the Department
proposed several changes to the
definition of a ‘‘protected disclosure’’
under 28 CFR 27.1(a) to conform to the
requirements of the FBI WPEA of 2016.
Under the current rule, 28 CFR 27.1(a),
a disclosure is considered protected if
(1) it was made to an office or
individual designated to receive a
protected disclosure, and (2) the person
making the disclosure reasonably
believed the disclosure evidenced a
specific type of wrongdoing listed in
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§ 27.1(a)(1) and (a)(2). The current rule
lists the following entities and
individuals as designated recipients of a
protected disclosure:
• the Department’s Office of
Professional Responsibility;
• the Department’s Office of the
Inspector General;
• the FBI Office of Professional
Responsibility;
• the FBI Inspection Division Internal
Investigations Section;
• the Attorney General;
• the Deputy Attorney General;
• the Director of the FBI;
• the Deputy Director of the FBI; or
• the highest ranking official in any
FBI field office.
The proposed rule proposed to
expand the list to comply with the
change made by the FBI WPEA of 2016.
Specifically, the proposed amendment
to § 27.1(a) would require that, to be
protected, a disclosure must be made to:
• a supervisor in the direct chain of
command of the employee, up to and
including the Attorney General;
• the Department’s Inspector General;
• the Department’s Office of
Professional Responsibility;
• the FBI Office of Professional
Responsibility;
• the FBI Inspection Division;
• Congress, as described in 5 U.S.C.
7211;
• OSC; or
• an employee of any of the above
entities, when designated by any officer,
employee, office, or division thereof for
the purpose of receiving such
disclosures.
With respect to § 27.1(a)(2), the
current rule requires that the person
making the disclosure reasonably
believe that it evidences:
‘‘Mismanagement, a gross waste of
funds, an abuse of authority, or a
substantial and specific danger to public
health or safety.’’ In the proposed rule,
the Department proposed to amend
§ 27.1(a)(2) to conform to the FBI WPEA
of 2016 by removing ‘‘Mismanagement’’
and replacing it with ‘‘Gross
mismanagement.’’
Several commenters expressed
concern with the revised definition of a
‘‘protected disclosure’’ under 28 CFR
27.1(a) in the proposed rule. One
commenter expressed concern with the
expanded list of offices and officials
designated to receive a protected
disclosure under 28 CFR 27.1(a) in the
proposed rule, noting that additional
recipients ‘‘may result in a game of
telephone where information may be
misconstrued when it gets passed up the
chain.’’ Another commenter wanted to
remove the limited list of recipients
entirely. Several commenters expressed
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concern with the proposed change to
§ 27.1(a)(2) to remove
‘‘Mismanagement’’ and replace it with
‘‘Gross mismanagement.’’ These
commenters were concerned that the
change would narrow the protections
currently afforded FBI whistleblowers
or create difficulties in interpretation.
Notwithstanding these concerns, the
Department adopts in this final rule the
changes to 28 CFR 27.1(a) set forth in
the proposed rule. The designated
recipients for protected disclosures are
mandated by statute, as is the
requirement that only ‘‘gross
mismanagement’’—as opposed to any
other type of ‘‘mismanagement’’—
constitutes a protected disclosure under
the FBI WPEA of 2016, 5 U.S.C.
2303(a)(1) and (a)(2)(B). Because the
purpose of this proposed rule is to
conform 28 CFR part 27 to the FBI
WPEA of 2016, the Department declines
to adopt the changes sought by the
commenters.
Modifying the Definition of a ‘‘Personnel
Action’’
One commenter suggested amending
the ‘‘personnel action’’ definition under
28 CFR 27.2(b) to include all twelve
actions currently listed in 5 U.S.C.
2302(a)(2)(A). The Department notes
that this final rule updates the
description of protected whistleblower
disclosures and covered personnel
actions to conform to the FBI WPEA of
2016. The commenter also suggested
that the Department further expand the
definition of ‘‘personnel action’’ in the
rule to include retaliatory investigations
and the denial, suspension, or
revocation of a security clearance.
Because the term ‘‘personnel action’’ is
defined in 5 U.S.C. 2302(a)(2)(A), and
the purpose of this proposed rule is to
conform 28 CFR part 27 to the FBI
WPEA of 2016, the Department declines
to adopt this suggestion.
Statement of Independence and
Impartiality of OARM Determinations
During the Department’s PPD–19
review, whistleblower advocates
expressed concern with the internal
Department adjudication of FBI reprisal
cases brought under part 27. To address
this concern, the Department added
language to 28 CFR 27.4(e)(1) in the
proposed rule that the determinations
by the Director of OARM (‘‘OARM
Director’’) shall be independent and
impartial.
One commenter suggested that the
rule be further updated to apply the
statement of independence and
impartiality to the OARM Director’s
decision on a Conducting Office’s
request to stay a personnel action under
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28 CFR 27.4(b). That provision states, in
relevant part: ‘‘[T]he Conducting Office
may request the Director to order a stay
of any personnel action for 45 calendar
days if it determines that there are
reasonable grounds to believe that a
reprisal has been or is to be taken. The
Director shall order such stay . . .
unless the Director determines that,
under the facts and circumstances
involved, such a stay would not be
appropriate.’’ Section 27.4(d) similarly
addresses the OARM Director’s
authority to grant a complainant’s
request for a stay of a personnel action
‘‘if the Director determines that such a
stay would be appropriate.’’
Because the commenter’s request for a
statement of the OARM Director’s
independent and impartial
determination on a request for a stay of
a personnel action is consistent with the
concerns raised by whistleblower
advocates during the Department’s
PPD–19 review regarding the OARM
Director’s determinations under
§ 27.4(e), the Department adopts the
commenter’s suggestion, and also
applies it to § 27.4(d). This final rule
thus changes § 27.4(e)(1) to read: ‘‘The
determination made by the Director
under this section shall be independent
and impartial.’’
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Right to a Hearing
One commenter recommended that
the rule provide a party with the right
to a hearing after OARM finds that it has
jurisdiction over a matter. Presently,
neither party has an automatic right to
a hearing before the OARM Director;
however, under § 27.4(e)(3), either party
may request a hearing. The OARM
Director currently has the discretion to
grant or deny a party’s request for a
hearing. Under current practice, the
request will be granted when the
complainant has presented a cognizable
legal claim and there are disputed issues
of material fact that need resolution
through live, testimonial evidence. In
determining whether a hearing is
appropriate in a particular case, the
OARM Director currently considers
whether a hearing would result in
unnecessary delay, needless
expenditure of administrative resources,
or unnecessary burdens on the parties,
and whether live testimony or argument
would be helpful in reaching a decision.
The Department concludes that
automatically granting a right to a
hearing after a finding of OARM
jurisdiction would not be an efficient
means of resolving all matters over
which OARM has jurisdiction. The
Department therefore declines to adopt
the recommendation.
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Equalizing Access to Witnesses
During the Department’s PPD–19
review, whistleblower advocate groups
raised concerns that, in some cases, the
FBI has obtained evidence from FBI
management officials or employees as
witnesses, either through affidavits or
testimony at a hearing, but that
complainants were unable to obtain
similar access to FBI witnesses,
particularly former employees. Because
the OARM Director lacks the authority
to compel attendance at a hearing,
appearance at a deposition, or the
production of documentary evidence
from individuals not currently
employed by the Department, the
groups asked the Department to
consider implementing a regulatory
provision that would help equalize
access to witnesses. Because the
Department agreed with that concern,
the Department added a sentence to 28
CFR 27.4(e)(3) in the proposed rule to
give the OARM Director the discretion
to prohibit a party from adducing or
relying on evidence from a person
whom the opposing party does not have
an opportunity to examine or to give
less weight to such evidence.
Two commenters suggested changes
to the proposed rule that would
eliminate the OARM Director’s
discretion and automatically preclude
the use of evidence that complainants
do not have access to or relying on
evidence from a witness the opposing
party is unable to examine.
In the Department’s view, eliminating
the Director’s discretion by requiring
that unavailable witnesses be excluded
in all cases would unfairly disadvantage
whistleblowers when, through no fault
of their own, witnesses who initially
provided affidavits or other evidence in
support of the whistleblower later
become unable or unwilling to
cooperate further. Under the proposed
rule, depending on the circumstances of
each case, the Director may exercise
discretion in allowing a whistleblower
to present such evidence, despite the
witness’s unavailability to the FBI.
Because the exercise of discretion is
necessary to conduct fair and just
proceedings, the Department declines to
adopt the suggestion to eliminate the
OARM Director’s discretion regarding
how best to address the parties’ unequal
access to witnesses.
Another commenter expressed a
concern that the OARM Director’s
discretion in the proposed revision to 28
CFR 27.4(e)(3) should include
stipulations, or, alternatively, a standard
specifying the circumstances in which
the OARM Director would exercise his
or her discretion.
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The Department agrees that it should
describe some of the factors that the
OARM Director will consider when
exercising the OARM Director’s
discretion. But because we cannot know
with certainty the circumstances in
which the OARM Director may decide
to prohibit a party from relying on
witness evidence when the other party
did not have equal access to it, the
Department declines to adopt the
commenter’s suggestion as proposed.
The Department will, however, modify
§ 27.4(e)(3) in the final rule to specify
some factors that the OARM Director
may consider in the OARM Director’s
decision to exclude such evidence.
One commenter agreed with the
proposed provision, but asserted that
the Department should implement
adequate security to protect witnesses
from possible reprisal. OARM currently
uses procedures that protect certain
information obtained during the course
of discovery containing personally
identifiable information that could
potentially impair the safety or privacy
rights of past and current employees.
OARM’s protective procedures include
the use of protective orders, redaction of
documents, and closed hearings for the
presentation of any live testimonial
evidence. Given the OARM procedures
already in place, the Department
declines to adopt this suggestion.
Finally, one commenter suggested
that the rule be modified to require the
FBI to attempt to secure the testimony
from employees in Federal service who
are employed by other Federal agencies
at the time of adjudication of the
whistleblower reprisal complaint.
Requiring the FBI to attempt to secure
the testimony from Federal employees
working at other Federal agencies,
however, would require the FBI to
communicate directly with potentially
adverse witnesses on behalf of
complainants. The proposed rule helps
to equalize the parties’ access to
witnesses. The commenter’s suggested
change does not further that goal. The
Department declines to adopt this
suggestion.
Acknowledgement and Show-Cause
Orders
In the proposed rule, the Department
added a new paragraph (f) to § 27.4 to
formalize the OARM Director’s existing
practice of issuing acknowledgement
and show-cause orders similar to those
issued by the MSPB. Under proposed 28
CFR 27.4(f)(1), the acknowledgment
orders issued by the OARM Director
shall include: information on the
relevant case processing procedures and
timelines, including the manner of
designation of a representative; the time
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periods for and methods of discovery;
the process for resolution of discovery
disputes; and the form and method of
filing of pleadings. The proposed
provision further specified that the
Acknowledgement Order shall inform
the parties of the jurisdictional
requirements for full adjudication of the
request for corrective action and their
respective burdens of proof.
In cases where the OARM Director
determines that there is an initial
question of the OARM Director’s
jurisdiction to review a request for
corrective action, the OARM Director
shall issue, along with the
Acknowledgement Order, a Show-Cause
Order explaining the grounds for such
determination and directing that, within
10 calendar days of receipt of the order,
the complainant submit a written
response explaining why the request
should not be dismissed for lack of
jurisdiction. The FBI’s reply to the
complainant’s response to the ShowCause Order is due within 20 calendar
days within its receipt of the
complainant’s response under proposed
§ 27.4(f)(3).
Two commenters suggested an
extension of the 10-calendar day
deadline for the complainant’s response
to the Show-Cause Order under
§ 27.4(f)(2). The Department adopts the
proposal to extend that deadline and
modifies § 27.4(f)(2) of this final rule to
provide the complainant with 15
calendar days to respond to a ShowCause Order.
Damages
One commenter suggested modifying
28 CFR 27.4(g) in the proposed rule to
make an award of attorney’s fees and
costs mandatory whenever corrective
action is ordered.
Section 27.4(f) currently provides the
OARM Director with the authority to
order certain corrective action to place
the complainant, as nearly as possible,
in the position he or she would have
been in had the reprisal not taken place.
Such corrective action ‘‘may include,’’
but is not limited to, reimbursement for
attorney’ fees and reasonable costs.
Under section 2303(c), the Department
is charged with enforcing 28 CFR part
27 ‘‘consistent with applicable
provisions of 1214 and 1221.’’
