WHISTLEBLOWER 

PROTECTION

Additional Actions 

Needed to Improve 

DOJ's Handling of FBI 

Retaliation 

Complaints

Report to the Chairman,

Committee on the Judiciary,

U.S. Senate

January 2015

GAO-15-112

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-15-112, a report to the 

Chairman, Committee on the Judiciary, U.S. 

Senate.

January 2015

WHISTLEBLOWER PROTECTION

Additional Actions Needed to Improve DOJ’s

Handling of FBI Retaliation Complaints

Why GAO Did This Study

Whistleblowers help safeguard the 

federal government against waste, 

fraud, and abuse—however, they also 

risk retaliation by their employers. For 

example, in 2002, a former FBI agent 

alleged she suffered retaliation after 

disclosing that colleagues had stolen

items from Ground Zero following the 

September 11, 2001, terrorist attacks. 

DOJ found in her favor over 10 years 

after she reported the retaliation. GAO 

was asked to review DOJ’s process for 

handling such complaints.

GAO examined (1) the time DOJ took 

to resolve FBI whistleblower retaliation 

complaints, (2) the extent to which 

DOJ took steps to resolve complaints 

more quickly, and (3) the extent to 

which DOJ complied with certain 

regulatory reporting requirements.

GAO reviewed all DOJ case files for 

FBI whistleblower retaliation 

complaints DOJ closed from 2009 to 

2013, and interviewed whistleblower 

attorneys, advocates, and government 

officials about the complaint process.

The interview results are not 

generalizable.

What GAO Recommends

Congress may wish to consider 

whether FBI whistleblowers should 

have means to seek corrective action if 

retaliated against for disclosures to 

supervisors, among others. Further, 

GAO recommends that DOJ clarify 

guidance to clearly convey to whom 

employees can make protected 

disclosures, provide complainants with 

estimated complaint decision 

timeframes, and develop an oversight 

mechanism to monitor regulatory 

compliance. DOJ and the Office of the 

Inspector General concurred with 

GAO’s recommendations.

What GAO Found

The Department of Justice (DOJ) closed 44 of the 62 (71 percent) Federal 

Bureau of Investigation (FBI) whistleblower retaliation complaints we reviewed 

within 1 year, took up to 4 years to close 15 complaints, and took up to 10.6 

years to close the remaining 3. DOJ terminated 55 of the 62 complaints (89 

percent) and awarded corrective action for 3. (Complainants withdrew 4.) We 

found that DOJ terminated many (48 of 62) complaints we reviewed because 

they did not meet certain regulatory requirements. For example, DOJ terminated 

at least 17 complaints in part because a disclosure was made to someone in the

employee’s chain of command or management, such as a supervisor, who was 

not one of the nine high-level FBI or DOJ entities designated under DOJ 

regulations to receive such disclosures. Unlike employees of other executive 

branch agencies, FBI employees do not have a process to seek corrective action 

if they experience retaliation based on a disclosure of wrongdoing to their 

supervisors or others in their chain of command who are not designated officials. 

This difference is due, in part, to DOJ’s decisions about how to implement the 

statute governing FBI whistleblowers. In 2014, DOJ reviewed its regulations and, 

in an effort to balance competing priorities, recommended adding more senior 

officials in FBI field offices to the list of designated entities, but did not 

recommend adding all supervisors. DOJ cited a number of reasons for this, 

including concerns about the additional resources and time needed to handle a 

possible increase in complaints if DOJ added supervisors. However, DOJ is 

already taking other steps to improve the efficiency of the complaint process. 

More importantly, dismissing retaliation complaints made to an employee’s 

supervisor or someone in that person’s chain of command leaves some FBI 

whistleblowers—such as the 17 complainants we identified—without protection 

from retaliation. By dismissing potentially legitimate complaints in this way, DOJ 

could deny some whistleblowers access to recourse, permit retaliatory activity to 

go uninvestigated, and create a chilling effect for future whistleblowers.

We also found that DOJ and FBI guidance is not always clear that FBI 

employees reporting alleged wrongdoing to a supervisor or someone in their 

chain of command may not be a protected disclosure. Ensuring that guidance 

always clearly explains to whom an FBI employee can report wrongdoing will 

help FBI whistleblowers ensure that they are fully protected from retaliation.

DOJ took from 2 to 10.6 years to resolve the 4 complaints we reviewed that DOJ 

adjudicated, and DOJ did not provide complainants with estimates of when to 

expect DOJ decisions throughout the complaint process. Providing such 

estimates would enhance accountability to complainants and provide additional 

assurance about DOJ management’s commitment to improve efficiency.

Further, DOJ offices responsible for investigating whistleblower retaliation 

complaints have not consistently complied with certain regulatory requirements, 

such as obtaining complainants’ approvals for extensions of time. One 

investigating office does not track investigators’ compliance with specific 

regulatory requirements and does not have a formal oversight mechanism to do 

so. Effectively monitoring investigators’ compliance with such requirements could 

help assure complainants that their cases are making progress and that they

have the information they need to determine next steps for their complaints.

View GAO-15-112. For more information, 

contact David Maurer at (202) 512-8777 or 

maurerd@gao.gov.
Page i GAO-15-112 FBI Whistleblower Retaliation Complaints

Letter 1

Background 5

DOJ Closed Majority of Complaints within a Year, Some because 

Employee Did Not Report Wrongdoing to Designated Official; 

Complaints DOJ Adjudicated Took up to 10 Years 12

DOJ Officials Have Taken Some Steps to Resolve Complaints 

More Quickly but Have Limited Plans to Assess Impact 28

OIG and DOJ-OPR Have Not Consistently Met Regulatory 

Requirements to Provide Complainants with Information 

Needed to Determine Next Steps for Their Complaints 31

Conclusions 40

Matter for Congressional Consideration 41

Recommendations for Executive Action 41

Agency Comments and Our Evaluation 42

Appendix I Scope and Methodology 45

Appendix II Department of Justice’s Reasons for Closing Federal Bureau of 

Investigation Whistleblower Retaliation Complaints 50

Appendix III Department of Justice (DOJ) Investigating Offices’ Compliance with 

Selected Reporting Requirements 56

Appendix IV Comments from the Department of Justice Office of the Inspector 

General 58

Appendix V GAO Contact and Staff Acknowledgments 67

Tables

Table 1: Final Outcome in Federal Bureau of Investigation (FBI) 

Whistleblower Retaliation Complaints, by Final 

Contents
Page ii GAO-15-112 FBI Whistleblower Retaliation Complaints

Department of Justice (DOJ) Office to Review Complaint 

and Length of Complaint 51

Table 2: Reasons for the Department of Justice’s (DOJ) Final 

Decision to Close Federal Bureau of Investigation (FBI) 

Whistleblower Retaliation Complaints 53

Figures

Figure 1: The Department of Justice’s (DOJ) Process for 

Investigating and Adjudicating Federal Bureau of 

Investigation (FBI) Whistleblower Retaliation Complaints 8

Figure 2: Overall Length of Complaints the Department of Justice 

(DOJ) Closed from 2009 to 2013 and Reasons for Case 

Closure 12

Figure 3: Length of Cases the Department of Justice (DOJ) 

Adjudicated, in Years 23

Abbreviations:

DAG Deputy Attorney General

DOD-OIG Department of Defense Office of the Inspector General

DOJ Department of Justice

DOJ-OPR DOJ Office of Professional Responsibility

EEO Equal Employment Opportunity

FBI Federal Bureau of Investigation

FBI-INSD FBI Inspection Division 

MSPB U.S. Merit Systems Protection Board 

OARM Office of Attorney Recruitment and Management

ODAG Office of the Deputy Attorney General

OIG Office of the Inspector General

OSC U.S. Office of Special Counsel

This is a work of the U.S. government and is not subject to copyright protection in the 

United States. The published product may be reproduced and distributed in its entirety 

without further permission from GAO. However, because this work may contain 

copyrighted images or other material, permission from the copyright holder may be 

necessary if you wish to reproduce this material separately.
Page 1 GAO-15-112 FBI Whistleblower Retaliation Complaints

441 G St. N.W.

Washington, DC 20548

January 23, 2015

The Honorable Charles E. Grassley

Chairman

Committee on the Judiciary

United States Senate

Dear Mr. Chairman:

Whistleblowers play an important role in safeguarding the federal 

government against waste, fraud, and abuse, and their willingness to 

come forward can contribute to improvements in government operations. 

However, whistleblowers also risk retaliation from their employers, 

sometimes being demoted, reassigned, or fired as a result of their 

actions. In 1998, the Department of Justice (DOJ) issued regulations that 

set forth the process for Federal Bureau of Investigation (FBI) 

whistleblowers to report complaints of retaliation for their disclosures.1

 1

Whistleblower Protection For Federal Bureau of Investigation Employees, 63 Fed. Reg. 

62,937 (Nov. 10, 1998). DOJ initially issued these regulations as an interim rule effective 

upon publication in the Federal Register; however, DOJ invited postpromulgation

comments that were addressed in a final rule issued in 1999. Whistleblower Protection For 

Federal Bureau of Investigation Employees, 64 Fed. Reg. 58,782 (Nov. 1, 1999) (codified 

as amended at 28 C.F.R. pts. 0, 27).

These regulations require that FBI whistleblower retaliation complaints be 

directed to DOJ’s Office of the Inspector General (OIG) or Office of 

Professional Responsibility (DOJ-OPR) for investigation and provide 

specific timeliness and reporting requirements for these offices to meet as 

they manage these complaints. The regulations also establish roles for 

the Director of DOJ’s Office of Attorney Recruitment and Management 

(OARM) and the Deputy Attorney General (DAG). In some instances, the 

total process for resolving a complaint—including investigation, 

adjudication, and appeals—has taken several years. For example, in 

2002, former FBI agent Jane Turner filed a whistleblower complaint with 

DOJ alleging that her colleagues had stolen items from Ground Zero after 

the September 11, 2001, terrorist attacks. After making this whistleblower 

disclosure, she was given a “does not meet expectations” rating, placed 

on leave, and given a notice of proposed removal. According to Ms. 

Turner’s attorneys, she retired from the FBI in order to avoid formal 

termination being placed on her record. Ms. Turner filed a whistleblower 
Page 2 GAO-15-112 FBI Whistleblower Retaliation Complaints

retaliation complaint that DOJ ultimately found in her favor in 2013—over 

10 years later. Members of Congress and whistleblower advocates have 

raised questions about the length of time it takes DOJ to investigate and 

adjudicate FBI whistleblower retaliation complaints.

To assist Congress in overseeing DOJ’s efforts to protect FBI 

whistleblowers, you asked us to examine DOJ’s process for handling FBI 

whistleblower retaliation complaints. Specifically, our report examines:

• how long DOJ has taken to resolve FBI whistleblower retaliation 

complaints and what factors have affected these time frames;

• the extent to which DOJ has taken steps to resolve complaints more 

quickly and determine the impact of any such efforts; and

• the extent to which DOJ’s OIG and DOJ-OPR have complied with 

regulatory reporting requirements.

To determine how long DOJ has taken to resolve FBI whistleblower 

retaliation complaints and the factors that affected these time frames, we 

reviewed DOJ case files for all FBI whistleblower retaliation complaints 

closed within the last 5 calendar years (from 2009 through 2013), and 

calculated the duration of each complaint from initial filing to appeal, as 

applicable; the length of time between interim steps throughout this 

process; and factors affecting the time frames in each case, among other 

things. Specifically, we reviewed a total of 62 closed cases representing 

62 complaints. In addition, we reviewed documentation, such as internal 

procedures and memos, and interviewed senior DOJ officials in each of 

the four offices responsible for investigating or adjudicating whistleblower 

retaliation complaints—OIG, DOJ-OPR, OARM, and the Office of the 

Deputy Attorney General (ODAG)—about the factors that affected these 

time frames and DOJ’s process for handling these complaints and 

compared aspects of this process against standards in Standards for 

Internal Control in the Federal Government.

2

 2

GAO, Standards for Internal Control in the Federal Government, 

Because of the sensitivity of 

FBI whistleblowers’ identities, to obtain whistleblower perspectives on 

these issues, we met with representatives of five whistleblower advocacy 

groups knowledgeable about DOJ’s process and attorneys who have 

GAO/AIMD-00-21.3.1

(Washington, D.C.: Nov. 1, 1999). These standards define the minimum level of quality 

acceptable for internal control in government and provide the basis against which internal 

control is to be evaluated. Internal control refers to the plans, methods, and procedures 

used to achieve missions, goals, and objectives.
Page 3 GAO-15-112 FBI Whistleblower Retaliation Complaints

represented three FBI whistleblowers through this process.3 We identified 

the representatives of five whistleblower advocacy groups using an 

iterative process often referred to as snowball sampling. At each 

interview, we solicited names of additional groups to interview and 

selected for interviews those that were most widely recognized as 

knowledgeable about DOJ’s process. The information we gathered from 

these groups and attorneys—referred to throughout our report collectively 

as eight whistleblower advocates and attorneys—is not generalizable, but 

provides perspectives on whistleblowers’ experiences with DOJ’s 

process.4

To determine the extent to which DOJ has taken steps to resolve 

complaints more quickly, we interviewed DOJ officials responsible for 

handling these complaints about the factors that affect the timely 

processing of these complaints and steps DOJ has taken to address 

them. In addition, to identify any practices that have improved timeliness 

in comparable federal settings, we interviewed senior officials in the 

Department of Defense Office of the Inspector General (DOD-OIG) as 

well as the U.S. Office of Special Counsel (OSC) and the U.S. Merit 

Systems Protection Board (MSPB)—federal agencies that handle 

whistleblower retaliation complaints for other federal employees—about 

those agencies’ processes for handling whistleblower retaliation 

complaints. To identify the extent to which DOJ officials have taken steps 

to determine the impact of their efforts to improve timeliness, we 

interviewed DOJ officials and reviewed DOJ’s April 2014 report to the 

 3

The five whistleblower advocacy groups we interviewed were the American Civil Liberties 

Union, the Brennan Center for Justice at New York University School of Law, the 

Government Accountability Project, the National Whistleblowers Center, and the Project 

on Government Oversight. The attorneys we interviewed represented FBI whistleblowers 

in 3 of 5 cases where complainants have alleged retaliation and obtained corrective action 

since DOJ issued its regulations in 1998. (In 1 case the complainant represented his/her 

self and so did not have an attorney, and in another case, the attorney was unable to meet 

because of schedule conflicts.)