Corrective action ordered by the MSPB
to a prevailing party in an Individual
Right of Action appeal under 5 U.S.C.
1221(g)(1)(B) ‘‘shall include’’ attorney’s
fees and costs provided that other
requirements are met. Because the
Department already enforces its
corrective action authority in FBI
whistleblower cases ‘‘consistent with’’
section 1221(g)(1)(B), and there are
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circumstances where an award of
attorney’s fees would not be mandatory
(e.g., where the complainant is a pro se
litigant), the Department declines to
adopt this suggestion as stated.
However, this final rule, in new
§ 27.4(g), authorizes the OARM Director
to order corrective action to a prevailing
complainant that ‘‘shall, as
appropriate,’’ include attorney’s fees
and reasonable costs, among other
things.
Transparency Regarding OARM and
Deputy Attorney General Decisions, and
the Publication of Reprisal Findings
In the proposed rule, the Department
added § 27.4(h) to formalize OARM’s
policy of forwarding to the FBI Office of
Professional Responsibility, the FBI
Inspection Division, and the FBI
Director a copy of the final
determination in cases where the OARM
Director finds reprisal.
One commenter endorsed the
proposal, but suggested that the
Department also report findings of
reprisal to ‘‘any other appropriate law
enforcement authority.’’
Under current practice, the OARM
Director refers findings of reprisal
internally within the FBI, and, as
discussed below, the Department has
decided to publish in redacted form all
dispositive OARM decisions and
Deputy Attorney General decisions
reversing or remanding OARM
decisions, including those involving
reprisal findings. The Department
believes these actions will help to hold
those responsible for unlawful reprisal
accountable and deter others from
violating the protections afforded FBI
whistleblowers. Because there is no
other ‘‘law enforcement authority’’ that
would accomplish these goals, the
Department declines to adopt this
recommendation.
Another commenter endorsed the
proposal, but suggested that internal
reporting alone is likely insufficient to
deter retaliatory conduct by FBI
officials. The commenter suggested that
the Department consider publishing
redacted or sanitized findings ‘‘to
ensure that [the] individuals responsible
understand the importance of respecting
whistleblower protections and the
significant consequences for violating
them.’’ Two other commenters also
recommended that the proposed
regulation require that OARM publish
its decisions, and one suggested
prohibiting OARM from citing or relying
on a citation to an unpublished decision
that all parties do not have access to.
In response, the Department has
decided to publish in redacted form any
decisions in closed cases on the merits,
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as well as procedural decisions showing
how the OARM Director and the Deputy
Attorney General have analyzed and
decided issues relating to jurisdiction,
discovery, merits, corrective relief, and
other issues of relevance to FBI
whistleblowers. All future decisions
meeting these criteria will be made
public in redacted form, as will
decisions issued after January 1, 2018.
This is a Departmental policy decision,
subject to revision or rescission, and is
therefore not memorialized in this final
rule. The Department also adopts the
recommendation to specify in this final
rule, in a new § 27.4(j), that the OARM
Director will not specifically cite or rely
on any unpublished FBI whistleblower
decisions in OARM issuances.
Expanding the Availability of ADR
In the proposed rule, the Department
proposed to add 28 CFR 27.7 (§ 27.8 in
this final rule) to formalize inclusion of
the Department’s FBI Whistleblower
Mediation Program, which was
implemented in 2014. One commenter
suggested that the provision be modified
to expand the availability of ADR to
‘‘unprotected or potential’’
whistleblowers who have not obtained
‘‘protected status’’ under 28 CFR part
27.
As discussed in the proposed rule,
mediation through the FBI
Whistleblower Mediation Program may
be requested by the complainant at any
stage of proceedings under 28 CFR part
27—i.e., from the initial filing of the
complaint with the Conducting Office
and at any subsequent point thereafter
while the complaint is being
investigated or adjudicated. The rule
does not require that the complainant be
deemed a ‘‘protected’’ whistleblower by
the OARM Director under the
adjudicative procedures set forth in 28
CFR 27.4 before electing ADR through
the FBI Whistleblower Mediation
Program. However, the FBI
Whistleblower Mediation Program is
only available to complainants who
have availed themselves of the
protections provided in 28 CFR part 27.
To the extent the commenter suggests
that the program be widely available to
FBI employees generally, the
Department declines to adopt this
comment. The program was created,
resourced, and implemented for FBI
whistleblower complainants only, and
was not intended to be accessible to all
FBI employees.
Claims Involving a Breach of a
Settlement Agreement
In the proposed rule, the Department
proposed to add 28 CFR 27.8, which
would authorize the OARM Director to
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adjudicate claims involving a breach of
a settlement agreement. Proposed § 27.8
provides that a party may file with the
OARM Director a claim of a breach of
a settlement agreement reached in
proceedings under 28 CFR part 27. Any
claim of a breach of a settlement
agreement must be filed with the OARM
Director ‘‘within 30 days of the date on
which the grounds for the claim of
breach were known.’’
One commenter suggested that there
is a conflict of interest presented by
proposed § 27.8, ‘‘by reserving to the
Department the right to decide whether
the Department itself breached the
settlement agreement.’’ The commenter
suggested that the provision should be
modified to allow breach claims to be
adjudicated in an external forum.
The Department declines to adopt this
comment because other Department
components, and not the FBI, adjudicate
breach claims. Just as OARM has fairly
decided FBI whistleblower retaliation
claims, it can also fairly decide claims
involving a breach of a settlement
agreement.
The commenter additionally
suggested that proposed § 27.8(a) be
modified to include either a ‘‘reasonable
suspicion’’ or ‘‘knew/should have
known’’ standard, as, according to the
commenter, ‘‘those standards are more
extensively construed in precedent and
thus clearer in their application.’’
The Department agrees with and
adopts the latter comment. This final
rule, which designates proposed
§ 27.8(a) as § 27.9(a) in the final rule,
adds the words ‘‘or should have been
known’’ after the word ‘‘known’’ in that
paragraph.
Reference to 2303(d) MSPB Appeal
Rights in the Final Rule
In the preamble to the proposed rule,
the Department referenced the recent
enactment of 5 U.S.C. 2303(d), which
affords FBI whistleblowers the right to
(1) appeal a final determination or
corrective action order to the MSPB, and
(2) subject to certain conditions, seek
corrective action directly from the
MSPB pursuant to 5 U.S.C. 1221. See 5
U.S.C. 2303(d)(1) and (d)(2).
Several commenters suggested that
the final rule include specific reference
to the MSPB appeal rights provided to
FBI whistleblowers in 5 U.S.C. 2303(d).
One commenter additionally suggested
that the final rule add new paragraphs
under 28 CFR 27.4 and 27.5 to require
notice to the complainant of the right to
file an Individual Right of Action appeal
with the MSPB pursuant to 5 U.S.C.
2303, specify the time frames for doing
so, and make clear that the
complainant’s filing of a request for
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review by the Deputy Attorney General
under 28 CFR 27.5 does not affect the
complainant’s rights under 5 U.S.C.
2303(d).
In response, the Department agrees
that 28 CFR part 27 should reference
section 2303(d), which will be included
in this final rule, as a new § 27.7 (which,
in turn, requires changing proposed
§§ 27.7 and 27.8 to §§ 27.8 and 27.9,
respectively). The Department declines
to adopt the suggestion that the final
rule make clear that the complainant’s
filing of a request for review by the
Deputy Attorney General does not affect
the complainant’s section 2303(d)
rights. By citing to section 2303(d) in
new § 27.7, the Department clearly
informs complainants of the right to file
an appeal with the MSPB.
Citation to MSPB Case Precedent as
Binding
One commenter suggested that, given
the recent passage of 5 U.S.C. 2303(d),
the final rule should include a new
provision specifying that ‘‘all
adjudications’’ under 28 CFR part 27
will follow the case precedent of the
MSPB and its reviewing courts.
Relatedly, the commenter also suggests
that, consistent with MSPB case
precedent, the final rule should modify
28 CFR 27.1(a) to make clear that the
whistleblower protections extend to
‘‘perceived’’ whistleblowers.
In response, the Department declines
to adopt the suggestion that the
Department adopt as binding the case
law of the MSPB and its reviewing
courts. While the Department looks to
MSPB and related Federal cases as
persuasive, the Deputy Attorney General
has the ultimate authority to review and
decide FBI whistleblower reprisal
appeals under 28 CFR part 27.
Procedural Case Processing Information
One commenter suggested that the
Department include a new procedural
provision to clarify certain routine
aspects of administrative litigations. The
Department declines to adopt the
suggestion, as case procedures and
processing items are currently publicly
available in case procedure and
processing documents issued by the
Office of the Deputy Attorney General
and OARM and so need not be
memorialized in this final rule.
Rewording ‘‘Whistleblower’’
One commenter suggests developing
‘‘an alternate title for the term
‘whistleblower’’’ because it ‘‘seems to
always have a negative connotation
when used.’’
In response, the Department declines
to adopt the suggestion because the
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7283
updated regulations are intended to
reflect changes resulting from an
assessment conducted by the
Department in response to PPD–19, and
the FBI WPEA of 2016, both of which
use that terminology, and changing the
term would lead to unnecessary
confusion. Moreover, the Department
does not perceive the term
‘‘whistleblower’’ as having any negative
connotation.
The FBI’s Prepublication Review Process
One commenter suggests that the
Department add a provision to the final
rule to modify the FBI’s prepublication
review process to allow for the
disclosure of content that the
commenter believes may otherwise be
protected by the First Amendment’s
Free Speech Clause. The Department
understands the suggestion to be
directed at the FBI’s prepublication
review process in general, and not
specifically directed at issues related to
FBI whistleblower claims of unlawful
reprisal. Because the FBI’s
prepublication process is outside the
scope of 28 CFR part 27, the Department
declines to adopt the suggested change.
Suspension of Security Clearances
One commenter suggested that the
Department ‘‘[p]rovide a regulation
stopping the FBI from suspending
security clearances of employees or
suspending them from duty without pay
until legal or administrative action is
taken against them.’’ The National
Security Act of 1947 and PPD–19 make
it unlawful for an agency (including the
FBI) to take any action affecting an
employee’s eligibility for access to
classified information in reprisal for
making a protected disclosure. These
protections against revocations of
security clearances apply to FBI
employees. The investigation and
adjudication of allegations that the
suspension or revocation of security
clearances held by Department
employees was in retaliation for making
protected disclosures are governed by
different laws than those governing FBI
whistleblower reprisal allegations,
including 50 U.S.C. 3341, PPD–19, and
DOJ Instruction 1700.00.01. Security
clearance suspensions are outside the
scope of 28 CFR part 27, and the
Department therefore declines to adopt
this suggestion.
IV. Regulatory Analyses
In developing this final rule, the
Department considered numerous
statutes and executive orders applicable
to rulemaking. The Department’s
analysis of the applicability of those
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statutes and executive orders to this rule
is summarized below.
Paperwork Reduction Act. See 44 U.S.C.
3518(c)(1)(B)(ii).
A. Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory
Review)
This final rule is not a significant
regulatory action under section 3(f) of
Executive Order 12866, as
supplemented by Executive Order
13563 and amended by Executive Order
14094. This rule makes procedural
changes to the existing regulatory
framework for resolving claims of
whistleblower retaliation by FBI
employees and applicants. The changes
do not materially affect the number of
claims or the time, cost, or resources
required to address them. Accordingly,
this rule does not require an assessment
of potential costs and benefits under
section 6(a)(3) of Executive Order
12866. The Office of Management and
Budget has not reviewed this rule under
these Orders.
D. Executive Order 13132 (Federalism)
A rule has federalism implications
under Executive Order 13132 if it has a
substantial direct effect on the States, on
the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. E.O. 13132, sec.
1(a). The Department has analyzed this
final rule under that order and
determined that this rule does not have
federalism implications.
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B. Regulatory Flexibility Act
The Regulatory Flexibility Act of
1980, 5 U.S.C. 601–12, as amended,
requires Federal agencies to consider
the potential impact of regulations on
small entities during rulemaking. The
term ‘‘small entities’’ comprises small
businesses, not-for-profit organizations
that are independently owned and
operated and are not dominant in their
fields, and governmental jurisdictions
with populations of less than 50,000. 5
U.S.C. 601.
The Department certifies under 5
U.S.C. 605(b) that this final rule does
not have a significant economic impact
on a substantial number of small
entities. This rule addresses the
Department’s internal process for
addressing allegations of retaliation for
protected whistleblowing by FBI
employees and applicants. It has no
application to small entities as defined
above. This rule will perhaps have a
tangential, indirect, and transitory
impact on law firms and advocacy
organizations representing FBI
whistleblowers inasmuch as they would
have to become familiar with the
changes in procedure.