4

Two representatives of a whistleblower advocacy group also represented an FBI 

whistleblower who obtained corrective action. Therefore, the eight whistleblower 

advocates and attorneys referred to throughout our report include four representatives of 

whistleblower advocacy groups, two attorneys who represented FBI whistleblowers, and 

two attorneys who represent a whistleblower advocacy group and have also represented 

an FBI whistleblower who obtained corrective action.
Page 4 GAO-15-112 FBI Whistleblower Retaliation Complaints

President and compared DOJ’s stated plans to standards in Standards for 

Internal Control in the Federal Government.

5

To determine the extent to which OIG and DOJ-OPR have complied with 

regulatory reporting requirements, we compared evidence we saw in 

DOJ’s case files with DOJ’s regulations and analyzed the extent of any 

discrepancies. Specifically, for each case file, we reviewed the office’s 

documented communication with the complainant including initial and 

ongoing outreach, and any interim and final notices that the agency 

closed or declined the case, as applicable. We also reviewed 

documentation and interviewed OIG and DOJ-OPR officials responsible 

for handling these complaints about any oversight mechanisms to ensure 

compliance with regulatory requirements. Further, we interviewed eight 

whistleblower advocates and attorneys, as noted above, to obtain 

whistleblower perspectives on the extent and effects of DOJ’s compliance 

with regulatory requirements. In addition, because OSC serves a 

comparable function to that of OIG and DOJ-OPR in handling 

whistleblower complaints for most other federal employees and has 

similar regulatory reporting requirements, we interviewed OSC officials 

about their processes and mechanisms for ensuring compliance with 

OSC’s requirements.

Additional details on our scope and methodology are discussed in 

appendix I.6

We conducted this performance audit from September 2013 through 

January 2015 in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives.

 5

GAO/AIMD-00-21.3.1.

6

In the course of our review, we identified additional issues concerning DOJ’s 

whistleblower regulations for FBI employees beyond the scope of this report. We are 

continuing to address these issues with DOJ and may report on these results later. 
Page 5 GAO-15-112 FBI Whistleblower Retaliation Complaints

As established by the Civil Service Reform Act of 1978, federal law 

generally prohibits retaliation against federal government employees or 

applicants for employment for reporting wrongdoing, or whistleblowing.7

Under these provisions, most federal employees pursue whistleblower 

retaliation complaints with OSC and MSPB. However, the FBI, as well as 

other intelligence agencies, is excluded from this process.8 Instead, the 

Attorney General is required to establish regulations to ensure that FBI 

employees are protected against retaliation for reporting wrongdoing, 

consistent with certain statutory processes of OSC and MSPB.9 Since the 

Civil Service Reform Act of 1978 was enacted, numerous amendments 

have been made to the provisions governing most executive branch 

whistleblowers, but corresponding amendments have generally not been 

made to the statutory provision governing FBI employees.10

 7

Pub. L. No. 95-454, §§ 101, 202, 92 Stat. 1111, 1113-8, 1121-31 (codified as amended 

at 5 U.S.C. §§ 2301-2306, 1201-1222, respectively).

Provisions 

providing recourse for employees of intelligence community elements 

who are retaliated against for making disclosures of protected information 

8

5 U.S.C. §§ 2302-2303.

9

5 U.S.C. § 2303(b). In particular, the President is required to provide for the enforcement 

of whistleblower protections for FBI employees and applicants in a manner consistent with 

applicable provisions of sections 1214 and 1221 of title 5. Section 1214 relates to OSC’s 

authority for investigating whistleblower retaliation complaints and seeking corrective 

action, and section 1221 relates to MSPB’s authority to entertain whistleblower reprisal 

appeals and order corrective action. The President has delegated his enforcement 

authority to the Attorney General. Delegation of Responsibilities Concerning FBI 

Employees Under the Civil Service Reform Act of 1978, Memorandum for the Attorney 

General, 62 Fed. Reg. 23,123 (Apr. 14, 1997). For purposes of this report, “employees” 

includes applicants for employment unless otherwise specified.

10For example, under the statutory provision governing most executive branch 

employees—5 U.S.C. § 2302—the definition of “personnel action” under the CSRA 

consisted of 10 clauses; the section governing FBI employees—5 U.S.C. § 2303—refers 

back to these 10 clauses for the definition of “personnel action.” Congress has twice 

added additional clauses to the section for most employees, but corresponding changes 

were not made to the section applicable to the FBI. In another example, in 1989, the 

Whistleblower Protection Act made an amendment to one type of information subject to 

protection under section 2302, including “gross mismanagement” as a protected 

disclosure, as opposed to “mismanagement.” However, the Whistleblower Protection Act 

did not make a corresponding change to 2303, the section related to FBI employees.

Background
Page 6 GAO-15-112 FBI Whistleblower Retaliation Complaints

were established by Presidential Policy Directive 19 in 2012,11 and in 

statute in 2014.12

In order to implement the statute governing FBI whistleblower protections, 

in 1998, DOJ issued regulations to protect FBI whistleblowers from 

retaliation for reporting alleged wrongdoing, and established the process 

for handling FBI whistleblower retaliation complaints.13 Specifically, the 

regulations prohibit DOJ employees from taking or failing to take (or 

threatening to take or fail to take) a personnel action with respect to any 

FBI employee as a reprisal for a protected disclosure (i.e., retaliation).14

1. reasonably believe that they are reporting wrongdoing, defined as a 

violation of any law, rule, or regulation; mismanagement; a gross 

waste of funds; an abuse of authority; or a substantial and specific 

danger to public health or safety,

The regulations also define what disclosures by FBI employees qualify as 

protected disclosures, entitling the employees to recourse should they 

experience retaliation. Specifically, the regulations state that disclosures 

are protected if the complainants

15

2. report the alleged wrongdoing to one of nine designated officials or 

offices (e.g., the Attorney General, the DAG, and OIG, among other 

entities).

and

16

 11The White House, Presidential Policy Directive 19/PPD-19 (Washington, D.C.: Oct. 10, 

2012).

12Intelligence Authorization Act for Fiscal Year 2014, 113-126, tit. VI, 128 Stat. 1390, 

1414-1422.

1328 C.F.R. pt. 27.

14A personnel action includes a promotion, detail, transfer or reassignment, a removal or 

suspension action, or a decision concerning pay or benefits, among other actions. 5 

U.S.C. §§ 2302(a)(2)(A), 2303(a); 28 C.F.R. § 27.2(b).

1528 C.F.R. § 27.2(a)(1)-(2). We refer to these generally as allegations of wrongdoing 

throughout this report.

16Under 5 U.S.C. § 2303(a), FBI employees may make protected disclosures to “the 

Attorney General (or an employee designated by the Attorney General for such purpose).” 

DOJ has designated nine entities as the appropriate officials to receive protected 

disclosures. These entities include DOJ-OPR, OIG, the FBI Office of Professional 

Responsibility, the FBI Inspection Division (FBI-INSD) Internal Investigations Section, the 

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

Director of the FBI, and the highest ranking official in any FBI field office. 28 C.F.R. 

§ 27.1(a)
Page 7 GAO-15-112 FBI Whistleblower Retaliation Complaints

If the FBI employee does not meet either of these two criteria, then that 

person’s disclosure is not protected and the person does not have a right 

to recourse if the individual should experience retaliation as a result. That 

is, for example, if the person reports wrongdoing to a nondesignated 

entity and then experiences retaliation, the person will not be eligible for 

corrective action for that retaliation. Further, once the employee reported 

to a nondesignated entity and experienced retaliation as a result, the 

employee cannot subsequently report the alleged wrongdoing to a 

designated entity and obtain corrective action for the retaliation that has 

already taken place.

The regulations lay out DOJ’s process for handling FBI whistleblower 

retaliation complaints and describe various offices’ responsibilities for 

investigating, adjudicating, and reviewing appeals related to these 

complaints. See figure 1.

Division of Responsibility 

for FBI Whistleblower 

Retaliation Complaints
Page 8 GAO-15-112 FBI Whistleblower Retaliation Complaints

Figure 1: The Department of Justice’s (DOJ) Process for Investigating and Adjudicating Federal Bureau of Investigation (FBI) 

Whistleblower Retaliation Complaints

a

A complaint that did not meet threshold regulatory requirements means a complaint where DOJ’s 

decision to terminate the complaint was not based on whether there was a reprisal taken because of 

a disclosure, but on whether the allegations met threshold requirements. For example, threshold 

regulatory requirements include the requirement that the disclosure was made to one of nine 

designated entities, the alleged retaliatory act was a personnel action as defined by the regulations, 

and others.

b

DOJ’s Office of the Inspector General and Office of Professional Responsibility are required by DOJ 

regulation to determine whether there are reasonable grounds to believe that a reprisal has been or 

will be taken against the complainant.

c

OARM determines whether, on the basis of a preponderance of the evidence, the employee made a 

protected disclosure, and if so, whether the disclosure was a contributing factor in the personnel 

action at issue. If the complainant meets that burden, then OARM considers whether the FBI has 

demonstrated by clear and convincing evidence that it would have taken the same personnel action in 

the absence of such disclosure.
Page 9 GAO-15-112 FBI Whistleblower Retaliation Complaints

• Investigation: OIG and DOJ-OPR are responsible for receiving and 

investigating FBI whistleblower retaliation complaints to determine 

whether there are reasonable grounds to believe that a retaliatory act 

has been or will be taken (“reasonable grounds” determination).17 The 

office that investigates the complaint (referred to as the investigating 

office) first reviews the complaint to determine whether it meets 

threshold regulatory requirements. A complaint that did not meet 

threshold regulatory requirements means a complaint where DOJ’s 

decision to terminate the complaint was not based on whether there 

was a reprisal taken because of a disclosure, but on whether the 

allegations met threshold requirements. For example, the 

investigating office may determine that the complaint does not meet 

threshold regulatory requirements because the complainant did not 

make his or her underlying disclosure to one of the nine entities 

designated in the regulations; or because the alleged retaliatory 

personnel action occurred before the complainant made a protected 

disclosure and therefore could not have been caused by the protected 

disclosure. If the complaint does not meet threshold regulatory 

requirements, then the investigating office closes the complaint.18

However, if the investigating office determines that the complaint met 

threshold regulatory requirements, then the office investigates the 

merits of the complaint by, for example, conducting interviews and 

requesting and reviewing documentation, such as employee 

statements and records from the FBI.19

 1728 C.F.R. § 27.3(d), (f). Although the regulations specify that complainants must submit 

allegations of FBI whistleblower retaliation in writing to OIG or DOJ-OPR, § 27.3(a)(1), 

these two offices also review such allegations from other sources, most notably FBI-INSD.

At the conclusion of an 

investigation, if OIG or DOJ-OPR finds that there are reasonable 

grounds, it then forwards its investigative report with any 

recommended actions to OARM for adjudication. In cases in which 

OIG or DOJ-OPR has not found in the complainant’s favor or has not 

18The office may still investigate issues raised in the complaint as a nonwhistleblower 

matter if it falls within the office’s preexisting jurisdiction. 28 C.F.R. § 27.3(j). Alternatively, 

the investigating offices may forward the complaint to the FBI if, for example, the office 

determines that the complaint relates to a management matter or other issue under the 

FBI’s jurisdiction.

19DOJ-OPR attorneys are assigned to investigate FBI whistleblower retaliation complaints 

because DOJ-OPR does not have investigators. We refer to the DOJ-OPR attorneys 

assigned to investigate these complaints as investigators throughout this report.
Page 10 GAO-15-112 FBI Whistleblower Retaliation Complaints

completed its investigation, the complainant may go directly to OARM 

to request corrective action.20

• Adjudication: OARM is responsible for adjudicating FBI 

whistleblower retaliation cases. OARM receives these cases from OIG 

or DOJ-OPR where either office has determined there are reasonable 

grounds to believe that there has been or will be reprisal for a 

protected disclosure, or else directly from the complainant.21 As with 

the investigating offices, when OARM receives the complaint, OARM 

first determines whether the complaint meets threshold regulatory 

requirements, before proceeding to review the merits of the complaint. 

For OARM, considering the merits of the complaint entails reviewing 

the supporting evidence (e.g., documents and testimony), as well as 

the arguments each party—the complainant and the FBI—submits, 

and then determining, based on all of the evidence, if the individual 

substantiated the claim of retaliation. If the complaint is substantiated 

and the FBI is unable to prove by clear and convincing evidence that it 

would have taken the same personnel action even if the complainant 

had not made the protected disclosure, OARM will order that the FBI 

take corrective action, such as providing the complainant back pay or 

reimbursement for attorney’s fees.