C. Paperwork Reduction Act
This final rule does not call for a new
collection of information under the
Paperwork Reduction Act of 1995, 44
U.S.C. 3501–20. Specifically, this rule
regulates administrative actions or
investigations involving an agency
against specific individuals or entities
and thus falls outside the scope of the
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E. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1531–38, requires
Federal agencies to determine whether a
rule, if promulgated, will result in the
expenditure by State, local, or Tribal
Governments, in the aggregate, or by the
private sector, of $100 million (adjusted
for inflation) or more in any one year.
2 U.S.C. 1532(a). This final rule does not
require or result in expenditures by any
of the above-named entities. This rule
addresses the Department’s internal
procedures related to protected
disclosures.
F. Executive Order 12988 (Civil Justice
Reform), Plain Language
This final rule meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988.
G. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
This final rule does not have tribal
implications under Executive Order
13175 because it would not have a
substantial direct effect on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes.
H. Congressional Review Act
The reporting requirements of the
Congressional Review Act (Subtitle E of
the Small Business Regulatory
Enforcement Fairness Act of 1996), 5
U.S.C. 801–08, do not apply to this final
rule. First, this rule relates primarily to
agency management, personnel, and
organization. 5 U.S.C. 804(3)(B).
Second, to the extent that this rule
affects non-agency parties such as
applicants for employment and former
employees, these parties are a small
subset of the cases subject to the rule,
and the rule does not substantially affect
such parties’ substantive rights or
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obligations. Id., 803(3)(C). Instead, this
rule makes changes primarily related to
administrative processing of
whistleblower retaliation cases. This
action is accordingly not a ‘‘rule’’ as that
term is used by the Congressional
Review Act, see 5 U.S.C. 804(3), and the
reporting requirement of 5 U.S.C. 801
does not apply. However, the
Department is submitting a copy of this
final rule to both houses of Congress
and to the Comptroller General.
List of Subjects
28 CFR Part 0
Authority delegations (Government
agencies), Government employees,
National defense, Organization and
functions (Government agencies),
Privacy, Reporting and recordkeeping
requirements, Whistleblowing.
28 CFR Part 27
Government Employees; Justice
Department; Organization and functions
(Government agencies); Whistleblowing.
Authority and Issuance
For the reasons stated above, the
Department of Justice amends 28 CFR
parts 0 and 27 as follows:
PART 0—ORGANIZATION OF THE
DEPARTMENT OF JUSTICE
1. The authority citation for part 0
continues to read as follows:
■
Authority: 5 U.S.C. 301; 28 U.S.C. 509,
510, 515–519.
§ 0.29d
[Amended]
2. In § 0.29d(a), remove the words ‘‘a
violation of any law, rule, or regulation,
or mismanagement’’ and add, in their
place, the words ‘‘any violation of any
law, rule, or regulation, or gross
mismanagement.’’
■
PART 27—WHISTLEBLOWER
PROTECTION FOR FEDERAL BUREAU
OF INVESTIGATION EMPLOYEES
3. The authority citation for part 27 is
revised to read as follows:
■
Authority: 5 U.S.C. 301, 3151; 28 U.S.C.
509, 510, 515–519; 5 U.S.C. 2303; President’s
Memorandum to the Attorney General,
Delegation of Responsibilities Concerning
FBI Employees Under the Civil Service
Reform Act of 1978, 3 CFR p. 284 (1997);
Presidential Policy Directive 19, ‘‘Protecting
Whistleblowers with Access to Classified
Information’’ (October 10, 2012).
4. Amend § 27.1 by revising paragraph
(a) and adding paragraph (c) to read as
follows:
■
§ 27.1
Making a protected disclosure.
(a) When an employee of, or applicant
for employment with, the Federal
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Bureau of Investigation (FBI) (FBI
employee) makes a disclosure of
information to a supervisor in the direct
chain of command of the employee, up
to and including the Attorney General;
to the Department of Justice’s
(Department’s) Office of the Inspector
General (OIG), the Department’s Office
of Professional Responsibility (OPR), the
FBI Office of Professional Responsibility
(FBI OPR), or the FBI Inspection
Division (FBI–INSD) (collectively,
Receiving Offices); to Congress as
described in 5 U.S.C. 7211; to the Office
of Special Counsel; or to an employee of
any of the foregoing entities when
designated by any officer, employee,
office, or division named in this
subsection for the purpose of receiving
such disclosures, the disclosure will be
a ‘‘protected disclosure’’ if the person
making it reasonably believes that it
evidences:
(1) Any violation of any law, rule or
regulation; or
(2) Gross mismanagement, a gross
waste of funds, an abuse of authority, or
a substantial and specific danger to
public health or safety.
*
*
*
*
*
(c) To be a ‘‘protected disclosure’’
under this part, the disclosure must be
made to an office or official specified in
paragraph (a) of this section.
§ 27.2
[Amended]
5. In § 27.2, paragraph (b), remove the
reference ‘‘(xi)’’ and add, in its place,
the reference ‘‘(xii)’’.
■ 6. Amend § 27.4 by:
■ a. Revising paragraphs (a), (c)(1),
(e)(1), (e)(3), (f), and (g); and
■ b. Adding paragraphs (e)(4), (h), (i),
and (j).
The revisions and additions read as
follows:
■
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§ 27.4 Corrective action and other relief;
Director, Office of Attorney Recruitment and
Management.
(a) If, in connection with any
investigation, the Conducting Office
determines that there are reasonable
grounds to believe that a reprisal has
been or will be taken, the Conducting
Office shall report this conclusion,
together with any findings and
recommendations for corrective action,
to the Director, Office of Attorney
Recruitment and Management (the
Director). If the Conducting Office’s
report to the Director includes a
recommendation for corrective action,
the Director shall provide an
opportunity for comments on the report
by the FBI and the Complainant. The
Director, upon receipt of the Conducting
Office’s report, shall proceed in
accordance with paragraphs (e) and (f)
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15:16 Feb 01, 2024
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of this section. A determination by the
Conducting Office that there are
reasonable grounds to believe that a
reprisal has been or will be taken shall
not be cited or referred to in any
proceeding under these regulations,
without the Complainant’s consent.
*
*
*
*
*
(c)(1) The Complainant may present a
request for corrective action directly to
the Director within 60 calendar days of
receipt of notification of termination of
an investigation by the Conducting
Office or at any time after 120 calendar
days from the date the Complainant first
notified an Investigative Office of an
alleged reprisal if the Complainant has
not been notified by the Conducting
Office that it will seek corrective action.
Within 5 business days of the receipt of
the request, the Director shall issue an
Acknowledgement Order in accordance
with paragraph (f)(1) of this section.
*
*
*
*
*
(e)(1) The Director shall determine
based upon all the evidence, whether a
protected disclosure was a contributing
factor in a personnel action taken or to
be taken. Subject to paragraph (e)(2) of
this section, if the Director determines
that a protected disclosure was a
contributing factor in a personnel action
taken or to be taken, the Director shall
order corrective action as the Director
deems appropriate. The Director may
conclude that the disclosure was a
contributing factor in the personnel
action based upon circumstantial
evidence, such as evidence that the
employee taking the personnel action
knew of the disclosure and that the
personnel action occurred within a
period of time such that a reasonable
person could conclude that the
disclosure was a contributing factor in
the personnel action. The determination
made by the Director under this section
shall be independent and impartial.
*
*
*
*
*
(3) In making the determinations
required under this paragraph, the
Director may hold a hearing at which
the Complainant may present evidence
in support of his or her claim, in
accordance with such procedures as the
Director may adopt. The Director is
hereby authorized to compel the
attendance and testimony of, or the
production of documentary or other
evidence from, any person employed by
the Department if doing so appears
reasonably calculated to lead to the
discovery of admissible evidence, is not
otherwise prohibited by law or
regulation, and is not unduly
burdensome. The Director may prohibit
a party from adducing or relying on
evidence from a person whom the
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7285
opposing party does not have an
opportunity to examine, or the Director
may give less weight to such evidence.
In excluding such evidence, the Director
may consider certain factors, including,
but not limited to: the probative value
of the evidence; whether the evidence is
supported by sufficient guarantees of
trustworthiness after considering the
totality of the circumstances under
which it was made and any
corroborating evidence; and whether the
evidence is duplicative, or is obtainable
from some other source that is more
convenient, less burdensome, or less
expensive. Any privilege available in
judicial and administrative proceedings
relating to the disclosure of documents
or the giving of testimony shall be
available before the Director. All
assertions of such privileges shall be
decided by the Director. The Director
may, upon request, certify a ruling on an
assertion of privilege for review by the
Deputy Attorney General.
(4) Subject to paragraph (f) of this
section, the Director may establish such
procedures as the Director deems
reasonably necessary to carry out the
functions assigned under this
paragraph.
(f)(1) Within 5 business days of
receipt by the Director under paragraph
(a) of this section of a report from a
Conducting Office, or a request for
corrective action from a Complainant
under paragraph (c)(1) of this section,
the Director shall issue an
Acknowledgement Order that:
(i) Acknowledges receipt of the report
or request;
(ii) Informs the parties of the relevant
case processing procedures and
timelines, including the manner of
designation of a representative, the time
periods for and methods of discovery,
the process for resolution of discovery
disputes, and the form and method of
filing of pleadings;
(iii) Informs the parties of the
jurisdictional requirements for full
adjudication of the request; and
(iv) Informs the parties of their
respective burdens of proof.
(2) In cases where the Director
determines that there is a question about
the Director’s jurisdiction to review a
request from the Complainant, the
Director shall, simultaneously with the
issuance of the Acknowledgement
Order, issue a Show-Cause Order
explaining the grounds for such
determination and directing that the
Complainant, within 15 calendar days
of receipt of such order, submit a
written statement, accompanied by
evidence, to explain why the request
should not be dismissed for lack of
jurisdiction. The Complainant’s written
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statement must provide the following
information as necessary to address the
jurisdictional question or as otherwise
directed:
(i) The alleged protected disclosure or
disclosures;
(ii) The date on which the
Complainant made any such disclosure;
(iii) The name and title of any
individual or office to whom the
Complainant made any such disclosure;
(iv) The basis for the Complainant’s
reasonable belief that any such
disclosure evidenced any violation of
law, rule, or regulation; gross
mismanagement; a gross waste of funds;
an abuse of authority; or a substantial
and specific danger to public health or
safety;
(v) Any action the FBI allegedly took
or failed to take, or threatened to take
or fail to take, against the Complainant
because of any such disclosure, the
name and title of all officials
responsible for each action, and the date
of each action;
(vi) The basis for the Complainant’s
belief that any official responsible for an
action knew of any protected disclosure,
and the date on which the official
learned of the disclosure;
(vii) The relief sought; and
(viii) The date the reprisal complaint
was filed with the Investigative Office
and the date on which the Conducting
Office notified the Complainant that it
was terminating its investigation into
the complaint, or if the Complainant has
not received such notice, evidence that
120 days have passed since the
Complainant filed a complaint of
reprisal with the Investigative Office.
(3) The FBI shall file a reply to the
Complainant’s response to the ShowCause Order within 20 calendar days of
receipt of such reply.
(i) The reply shall address issues
identified by the Director in the ShowCause Order and matters raised in the
Complainant’s response to that order
under paragraph (f)(2) of this section,
and shall include: a statement
identifying any FBI actions taken
against the Complainant and the reasons
for taking such actions; designation of
and signature by the FBI legal
representative; and any other
documents or information requested by
the Director.
(ii) The reply may also include any
and all documents contained in the FBI
record of the action or actions.
(4) After receipt of the FBI’s response,
the record on the jurisdictional issue
will close, absent a request from either
party establishing exigent circumstances
requiring the need for the presentation
of additional evidence or arguments.
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15:16 Feb 01, 2024
Jkt 262001
(g) If the Director orders corrective
action, such corrective action shall, as
appropriate, include: placing the
Complainant, as nearly as possible, in
the position the Complainant would
have been in had the reprisal not taken
place; reimbursement for attorney’s fees,
reasonable costs, medical costs
incurred, and travel expenses; back pay
and related benefits; compensatory
damages to the extent authorized by
law; and any reasonable and foreseeable
consequential damages.