• Appeals: DOJ’s DAG is responsible for reviewing and ruling on 

parties’ appeals of OARM decisions. Once OARM rules on a case, the 

parties have 30 days to file an appeal with the DAG. The DAG has the 

authority to set aside or modify OARM’s decisions when found to be 

arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law; obtained without procedures required by law, 

rule, or regulation having been followed; or unsupported by 

 20This can occur within 60 days of being notified of the termination of the investigation, or 

at any time after 120 calendar days from the date the complainant first notified an 

investigating office of an alleged retaliation if the complainant has not been notified that 

the office will seek corrective action. 28 C.F.R. § 27.4(c)(1).

21If OIG or DOJ-OPR determines that there are reasonable grounds to believe that a 

reprisal has been or will be taken against the complainant it is required to report this 

conclusion, along with any findings and recommendations for corrective action, to OARM. 

28 C.F.R. § 27.4(a). OARM determines whether, on the basis of a preponderance of the 

evidence, the employee made a protected disclosure, and if so, whether the disclosure 

was a contributing factor in the personnel action at issue. If the complainant meets that 

burden, then OARM considers whether the FBI has demonstrated by clear and convincing 

evidence that it would have taken the same personnel action in the absence of such 

disclosure. § 27.4(e)(1)-(2).
Page 11 GAO-15-112 FBI Whistleblower Retaliation Complaints

substantial evidence. The DAG has full discretion to review and 

modify the corrective action ordered.22

DOJ’s regulations also set forth timeliness and reporting requirements for 

the investigating offices.23

• provide written notice to the complainant acknowledging receipt of the 

complaint within 15 calendar days of either investigating office 

receiving it;

Specifically, the investigating offices must

24

• update the complainant on the status of the investigation within 90 

days of the written acknowledgment, and continue providing such 

updates every 60 days thereafter;25

• determine within 240 calendar days of receiving the complaint 

whether there are reasonable grounds to believe that there has been 

or will be a reprisal for a protected disclosure, unless the complainant 

agrees to an extension.

and

26

Additionally, if OIG or DOJ-OPR decides to terminate an investigation, the 

office must provide a written status report to the complainant at least 10 

business days prior to the office’s final termination report.27 The final 

report must summarize the relevant facts of the case, provide reasons for 

terminating the investigation, and respond to any comments the 

complainant submits in response to the above-mentioned status report.28

 2228 C.F.R. § 27.5. The DAG must order appropriate corrective action if the DAG upholds 

a finding that there has been a reprisal. 

23DOJ’s regulations establish no such timeliness and reporting requirements for OARM or 

the DAG.

24The office that will investigate the complaint must provide this notice within 15 days of 

the date either of the investigating offices receives the complaint. In addition, the written 

notice must state the name of the person within the office who will serve as the point of 

contact for the complainant. 28 C.F.R. § 27.3(c).

2528. C.F.R. § 27.3(e). 

2628 C.F.R. § 27.3(f).

27This status report must include the factual findings and conclusions that justify the 

office’s decision to terminate the investigation. 28 C.F.R. § 27.3(g).

2828 C.F.R. § 27.3(h).

DOJ’s Regulatory 

Timeliness and Reporting 

Requirements
Page 12 GAO-15-112 FBI Whistleblower Retaliation Complaints

DOJ closed the majority of the 62 complaints we reviewed within 1 year, 

generally because the complaints did not meet DOJ’s threshold 

regulatory requirements. The most common reason these complaints did 

not meet DOJ’s threshold regulatory requirements was because the 

complainants made their disclosures to individuals or offices not 

designated in the regulations. Further, FBI whistleblowers may not be 

aware that they must report an allegation of wrongdoing to certain 

designated officials to qualify as a protected disclosure, in part because 

information DOJ has provided to its employees has not consistently 

explained to whom an employee must report protected disclosures. The 4

complaints we reviewed that met DOJ’s threshold regulatory 

requirements and OARM ultimately adjudicated on the merits lasted from 

2 to just over 10.6 years from the initial filing of the complaints with OIG or 

DOJ-OPR to the final OARM or DAG ruling. In some cases, parties have 

waited a year or more for a DOJ decision without information on when 

they might receive it. Figure 2 shows the duration and outcome of all 62 

complaints we reviewed.

Figure 2: Overall Length of Complaints the Department of Justice (DOJ) Closed from 2009 to 2013 and Reasons for Case 

Closure

DOJ Closed Majority 

of Complaints within a 

Year, Some because 

Employee Did Not 

Report Wrongdoing to 

Designated Official; 

Complaints DOJ 

Adjudicated Took up 

to 10 Years
Page 13 GAO-15-112 FBI Whistleblower Retaliation Complaints

a

In the 3 complaints we reviewed where DOJ’s Office of Attorney Recruitment and Management 

(OARM) ordered corrective action, it did not always order all of the corrective action the complainant 

sought where OARM determined that the complainant failed to establish entitlement to the corrective 

relief sought under 28 C.F.R. § 27.4(f).

b

The “does not meet threshold regulatory requirements” category includes 48 complaints ultimately 

found by either an investigating office or OARM as not meeting DOJ’s threshold regulatory 

requirements because, for example, the disclosure was not made to one of nine designated entities 

or the alleged retaliatory act was not a personnel action as defined by the regulations.

c

The “no reasonable grounds or no reprisal found” category includes 6 complaints where the 

investigating office opened an investigation into at least one allegation made by the complainant but 

the investigating office did not find reasonable grounds to believe that a reprisal had been or will be 

taken against the complainant. It also includes 1 complaint where OARM found the disclosure was 

not a contributing factor in the personnel action based on a preponderance of the evidence or the FBI 

demonstrated by clear and convincing evidence that it would have taken the same personnel action in 

the absence of such disclosure.

d

The “complainant withdrew complaint” category includes 4 complaints that were voluntarily

withdrawn by the complainant.

DOJ closed 44 of the 62 complaints (71 percent) that we reviewed within 

1 year, most often because the complaint did not meet DOJ’s threshold 

regulatory requirements. Specifically, for 40 of these 44 cases (91 

percent), DOJ found that the complaint did not meet threshold regulatory 

requirements.29

 29DOJ closed 4 additional complaints within 1 year for reasons other than a finding that 

the complaint did not meet threshold regulatory requirements under the regulations. Of 

these 4, DOJ closed 1 because the complainant withdrew before the DOJ office made a 

determination and 3 because, although the complaint met threshold regulatory 

requirements, the investigating office found that there were not reasonable grounds to 

believe the alleged retaliation had been taken in reprisal for a protected disclosure. For

some complaints, we were not able to determine a specific reason for the investigating 

office’s finding that one or more of the complainant’s allegations did not meet threshold 

requirements based on information contained in the case file. For example, in some 

complaints, the investigating office’s final letter to the complainant stated that the matters 

were more appropriate for review by another office of agency, but the case file did not 

indicate the office’s basis for this determination. We discuss efforts to improve the 

documentation in investigating office case files later in this report. 

In 15 of the 32 (47 percent) complaints closed within a 

year where documentation in the case files was sufficient for us to 

determine why DOJ determined threshold requirements were not met, the 

fact that the complainant made a disclosure to the wrong person—

someone not designated in the regulations to receive whistleblower 

complaints—was at least a partial basis for DOJ deciding the complaint 

DOJ Closed Majority of 

Complaints within a Year; 

Some Because the 

Employee Did Not Report 

Wrongdoing to a 

Designated Official
Page 14 GAO-15-112 FBI Whistleblower Retaliation Complaints

did not meet threshold regulatory requirements.30 In at least 12 of these 

15 instances, the complainant reported the alleged wrongdoing to 

someone in management or within the complainant’s chain of command, 

such as the complainant’s supervisor, who was not one of the nine 

designated entities.31

For all 54 complaints we reviewed where documentation in the case files 

was sufficient for us to determine a specific reason DOJ closed the 

complaint, regardless of how long DOJ took to close the complaint, 23 (43 

percent) had at least one claim dismissed because the complainant made 

his or her disclosure to an official or entity not designated in the 

regulations.32 Of these, in at least 17 cases, we were able to determine 

that a disclosure was made to someone in the employee’s chain of 

command or management.33

See appendix II for a summary of DOJ’s final determinations in all cases 

we reviewed.

 30In some case files we reviewed, the final DOJ office to review the complaint cited 

multiple reasons for the decision to close the complaint. For example, the office may have 

found that the complainant’s underlying allegation was not protected because it did not 

relate to a “violation of any law, rule, or regulation” or another issue covered by the 

regulations, or the alleged retaliation was not a personnel action as defined by the 

regulations. In some complaints we reviewed, the case file did not contain sufficient 

information to determine the basis for DOJ’s decision that the complaint did not meet 

threshold regulatory requirements. See app. II for a summary of DOJ’s reasons for closing 

all complaints we reviewed. 

31This constitutes 38 percent of all cases closed within a year for failure to meet threshold 

regulatory requirements where we were able to determine the basis for dismissal. All 15 

instances involved a disclosure, but in 1 case we were not able to identify from the case 

files the position of the individual or entity to whom the complainant made a disclosure, 

such as whether the individual was the complainant’s supervisor. In the remaining 2 

cases, a disclosure was made to the FBI Inspections Division, but not the Internal 

Investigations Section, and to a fellow agent.

32In some case files we reviewed, the final DOJ office to review the complaint cited 

multiple reasons for the decision to close the complaint.

33This constitutes 31 percent of all cases we reviewed where we could determine the 

basis for DOJ closing the complaint. For some cases we were not able to identify from the 

case files the position of the individual or entity to whom the complainant made a 

disclosure, such as whether the individual was the complainant’s supervisor. Accordingly, 

this number is at least 17 cases, given available documentation in the case files we 

reviewed. 
Page 15 GAO-15-112 FBI Whistleblower Retaliation Complaints

Unlike employees of other executive branch agencies—including 

intelligence agencies—FBI employees do not have a process to seek 

corrective action if they experience retaliation based on a disclosure of 

wrongdoing to their supervisors or others in their chain of command who 

are not designated officials.34 In 1978, federal law excluded the FBI, as 

well as other intelligence agencies, from the prohibited personnel 

practices system in place for employees of other executive branch 

agencies in part because of the sensitive nature of these agencies’ 

operations and the information they handle. Instead the law required the 

Attorney General to develop regulations to ensure that FBI employees are 

not retaliated against for disclosures of wrongdoing.35

When issuing its interim and final regulations in 1998 and 1999, 

respectively, DOJ considered which individuals and offices the Attorney 

General would designate to receive protected disclosures from FBI 

employees. DOJ officials who developed these regulations included eight

designated entities but did not include supervisors at that time because 

the officials maintained that Congress intended DOJ to limit the universe 

of recipients of protected disclosures, in part because of the sensitive 

 34Under 5 U.S.C. § 2302, employees of executive branch agencies may generally make 

disclosures of information to supervisors, their agency inspector general, OSC, the media, 

Members of Congress, and others, if the disclosure is not specifically prohibited by law 

and not required by executive order to be kept secret in the interest of national defense or 

the conduct of foreign affairs. Presidential Policy Directive 19 prohibits reprisals against 

employees serving in an intelligence community element for disclosures by the employee 

to a supervisor in the employee’s direct chain of command, among others. The FBI’s 

February 11, 2008, Policy Directive 0032D, “Non-Retaliation for Reporting Compliance 

Risks,” and the September 23, 2014, 0727D update, prohibit retaliation against anyone 

who reports compliance risks to certain designated officials—including any supervisor in 

the chain of command of the person reporting the compliance risk—but does not offer any 

means of pursuing corrective action if an employee experiences retaliation for such a 

disclosure. According to FBI officials, the FBI has the authority to punish those who violate 

this policy and could, at its discretion, provide remedies to those who are retaliated 

against.

35Minimal legislative history exists explaining the separate statutory provision for the FBI. 

Comments made by Members of Congress at the time suggest a compromise was 

adopted given the sensitive nature of the agency but also in recognition of past 

improprieties and the need to ensure public confidence that there are channels within the 

FBI to raise whistleblower matters, among other things. See 124 CONG. REC. S14300 

(daily ed. Aug. 24, 1978) (statement of Sen. Percy); 124 CONG. REC. H9359 (daily ed. 

Sept. 11, 1978) (statement of Rep. Derwinski); 124 Cong. Rec. H9359-60 (daily ed. Sept. 

11, 1978) (statement of Rep. Udall); 124 Cong. Rec. H11822 (daily ed. Oct. 6, 1978) 

(statement of Rep. Schroeder).

FBI Employees Are Not 

Protected for Reporting 

Wrongdoing to Their 

Supervisors or Others in Their 

Chain of Command Not 

Designated in DOJ 

Regulations
Page 16 GAO-15-112 FBI Whistleblower Retaliation Complaints

information to which FBI employees have access.36

In October 2012, the President issued Presidential Policy Directive 19, 

which established whistleblower protections for employees serving in the 

intelligence community, including, among other things, explicitly providing 

protection to employees who are retaliated against for reporting 

wrongdoing “to a supervisor in the employee’s direct chain of command 

up to and including the head of the employing agency.” Presidential 

Policy Directive 19 excluded the FBI from the scope of these protections, 

and instead required DOJ to report to the President on the efficacy of its 

regulations pertaining to FBI whistleblower retaliation and describe any 

proposed revisions to these regulations to increase their effectiveness.

In issuing its final 

rule, DOJ responded to commenter suggestions to add additional entities 

to receive such disclosures—including FBI-INSD, supervisors, and 

coworkers. Among other things, DOJ stated its view that Congress 

contemplated that recipients for whistleblower disclosures would be a 

relatively restricted group and “to designate a large (and in the case of 

supervisors, arguably ill-defined) group of employees as recipients would 

be inconsistent with Congress’s decision, given the sensitivity of 

information to which FBI employees have access.” In addition, DOJ’s rule 

explained that “designating the highest ranking official in each field office, 

but not all supervisors, as recipients of protected disclosures . . . provides 

a way to channel such disclosures to those in the field who are in a 

position to respond and to correct management and other problems while 

also providing an on-site contact in the field for making protected 

disclosures.”

37

In response to this requirement, ODAG officials led an effort to review FBI 

whistleblower retaliation complaints filed from January 1, 2005, through 

March 15, 2014, and, consistent with our review, found that DOJ had 

terminated a significant portion of complaints because they were not 

 36DOJ added FBI-INSD’s Internal Investigations Section in 2008 in response to a 

restructuring of the FBI Office of Professional Responsibility in 2004.

37At the time the President issued Presidential Policy Directive 19, on October 10, 2012, 

DOJ had in place its current process whereby FBI whistleblowers could seek remedy for 

retaliation whereas the rest of the intelligence community had no such mandated process 

in place. Therefore, Presidential Policy Directive 19 required that within 180 days, DOJ 

report to the President on the efficacy of its regulations pertaining to FBI whistleblower 

retaliation and describe any proposed revisions to these regulations to increase their 

effectiveness. DOJ submitted the required report to the President in April 2014, a year 

after the due date.
Page 17 GAO-15-112 FBI Whistleblower Retaliation Complaints

made to the proper individual or office. In addition, DOJ officials met with 

whistleblower advocates and OSC officials to solicit their views and found 

that these individuals and officials recommended that DOJ broaden its 

regulations to protect disclosures to any supervisor in the employee’s 

chain of command. According to DOJ’s April 2014 report in response to 

Presidential Policy Directive 19, the whistleblower advocates noted that 

the directive instructs intelligence community elements to protect 

disclosures to any supervisor in the employee’s direct chain of command 

and that this is consistent with whistleblower protection laws that similarly 

protect other civil service employees. Further, DOJ’s report notes that 

OSC officials believe that to deny employees protection unless their

disclosure is made to the high-ranked supervisors in the office would 

undermine a central purpose of whistleblower protection laws.

In response to PPD-19, DOJ officials led by ODAG revisited their 1999 

regulations and in April 2014 recommended expanding the persons to 

whom individuals can make protected disclosures to include—in addition 

to the highest-ranking official in FBI field offices, who is already 

included—the second highest ranking tier of officials in these field offices, 

which includes the two or three assistant special agents in charge in 53 

field offices and the special agents in charge in the 3 largest field offices. 

Senior DOJ officials told us that DOJ leadership has approved this 

change and the agency is beginning the public notice and comment 

process; as of December 2014, DOJ has not issued any notice of 

proposed rulemaking or publicly moved forward on these stated plans. 

DOJ officials reported that they plan to evaluate the impact of this 

expansion, and they may choose subsequently to further expand the set 

of persons to whom an employee can make a protected disclosure, if 

DOJ determines that such expansion is warranted. However, as of 

December 2014, senior FBI and ODAG officials report that they do not 

have an estimated date or specific plans for this evaluation and could not 

provide specifics on how this evaluation would be conducted.

DOJ officials gave us several explanations about why DOJ did not 

recommend expanding the list to include supervisors and others in the 

employee’s chain of command, a change that would bring the FBI into 

line with other executive branch agencies. First, in DOJ’s April 2014 

report, DOJ officials state that “the Department believes the set of 

persons to whom a protected disclosure can be made is extensive and 

diverse, and has seen no indication that the list has impeded disclosures 

of wrongdoing.” However, when we asked officials how they arrived as 

this conclusion—particularly in light of our and DOJ’s previous findings 

that numerous complainants had at least one claim dismissed for making 
Page 18 GAO-15-112 FBI Whistleblower Retaliation Complaints

a disclosure to someone in management or their chain of command—

they could not provide supporting evidence or analysis for their 

conclusions. Rather, these officials cited concerns about striking the right 

balance between the benefits of an expanded list and the level of 

resources the department would have to expend assessing more 

complaints if the department added more designated officials, and the 

potential impact of these additional complaints on the timeliness of the 

process. While DOJ’s focus on the timeliness of complaint processing is 

important, dismissing retaliation complaints made to an employee’s 

supervisor or someone in his or her chain of command who is not a 

designated entity leaves some FBI whistleblowers with no recourse if they 

experience retaliation. We found at least 17 whistleblowers whose cases 

were dismissed—at least in part—for making a disclosure of wrongdoing 

to someone in their chain of command or management.38 Our findings are 

similar to those of the ODAG-led review in which the department found 

that in a “significant portion” of OIG cases the claim was closed because 

it was not made to a proper individual or office under the regulations.39

Senior FBI and ODAG officials also explained that the department plans 

to provide FBI employees with additional training on the list of entities 

designated to receive whistleblower complaints. While training could help 

provide information on how to make a protected disclosure, this planned 

This means that these employees had no recourse for retaliation they 

may have experienced for making those disclosures. Moreover, with 

respect to DOJ’s concerns about resources and timeliness, DOJ has 

discretion in determining its regulatory process for enforcing protections 

for FBI whistleblowers and, as described in more detail later this report, is 

taking other steps to improve the timeliness of the process.

 38For the cases we reviewed, where we were able to determine the basis for closing the 

complaint from available documentation, we identified 17 cases out of 54 where a claim 

was dismissed on this basis (31 percent). The final office closing the complaint may cite 

more than one reason for closure. 

39DOJ reported that it reviewed a total of 89 OIG cases (4 pending), of which 69 were 

closed based on threshold requirements; “a significant portion” of those were closed as 

not made to the proper individual or office. DOJ reported reviewing 24 resolved OPR 

complaints, 16 of which were closed by OPR for failure to meet threshold regulatory 

requirements for one or more reasons: (1) the complaint made a disclosure to a 

supervisor or other entity not covered by the regulations; (2) the disclosure did not 

evidence a violation of any law, rule, or regulation or other subject covered by the 

regulations; or (3) the protected disclosure occurred after the alleged reprisal. DOJ did not 

characterize what portion of these 16 had a claim dismissed for reporting to the wrong 

official or entity. 
Page 19 GAO-15-112 FBI Whistleblower Retaliation Complaints

training would have little effect for employees who initially raise a concern 

to their supervisors not expecting that this action would ever be a 

whistleblower disclosure. All seven of the whistleblower advocates and 

attorneys we interviewed who had relevant personal and professional 

experience stated that it is common practice for employees to report 

wrongdoing to their supervisors before reporting it to a more senior 

official, such as those designated in DOJ’s regulations.40 Further, two 

advocates we met with stressed that very few people intend to become 

whistleblowers. Rather, it is typical for employees who become aware of a 

problem to report it to their supervisors, expecting to resolve the issue at 

that level. In one FBI whistleblower case file we reviewed, the 

complainant wrote that “there is a practice in the FBI that a person is to 

go through his or her chain of command first.” Further, senior FBI officials 

we spoke with emphasized that FBI policy encourages employees to 

report allegations of wrongdoing to a broader group of entities than those 

designated in regulation as recipients of protected disclosures—including 

any supervisor in the chain of command of the person reporting.41

Last, senior FBI and ODAG officials noted that the statute establishing 

whistleblower protections for FBI employees differs from the statute 

governing protections for other federal employees, so there is no legal 

requirement that DOJ designate supervisors or others in an employee’s 

chain of command to receive protected disclosures. The separate 

statutory provision for the FBI has existed since enactment of the CSRA 

in 1978, but has generally not been revisited by Congress when passing 

amendments to legislation governing other executive branch 

whistleblowers. Over the years, Congress has passed amendments to the 

legislation covering employees in other executive branch agencies that 

 40The eighth advocate or attorney we interviewed stated that he did not have personal 

knowledge sufficient to comment on this issue but clarified that he supports amending the 

FBI’s definition of a protected disclosure to include any disclosure to any individual up the 

chain of command. 

41These officials referred to FBI’s February 11, 2008, Policy Directive 0032D, “NonRetaliation for Reporting Compliance Risks,” and the September 23, 2014, 0727D update. 

This FBI policy specifically prohibits retaliation against employees who report compliance 

risks to any supervisor in the employees’ chain of command, as well as additional 

specified officials, but does not offer any means of pursuing corrective action if an 

employee experiences retaliation for such a disclosure. A senior FBI Office of Integrity and 

Compliance official reported that the FBI does not have authority to amend DOJ’s 

regulations to provide for such relief. DOJ’s proposed revisions to the list of designated 

officials will similarly not provide this relief.
Page 20 GAO-15-112 FBI Whistleblower Retaliation Complaints

explicitly strengthen and expand protections for other federal 

whistleblowers. For example, Congress added language clarifying that 

disclosures to supervisors who participated in the misconduct are 

protected disclosures. The Whistleblower Act of 1989 provides, among 

other things, that employees should not suffer adverse consequences as 

a result of prohibited personnel practices.42 The Senate report 

accompanying the Whistleblower Protection Enhancement Act of 2012 

explained that, with regard to whistleblower retaliation matters, the focus 

should not be on whether or not disclosures of wrongdoing were 

protected, but rather whether the personnel action at issue in the case 

occurred because of the protected disclosure.43 However, changes to 

laws affecting other executive branch whistleblowers did not automatically 

extend to the FBI since the law governing FBI employees was in a 

separate provision of the original legislation. DOJ’s current regulations 

and its recommended changes deny FBI employees protection provided 

to employees of other executive branch agencies—including those in the 

intelligence community.44

In the course of our review, in addition to several DOJ and FBI guidance 

documents that accurately describe DOJ’s FBI whistleblower regulations, 

we also found instances of DOJ guidance that could lead FBI employees 

to believe that reporting an allegation of wrongdoing to a supervisor in 

their chain of command would be a protected disclosure when that is not 

Thus, DOJ risks dismissing, and potentially not 

addressing, instances of actual retaliation against individuals who 

reported their disclosure to their supervisors, or another entity not 

designated in the regulations. Dismissing these whistleblower retaliation 

complaints could deny whistleblowers access to recourse, could permit 

retaliatory activity to go uninvestigated, and may have a chilling effect on 

other potential whistleblowers.

 42Pub. L. No. 101-12, § 2, 103 Stat. 16.

43S. Rep. No. 112-155, at 5.

44Among other provisions, Presidential Policy Directive 19 requires the head of each 

intelligence community element to provide a process for employees serving in the 

intelligence community to seek review of personnel actions they allege were taken as a 

reprisal for a protected disclosure. The requirements contained in this directive differ in 

some respects from the processes provided for in DOJ’s whistleblower regulations, in 

addition to including that protected disclosures may be made to a supervisor in the 

employee’s direct chain of command.

DOJ Guidance Is Not Always 

Clear
Page 21 GAO-15-112 FBI Whistleblower Retaliation Complaints

the case.45 First, FBI’s guidance—the FBI Domestic Investigations and 

Operations Guide, specifically—states that, in general, the FBI requires 

employees to report known or suspected failures to adhere to the law, 

rules, or regulations to any supervisor in the employees’ chain of 

command, or others, but does not clarify that such disclosures are 

protected only if reported to certain designated individuals or offices.46

Second, an April 2014 memo from the DAG to all DOJ employees—

including FBI employees—encouraged employees to watch a video on 

whistleblower rights and protections and stated that employees may 

report waste, fraud, or abuse within the department to supervisors within 

their offices or the OIG, or outside the department to OSC.47 The memo 

did not clarify that FBI employees who report such allegations to their 

supervisors or OSC may not have the right to pursue corrective action 

should they experience retaliation for their disclosure. Senior ODAG 

officials acknowledged that if taken in isolation, this memo could cause 

some confusion for FBI employees but stressed that FBI employees 

should already be familiar with the FBI-specific policy from FBI-offered 

training and resources. However, we reviewed the two trainings FBI 

officials cited as educating FBI employees on the procedures to follow 

when making a whistleblower complaint, and neither training mentions 

DOJ’s regulations related to FBI whistleblower retaliation or the specific 

steps FBI employees need to take to ensure their disclosures are 

protected.48

 45We reviewed additional guidance documents on this topic that varied in terms of 

accuracy and clarity. We reviewed whistleblower guidance DOJ provided to FBI 

employees (1) that was complete and accurate; (2) that was outdated, such as by 

referencing regulations that are no longer in force; and (3) that accurately described some, 

but not all, of the nine entities designated in DOJ’s regulations as recipients of protected 

disclosures.

OIG and FBI officials report that they are currently developing 

46The FBI’s October 15, 2011, Domestic Investigations and Operations Guide states: “In 

general, the FBI requires employees to report known or suspected failures to adhere to 

the law, rules or regulations by themselves or other employees, to any supervisor in the 

employees’ chain of command; any Division Compliance Officer; any Office of the General 

Counsel Attorney; any FBI-INSD personnel; any FBI Office of Integrity and Compliance 

staff; or any person designated to receive disclosures pursuant to the FBI Whistleblower 

Protection Regulation (28 Code of Federal Regulations 27.1), including the Department of 

Justice Inspector General.”

47The OIG-produced video discusses whistleblower rights and protections for DOJ 

employees and notes that the rules for FBI employees differ, but does not provide any 

additional clarifying information on this point.

48The two trainings FBI officials referred us to were a Skillsoft course called “Workplace 

Safety” and a mandatory 2012 Sexual Harassment Prevention and No Fear Act training.
Page 22 GAO-15-112 FBI Whistleblower Retaliation Complaints

a training video that will address FBI-specific issues and will be required 

for all FBI employees. This planned training could improve employee 

awareness of the FBI-specific procedures, but such an effort could be 

undercut if unclear written policies and communications continue to be 

provided to FBI employees.