(h) Whenever the Director determines
that there has been a reprisal prohibited
by § 27.2 of this part, the Director, in
addition to ordering any corrective
action as authorized by § 27.4(g), shall
forward to FBI OPR, FBI–INSD, and the
Director of the FBI, a copy of the
Director’s written opinion finding that
there has been a prohibited reprisal. FBI
OPR shall make an independent
determination of whether disciplinary
action is warranted.
(i) If the Director determines that
there has not been any reprisal
prohibited by § 27.2, the Director shall
report this finding in writing to the
Complainant, the FBI, and the
Conducting Office.
(j) The Director will not cite or rely
upon any unpublished FBI
whistleblower decision issued by the
Director or Deputy Attorney General in
rendering any decision under § 27.4.
■ 7. Revise § 27.5 to read as follows:
§ 27.5
Review.
(a) Within 30 calendar days of a
finding of a lack of jurisdiction, a final
determination on the merits, or
corrective action ordered by the
Director, the Complainant or the FBI
may request review by the Deputy
Attorney General of that determination
or order. The Deputy Attorney General
shall set aside or modify the Director’s
actions, findings, or conclusions found
to be arbitrary, capricious, and abuse of
discretion, or otherwise not in
accordance with law; obtained without
procedures required by law, rule, or
regulation having been followed; or
unsupported by substantial evidence.
The Deputy Attorney General has full
discretion to review and modify
corrective action ordered by the
Director, provided, however that if the
Deputy Attorney General upholds a
finding that there has been a reprisal,
then the Deputy Attorney General shall
order appropriate corrective action.
(b) The parties may not file an
interlocutory appeal to the Deputy
Attorney General from a procedural
ruling made by the Director during
proceedings pursuant to § 27.4 of this
part. The Deputy Attorney General has
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Frm 00020
Fmt 4700
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full discretion to review such rulings by
the Director during the course of
reviewing an appeal of the Director’s
finding of a lack of jurisdiction, final
determination, or corrective action order
brought under paragraph (a) of this
section.
(c) In carrying out the functions set
forth in this section, the Deputy
Attorney General may issue written
directives or orders to the parties as
necessary to ensure the efficient and fair
administration and management of the
review process.
■
8. Add § 27.7 to read as follows:
§ 27.7 Right to appeal to or seek corrective
relief from the U.S. Merit Systems
Protection Board.
An FBI whistleblower may appeal to,
or seek corrective relief from, the U.S.
Merit Systems Protection Board in
accordance with the provisions of 5
U.S.C. 2303(d).
■
9. Add § 27.8 to read as follows:
§ 27.8
Alternative dispute resolution.
(a) At any stage in the process set
forth in §§ 27.3 through 27.5 of this part,
the Complainant may request
Alternative Dispute Resolution (ADR)
through the Department of Justice
Mediator Corps (DOJMC) Program. The
Complainant may elect to participate in
ADR by notifying in writing the office
before which the matter is then pending.
(b) If the Complainant elects
mediation, the FBI, represented by the
Office of General Counsel, will
participate.
(c) When the Complainant requests to
engage in ADR, the process set forth in
§§ 27.3 through 27.5, as applicable,
including all time periods specified
therein, will be stayed for an initial
period of 90 days, beginning on the date
of transmittal of the matter to the
DOJMC Program office. Upon joint
request by the parties to the office before
which the matter is stayed, the period
of the stay may be extended up to an
additional 45 days. Further requests for
extension of the stay may be granted
only by the Director, regardless of the
office before which the matter is
pending, upon a joint request showing
good cause. The stay otherwise will be
lifted if the DOJMC Program notifies the
office before which the matter is stayed
that the Complainant no longer wishes
to engage in mediation, or that the
parties are unable to reach agreement on
resolution of the complaint and that
continued efforts at mediation would
not be productive.
■
10. Add § 27.9 to read as follows:
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§ 27.9 Authority of the Director to review
and decide claims of a breach of a
settlement agreement.
(a) Any party to a settlement
agreement reached in proceedings and
in a forum under this part may file a
claim of a breach of that settlement
agreement with the Director within 30
days of the date on which the grounds
for the claim of breach were known or
should have been known.
(b) The Director shall adjudicate any
timely claim of a breach of a settlement
agreement. The Director shall exercise
the authority granted under § 27.4(e)(4)
to ensure the efficient administration
and management of the adjudication of
the breach claim, pursuant to any
procedures the Director deems
reasonably necessary to carry out the
functions assigned under this
paragraph.
(c) A party may request, within 30
calendar days of a decision on a claim
of a breach of a settlement agreement by
the Director, review of that decision by
the Deputy Attorney General.
Dated: January 25, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024–01934 Filed 2–1–24; 8:45 am]
BILLING CODE 4410–AR–P
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
OMB Office of Management and Budget
NPRM Notice of proposed rulemaking
(advance, supplemental)
§ Section
U.S.C. United States Code
FL Florida
AICW Atlantic Intracoastal Waterway
FDOT Florida Department of
Transportation
II. Background Information and
Regulatory History
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2023–0652]
RIN 1625–AA09
Drawbridge Operation Regulation;
Atlantic Intracoastal Waterway, Jupiter,
FL
On October 20, 2023, the Coast Guard
published a notice of proposed
rulemaking entitled ‘‘Drawbridge
Operation Regulation; Atlantic
Intracoastal Waterway, at Jupiter, FL’’ in
the Federal Register (88 FR 72415).
There we stated why we issued the
NPRM and invited comments on our
proposed regulatory action related to
this regulatory change. During the
NPRM comment period that ended
November 20, 2023, no comments were
received.
AGENCY:
III. Legal Authority and Need for Rule
The Coast Guard is
temporarily modifying the operating
schedule that governs the Indiantown
Road Bridge across the Atlantic
Intracoastal Waterway (AICW), mile
1006.2, at Jupiter, Florida. This action is
necessary to alleviate vehicle traffic
congestion on the Indiantown Road
Bridge caused by the replacement of
another nearby bridge. Once
construction of the nearby bridge is
complete, the Indiantown Road
Drawbridge will return to normal
scheduled operations.
DATES: This temporary final rule is
effective from 12:01 a.m. on February 5,
The Coast Guard is issuing this rule
under authority in 33 U.S.C. 499. The
Indiantown Road Bridge across the
AICW, mile 1006.2, at Jupiter, Florida.
The Indiantown Road Bridge is a
double-leaf bascule bridge with 35 feet
of vertical clearance in the closed
position. The operating schedule
requires the bridge to open each hour
and half-hour as needed per 33 CFR
117.261(q).
The bridge owner, Florida Department
of Transportation, has requested this
change during the replacement of an
adjacent bridge. The closing of the
adjacent bridge has resulted in
significant increase in vehicle traffic
congestion of the area. The only
alternate route for land traffic to access
Coast Guard, Department of
Homeland Security (DHS).
ACTION: Temporary final rule.
SUMMARY:
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2024, through 11:59 p.m. on August 31,
2025.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov. Type the docket
number USCG–2023–0652 in the
‘‘SEARCH’’ box and click ‘‘SEARCH’’. In
the Document Type column, select
‘‘Supporting & Related Material.’’
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
final rule, call or email Mr. Leonard
Newsom, Seventh District Bridge
Branch, Coast Guard; telephone (305)
415–6946, email Leonard.D.Newsom@
uscg.mil.
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15:16 Feb 01, 2024
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7287
the mainland is via the Donald Ross
Bridge approximately 4.5 miles south of
the Indiantown Road Bridge. This rule
will reduce the number of openings
which will subsequently allow the local
traffic to flow with less obstructions and
delay.
IV. Discussion of Comments, Changes,
and the Temporary Final Rule
The Coast Guard provided a comment
period of 30 days, and no comments
were received. The current regulation
provides for the bridge to open twice an
hour. This temporary final rule allows
for the bridge to remain closed to
navigation during designated times and
all other times open twice an hour.
Vessels that can pass beneath the bridge
without an opening may do so at any
time.
V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
Executive orders related to rulemaking.
Below we summarize our analyses
based on a number of these statutes and
Executive orders.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits.
This rule has not been designated a
‘‘significant regulatory action,’’ under
section 3(f) of Executive Order 12866, as
amended by Executive Order 14094
(Modernizing Regulatory Review). This
rule has not been designated a
‘‘significant regulatory action,’’ under
Executive Order 12866. Accordingly, it
has not been reviewed by the Office of
Management and Budget (OMB).
This regulatory action determination
is based on the ability that vessels able
to transit the bridge while in the closed
position may do so at any time.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601–612, as amended,
requires Federal agencies to consider
the potential impact of regulations on
small entities during rulemaking. The
term ‘‘small entities’’ comprises small
businesses, not-for-profit organizations
that are independently owned and
operated and are not dominant in their
fields, and governmental jurisdictions
with populations of less than 50,000.
The Coast Guard received zero
comments from the Small Business
Administration on this rule. The Coast
Guard certifies under 5 U.S.C. 605(b)
that this rule will not have a significant
E:\FR\FM\02FER1.SGM
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Agencies
[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Rules and Regulations]
[Pages 7277-7287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01934]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Parts 0 and 27
[Docket No. JMD 154; AG Order No. 5872-2024]
RIN 1105-AB47
Whistleblower Protection for Federal Bureau of Investigation
Employees
AGENCY: Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule updates the Department of Justice (``Department'')
regulations on the protection of whistleblowers in the Federal Bureau
of Investigation (``FBI''). This update reflects changes resulting from
an assessment conducted by the Department in response to Presidential
Policy Directive-19 of October 10, 2012, ``Protecting Whistleblowers
with Access to Classified Information'' (``PPD-19''), and the Federal
Bureau of Investigation Whistleblower Protection Enhancement Act of
2016 (``FBI WPEA of 2016''). This
[[Page 7278]]
rule updates the description of protected whistleblower disclosures and
covered personnel actions to conform to the FBI WPEA of 2016; provides
for more equal access to witnesses; and specifies that compensatory
damages may be awarded as appropriate. This rule also adds new
provisions to formalize practices that have been implemented
informally, including providing for the use of acknowledgement and
show-cause orders, providing access to alternative dispute resolution
(``ADR'') through the Department's FBI Whistleblower Mediation Program,
clarifying the authority to adjudicate allegations of a breach of a
settlement agreement, and reporting information about those responsible
for unlawful reprisals. This regulation reiterates that the
determinations by the Director of the Office of Attorney Recruitment
and Management (``OARM'') must be independent and impartial.
DATES: Effective March 4, 2024.
FOR FURTHER INFORMATION CONTACT: Morton J. Posner, General Counsel,
Justice Management Division; email: [email protected];
telephone: 202-514-3452; Michael E. Stamp, Acting Director, Office of
Attorney Recruitment and Management; email: [email protected];
telephone: 202-598-7772.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
On November 1, 1999, the Department issued a final rule entitled
``Whistleblower Protection For Federal Bureau of Investigation
Employees,'' published in the Federal Register at 64 FR 58782,
establishing procedures under which (1) FBI employees or applicants for
employment with the FBI may make disclosures of information protected
by the Civil Service Reform Act of 1978, Public Law 95-454 (``CSRA''),
and the Whistleblower Protection Act of 1989 (``WPA''), Public Law 101-
12; and (2) the Department will investigate allegations by FBI
employees and applicants for employment of reprisal for making such
protected disclosures and take appropriate corrective action. The rule
is codified at 28 CFR part 27.
On January 9, 2008, the Department updated part 27 as well as 28
CFR 0.29d primarily to conform to organizational changes brought about
by a restructuring of relevant offices of the FBI. Technical Amendments
to the Regulations Providing Whistleblower Protection for Federal
Bureau of Investigation Employees, 73 FR 1493.
On October 10, 2012, President Barack Obama issued PPD-19, which,
in part, directed that the Department prepare a report that (1)
assesses the efficacy of the Department's FBI whistleblower protection
regulations found in 28 CFR part 27 in deterring the personnel
practices prohibited in 5 U.S.C. 2303, and in ensuring appropriate
enforcement of section 2303, and (2) describes any proposed revisions
to those regulations that would increase their effectiveness in
fulfilling the purposes of section 2303. PPD-19 at 5.
In response to this directive, the Office of the Deputy Attorney
General conducted a comprehensive review of the Department's
whistleblower regulations and historical experience with their
operation.\1\ As part of that process, the Department formed a working
group, seeking participation from the other key participants in
administering the Department's FBI whistleblower regulations--the FBI,
OARM, the Office of the Inspector General, and the Office of
Professional Responsibility--as well as the Justice Management
Division. In addition, the Department consulted with the Office of
Special Counsel (``OSC'') and FBI employees, as required by PPD-19. The
Department also consulted with representatives of non-governmental
organizations that support whistleblowers' rights and with private
counsel for whistleblowers (collectively, whistleblower advocates).\2\
---------------------------------------------------------------------------
\1\ On November 27, 2012, President Obama signed the
Whistleblower Protection Enhancement Act of 2012, Public Law 112-
199, (``WPEA of 2012''). The Department considered the WPEA of 2012
as part of its PPD-19 review.