Standards for Internal Control in the Federal Government provides that 

agencies should distribute pertinent information so employees may 

efficiently carry out their duties.49 Without clear information on the process 

for making a protected disclosure, including the individuals to whom a 

claimant can make a protected disclosure, FBI whistleblowers may not be 

aware that, depending on how they report their allegation, they may not 

be able to seek corrective action should they experience retaliation.

OARM adjudicated the merits of 4 of the 62 complaints we reviewed (6 

percent), and these 4 cases lasted from 2 to just over 10.6 years, from 

the initial filing of the complaints with OIG or DOJ-OPR to the final OARM 

or ODAG ruling.50

 49

In 3 of these 4 cases, DOJ ultimately ruled in favor of 

the whistleblower. As shown in figure 3, these 3 cases lasted from just 

over 8 to 10.6 years. In the fourth case, DOJ ruled in favor of the FBI and 

this case lasted approximately 2 years.

GAO/AIMD-00-21.3.1.

50Of the remaining 58 complaints, 46 were closed by OIG or DOJ-OPR or withdrawn by 

the complainant at the investigation stage and 12 were closed by OARM or withdrawn by 

the complainant while pending at OARM, but before reaching the adjudication stage.

DOJ Took up to 10 Years 

to Resolve the 4 

Complaints It Adjudicated

on the Merits and Did Not 

Provide Parties with 

Expected Time Frames for 

Its Decisions
Page 23 GAO-15-112 FBI Whistleblower Retaliation Complaints

Figure 3: Length of Cases the Department of Justice (DOJ) Adjudicated, in Years

Notes: For the investigating office’s review, the graph reflects the time between the date the 

investigating office received the complaint and the date the office sent a termination report to the 

complainant (or in 1 case the date the complainant informed the investigating office that the 

complainant intended to go to OARM after receiving the proposed termination report). For OARM’s 

adjudication, the graph reflects the time between the date the complainant filed a request for 

corrective action with OARM and OARM’s final decision or corrective action order, whichever was 

later. For the Deputy Attorney General’s adjudication of appeals, the graph reflects the time between 

the first party’s appeal following OARM’s final decision and the final adjudication on any appeals 

associated with that case. Each phase depicted in the graph includes all activity during that phase, 

such as extensions of time requested by the parties and time awaiting DOJ decisions. The gaps in 

the bars reflect time between the conclusion of one office’s handling of the case and the 

complainant—or FBI in the case of some appeals—bringing the complaint to the attention of the next 

office.

a

In these cases, DOJ ruled in favor of the complainant on at least one claim, but not necessarily on all 

of the complainant’s claims.

According to DOJ officials responsible for handling these complaints, 

case-specific factors, including competing staff priorities at any given 

time, case complexity, and parties’ requests for extensions, affected the 

length of investigating and adjudicating complaints.

• Competing priorities: These OIG, DOJ-OPR, OARM, and ODAG 

officials report that competing priorities for staff and senior 

management attention affect the length of FBI whistleblower 

retaliation cases. For example, a senior ODAG official explained that 

competing priorities is the biggest factor affecting the timeliness of 

ODAG’s handling of appeals. This official explained that the DAG 
Page 24 GAO-15-112 FBI Whistleblower Retaliation Complaints

(who, under DOJ’s regulations, personally decides on appeals) and 

ODAG staff (who prepare the DAG to discuss and decide the matter) 

handle issues of national importance and security so the office often 

has more time-sensitive and important issues that delay its decisions 

on FBI whistleblower retaliation cases. 51 The ODAG officials 

explained that to address this in part, in September 2014, they 

finalized an agreement to obtain assistance from Justice Management 

Division attorneys on future FBI whistleblower retaliation appeals, but 

ODAG officials acknowledged that this will not address the issue of 

competing priorities for the DAG. Further, we reviewed some OIG and 

DOJ-OPR investigative case files that included no evidence of agency 

activity for as long as 8 months for OIG and 12 months for DOJ-OPR. 

OIG and DOJ-OPR officials cited competing priorities—for the 

Inspector General and for the assigned investigator, respectively—as 

the biggest factor affecting the identified periods of apparent inactivity. 

Senior ODAG and OIG officials stress that the fact that the DAG and 

Inspector General personally review each complaint highlights the 

importance these offices place on these complaints, but note that 

competing priorities for these individuals’ time do result in delays.

• Case complexity: OIG, DOJ-OPR, and OARM officials report that 

case complexity—such as numerous disclosures and allegations of 

retaliation, many witnesses, and voluminous documents—can cause 

a case to take longer. At the investigation stage, case complexity 

increases the need for cooperation and information from various 

people involved, including the complainant, witnesses, and the FBI—

all of which can contribute to the length of the investigation, according 

to DOJ-OPR officials. OARM officials report that, at the adjudication 

stage, case complexity is a major factor affecting how quickly they can 

consider all of the relevant evidence and write decisions.

• Parties’ requests for extensions: Once a case is at the adjudication 

stage, the FBI or the complainant may request extensions of time, 

such as an extension of an OARM deadline to collect evidence. In 9 of 

 51DOJ’s regulations specify that the DAG is the deciding official for review of OARM 

decisions, and there is no language allowing the DAG to delegate his or her decisionmaking authority to a designee. See Whistleblower Protection For Federal Bureau of 

Investigation Employees, 64 Fed. Reg. at 58782 (stating the language “(or a designee)” 

after “Deputy Attorney General” has been stricken because the department does not 

“believe that the authority of the Deputy Attorney General to conduct a review should be 

delegated”).
Page 25 GAO-15-112 FBI Whistleblower Retaliation Complaints

16 cases we reviewed that OARM or ODAG handled, parties filed a 

total of 69 requests for extensions—the FBI requested 43, 

complainants requested 19, and 7 were joint requests.52

In addition to affecting overall case length, competing priorities and case 

complexity specifically affect how long OARM and ODAG take to issue 

individual decisions on whether complaints met threshold regulatory 

requirements, merits, and appeals throughout the process. In the cases 

we reviewed, the longest wait for a decision was just over a year and a 

half for OARM to issue a decision on the merits of a case and the shortest 

was 4 days for OARM to rule on whether a complaint met threshold 

regulatory requirements.

The median 

length of extensions that both the FBI and complainants requested 

was 15 days. In the 4 adjudicated cases shown in figure 3, parties’ 

requests for extensions accounted for 45 days of the shortest case 

and over 19 months of the longest case.

53

OARM and ODAG do not routinely provide parties with an estimate for 

when they expect to return decisions in these cases, though OARM 

officials responsible for handling these complaints report that they have 

provided estimates in some cases where the parties specifically 

requested them. These OARM officials explained that they do not 

routinely provide such estimates because time frames can be difficult to 

judge, in part because of the complexity of the cases and the volume of 

Parties at some point waited a year or more for 

a decision by either OARM or ODAG in 6 of 15 complaints we reviewed 

that progressed to the point of an OARM decision on whether the 

complaint met threshold regulatory requirements.

 52Nine of the 16 complaints we reviewed that were filed with OARM had at least 1 

associated request for extension. These requests for extension of time were generally 

unopposed by the other party. We saw evidence that 6 of the 69 requests (9 percent) we 

reviewed were opposed. Officials in the FBI’s Office of the General Counsel—the office 

that represents the FBI in FBI whistleblower retaliation cases—report treating these cases 

like any other employment cases, in terms of the level of FBI resources and number of 

requests for extension.

53In 15 complaints we reviewed, OARM made decisions on whether the complaints met 

threshold regulatory requirements. If we exclude the 2 complaints where the complainant 

never filed a request for corrective action, parties waited from 4 to 475 days for OARM to 

issue these decisions. In the 4 cases where OARM made merit decisions, parties waited 

from 151 to 598 days for OARM to issue its decisions. The DAG took nearly a year or 

more to make half (3 of 6) of the appeals decisions in the cases we reviewed. The DAG’s 

fastest appeal decision was rendered in 12 days and the longest in 499 days. We 

calculated these wait times from the day of the last complainant or FBI action on the 

complaint to the time DOJ provided the relevant decision.
Page 26 GAO-15-112 FBI Whistleblower Retaliation Complaints

evidence. Similarly, senior ODAG officials stated that such estimates 

would be guesses that could raise expectations the offices cannot meet 

because, for example, they cannot predict the Deputy Attorney General’s 

schedule.

Other federal agencies and offices that handle whistleblower retaliation 

cases provide complainants with an estimate for when their cases will 

conclude. MSPB—which DOJ officials have looked to in the past for best 

practices in handling whistleblower retaliation cases—is statutorily 

required to provide parties with an estimate for when MSPB will make a 

decision. Accordingly, MSPB developed a goal to decide cases in 120 

days, and where MSPB officials anticipate missing this goal by 30 days or 

more, it is MSPB’s policy to publicly announce a new date for 

completion.54 Legislative history suggests that this requirement was 

intended to reduce delays.55 Similarly, DOD-OIG is statutorily required to 

complete reports of its investigations into whistleblower retaliation 

complaints within 180 days, and if officials need additional time, they must 

inform the complainant as to why and provide a new date by which the 

investigation report will be completed.56

 54Under 5 U.S.C. § 7701(i)(1), for appeals submitted to MSPB, MSPB is required to 

“establish and announce publicly the date by which it intends to complete action on the 

matter. Such date shall assure expeditious consideration of the appeal, consistent with the 

interests of fairness and other priorities of the [MSPB]. If [MSPB] fails to complete action 

on the appeal by the announced date, and the expected delay will exceed 30 days, 

[MSPB] shall publicly announce the new date by which it intends to complete action on the 

appeal.”

A senior DOD-OIG official told us 

that, at a minimum, a status update regarding progress toward case 

completion provides the complainant with an element of assurance that 

the case is being actively worked on and has not slipped through the 

cracks. An estimate also reinforces a sense of urgency and serves as an 

accountability measure for DOD-OIG investigative personnel, who 

55The Senate report accompanying the Civil Service Reform Act of 1978—which 

established this requirement for MSPB—explained that the Committee on Governmental 

Affairs had completed a study on delay in the regulatory process, which identified better 

agency management and planning as one of the prime ways regulatory delays could be 

reduced and, as a result, the committee “unanimously adopted a recommendation that 

agencies make greater use of deadlines as a way to help eliminate delay.” In addition, the 

committee noted that “administrative delay of cases before [MSPB] is especially 

troublesome because it directly affects in significant ways employees who may not even 

have a job while the appeal is pending.” S. Rep. No. 95-969, at 61 (1978). 

5610 U.S.C. § 1034(e)(3). This information must also be reported to the Secretary of 

Defense and the Secretary of the military department concerned (or to the Secretary of 

Homeland Security where applicable). 
Page 27 GAO-15-112 FBI Whistleblower Retaliation Complaints

understand that individuals with great interest in the outcome of the 

investigation are expecting timely results, according to the DOD official.

Further, all eight whistleblower advocates and attorneys we met with 

agreed that it would be helpful for DOJ to provide such estimates. Six of 

the advocates and attorneys we met with explained that not having an 

estimate for when OARM or ODAG will return a decision in these cases 

may hurt complainants’ morale and confidence in the process. Further, 

five advocates and attorneys noted that other FBI employees witness the 

uncertainty and professional limbo whistleblowers experience while DOJ 

considers a whistleblower retaliation complaint, and five further noted that 

this potentially has a chilling effect on prospective whistleblowers.

In February 2013 two of the advocacy groups we interviewed—the 

American Civil Liberties Union and the National Whistleblowers Center—

sent a memo to the Attorney General asking DOJ to require that OARM 

issue merit decisions within 90 days and the DAG issue appeals 

decisions within 60 days, among other changes. In its April 2014 report to 

the President, DOJ officials responded to this recommendation, stating 

that the department does not support these revisions at this time 

because, given the volume of evidence and complexity of these cases, it 

would be very difficult, if not impossible, to meet a strict deadline for 

adjudication. We understand that given the great variability among these 

cases, a single fixed deadline may be impractical, but this limitation 

should not preclude these offices from providing complainants with casespecific estimates that take into account the specifics of each particular 

complaint.

In June 2012, DOJ stated a commitment to making every effort to 

improve the efficiency of the department’s adjudication of these 

complaints.57 Internal control standards reinforce the position that 

agencies need to have ways of ensuring such management directives are 

carried out.58

 57In June 2012, DOJ stated in questions for the record for the Senate Committee on the 

Judiciary that “the Department . . . is committed to making every effort to improve the 

efficiency of the Department’s adjudication of FBI whistleblower cases.”

Providing parties with estimated time frames for returning 

DOJ’s decisions in FBI whistleblower retaliation cases (whether a 

complaint meets threshold regulatory requirements, merits, and appeals) 

58GAO/AIMD-00-21.3.1.
Page 28 GAO-15-112 FBI Whistleblower Retaliation Complaints

and timely updates when OARM and ODAG officials cannot meet 

estimated time frames would enhance accountability to the complainants 

and provide additional assurance about DOJ management’s commitment 

to improve efficiency.

In the last 3 years, and in light of the Presidential Policy Directive 19 

requirement that DOJ assess the efficacy of its current process, DOJ 

officials have identified some opportunities to improve their timeliness in 

resolving whistleblower retaliation complaints and have taken some steps 

to do so. However, DOJ officials have limited plans to assess the impacts 

of these actions. Specifically, OARM has developed a mediation program, 

hired an additional staff person, and developed procedures with stricter 

time frames, while DOJ-OPR and OIG have taken steps to streamline 

their intake procedures. DOJ leadership is also considering taking steps 

to revise DOJ’s regulations to streamline OARM’s process upon receiving 

a new complaint.

• Developing a mediation program: In the spring of 2014, OARM 

launched an alternative dispute resolution program that will provide 

complainants with the option to pursue mediation with the FBI at any 

point from initial filing of the complaint to appeal. OARM officials 

anticipate that this option will help to expedite processing of some

complaints that can be more quickly resolved through mediation and 

permit DOJ to focus limited resources on the remaining cases. As of 

October 1, 2014, two complainants had pursued mediation, but, 

according to OARM officials, because these cases are pending, it is 

too soon to analyze the impact of the mediation program.59

• Hiring additional staff: To reduce the impact of competing priorities 

for limited staff, in November 2013, OARM senior officials stated that 

they hired a part-time attorney to help write OARM decisions in FBI 

 59According to OARM officials, OARM initially provided written notice of the mediation 

program to all parties with whistleblower retaliation complaints pending before OARM, 

except for a select few in which OARM was in the process of finalizing a decision 

dismissing the complaint because it did not meet threshold regulatory requirements, or 

where the parties were already engaged in settlement discussions pertaining to an 

outstanding issue related to the amount of corrective relief due to the complainant. These 

officials stated that OARM currently notifies all parties with complaints pending before 

OARM about this option and the mediation program is also available and being used by 

OIG and DOJ-OPR during the investigation stage.

DOJ Officials Have 

Taken Some Steps to 

Resolve Complaints 

More Quickly but 

Have Limited Plans to 

Assess Impact
Page 29 GAO-15-112 FBI Whistleblower Retaliation Complaints

whistleblower retaliation cases. OARM officials report that they have 

been able to reduce overall case-processing times, in good part 

because of the work of the part-time attorney.60

• Developing procedures with stricter time frames: Senior OARM 

officials report that in June 2011 they met with an MSPB 

administrative judge and an MSPB senior executive to gather ideas 

for shortening the time frames in OARM’s cases. These officials 

further report that in response to the input from MSPB, in October of 

that same year OARM issued procedures that included stricter time 

frames for the complainant and FBI, such as shortening the period of 

time OARM initially provides for parties to gather evidence. In 

addition, OARM officials report that around this same time, they 

revised their practice of generally approving parties’ requests for 

extensions. The OARM officials report that they began reviewing 

requests for an extension more critically and often do not approve the 

full length of the extension requested.

• Streamlining intake procedures: Senior OIG officials report that 

they could improve their timeliness in processing initial complaints and 

have since taken steps to ensure that complaints are transmitted for 

initial review within 1 to 2 days of receipt, if possible. DOJ-OPR 

officials report that in the last 2 years, they have established a new 

intake procedure so that an intake attorney handles the initial notice to 

the whistleblower instead of waiting until the complaint is assigned to 

an investigator.

• Streamlining OARM’s process: DOJ’s April 2014 report to the 

President included a recommendation intended to expedite OARM’s 

process upon receiving new complaints. DOJ’s report states: “Under 

OARM’s current process, when a complainant files a request for 

corrective action with OARM, OARM usually forwards it to the FBI and 

provides the FBI 25 calendar days to file its response. In some 

instances, however, the allegations in a complainant’s request are so 

deficient that neither OARM nor the FBI can reasonably construe the 

specific claims raised.” Under the recommended revised procedures, 

 60OARM officials report that since the part-time attorney joined the staff, the number of 

OARM issuances has increased from 39 in fiscal year 2013 to 90 issuances in fiscal year 

2014. Issuances refer to decisions on whether complaints meet threshold regulatory 

requirements, final determinations, and more routine initial orders including orders to show 

cause, orders on motions for extensions of time, and others.
Page 30 GAO-15-112 FBI Whistleblower Retaliation Complaints

where it appears that a complaint may not meet DOJ’s threshold 

regulatory requirements, OARM would give the complainant a very 

short time period to clarify why the case should not be dismissed. 

DOJ officials state that this could allow for quick resolution of cases 

that plainly fail to meet the threshold regulatory requirements and 

increase efficiency of case adjudication.

As DOJ implements these changes intended to improve the efficiency of 

DOJ’s handling of FBI whistleblower retaliation complaints, as detailed 

above, assessing the impact would help DOJ officials ensure that these 

changes are in fact shortening total case length without sacrificing quality, 

and identify any additional opportunities to improve efficiency. OARM 

officials report that given the length of these cases, it is too early to 

assess whether the efforts implemented thus far are having the desired 

impact on the timeliness of OARM’s adjudication process, but they 

explained that in the future, they could use their case docket to determine 

impact. For example, they could review the number of cases resolved 

through mediation and whether the revised procedures from 2011 have 

made a difference in the time needed to adjudicate large cases. OARM’s 

stated plans to monitor the impact is a good first step by one of the 

relevant offices, but assessing the impact on timeliness and quality 

throughout the entire investigation, adjudication, and appeal process to 

determine the impact on total complaint-processing time will require a 

joint effort among OIG, DOJ-OPR, OARM, and ODAG.

In DOJ’s April 2014 report to the President, DOJ stated plans to evaluate 

the impact of two policy changes to increase the effectiveness of DOJ’s

regulations, but stated no such plans for the policy changes intended to 

improve DOJ’s timeliness in handling these complaints. Standards for 

Internal Control in the Federal Government calls for agencies to compare 

actual performance with planned or expected results and analyze 

significant differences.61 Without assessing the impact of its policy 

changes on the complete process, DOJ will not be in a position to gauge 

progress in fulfilling DOJ’s commitment to improving its efficiency in 

handling these complaints and correct course, if needed. Without 

assessment, it will be difficult for DOJ to know whether its various efforts 

to improve timeliness are working as intended.

 61GAO/AIMD-00-21.3.1.
Page 31 GAO-15-112 FBI Whistleblower Retaliation Complaints

OIG and DOJ-OPR have not consistently provided complainants with 

status updates or obtained the complainant’s approval for an extension 

when the investigator reviewing the complaint needed more time, as 

stipulated under agency regulations. In the last 2 years, OIG developed a 

database to increase management oversight of investigators’ compliance 

with requirements to provide updates and obtain the complainants’ 

approval for extensions, but DOJ-OPR does not have a similar 

mechanism in place. In addition, OIG did not inform complainants of its 

intent before closing complaints it declined to investigate and did not 

consistently explain the basis for its decisions to complainants, but plans

to begin doing so.

OIG and DOJ-OPR have not consistently provided complainants with

periodic status updates nor have they always obtained complainants’ 

approvals for extensions when the investigator reviewing the complaint 

needed more time, as required under DOJ’s FBI whistleblower 

regulations.62

 62We reviewed 58 investigating office complaints—37 OIG complaints and 21 DOJ-OPR 

complaints. (In 4 of the 62 total complaints we reviewed, the complainant filed his or her 

complaint directly with OARM before filing with an investigating office; therefore we did not 

review investigating office case files associated with these complaints.) The number of 

complaints included in our analysis for each requirement may not total 58 because, in 

some instances, we were not able to determine whether a complaint met the requirement 

from the information contained in the case file or the investigating office closed the 

complaint before the deadline for the requirement. In these instances, we excluded the 

complaint from our analysis.

Specifically, in 65 percent of the complaints we reviewed 

(37 of 57), the investigating office did not meet the regulatory requirement 

to contact the complainant to acknowledge that the office had received 

the complaint within 15 days of the date either OIG or DOJ-OPR received 

the complaint. In particular, OIG did not meet the requirement in 20 of 36 

complaints (56 percent) and DOJ-OPR did not meet the requirement in 17 

of 21 complaints (81 percent). See appendix III for more detail on the 

number and percentage of complaints in which OIG and DOJ-OPR met 

each reporting requirement.

OIG and DOJ-OPR 

Have Not 

Consistently Met 

Regulatory 

Requirements to 

Provide Complainants 

with Information 

Needed to Determine 

Next Steps for Their 

Complaints

OIG and DOJ-OPR Have 

Not Consistently Provided 

Complainants with 

Required Status Updates 

and Extension Requests; 

OIG Has Begun Tracking 

Compliance, but DOJOPR Has Not
Page 32 GAO-15-112 FBI Whistleblower Retaliation Complaints

After the deadline to acknowledge that the office received the complaint, 

we saw evidence in the case files for the majority of complaints we 

reviewed (27 of 37, or 73 percent) that OIG and DOJ-OPR provided the 

first status update within the 90-day time frame; however, both offices 

were less consistent about meeting the time frames for subsequent status 

updates, which are required at least every 60 days.63

In addition, OIG and DOJ-OPR did not always obtain the complainant’s 

approval for an extension when the investigator needed more time. As 

discussed previously, the regulations require that the investigating office 

determine within 240 days of receiving the complaint if there are 

reasonable grounds to believe whistleblower retaliation occurred, unless 

the complainant agrees to an extension.

In 20 of 27 

complaints we reviewed (74 percent)—including 8 of 12 OIG complaints 

and 12 of 15 DOJ-OPR complaints—we saw at least one period of more 

than 60 days during which the case file did not contain evidence that the 

investigating office had communicated with the complainant. In 8 of these 

20 complaints, we identified only one 60-day period in which the case file 

did not contain evidence of communication with the complainant. 

However, in the other 12 complaints, we identified more than one 60-day 

period in which the case file did not demonstrate that the investigating 

office had communicated with the complainant.

64

 63In addition to letters informing the complainant of the status of the investigation, we 

counted as status updates all evidence of communication from the investigating office to 

the complainant, including evidence of phone calls, e-mails, and interviews with the 

complainant. Senior OIG officials and a DOJ-OPR official responsible for managing these 

complaints told us that they consider both letters and less formal communications, such as 

phone calls and e-mails, to be status updates under the regulations since they provide the 

complainant with information about the status of his or her complaint.

We found that the investigating 

offices met this requirement in most of the complaints we reviewed (47 of 

57, or 82 percent), generally because the offices closed the majority of 

64We considered a complaint to have met the 240-day requirement if the investigating 

office provided the complainant a final termination report or otherwise closed the 

complaint within 240 days from the date the office received the complaint. In 1 DOJ-OPR 

complaint we reviewed, the complainant initially provided an incorrect address and DOJOPR sent both a proposed and final termination report to the incorrect address within 240 

days, but closed the complaint after more than 240 days because of the time needed to 

obtain the correct address. We excluded that complaint from our analysis with regard to 

this requirement.
Page 33 GAO-15-112 FBI Whistleblower Retaliation Complaints

complaints within 240 days (40 of 57, or 70 percent).65

The regulatory requirements help ensure that both complainants and the 

investigating office receive information necessary to make decisions 

regarding the complaint. For example, the requirement to send notice to 

the complainant within 15 days acknowledging that the office has 

received the complaint ensures that the complainant is aware of whom to 

contact within OIG or DOJ-OPR if he or she has questions or additional 

information to provide regarding their complaint. Further, three of the 

eight whistleblower advocates and attorneys we spoke with stated that 

regular communication between investigators and complainants ensures 

that complainants provide the investigating office with follow-up 

information that the office needs to make a timely and appropriate 

decision. In addition, as previously discussed, the regulations provide 

complainants the right to bring their complaints directly to OARM after 

120 days if they have not received notice that the investigating office will 

seek corrective action. Two of the whistleblower advocates we spoke with 

said that it is generally beneficial to the complainant to wait for OIG or 

DOJ-OPR to complete their investigations so that these offices can obtain 

a complete factual record, which is helpful if the complainant pursues his 

or her case with OARM. However, according to these whistleblower 

advocates, if the complainant is not satisfied with the investigating office’s 

progress, the complainant may prefer to go directly to OARM. Regulatory 

requirements to provide periodic status updates and receive the 

complainant’s approval for an extension when investigations are running 

long helps ensure complainants have the information they need to make 

this decision.

However, the case 

files for over half (10 of 17) of the complaints that exceeded 240 days—

including 6 of 7 OIG complaints and 4 of 10 DOJ-OPR complaints—did 

not contain documentation that the complainant had agreed to an 

extension.

More broadly, regular status updates provide reassurance to 

complainants during the investigative process. Four of the eight 

whistleblower advocates and attorneys we spoke with said that regular 

status updates reassure complainants that the investigating office is 

 65OIG closed 30 of 37 complaints (81 percent) within 240 days, and DOJ-OPR closed 10 

of 20 complaints (50 percent) within 240 days. We found that the median length of the 37 

OIG complaints we reviewed was 35 days and the median length of the 20 DOJ-OPR 

complaints we reviewed was 281 days.
Page 34 GAO-15-112 FBI Whistleblower Retaliation Complaints

continuing to make progress on their complaints. Further, six of the 

attorneys and advocates said that, without regular status updates, 

complainants can become discouraged and develop a negative view of 

the process. Five of these attorneys and advocates said that, as a result 

of these negative experiences, potential whistleblowers may be less likely 

to come forward to report wrongdoing.

At the time the case files we reviewed were open, OIG and DOJ-OPR did 

not have oversight mechanisms in place to ensure compliance with the 

status update and extension requirements. According to senior OIG 

officials and a DOJ-OPR official responsible for managing these 

complaints, managers regularly discussed individual complaints with the 

investigator assigned to the complaint, but the investigator was 

responsible for setting due dates to ensure compliance with the 

regulations. The OIG and DOJ-OPR officials we spoke with said that their 

investigators were frequently in communication with complainants, but 

these communications were not always documented within their case 

files. Without documentation of these communications, managers could 

not verify that investigators had communicated with complainants, as 

required. In addition, senior OIG officials and the DOJ-OPR official said 

that they maintained information on the dates whistleblower retaliation 

complaints were opened and closed within their case management 

systems; however, these systems were not specific to whistleblower 

retaliation complaints and did not contain dates of interim 

communications. As a result, managers could not use these systems to 

oversee investigators’ compliance with requirements to provide status 

updates within prescribed time frames or obtain the complainant’s 

approval for an extension, if required.