\2\ The Department convened a meeting with the following
whistleblower advocate organizations: Project on Government
Oversight; Kohn, Kohn & Colapinto; Government Accountability
Project; American Civil Liberties Union; and a former chief counsel
to the chairman of the Merit Systems Protection Board.
---------------------------------------------------------------------------
With respect to consultation with FBI employees, the FBI's
representatives on the Department's working group consulted with
various FBI entities: the Ombudsman; the Office of Equal Employment
Opportunity Affairs; the Office of Integrity and Compliance; the Office
of Professional Responsibility; the Human Resources Division; and the
Inspection Division. The representatives also solicited the views of
each of the FBI's three official advisory committees that represent FBI
employees--the All-Employees Advisory Committee, the Agents Committee,
and the Middle-Management Committee.
In April 2014, after completion of the PPD-19 review, the
Department issued a report, ``Department of Justice Report on
Regulations Protecting FBI Whistleblowers'' (``PPD-19 Report''). The
report considered the historical context of the Department's efforts to
protect FBI whistleblowers from reprisal and the Department's current
policies and procedures for adjudicating claims of reprisal against FBI
whistleblowers; summarized and analyzed statistics regarding the use of
these policies and procedures in recent years; and identified desired
changes to existing policies and procedures as a result of this
assessment.
The Department issued a notice of proposed rulemaking on March 29,
2023, to reflect the PPD-19 Report's findings and recommendations, as
modified to comply with the FBI WPEA of 2016, discussed in further
detail below, which President Obama signed on December 16, 2016.
II. Historical Background on FBI Whistleblower Protection
Legislative protection of civilian Federal whistleblowers from
reprisal began in 1978 with passage of the CSRA, and was expanded by
the WPA and the Whistleblower Protection Enhancement Act of 2012,
Public Law 112-199 (``WPEA of 2012''). Currently, Federal employees
fall into three categories. Most civilian Federal employees are fully
covered by the statutory regime established by the CSRA, which permits
them to challenge alleged reprisals through the OSC and the Merit
Systems Protection Board (``MSPB''). By contrast, some Federal agencies
that deal with intelligence are expressly excluded from the
whistleblower protection scheme established by these statutes.
The FBI is in an intermediate position: Although it is one of the
agencies expressly excluded from the scheme established for Federal
employees generally, its employees nevertheless are protected by a
separate statutory provision and special regulations promulgated
pursuant to that provision, which forbid reprisals against FBI
whistleblowers and provide an administrative remedy within the
Department. See 28 CFR part 27.
To elaborate, the CSRA sets forth ``prohibited personnel
practices,'' which are a range of personnel actions that the Federal
Government may not take against Federal employees. One such prohibited
personnel practice is retaliating against an employee for revealing
certain agency information. Specifically, the CSRA originally made it
illegal for an agency to take or fail to take a personnel action with
respect to any employee or applicant for employment as a reprisal for
disclosure
[[Page 7279]]
of information that the employee or applicant reasonably believed
evidenced a violation of any law, rule, or regulation, or
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Public Law
95-454, sec. 101(a), codified at 5 U.S.C. 2302(b)(8). The CSRA also
created the MSPB and OSC to enforce the prohibitions on specified
personnel practices.
The CSRA, however, expressly excluded from this scheme the FBI, the
Central Intelligence Agency, various intelligence elements of the
Department of Defense, and any other executive agency or unit thereof
as determined by the President with the principal function of
conducting foreign intelligence or counterintelligence activities.
Public Law 95-454, sec. 101(a), codified at 5 U.S.C. 2302(a)(2)(C)(ii).
For the FBI alone, the CSRA specifically prohibited taking a
personnel action against employees or applicants for employment as a
reprisal for disclosing information that the employee or applicant
reasonably believed evidenced a violation of any law, rule, or
regulation, or mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety. Id., codified at 5 U.S.C. 2303(a)(1), (2). The CSRA defined a
``personnel action'' for the purpose of the FBI-specific prohibition as
any action specifically described in clauses (i) through (x) of 5
U.S.C. 2302(a)(2)(A), taken with respect to an employee in--or an
applicant for--a position other than one of a confidential, policy-
determining, policymaking, or policy-advocating character. Id.,
codified at 5 U.S.C. 2303(a). In addition, the CSRA limited the
protection of the FBI-specific prohibition to only those disclosures
that the FBI employee made through narrowly defined internal channels--
i.e., to the Attorney General or the Attorney General's designee. Id.
Finally, the CSRA directed the President to provide for the enforcement
of the provision relating to FBI whistleblowers in a manner consistent
with applicable provisions of 5 U.S.C. 1206, the section of the CSRA
that originally set out the responsibilities of the OSC, the MSPB, and
agency heads in response to a whistleblower complaint and provided for
various remedies. Id., codified at 5 U.S.C. 2303(c).
In April, 1980, the Department published a final rule implementing
section 2303. The rule provided, among other things, for a stay of any
personnel action if there were reasonable grounds to believe that the
personnel action was taken, or was to be taken, as a reprisal for a
disclosure of information by the employee to the Attorney General or
the Attorney General's designee that the employee reasonably believed
evidenced wrongdoing covered by section 2303. Office of Professional
Responsibility; Protection of Department of Justice Whistleblowers, 45
FR 27754, 27755 (Apr. 24, 1980).
In 1989, the statutory scheme for most civilian employees changed
in some respects when Congress passed the WPA, which significantly
expanded the avenues of redress generally available to civilian Federal
employees. In doing so, it replaced section 1206 with sections 1214 and
1221; these new sections set forth the procedures under which OSC would
investigate prohibited personnel practices and recommend or seek
corrective action, and the circumstances under which an individual
right of action before the MSPB would be available. Public Law 101-12,
sec. 3. Consistent with this change, the WPA amended section 2303,
governing FBI whistleblowers, to replace the requirement that
enforcement of whistleblower protections be consistent with applicable
provisions of section 1206 with a requirement that enforcement be
consistent with applicable provisions of newly added sections 1214 and
1221. Public Law 101-12, sec. 9(a)(1).
The WPA also amended the regime generally applicable to civil
service employees by revising section 2302 to protect only disclosures
of information the employee reasonably believes evidences ``gross
mismanagement,'' rather than ``mismanagement,'' as originally provided
by the CSRA. Public Law 101-12, sec. 4(a). However, the WPA did not
make a corresponding change to section 2303, the statute applicable to
FBI whistleblowers.
On April 14, 1997, President William J. Clinton issued a memorandum
delegating to the Attorney General the functions concerning employees
of the FBI vested in the President by the CSRA, and directing the
Attorney General to establish appropriate processes within the
Department to carry out these functions. Delegation of Responsibilities
Concerning FBI Employees Under the Civil Service Reform Act of 1978, 62
FR 23123 (Apr. 28, 1997). In November, 1999, the Department published a
final rule establishing procedures under which FBI employees or
applicants for employment may make disclosures of wrongdoing. 64 FR
58782 (Nov. 1, 1991). The rule created a remedial scheme within the
Department through which FBI employees can seek redress when they
believe they have suffered reprisal for making a protected disclosure.
Subject to minor amendments in 2001 and 2008, the rule, codified at 28
CFR part 27, remains in force.
On November 27, 2012, the month following President Obama's
issuance of PPD-19, he signed the WPEA of 2012 into law. That act,
among other things, amended 5 U.S.C. 1214 and 5 U.S.C. 1221 to
authorize awards of compensatory damages. Although the FBI is expressly
excluded from coverage under these statutory provisions and is instead
covered by 5 U.S.C. 2303, section 2303 directs that the President
ensure enforcement of section 2303 in a ``manner consistent with the
applicable provisions of sections 1214 and 1221.'' 5 U.S.C. 2303(c).
The WPEA of 2012 also expanded the number of prohibited personnel
actions set out in section 2302(a)(2), but made no corresponding change
to the cross-reference in section 2303(a). Accordingly, the Department
has considered the WPEA of 2012's changes to sections 1214, 1221, and
2302(a) and their impact on the FBI's whistleblower protection program
under section 2303 and has concluded that corresponding technical
amendments to the current regulations are appropriate, as described
further below.
On December 16, 2016, President Obama signed Public Law 114-302,
the FBI WPEA of 2016. That statute made two changes to the statutory
whistleblower protection scheme applicable to FBI employees. First, it
expanded the list of recipients set forth in 5 U.S.C. 2303(a) to whom a
disclosure could be made to be protected (assuming the substantive
requirements are met). Protected disclosures now may be made to an
employee's supervisor in the employee's direct chain of command, up to
and including the Attorney General; the Inspector General; the
Department's Office of Professional Responsibility; the FBI Office of
Professional Responsibility; the FBI Inspection Division; Congress, as
described in 5 U.S.C. 7211; OSC; or an employee designated to receive
such disclosures by any officer, employee, office, or division of the
listed entities. See Public Law 114-302, sec. 2.
Second, the FBI WPEA of 2016 changed the substantive requirement
for a protected disclosure, requiring that the disclosure be one that
the discloser reasonably believes evidences ``any violation''
(previously, ``a violation'') of any law, rule, or regulation, or
``gross mismanagement'' (previously, just ``mismanagement''), in
addition to the
[[Page 7280]]
previous (and unchanged) provision for disclosures of a gross waste of
funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id.
On December 23, 2022, President Joseph Biden signed Public Law 117-
263, which amended 5 U.S.C. 2303 to afford FBI whistleblowers with the
right to (1) appeal a final determination or corrective action order to
the MSPB, and (2) subject to certain conditions, seek corrective action
directly from the MSPB pursuant to 5 U.S.C. 1221. Public Law 117-263,
sec. 5304(a), codified at 5 U.S.C. 2303(d)(1), (2).
Finally, on March 29, 2023, the Department published a proposed
rule, which intended to (1) improve, pursuant to PPD-19 and consistent
with the Department's recommendations in the PPD-19 Report, the
internal investigation and adjudication of whistleblower retaliation
claims by FBI employees and applicants for employment under the
remedial scheme initially established in 1999 and codified at 28 CFR
part 0 and part 27; and (2) ensure that this process is consistent with
changes enacted by the WPEA of 2012 and the FBI WPEA of 2016. See 88 FR
18487 (March 29, 2023). Through the proposed rule, the Department
invited specific comments on and recommendations for how the Department
might further revise the regulations to increase fairness,
effectiveness, efficiency, and transparency, including to provide
enhanced protections for whistleblowers, in addition to the proposed
changes. Id.
III. Comments to the Proposed Rule and Department Responses
Following a period for public comment on the March 29, 2023,
proposed rule, the Department received a number of comments, many of
which generally endorsed the rulemaking proposal. Comments on the
proposed rule, and the Department's responses, are included in this
section, where they apply to specific subsections of the rule.
Definition of a ``Protected Disclosure''
In the proposed rule, the Department proposed several changes to
the definition of a ``protected disclosure'' under 28 CFR 27.1(a) to
conform to the requirements of the FBI WPEA of 2016. Under the current
rule, 28 CFR 27.1(a), a disclosure is considered protected if (1) it
was made to an office or individual designated to receive a protected
disclosure, and (2) the person making the disclosure reasonably
believed the disclosure evidenced a specific type of wrongdoing listed
in Sec. 27.1(a)(1) and (a)(2). The current rule lists the following
entities and individuals as designated recipients of a protected
disclosure:
the Department's Office of Professional Responsibility;
the Department's Office of the Inspector General;
the FBI Office of Professional Responsibility;
the FBI Inspection Division Internal Investigations
Section;
the Attorney General;
the Deputy Attorney General;
the Director of the FBI;
the Deputy Director of the FBI; or
the highest ranking official in any FBI field office.
The proposed rule proposed to expand the list to comply with the
change made by the FBI WPEA of 2016. Specifically, the proposed
amendment to Sec. 27.1(a) would require that, to be protected, a
disclosure must be made to:
a supervisor in the direct chain of command of the
employee, up to and including the Attorney General;
the Department's Inspector General;
the Department's Office of Professional Responsibility;
the FBI Office of Professional Responsibility;
the FBI Inspection Division;
Congress, as described in 5 U.S.C. 7211;
OSC; or
an employee of any of the above entities, when designated
by any officer, employee, office, or division thereof for the purpose
of receiving such disclosures.