OIG has taken steps to begin tracking compliance with these 

requirements; however, DOJ-OPR has not yet taken similar action. 

Specifically, in July 2014, during the course of our review, an OIG 

manager informed staff responsible for these complaints of the 

importance of documenting status updates within case files to ensure 

documentation of OIG’s compliance with regulatory requirements to 

update complainants within prescribed time frames. Further, over the last 

2 years, OIG has developed a database it now uses as a management 

tool to oversee investigators’ compliance with requirements for 

communicating with complainants. According to senior OIG officials we 

spoke with, OIG decided to develop this database to help ensure that OIG 

meets its regulatory requirements. OIG managers use the database to 

track dates of interim communications, such as status updates, and the 

database calculates regulatory deadlines for subsequent updates and for 
Page 35 GAO-15-112 FBI Whistleblower Retaliation Complaints

closing the complaint. In addition, according to senior OIG officials, 

managers can use the database to run reports, such as to see upcoming 

deadlines for all open complaints. Although it is too soon to tell how 

effective this database will be, if used consistently, this database could 

help OIG managers ensure investigators communicate with complainants 

in accordance with regulatory requirements.

According to a DOJ-OPR official responsible for managing these 

complaints, DOJ-OPR could place an even greater emphasis on the 

deadlines for these complaints and take additional steps to oversee 

communications with complainants. This official stated that DOJ-OPR 

investigators may lose track of deadlines for status updates in FBI 

whistleblower retaliation cases because similar requirements are not in 

place for other cases DOJ-OPR typically handles. Further, as discussed 

previously, in many of the case files we reviewed we did not see evidence 

of communication between the DOJ-OPR investigator and the 

complainant within required time frames. For example, in one case file we 

reviewed, the complainant listed numerous attempts to contact DOJ-OPR 

over the prior year and expressed frustration at not receiving the required 

status updates.

According to senior DOJ-OPR officials, DOJ-OPR has taken some steps 

to improve its management of whistleblower retaliation cases, but does 

not track investigators’ compliance with specific regulatory requirements 

and does not have a formal oversight mechanism to do so. In the last 

year and a half, DOJ-OPR managers have started to receive weekly 

reports with information on all open complaints, according to a DOJ-OPR 

official responsible for managing these complaints. However, the official 

said that the reports do not contain information on status updates. A 

senior DOJ-OPR official reported that DOJ-OPR is in the initial stages of 

upgrading its case management system, and DOJ-OPR officials expect 

that the new system could eventually be tailored to allow them to capture 

additional information on the office’s handling of FBI whistleblower 

retaliation complaints, such as the dates of communications between 

investigators and complainants.

Standards for Internal Control in the Federal Government calls for 

agencies to conduct ongoing monitoring in the course of normal 

operations, such as when investigating whistleblower retaliation 

complaints, to help managers ensure compliance with applicable 
Page 36 GAO-15-112 FBI Whistleblower Retaliation Complaints

regulations and achieve desired results.66 DOJ-OPR has begun taking 

steps to upgrade its case management system but is very early in this 

process. As DOJ-OPR upgrades its case management system, tailoring 

the system to capture data specific to FBI whistleblower retaliation 

complaints, or developing some other mechanism, could provide DOJOPR managers and investigators information necessary to track 

compliance with regulatory requirements. Further, using that information 

to conduct ongoing monitoring of DOJ-OPR attorneys’ compliance with 

regulatory requirements could help DOJ-OPR ensure complainants 

receive the periodic updates that they are entitled to and that they need to 

determine next steps for their complaints.

OIG has not informed complainants before closing complaints it declines 

to investigate and has not always communicated the reasons for its 

decision not to investigate because, according to senior OIG officials, OIG 

does not view the regulations as requiring them to do so. Specifically, 

these officials said that the regulations state that the office must provide 

the complainant with a written statement that indicates the office’s 

intention to close the complaint when the investigating office decides to 

terminate an investigation. As a result, according to these officials, this 

provision does not apply if OIG declines the complaint before initiating an 

investigation. Similarly, these officials said that OIG does not view the 

requirement to send a final termination report including a summary of 

relevant facts and the reasons for terminating an investigation as applying 

to complaints OIG declines to investigate. Unlike in OIG’s process, a 

DOJ-OPR official responsible for managing these complaints said that 

DOJ-OPR provides a draft report to the complainant when DOJ-OPR 

decides to close a complaint, including when DOJ-OPR makes this 

decision without initiating an investigation.

We found that OIG provided a proposed termination report including the 

factual findings and conclusions that justified terminating the investigation 

before OIG finalized its decision to close the complaint in 8 of the 9 

complaints OIG investigated.67

 66

In addition, we found that OIG sent the 

GAO/AIMD-00-21.3.1.

67In addition to these 9 complaints, we reviewed 1 other complaint OIG investigated. 

Because the complainant withdrew the complaint before OIG determined whether to 

terminate the complaint, we excluded that complaint from our analysis.

OIG Has Not Informed 

Complainants before 

Closing Complaints It 

Declined to Investigate or 

Consistently 

Communicated Reasons 

for Its Decision, but Plans 

to Begin Doing So
Page 37 GAO-15-112 FBI Whistleblower Retaliation Complaints

complainant a final termination report when OIG terminated most of these 

investigations (7 of 8).68 Further, OIG generally included information 

required under the regulations, such as a summary of relevant facts, 

OIG’s reasons for terminating in the investigation, and a response to the 

complainant’s comments, in these final termination reports.69

We found that OIG did not send a proposed termination report in any of 

the 27 complaints OIG declined to investigate, in accordance with OIG’s 

interpretation of the regulations. In addition, although OIG sent a final 

termination report in most of the complaints (25 of 27, or 93 percent) OIG 

declined to investigate, OIG did not always include the reasons for its 

decision in the report. Specifically, we found that in 15 of the 24 final 

termination reports (63 percent) we reviewed for complaints OIG declined 

to investigate, OIG did not clearly explain the reasons for this decision.70

 68This excludes 1 complaint in which the complainant brought the complaint to OARM 

after receiving OIG’s proposed termination report. In the 1 complaint in which OIG did not 

send a final termination report, OIG opened a separate investigation into additional 

allegations made by the complainant in comments on the proposed termination report.

Seven of these 15 reports indicated that OIG found that the complaint did 

not meet threshold regulatory requirements under the FBI whistleblower 

regulations, but the report did not communicate why. For example, in one 

instance, OIG’s report to the complainant explained the general finding 

that the allegations, even if accepted as true, did not demonstrate a 

personnel action in retaliation for a protected disclosure. Information we 

reviewed elsewhere in this case file specified that OIG found that the 

complainant had not made the underlying disclosure to a designated 

entity under the regulations. However, OIG did not include this 

information in its final report to the complainant. In the 8 other complaints, 

OIG’s final report to the complainant stated that another office should 

69Specifically, we found that OIG included a summary of relevant facts and reasons for 

terminating the investigation in 6 of 7 final termination reports. OIG included a response to 

the complainant’s comments in the final termination report for 5 of the 6 complaints in 

which the complainant provided comments on the proposed termination report. In the 1 

complaint in which OIG did not address the complainant’s comments in the final 

termination report, OIG wrote a separate letter responding to the comments. In 1 

complaint, OIG did not provide the complainant a proposed termination report; therefore, 

the complainant could not have provided comments in response to the proposed 

termination report.

70This excludes 1 complaint in which we could not determine if the final termination report 

included the reasons for closing the complaint because the case file did not include a copy 

of the report.
Page 38 GAO-15-112 FBI Whistleblower Retaliation Complaints

review the complaint, such as the FBI Inspections Division, but did not 

indicate the reason for this decision. In particular, the report did not 

indicate that OIG had considered the complaint as a whistleblower 

retaliation matter and determined the complaint did not meet threshold 

regulatory requirements for OIG to conduct an investigation.

In contrast, DOJ-OPR generally provided complainants proposed 

termination reports before closing their complaints and included required 

information in its final termination reports, including in complaints DOJOPR closed without conducting an investigation. Specifically, we found 

that DOJ-OPR sent a proposed termination report in 17 of 19 complaints 

(89 percent) that DOJ-OPR terminated, and included the office’s findings 

and conclusions that justified terminating the investigation in all 17 of 

these reports.71

Providing the complainant a proposed termination report describing the 

investigating office’s findings and conclusions ensures that the 

complainant is aware of the office’s rationale for the decision and has an 

opportunity to provide additional information or written comments before 

the office closes the complaint. According to two senior OSC officials we 

spoke with about their process for reviewing whistleblower retaliation 

complaints for most federal employees, OSC provides the complainant a 

letter when OSC intends to close a complaint that does not meet 

threshold requirements without conducting an investigation. In some 

instances, according to these officials, the complainant’s response to 

OSC’s proposed termination report has caused OSC to reconsider its 

initial decision to terminate the complaint. As with OIG and DOJ-OPR, if 

OSC intends to terminate a whistleblower retaliation investigation, OSC is 

required to provide the complainant a written statement including the facts 

and OSC’s conclusions and provide the complainant an opportunity to 

provide comments. As previously discussed, OIG and DOJ-OPR are 

In addition, we found that DOJ-OPR sent a final 

termination report in all 19 complaints and included relevant facts and the 

reasons for terminating the investigation in all 19 of these reports. 

Further, in all 9 complaints in which the complainant provided comments 

on the proposed termination report, DOJ-OPR responded to the 

complainant’s comments in the final termination report.

 71In addition to these 19 complaints, we reviewed 2 other DOJ-OPR complaints. Because 

those 2 complainants went to OARM before DOJ-OPR determined whether to terminate 

the complaints, we excluded those 2 complaints from our analysis.
Page 39 GAO-15-112 FBI Whistleblower Retaliation Complaints

required to provide for the enforcement of whistleblower protection in a 

manner consistent with certain OSC processes.72

In addition, the requirement to provide specific information in the office’s 

final report to the complainant, including the basis for the office’s decision 

to close the complaint, helps ensure that complainants have the 

information they need to make decisions about their complaints. As 

discussed previously, the regulations provide complainants the option of 

bringing their complaints to OARM after the investigating office has 

notified them that it has closed the complaint.73

Senior OIG officials said that although they have not provided proposed 

termination reports in complaints they declined to investigate, they 

considered any additional information complainants provided after 

receiving notice of OIG’s decision not to investigate. However, when we 

met with these officials in October 2014, they said that they recognize the 

benefits of always providing complainants the opportunity to comment on 

OIG’s decision to terminate a complaint without initiating an investigation 

because the complaint does not meet threshold regulatory requirements. 

In addition, these officials said that they need to be more specific about 

the reasons a complaint does not meet regulatory requirements. In light of 

our review, these OIG officials said that they have decided to implement 

these practices and have instructed their investigators to do so going 

However, without 

information on the reasons for OIG’s decision to decline to investigate, 

complainants may not have sufficient information to determine if they 

would like to continue to pursue their complaints through OARM. Further, 

the regulations require complainants to bring their complaints to OARM 

within 60 days of receiving notification from the investigating office. If 

complainants need to request additional information from OIG, such as 

the rationale for OIG’s decision, they may not have sufficient time to bring 

their complaints to OARM.

 72In particular, pursuant to presidential delegation, DOJ is required to provide for the 

enforcement of the prohibition against personnel practices taken in retaliation for protected 

disclosures consistent with 5 U.S.C. § 1214, which governs OSC’s authority to investigate 

allegations of prohibited personnel practices and make recommendations for corrective 

action, among other things. As DOJ explained in issuing its regulations, the investigating 

offices (OIG and DOJ-OPR) have been granted powers and functions that are consistent 

with those granted to OSC under section 1214.

73Officials with both OIG and OARM told us that OIG’s decision not to investigate a 

complaint is sufficient for the complainant to have met the requirement to bring the 

complaint to an investigating office—either OIG or DOJ-OPR—before filing it with OARM. 
Page 40 GAO-15-112 FBI Whistleblower Retaliation Complaints

forward. We believe that, if implemented effectively, these planned 

actions will help OIG ensure that all complainants have an opportunity to 

provide additional information or written comments before OIG closes 

their complaints and that complainants will receive the information they 

need to make decisions about their complaints.

Whistleblowers play an important role in safeguarding the federal 

government against waste, fraud, and abuse, but they often risk 

retaliation from their employers as a result of their actions. DOJ has 

established a process by which FBI whistleblowers can seek recourse 

should they experience such retaliation, and DOJ generally has the 

discretion to revise this process, as needed. We found that DOJ has 

terminated many FBI whistleblower complaints based on complainants’ 

failure to meet threshold regulatory requirements rather than whether the 

retaliation occurred. In particular, FBI employees are protected if they 

report wrongdoing to certain high-level FBI or DOJ officials and other 

specified entities, and—unlike employees of other executive branch

agencies—are not protected if they report wrongdoing to their 

supervisors. DOJ officials have stated plans to partially address this by 

adding several more senior officials in FBI field offices to the list of 

individuals to whom complainants may report protected disclosures, but 

the timing and outcome of this stated plan are uncertain. DOJ officials 

said they do not plan to expand the list to include supervisors or others in 

an employee’s chain of command in part because of their concerns about 

the additional resources that would be needed to handle a possible 

increase in complaints and the potential effect on the timeliness of DOJ’s 

process to handle these complaints. While DOJ officials’ concern about 

timeliness is important, they are already taking other steps to improve the 

efficiency of this process. More importantly, dismissing retaliation 

complaints made to an employee’s supervisor or someone in that 

person’s chain of command leaves some FBI whistleblowers with no 

recourse if they allege retaliation, as our review of case files 

demonstrated. Training that DOJ officials plan to provide to FBI 

employees could help provide information on how to make a protected 

disclosure; however, this planned training will not address the fact that 

some employees report alleged wrongdoing first to their supervisors or 

others in their chain of command without ever expecting that this will lead 

to retaliation and a whistleblower claim.