With respect to Sec. 27.1(a)(2), the current rule requires that
the person making the disclosure reasonably believe that it evidences:
``Mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.'' In the
proposed rule, the Department proposed to amend Sec. 27.1(a)(2) to
conform to the FBI WPEA of 2016 by removing ``Mismanagement'' and
replacing it with ``Gross mismanagement.''
Several commenters expressed concern with the revised definition of
a ``protected disclosure'' under 28 CFR 27.1(a) in the proposed rule.
One commenter expressed concern with the expanded list of offices and
officials designated to receive a protected disclosure under 28 CFR
27.1(a) in the proposed rule, noting that additional recipients ``may
result in a game of telephone where information may be misconstrued
when it gets passed up the chain.'' Another commenter wanted to remove
the limited list of recipients entirely. Several commenters expressed
concern with the proposed change to Sec. 27.1(a)(2) to remove
``Mismanagement'' and replace it with ``Gross mismanagement.'' These
commenters were concerned that the change would narrow the protections
currently afforded FBI whistleblowers or create difficulties in
interpretation.
Notwithstanding these concerns, the Department adopts in this final
rule the changes to 28 CFR 27.1(a) set forth in the proposed rule. The
designated recipients for protected disclosures are mandated by
statute, as is the requirement that only ``gross mismanagement''--as
opposed to any other type of ``mismanagement''--constitutes a protected
disclosure under the FBI WPEA of 2016, 5 U.S.C. 2303(a)(1) and
(a)(2)(B). Because the purpose of this proposed rule is to conform 28
CFR part 27 to the FBI WPEA of 2016, the Department declines to adopt
the changes sought by the commenters.
Modifying the Definition of a ``Personnel Action''
One commenter suggested amending the ``personnel action''
definition under 28 CFR 27.2(b) to include all twelve actions currently
listed in 5 U.S.C. 2302(a)(2)(A). The Department notes that this final
rule updates the description of protected whistleblower disclosures and
covered personnel actions to conform to the FBI WPEA of 2016. The
commenter also suggested that the Department further expand the
definition of ``personnel action'' in the rule to include retaliatory
investigations and the denial, suspension, or revocation of a security
clearance. Because the term ``personnel action'' is defined in 5 U.S.C.
2302(a)(2)(A), and the purpose of this proposed rule is to conform 28
CFR part 27 to the FBI WPEA of 2016, the Department declines to adopt
this suggestion.
Statement of Independence and Impartiality of OARM Determinations
During the Department's PPD-19 review, whistleblower advocates
expressed concern with the internal Department adjudication of FBI
reprisal cases brought under part 27. To address this concern, the
Department added language to 28 CFR 27.4(e)(1) in the proposed rule
that the determinations by the Director of OARM (``OARM Director'')
shall be independent and impartial.
One commenter suggested that the rule be further updated to apply
the statement of independence and impartiality to the OARM Director's
decision on a Conducting Office's request to stay a personnel action
under
[[Page 7281]]
28 CFR 27.4(b). That provision states, in relevant part: ``[T]he
Conducting Office may request the Director to order a stay of any
personnel action for 45 calendar days if it determines that there are
reasonable grounds to believe that a reprisal has been or is to be
taken. The Director shall order such stay . . . unless the Director
determines that, under the facts and circumstances involved, such a
stay would not be appropriate.'' Section 27.4(d) similarly addresses
the OARM Director's authority to grant a complainant's request for a
stay of a personnel action ``if the Director determines that such a
stay would be appropriate.''
Because the commenter's request for a statement of the OARM
Director's independent and impartial determination on a request for a
stay of a personnel action is consistent with the concerns raised by
whistleblower advocates during the Department's PPD-19 review regarding
the OARM Director's determinations under Sec. 27.4(e), the Department
adopts the commenter's suggestion, and also applies it to Sec.
27.4(d). This final rule thus changes Sec. 27.4(e)(1) to read: ``The
determination made by the Director under this section shall be
independent and impartial.''
Right to a Hearing
One commenter recommended that the rule provide a party with the
right to a hearing after OARM finds that it has jurisdiction over a
matter. Presently, neither party has an automatic right to a hearing
before the OARM Director; however, under Sec. 27.4(e)(3), either party
may request a hearing. The OARM Director currently has the discretion
to grant or deny a party's request for a hearing. Under current
practice, the request will be granted when the complainant has
presented a cognizable legal claim and there are disputed issues of
material fact that need resolution through live, testimonial evidence.
In determining whether a hearing is appropriate in a particular case,
the OARM Director currently considers whether a hearing would result in
unnecessary delay, needless expenditure of administrative resources, or
unnecessary burdens on the parties, and whether live testimony or
argument would be helpful in reaching a decision. The Department
concludes that automatically granting a right to a hearing after a
finding of OARM jurisdiction would not be an efficient means of
resolving all matters over which OARM has jurisdiction. The Department
therefore declines to adopt the recommendation.
Equalizing Access to Witnesses
During the Department's PPD-19 review, whistleblower advocate
groups raised concerns that, in some cases, the FBI has obtained
evidence from FBI management officials or employees as witnesses,
either through affidavits or testimony at a hearing, but that
complainants were unable to obtain similar access to FBI witnesses,
particularly former employees. Because the OARM Director lacks the
authority to compel attendance at a hearing, appearance at a
deposition, or the production of documentary evidence from individuals
not currently employed by the Department, the groups asked the
Department to consider implementing a regulatory provision that would
help equalize access to witnesses. Because the Department agreed with
that concern, the Department added a sentence to 28 CFR 27.4(e)(3) in
the proposed rule to give the OARM Director the discretion to prohibit
a party from adducing or relying on evidence from a person whom the
opposing party does not have an opportunity to examine or to give less
weight to such evidence.
Two commenters suggested changes to the proposed rule that would
eliminate the OARM Director's discretion and automatically preclude the
use of evidence that complainants do not have access to or relying on
evidence from a witness the opposing party is unable to examine.
In the Department's view, eliminating the Director's discretion by
requiring that unavailable witnesses be excluded in all cases would
unfairly disadvantage whistleblowers when, through no fault of their
own, witnesses who initially provided affidavits or other evidence in
support of the whistleblower later become unable or unwilling to
cooperate further. Under the proposed rule, depending on the
circumstances of each case, the Director may exercise discretion in
allowing a whistleblower to present such evidence, despite the
witness's unavailability to the FBI. Because the exercise of discretion
is necessary to conduct fair and just proceedings, the Department
declines to adopt the suggestion to eliminate the OARM Director's
discretion regarding how best to address the parties' unequal access to
witnesses.
Another commenter expressed a concern that the OARM Director's
discretion in the proposed revision to 28 CFR 27.4(e)(3) should include
stipulations, or, alternatively, a standard specifying the
circumstances in which the OARM Director would exercise his or her
discretion.
The Department agrees that it should describe some of the factors
that the OARM Director will consider when exercising the OARM
Director's discretion. But because we cannot know with certainty the
circumstances in which the OARM Director may decide to prohibit a party
from relying on witness evidence when the other party did not have
equal access to it, the Department declines to adopt the commenter's
suggestion as proposed. The Department will, however, modify Sec.
27.4(e)(3) in the final rule to specify some factors that the OARM
Director may consider in the OARM Director's decision to exclude such
evidence.
One commenter agreed with the proposed provision, but asserted that
the Department should implement adequate security to protect witnesses
from possible reprisal. OARM currently uses procedures that protect
certain information obtained during the course of discovery containing
personally identifiable information that could potentially impair the
safety or privacy rights of past and current employees. OARM's
protective procedures include the use of protective orders, redaction
of documents, and closed hearings for the presentation of any live
testimonial evidence. Given the OARM procedures already in place, the
Department declines to adopt this suggestion.
Finally, one commenter suggested that the rule be modified to
require the FBI to attempt to secure the testimony from employees in
Federal service who are employed by other Federal agencies at the time
of adjudication of the whistleblower reprisal complaint.
Requiring the FBI to attempt to secure the testimony from Federal
employees working at other Federal agencies, however, would require the
FBI to communicate directly with potentially adverse witnesses on
behalf of complainants. The proposed rule helps to equalize the
parties' access to witnesses. The commenter's suggested change does not
further that goal. The Department declines to adopt this suggestion.
Acknowledgement and Show-Cause Orders
In the proposed rule, the Department added a new paragraph (f) to
Sec. 27.4 to formalize the OARM Director's existing practice of
issuing acknowledgement and show-cause orders similar to those issued
by the MSPB. Under proposed 28 CFR 27.4(f)(1), the acknowledgment
orders issued by the OARM Director shall include: information on the
relevant case processing procedures and timelines, including the manner
of designation of a representative; the time
[[Page 7282]]
periods for and methods of discovery; the process for resolution of
discovery disputes; and the form and method of filing of pleadings. The
proposed provision further specified that the Acknowledgement Order
shall inform the parties of the jurisdictional requirements for full
adjudication of the request for corrective action and their respective
burdens of proof.
In cases where the OARM Director determines that there is an
initial question of the OARM Director's jurisdiction to review a
request for corrective action, the OARM Director shall issue, along
with the Acknowledgement Order, a Show-Cause Order explaining the
grounds for such determination and directing that, within 10 calendar
days of receipt of the order, the complainant submit a written response
explaining why the request should not be dismissed for lack of
jurisdiction. The FBI's reply to the complainant's response to the
Show-Cause Order is due within 20 calendar days within its receipt of
the complainant's response under proposed Sec. 27.4(f)(3).
Two commenters suggested an extension of the 10-calendar day
deadline for the complainant's response to the Show-Cause Order under
Sec. 27.4(f)(2). The Department adopts the proposal to extend that
deadline and modifies Sec. 27.4(f)(2) of this final rule to provide
the complainant with 15 calendar days to respond to a Show-Cause Order.
Damages
One commenter suggested modifying 28 CFR 27.4(g) in the proposed
rule to make an award of attorney's fees and costs mandatory whenever
corrective action is ordered.
Section 27.4(f) currently provides the OARM Director with the
authority to order certain corrective action to place the complainant,
as nearly as possible, in the position he or she would have been in had
the reprisal not taken place. Such corrective action ``may include,''
but is not limited to, reimbursement for attorney' fees and reasonable
costs. Under section 2303(c), the Department is charged with enforcing
28 CFR part 27 ``consistent with applicable provisions of 1214 and
1221.'' Corrective action ordered by the MSPB to a prevailing party in
an Individual Right of Action appeal under 5 U.S.C. 1221(g)(1)(B)
``shall include'' attorney's fees and costs provided that other
requirements are met. Because the Department already enforces its
corrective action authority in FBI whistleblower cases ``consistent
with'' section 1221(g)(1)(B), and there are circumstances where an
award of attorney's fees would not be mandatory (e.g., where the
complainant is a pro se litigant), the Department declines to adopt
this suggestion as stated. However, this final rule, in new Sec.
27.4(g), authorizes the OARM Director to order corrective action to a
prevailing complainant that ``shall, as appropriate,'' include
attorney's fees and reasonable costs, among other things.
Transparency Regarding OARM and Deputy Attorney General Decisions, and
the Publication of Reprisal Findings
In the proposed rule, the Department added Sec. 27.4(h) to
formalize OARM's policy of forwarding to the FBI Office of Professional
Responsibility, the FBI Inspection Division, and the FBI Director a
copy of the final determination in cases where the OARM Director finds
reprisal.
One commenter endorsed the proposal, but suggested that the
Department also report findings of reprisal to ``any other appropriate
law enforcement authority.''
Under current practice, the OARM Director refers findings of
reprisal internally within the FBI, and, as discussed below, the
Department has decided to publish in redacted form all dispositive OARM
decisions and Deputy Attorney General decisions reversing or remanding
OARM decisions, including those involving reprisal findings. The
Department believes these actions will help to hold those responsible
for unlawful reprisal accountable and deter others from violating the
protections afforded FBI whistleblowers. Because there is no other
``law enforcement authority'' that would accomplish these goals, the
Department declines to adopt this recommendation.
Another commenter endorsed the proposal, but suggested that
internal reporting alone is likely insufficient to deter retaliatory
conduct by FBI officials. The commenter suggested that the Department
consider publishing redacted or sanitized findings ``to ensure that
[the] individuals responsible understand the importance of respecting
whistleblower protections and the significant consequences for
violating them.'' Two other commenters also recommended that the
proposed regulation require that OARM publish its decisions, and one
suggested prohibiting OARM from citing or relying on a citation to an
unpublished decision that all parties do not have access to.
In response, the Department has decided to publish in redacted form
any decisions in closed cases on the merits, as well as procedural
decisions showing how the OARM Director and the Deputy Attorney General
have analyzed and decided issues relating to jurisdiction, discovery,
merits, corrective relief, and other issues of relevance to FBI
whistleblowers. All future decisions meeting these criteria will be
made public in redacted form, as will decisions issued after January 1,
2018. This is a Departmental policy decision, subject to revision or
rescission, and is therefore not memorialized in this final rule. The
Department also adopts the recommendation to specify in this final
rule, in a new Sec. 27.4(j), that the OARM Director will not
specifically cite or rely on any unpublished FBI whistleblower
decisions in OARM issuances.
Expanding the Availability of ADR
In the proposed rule, the Department proposed to add 28 CFR 27.7
(Sec. 27.8 in this final rule) to formalize inclusion of the
Department's FBI Whistleblower Mediation Program, which was implemented
in 2014. One commenter suggested that the provision be modified to
expand the availability of ADR to ``unprotected or potential''
whistleblowers who have not obtained ``protected status'' under 28 CFR
part 27.
As discussed in the proposed rule, mediation through the FBI
Whistleblower Mediation Program may be requested by the complainant at
any stage of proceedings under 28 CFR part 27--i.e., from the initial
filing of the complaint with the Conducting Office and at any
subsequent point thereafter while the complaint is being investigated
or adjudicated. The rule does not require that the complainant be
deemed a ``protected'' whistleblower by the OARM Director under the
adjudicative procedures set forth in 28 CFR 27.4 before electing ADR
through the FBI Whistleblower Mediation Program. However, the FBI
Whistleblower Mediation Program is only available to complainants who
have availed themselves of the protections provided in 28 CFR part 27.
To the extent the commenter suggests that the program be widely
available to FBI employees generally, the Department declines to adopt
this comment. The program was created, resourced, and implemented for
FBI whistleblower complainants only, and was not intended to be
accessible to all FBI employees.
Claims Involving a Breach of a Settlement Agreement
In the proposed rule, the Department proposed to add 28 CFR 27.8,
which would authorize the OARM Director to
[[Page 7283]]
adjudicate claims involving a breach of a settlement agreement.
Proposed Sec. 27.8 provides that a party may file with the OARM
Director a claim of a breach of a settlement agreement reached in
proceedings under 28 CFR part 27. Any claim of a breach of a settlement
agreement must be filed with the OARM Director ``within 30 days of the
date on which the grounds for the claim of breach were known.''
One commenter suggested that there is a conflict of interest
presented by proposed Sec. 27.8, ``by reserving to the Department the
right to decide whether the Department itself breached the settlement
agreement.'' The commenter suggested that the provision should be
modified to allow breach claims to be adjudicated in an external forum.
The Department declines to adopt this comment because other
Department components, and not the FBI, adjudicate breach claims. Just
as OARM has fairly decided FBI whistleblower retaliation claims, it can
also fairly decide claims involving a breach of a settlement agreement.
The commenter additionally suggested that proposed Sec. 27.8(a) be
modified to include either a ``reasonable suspicion'' or ``knew/should
have known'' standard, as, according to the commenter, ``those
standards are more extensively construed in precedent and thus clearer
in their application.''
The Department agrees with and adopts the latter comment. This
final rule, which designates proposed Sec. 27.8(a) as Sec. 27.9(a) in
the final rule, adds the words ``or should have been known'' after the
word ``known'' in that paragraph.
Reference to 2303(d) MSPB Appeal Rights in the Final Rule
In the preamble to the proposed rule, the Department referenced the
recent enactment of 5 U.S.C. 2303(d), which affords FBI whistleblowers
the right to (1) appeal a final determination or corrective action
order to the MSPB, and (2) subject to certain conditions, seek
corrective action directly from the MSPB pursuant to 5 U.S.C. 1221. See
5 U.S.C. 2303(d)(1) and (d)(2).
Several commenters suggested that the final rule include specific
reference to the MSPB appeal rights provided to FBI whistleblowers in 5
U.S.C. 2303(d). One commenter additionally suggested that the final
rule add new paragraphs under 28 CFR 27.4 and 27.5 to require notice to
the complainant of the right to file an Individual Right of Action
appeal with the MSPB pursuant to 5 U.S.C. 2303, specify the time frames
for doing so, and make clear that the complainant's filing of a request
for review by the Deputy Attorney General under 28 CFR 27.5 does not
affect the complainant's rights under 5 U.S.C. 2303(d).
In response, the Department agrees that 28 CFR part 27 should
reference section 2303(d), which will be included in this final rule,
as a new Sec. 27.7 (which, in turn, requires changing proposed
Sec. Sec. 27.7 and 27.8 to Sec. Sec. 27.8 and 27.9, respectively).
The Department declines to adopt the suggestion that the final rule
make clear that the complainant's filing of a request for review by the
Deputy Attorney General does not affect the complainant's section
2303(d) rights. By citing to section 2303(d) in new Sec. 27.7, the
Department clearly informs complainants of the right to file an appeal
with the MSPB.
Citation to MSPB Case Precedent as Binding
One commenter suggested that, given the recent passage of 5 U.S.C.
2303(d), the final rule should include a new provision specifying that
``all adjudications'' under 28 CFR part 27 will follow the case
precedent of the MSPB and its reviewing courts. Relatedly, the
commenter also suggests that, consistent with MSPB case precedent, the
final rule should modify 28 CFR 27.1(a) to make clear that the
whistleblower protections extend to ``perceived'' whistleblowers.
In response, the Department declines to adopt the suggestion that
the Department adopt as binding the case law of the MSPB and its
reviewing courts. While the Department looks to MSPB and related
Federal cases as persuasive, the Deputy Attorney General has the
ultimate authority to review and decide FBI whistleblower reprisal
appeals under 28 CFR part 27.
Procedural Case Processing Information
One commenter suggested that the Department include a new
procedural provision to clarify certain routine aspects of
administrative litigations. The Department declines to adopt the
suggestion, as case procedures and processing items are currently
publicly available in case procedure and processing documents issued by
the Office of the Deputy Attorney General and OARM and so need not be
memorialized in this final rule.
Rewording ``Whistleblower''
One commenter suggests developing ``an alternate title for the term
`whistleblower''' because it ``seems to always have a negative
connotation when used.''
In response, the Department declines to adopt the suggestion
because the updated regulations are intended to reflect changes
resulting from an assessment conducted by the Department in response to
PPD-19, and the FBI WPEA of 2016, both of which use that terminology,
and changing the term would lead to unnecessary confusion. Moreover,
the Department does not perceive the term ``whistleblower'' as having
any negative connotation.
The FBI's Prepublication Review Process
One commenter suggests that the Department add a provision to the
final rule to modify the FBI's prepublication review process to allow
for the disclosure of content that the commenter believes may otherwise
be protected by the First Amendment's Free Speech Clause. The
Department understands the suggestion to be directed at the FBI's
prepublication review process in general, and not specifically directed
at issues related to FBI whistleblower claims of unlawful reprisal.
Because the FBI's prepublication process is outside the scope of 28 CFR
part 27, the Department declines to adopt the suggested change.
Suspension of Security Clearances
One commenter suggested that the Department ``[p]rovide a
regulation stopping the FBI from suspending security clearances of
employees or suspending them from duty without pay until legal or
administrative action is taken against them.'' The National Security
Act of 1947 and PPD-19 make it unlawful for an agency (including the
FBI) to take any action affecting an employee's eligibility for access
to classified information in reprisal for making a protected
disclosure. These protections against revocations of security
clearances apply to FBI employees. The investigation and adjudication
of allegations that the suspension or revocation of security clearances
held by Department employees was in retaliation for making protected
disclosures are governed by different laws than those governing FBI
whistleblower reprisal allegations, including 50 U.S.C. 3341, PPD-19,
and DOJ Instruction 1700.00.01. Security clearance suspensions are
outside the scope of 28 CFR part 27, and the Department therefore
declines to adopt this suggestion.
IV. Regulatory Analyses
In developing this final rule, the Department considered numerous
statutes and executive orders applicable to rulemaking. The
Department's analysis of the applicability of those
[[Page 7284]]
statutes and executive orders to this rule is summarized below.
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory Review)
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, as supplemented by Executive
Order 13563 and amended by Executive Order 14094. This rule makes
procedural changes to the existing regulatory framework for resolving
claims of whistleblower retaliation by FBI employees and applicants.
The changes do not materially affect the number of claims or the time,
cost, or resources required to address them. Accordingly, this rule
does not require an assessment of potential costs and benefits under
section 6(a)(3) of Executive Order 12866. The Office of Management and
Budget has not reviewed this rule under these Orders.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-12, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. 5 U.S.C. 601.
The Department certifies under 5 U.S.C. 605(b) that this final rule
does not have a significant economic impact on a substantial number of
small entities. This rule addresses the Department's internal process
for addressing allegations of retaliation for protected whistleblowing
by FBI employees and applicants. It has no application to small
entities as defined above. This rule will perhaps have a tangential,
indirect, and transitory impact on law firms and advocacy organizations
representing FBI whistleblowers inasmuch as they would have to become
familiar with the changes in procedure.
C. Paperwork Reduction Act
This final rule does not call for a new collection of information
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-20.
Specifically, this rule regulates administrative actions or
investigations involving an agency against specific individuals or
entities and thus falls outside the scope of the Paperwork Reduction
Act. See 44 U.S.C. 3518(c)(1)(B)(ii).
D. Executive Order 13132 (Federalism)
A rule has federalism implications under Executive Order 13132 if
it has a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
E.O. 13132, sec. 1(a). The Department has analyzed this final rule
under that order and determined that this rule does not have federalism
implications.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-38,
requires Federal agencies to determine whether a rule, if promulgated,
will result in the expenditure by State, local, or Tribal Governments,
in the aggregate, or by the private sector, of $100 million (adjusted
for inflation) or more in any one year. 2 U.S.C. 1532(a). This final
rule does not require or result in expenditures by any of the above-
named entities. This rule addresses the Department's internal
procedures related to protected disclosures.
F. Executive Order 12988 (Civil Justice Reform), Plain Language
This final rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This final rule does not have tribal implications under Executive
Order 13175 because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
H. Congressional Review Act
The reporting requirements of the Congressional Review Act
(Subtitle E of the Small Business Regulatory Enforcement Fairness Act
of 1996), 5 U.S.C. 801-08, do not apply to this final rule. First, this
rule relates primarily to agency management, personnel, and
organization. 5 U.S.C. 804(3)(B). Second, to the extent that this rule
affects non-agency parties such as applicants for employment and former
employees, these parties are a small subset of the cases subject to the
rule, and the rule does not substantially affect such parties'
substantive rights or obligations. Id., 803(3)(C). Instead, this rule
makes changes primarily related to administrative processing of
whistleblower retaliation cases. This action is accordingly not a
``rule'' as that term is used by the Congressional Review Act, see 5
U.S.C. 804(3), and the reporting requirement of 5 U.S.C. 801 does not
apply. However, the Department is submitting a copy of this final rule
to both houses of Congress and to the Comptroller General.
List of Subjects
28 CFR Part 0
Authority delegations (Government agencies), Government employees,
National defense, Organization and functions (Government agencies),
Privacy, Reporting and recordkeeping requirements, Whistleblowing.
28 CFR Part 27
Government Employees; Justice Department; Organization and
functions (Government agencies); Whistleblowing.
Authority and Issuance
For the reasons stated above, the Department of Justice amends 28
CFR parts 0 and 27 as follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
Sec. 0.29d [Amended]
0
2. In Sec. 0.29d(a), remove the words ``a violation of any law, rule,
or regulation, or mismanagement'' and add, in their place, the words
``any violation of any law, rule, or regulation, or gross
mismanagement.''
PART 27--WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF
INVESTIGATION EMPLOYEES
0
3. The authority citation for part 27 is revised to read as follows:
Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; 5
U.S.C. 2303; President's Memorandum to the Attorney General,
Delegation of Responsibilities Concerning FBI Employees Under the
Civil Service Reform Act of 1978, 3 CFR p. 284 (1997); Presidential
Policy Directive 19, ``Protecting Whistleblowers with Access to
Classified Information'' (October 10, 2012).
0
4. Amend Sec. 27.1 by revising paragraph (a) and adding paragraph (c)
to read as follows:
Sec. 27.1 Making a protected disclosure.
(a) When an employee of, or applicant for employment with, the
Federal
[[Page 7285]]
Bureau of Investigation (FBI) (FBI employee) makes a disclosure of
information to a supervisor in the direct chain of command of the
employee, up to and including the Attorney General; to the Department
of Justice's (Department's) Office of the Inspector General (OIG), the
Department's Office of Professional Responsibility (OPR), the FBI
Office of Professional Responsibility (FBI OPR), or the FBI Inspection
Division (FBI-INSD) (collectively, Receiving Offices); to Congress as
described in 5 U.S.C. 7211; to the Office of Special Counsel; or to an
employee of any of the foregoing entities when designated by any
officer, employee, office, or division named in this subsection for the
purpose of receiving such disclosures, the disclosure will be a
``protected disclosure'' if the person making it reasonably believes
that it evidences:
(1) Any violation of any law, rule or regulation; or
(2) Gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety.
* * * * *
(c) To be a ``protected disclosure'' under this part, the
disclosure must be made to an office or official specified in paragraph
(a) of this section.
Sec. 27.2 [Amended]
0
5. In Sec. 27.2, paragraph (b), remove the reference ``(xi)'' and add,
in its place, the reference ``(xii)''.
0
6. Amend Sec. 27.4 by:
0
a. Revising paragraphs (a), (c)(1), (e)(1), (e)(3), (f), and (g); and
0
b. Adding paragraphs (e)(4), (h), (i), and (j).
The revisions and additions read as follows:
Sec. 27.4 Corrective action and other relief; Director, Office of
Attorney Recruitment and Management.
(a) If, in connection with any investigation, the Conducting Office
determines that there are reasonable grounds to believe that a reprisal
has been or will be taken, the Conducting Office shall report this
conclusion, together with any findings and recommendations for
corrective action, to the Director, Office of Attorney Recruitment and
Management (the Director). If the Conducting Office's report to the
Director includes a recommendation for corrective action, the Director
shall provide an opportunity for comments on the report by the FBI and
the Complainant. The Director, upon receipt of the Conducting Office's
report, shall proceed in accordance with paragraphs (e) and (f) of this
section. A determination by the Conducting Office that there are
reasonable grounds to believe that a reprisal has been or will be taken
shall not be cited or referred to in any proceeding under these
regulations, without the Complainant's consent.
* * * * *
(c)(1) The Complainant may present a request for corrective action
directly to the Director within 60 calendar days of receipt of
notification of termination of an investigation by the Conducting
Office or at any time after 120 calendar days from the date the
Complainant first notified an Investigative Office of an alleged
reprisal if the Complainant has not been notified by the Conducting
Office that it will seek corrective action. Within 5 business days of
the receipt of the request, the Director shall issue an Acknowledgement
Order in accordance with paragraph (f)(1) of this section.
* * * * *
(e)(1) The Director shall determine based upon all the evidence,
whether a protected disclosure was a contributing factor in a personnel
action taken or to be taken. Subject to paragraph (e)(2) of this
section, if the Director determines that a protected disclosure was a
contributing factor in a personnel action taken or to be taken, the
Director shall order corrective action as the Director deems
appropriate. The Director may conclude that the disclosure was a
contributing factor in the personnel action based upon circumstantial
evidence, such as evidence that the employee taking the personnel
action knew of the disclosure and that the personnel action occurred
within a period of time such that a reasonable person could conclude
that the disclosure was a contributing factor in the personnel action.
The determination made by the Director under this section shall be
independent and impartial.
* * * * *
(3) In making the determinations required under this paragraph, the
Director may hold a hearing at which the Complainant may present
evidence in support of his or her claim, in accordance with such
procedures as the Director may adopt. The Director is hereby authorized
to compel the attendance and testimony of, or the production of
documentary or other evidence from, any person employed by the
Department if doing so appears reasonably calculated to lead to the
discovery of admissible evidence, is not otherwise prohibited by law or
regulation, and is not unduly burdensome. The Director may prohibit a
party from adducing or relying on evidence from a person whom the
opposing party does not have an opportunity to examine, or the Director
may give less weight to such evidence. In excluding such evidence, the
Director may consider certain factors, including, but not limited to:
the probative value of the evidence; whether the evidence is supported
by sufficient guarantees of trustworthiness after considering the
totality of the circumstances under which it was made and any
corroborating evidence; and whether the evidence is duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive. Any privilege available in judicial and
administrative proceedings relating to the disclosure of documents or
the giving of testimony shall be available before the Director. All
assertions of such privileges shall be decided by the Director. The
Director may, upon request, certify a ruling on an assertion of
privilege for review by the Deputy Attorney General.
(4) Subject to paragraph (f) of this section, the Director may
establish such procedures as the Director deems reasonably necessary to
carry out the functions assigned under this paragraph.
(f)(1) Within 5 business days of receipt by the Director under
paragraph (a) of this section of a report from a Conducting Office, or
a request for corrective action from a Complainant under paragraph
(c)(1) of this section, the Director shall issue an Acknowledgement
Order that:
(i) Acknowledges receipt of the report or request;
(ii) Informs the parties of the relevant case processing procedures
and timelines, including the manner of designation of a representative,
the time periods for and methods of discovery, the process for
resolution of discovery disputes, and the form and method of filing of
pleadings;
(iii) Informs the parties of the jurisdictional requirements for
full adjudication of the request; and
(iv) Informs the parties of their respective burdens of proof.
(2) In cases where the Director determines that there is a question
about the Director's jurisdiction to review a request from the
Complainant, the Director shall, simultaneously with the issuance of
the Acknowledgement Order, issue a Show-Cause Order explaining the
grounds for such determination and directing that the Complainant,
within 15 calendar days of receipt of such order, submit a written
statement, accompanied by evidence, to explain why the request should
not be dismissed for lack of jurisdiction. The Complainant's written
[[Page 7286]]
statement must provide the following information as necessary to
address the jurisdictional question or as otherwise directed:
(i) The alleged protected disclosure or disclosures;
(ii) The date on which the Complainant made any such disclosure;
(iii) The name and title of any individual or office to whom the
Complainant made any such disclosure;
(iv) The basis for the Complainant's reasonable belief that any
such disclosure evidenced any violation of law, rule, or regulation;
gross mismanagement; a gross waste of funds; an abuse of authority; or
a substantial and specific danger to public health or safety;
(v) Any action the FBI allegedly took or failed to take, or
threatened to take or fail to take, against the Complainant because of
any such disclosure, the name and title of all officials responsible
for each action, and the date of each action;
(vi) The basis for the Complainant's belief that any official
responsible for an action knew of any protected disclosure, and the
date on which the official learned of the disclosure;
(vii) The relief sought; and
(viii) The date the reprisal complaint was filed with the
Investigative Office and the date on which the Conducting Office
notified the Complainant that it was terminating its investigation into
the complaint, or if the Complainant has not received such notice,
evidence that 120 days have passed since the Complainant filed a
complaint of reprisal with the Investigative Office.
(3) The FBI shall file a reply to the Complainant's response to the
Show-Cause Order within 20 calendar days of receipt of such reply.
(i) The reply shall address issues identified by the Director in
the Show-Cause Order and matters raised in the Complainant's response
to that order under paragraph (f)(2) of this section, and shall
include: a statement identifying any FBI actions taken against the
Complainant and the reasons for taking such actions; designation of and
signature by the FBI legal representative; and any other documents or
information requested by the Director.
(ii) The reply may also include any and all documents contained in
the FBI record of the action or actions.
(4) After receipt of the FBI's response, the record on the
jurisdictional issue will close, absent a request from either party
establishing exigent circumstances requiring the need for the
presentation of additional evidence or arguments.
(g) If the Director orders corrective action, such corrective
action shall, as appropriate, include: placing the Complainant, as
nearly as possible, in the position the Complainant would have been in
had the reprisal not taken place; reimbursement for attorney's fees,
reasonable costs, medical costs incurred, and travel expenses; back pay
and related benefits; compensatory damages to the extent authorized by
law; and any reasonable and foreseeable consequential damages.
(h) Whenever the Director determines that there has been a reprisal
prohibited by Sec. 27.2 of this part, the Director, in addition to
ordering any corrective action as authorized by Sec. 27.4(g), shall
forward to FBI OPR, FBI-INSD, and the Director of the FBI, a copy of
the Director's written opinion finding that there has been a prohibited
reprisal. FBI OPR shall make an independent determination of whether
disciplinary action is warranted.
(i) If the Director determines that there has not been any reprisal
prohibited by Sec. 27.2, the Director shall report this finding in
writing to the Complainant, the FBI, and the Conducting Office.
(j) The Director will not cite or rely upon any unpublished FBI
whistleblower decision issued by the Director or Deputy Attorney
General in rendering any decision under Sec. 27.4.
0
7. Revise Sec. 27.5 to read as follows:
Sec. 27.5 Review.
(a) Within 30 calendar days of a finding of a lack of jurisdiction,
a final determination on the merits, or corrective action ordered by
the Director, the Complainant or the FBI may request review by the
Deputy Attorney General of that determination or order. The Deputy
Attorney General shall set aside or modify the Director's actions,
findings, or conclusions found to be arbitrary, capricious, and abuse
of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been
followed; or unsupported by substantial evidence. The Deputy Attorney
General has full discretion to review and modify corrective action
ordered by the Director, provided, however that if the Deputy Attorney
General upholds a finding that there has been a reprisal, then the
Deputy Attorney General shall order appropriate corrective action.
(b) The parties may not file an interlocutory appeal to the Deputy
Attorney General from a procedural ruling made by the Director during
proceedings pursuant to Sec. 27.4 of this part. The Deputy Attorney
General has full discretion to review such rulings by the Director
during the course of reviewing an appeal of the Director's finding of a
lack of jurisdiction, final determination, or corrective action order
brought under paragraph (a) of this section.
(c) In carrying out the functions set forth in this section, the
Deputy Attorney General may issue written directives or orders to the
parties as necessary to ensure the efficient and fair administration
and management of the review process.
0
8. Add Sec. 27.7 to read as follows:
Sec. 27.7 Right to appeal to or seek corrective relief from the U.S.
Merit Systems Protection Board.
An FBI whistleblower may appeal to, or seek corrective relief from,
the U.S. Merit Systems Protection Board in accordance with the
provisions of 5 U.S.C. 2303(d).
0
9. Add Sec. 27.8 to read as follows:
Sec. 27.8 Alternative dispute resolution.
(a) At any stage in the process set forth in Sec. Sec. 27.3
through 27.5 of this part, the Complainant may request Alternative
Dispute Resolution (ADR) through the Department of Justice Mediator
Corps (DOJMC) Program. The Complainant may elect to participate in ADR
by notifying in writing the office before which the matter is then
pending.
(b) If the Complainant elects mediation, the FBI, represented by
the Office of General Counsel, will participate.
(c) When the Complainant requests to engage in ADR, the process set
forth in Sec. Sec. 27.3 through 27.5, as applicable, including all
time periods specified therein, will be stayed for an initial period of
90 days, beginning on the date of transmittal of the matter to the
DOJMC Program office. Upon joint request by the parties to the office
before which the matter is stayed, the period of the stay may be
extended up to an additional 45 days. Further requests for extension of
the stay may be granted only by the Director, regardless of the office
before which the matter is pending, upon a joint request showing good
cause. The stay otherwise will be lifted if the DOJMC Program notifies
the office before which the matter is stayed that the Complainant no
longer wishes to engage in mediation, or that the parties are unable to
reach agreement on resolution of the complaint and that continued
efforts at mediation would not be productive.
0
10. Add Sec. 27.9 to read as follows:
[[Page 7287]]
Sec. 27.9 Authority of the Director to review and decide claims of a
breach of a settlement agreement.
(a) Any party to a settlement agreement reached in proceedings and
in a forum under this part may file a claim of a breach of that
settlement agreement with the Director within 30 days of the date on
which the grounds for the claim of breach were known or should have
been known.
(b) The Director shall adjudicate any timely claim of a breach of a
settlement agreement. The Director shall exercise the authority granted
under Sec. 27.4(e)(4) to ensure the efficient administration and
management of the adjudication of the breach claim, pursuant to any
procedures the Director deems reasonably necessary to carry out the
functions assigned under this paragraph.
(c) A party may request, within 30 calendar days of a decision on a
claim of a breach of a settlement agreement by the Director, review of
that decision by the Deputy Attorney General.
Dated: January 25, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-01934 Filed 2-1-24; 8:45 am]
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