As a result, congressional consideration of whether the purposes of 5 

U.S.C. § 2303, which prohibits a personnel action taken against an FBI 

employee as a reprisal for a protected disclosure, are being met—in 

Conclusions
Page 41 GAO-15-112 FBI Whistleblower Retaliation Complaints

particular, whether FBI employees should, like employees of other 

executive branch agencies, have a means to obtain corrective action for 

retaliation for disclosures of wrongdoing made to supervisors and others 

in the employees’ chain of command—could help ensure that DOJ’s 

process for handling these complaints is consistent with congressional 

action to strengthen and expand protections for other federal 

whistleblowers. Further, it is important that, regardless of what changes 

DOJ may make to the list of entities designated to receive protected 

disclosures, information DOJ and the FBI provide to FBI employees on 

the process for making a protected disclosure is clear and consistent so 

FBI employees who consult such guidance make decisions based on 

accurate information.

In some instances—particularly where OARM ordered corrective action in 

favor of the complainant—the process for resolving these complaints has 

taken many years, and DOJ has stated a commitment to improving its 

efficiency in handling these cases. Committing to specific time frames for 

returning DOJ decisions on the outcomes of FBI whistleblower retaliation 

cases could help DOJ achieve its commitment to improving efficiency in 

handling these complaints. Additionally, assessing the impacts of DOJ 

actions to improve timeliness could help ensure that these actions are 

achieving the intended results. Finally, establishing an oversight 

mechanism to monitor DOJ-OPR investigators’ compliance with 

regulatory reporting requirements—either by tailoring DOJ-OPR’s case 

management system or another means—can assist DOJ in ensuring that 

complainants receive timely information they need to make informed 

decisions regarding their complaints, such as whether or not to seek 

corrective action from OARM.

To ensure that the purposes of 5 U.S.C. § 2303—which prohibits a 

personnel action taken against an FBI employee as a reprisal for a 

protected disclosure—are met, Congress may wish to consider whether 

FBI employees should have a means to obtain corrective action for 

retaliation for disclosures of wrongdoing made to supervisors and others 

in the employee’s chain of command who are not already designated 

officials.

We recommend the following four actions.

To better ensure that FBI whistleblowers have access to recourse under 

DOJ’s regulations should the individuals experience retaliation, and to 

Matter for 

Congressional 

Consideration

Recommendations for 

Executive Action
Page 42 GAO-15-112 FBI Whistleblower Retaliation Complaints

minimize the possibility of discouraging future potential whistleblowers, 

we recommend that the Attorney General clarify in all current relevant 

DOJ guidance and communications, including FBI guidance and 

communications, to whom FBI employees may make protected 

disclosures and, further, explicitly state that employees will not have 

access to recourse if they experience retaliation for reporting alleged 

wrongdoing to someone not designated in DOJ’s regulations.

To better ensure that DOJ is fulfilling its commitment to improving 

efficiency in handling these complaints, we recommend the following to 

the heads of the relevant offices:

• OARM and ODAG should provide parties with an estimated time 

frame for returning each decision, including whether the complaint 

meets threshold regulatory requirements, merits, and appeals. If the 

time frame shifts, OARM and ODAG should timely communicate a 

revised estimate to the parties.

• DOJ-OPR, OIG, OARM, and ODAG should jointly assess the impact 

of ongoing and planned efforts to reduce the duration of FBI 

whistleblower retaliation complaints throughout the entire 

investigation, adjudication, and appeal process to ensure that these 

changes are in fact shortening total complaint length, without 

sacrificing quality.

To ensure that complainants receive the periodic updates that they are 

entitled to and need to determine next steps for their complaint, such as 

whether or not to seek corrective action from OARM, we recommend that 

Counsel, DOJ-OPR tailor its new case management system or otherwise 

develop an oversight mechanism to capture information on the office’s 

compliance with regulatory requirements and, further, use that information 

to monitor and identify opportunities to improve DOJ-OPR’s compliance 

with regulatory requirements.

We provided a draft of this report to DOJ and OIG for review and 

comment. On January 16, 2015, an official with DOJ’s Justice 

Management Division sent us an email stating that the department 

concurred with our recommendations. DOJ also provided technical 

comments which we incorporated, as appropriate. In its technical 

comments, DOJ stated a commitment to monitoring the implementation of 

its April 2014 recommendations to ensure that FBI employees are not 

unfairly excluded from whistleblower protection because they had 

disclosed information to their immediate supervisor. DOJ also reported 

Agency Comments 

and Our Evaluation
Page 43 GAO-15-112 FBI Whistleblower Retaliation Complaints

that DOJ-OPR is taking steps, such as developing a report template and 

upgrading its case management system which, when completed, could 

help the agency begin systematically tracking investigators’ compliance 

with regulatory reporting requirements. These initial steps position the

agency to satisfy our recommendation that DOJ-OPR tailor its new case 

management system or otherwise develop an oversight mechanism to 

capture information on the office’s compliance with regulatory reporting 

requirements.

In written comments provided by OIG, (reproduced in app. IV) the 

Inspector General concurred with our recommendation to OIG and 

provided technical comments which we incorporated, as appropriate. In 

its comment letter, OIG stated that OIG has consistently supported and 

continues to support broadening the list of persons to whom protected 

disclosures can be made. Further, with regard to guidance provided to 

FBI employees, the OIG fully supports providing clear and comprehensive 

guidance as to all aspects of whistleblower rights and protections. To this 

end, OIG’s letter stated that the office is working with the FBI to create a 

specialized training program that highlights the specific requirements and 

procedures for FBI whistleblowers and on enhancements to OIG’s 

website to include additional information specific to FBI employees. 

The OIG letter also raised several additional issues. First, OIG’s letter 

stated that, with regard to the total duration of Jane Turner’s complaint, 

for example, the GAO draft does not distinguish between the 

responsibilities of OIG and the department. We appreciate the differing 

roles and responsibilities of each office and describe these in our report. 

In reporting our findings, we clearly distinguish between the separate 

offices’ timeframes and records of compliance with certain regulatory 

requirements. However, it is important for us to also consider the total 

length of cases, which is particularly important to the whistleblowers. 

Second, the OIG letter mentioned that GAO’s analysis excluded more 

recent complaints. Given the sensitive nature of open cases, we reviewed 

only complaints closed as of December 31, 2013. Third, the OIG letter 

commented that the GAO report failed to fully acknowledge the high 

priority and personal attention OIG senior staff give to FBI whistleblower 

retaliation matters. We disagree. Our report explains that the Inspector 

General personally reviews each complaint, but also recognizes that 

competing priorities for this high level of attention has resulted in delays. 

Fourth, OIG’s letter noted that in many instances OIG has relied on 

telephone contact with complainants to meet regulatory notification 

requirements and because such contacts were not consistently 

documented, we would not always have identified them in our case file 
Page 44 GAO-15-112 FBI Whistleblower Retaliation Complaints

review. In our review of both DOJ and OIG case files, we noted all 

evidence of contact with the complainants, including evidence of written 

and oral communication, but it is correct that we would not have identified 

undocumented contact with complainants. As OIG acknowledged in its 

letter, it is important that evidence of contact be documented in case files 

to demonstrate compliance with the regulations. As discussed in our 

report, OIG has taken steps to address this. 

As agreed with your office, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies to the Attorney General, the 

DOJ Inspector General, appropriate congressional committees, and other 

interested Member of Congress. In addition, the report will be available at 

no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact 

me at (202) 512-8777 or maurerd@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on 

the last page of this report. GAO staff who made key contributions to this

report are listed in appendix V.

Sincerely yours,

David C. Maurer

Director, Homeland Security and Justice
Appendix I: Scope and Methodology

Page 45 GAO-15-112 FBI Whistleblower Retaliation Complaints

This appendix discusses in detail our methodology for addressing the 

following three objectives:

• determining how long the Department of Justice (DOJ) has taken to 

resolve Federal Bureau of Investigation (FBI) whistleblower retaliation 

complaints and what factors have affected these time frames,

• determining the extent to which DOJ has taken steps to resolve 

complaints more quickly and determine the impact of any such efforts; 

and

• determining the extent to which DOJ’s Office of the Inspector General 

(OIG) and Office of Professional Responsibility (DOJ-OPR) have 

complied with regulatory reporting requirements.

To determine how long DOJ has taken to resolve FBI whistleblower 

retaliation complaints and the factors that affected these time frames, we 

reviewed DOJ case files for all FBI whistleblower retaliation complaints 

closed within the last 5 calendar years (from 2009 through 2013). 

Specifically, we reviewed the case files for a total of 62 closed 

whistleblower retaliation complaints to calculate the duration of each 

complaint from initial filing to DOJ’s final decision, including, for example, 

the length of time from initial filing to the investigating office’s final 

decision; the length of time from filing a request for corrective action with 

the Office of Attorney Recruitment and Management (OARM) to OARM’s 

decision; and the length of the appeals process.1

 1

The regulations require that whistleblower retaliation complaints be filed directly with OIG 

or DOJ-OPR. However, OIG officials report that OIG will investigate a retaliation complaint 

referred by the FBI if the complaint is sufficient to establish the elements of a retaliation 

claim under the regulations. Therefore, in addition to these 62 complaints, we also 

reviewed case files for 18 complaints that OIG received from the FBI. OIG officials told us 

that OIG reviews all complaints submitted to the FBI to determine if any complaints 

submitted to the FBI fall under OIG’s jurisdiction, such as complaints that appear to allege 

FBI whistleblower retaliation. Because these 18 complaints were not submitted directly to 

OIG or DOJ-OPR, as required by § 27.3(a)(1), and OIG did not investigate these 

complaints as whistleblower retaliation complaints (or the complaint was withdrawn by the 

complainant before OIG made a determination), we excluded these 18 complaints from 

our analysis.

We did this by creating 

a data collection instrument to identify the key characteristics of 

whistleblower retaliation cases, determine the completeness of the files, 

and assess time frames for each case in accordance with DOJ’s 

Appendix I: Scope and Methodology
Appendix I: Scope and Methodology

Page 46 GAO-15-112 FBI Whistleblower Retaliation Complaints

regulations.2 We also gathered information on the outcome of each 

complaint and factors that could affect timeliness, such as the length and 

frequency of parties’ requests for extensions of time. In addition, to better 

understand DOJ’s process for handling these complaints, we reviewed 

relevant documentation, including DOJ’s whistleblower regulations and 

internal guidance on the process for making a protected disclosure. To 

obtain DOJ officials’ perspectives on DOJ’s process, time frames for 

handling these complaints, and factors affecting these time frames, we 

also interviewed senior agency officials from offices responsible for 

investigating—OIG and DOJ-OPR—or adjudicating—OARM and the 

Office of the Deputy Attorney General (ODAG)—FBI whistleblower 

retaliation complaints. We compared aspects of DOJ’s process against 

standards in Standards for Internal Control in the Federal Government to 

identify the extent to which DOJ’s process was in alignment with these 

standards.3

Because of the sensitivity of FBI whistleblowers’ identities, to obtain 

whistleblower perspectives about DOJ’s process and time frames, we met 

with representatives of whistleblower advocacy groups knowledgeable 

about DOJ’s process and attorneys who have represented FBI 

whistleblowers through this process. Specifically, we identified and 

interviewed representatives of five whistleblower advocacy groups using 

an iterative process often referred to as snowball sampling. At each 

interview, we solicited names of additional groups to interview and 

selected for interviews those that were most widely recognized as 

 2

In 1998, DOJ issued regulations that set forth the process for FBI whistleblowers to 

report complaints of retaliation for their disclosures. Whistleblower Protection For Federal 

Bureau of Investigation Employees, 63 Fed. Reg. 62,937 (Nov. 10, 1998). DOJ initially 

issued these regulations as an interim rule effective upon publication in the Federal 

Register; however, DOJ invited postpromulgation comments that were addressed in a final 

rule issued in 1999. Whistleblower Protection For Federal Bureau of Investigation 

Employees, 64 Fed. Reg. 58,782 (Nov. 1, 1999) (codified as amended at 28 C.F.R. pts. 0, 

27).

3

GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1

(Washington, D.C.: Nov. 1, 1999). These standards define the minimum level of quality 

acceptable for internal control in government and provide the basis against which internal 

control is to be evaluated. Internal control refers to the plans, methods, and procedures 

used to achieve missions, goals, and objectives.
Appendix I: Scope and Methodology

Page 47 GAO-15-112 FBI Whistleblower Retaliation Complaints

knowledgeable about DOJ’s process.4 We also interviewed attorneys who 

had represented FBI whistleblowers in three of five cases where 

complainants have alleged retaliation and obtained corrective action.5

These attorneys discussed their experience with DOJ’s process and 

factors affecting the length of their cases. We analyzed the results of all of 

these interviews to distill themes and patterns. The information we 

gathered from these groups and attorneys—referred to throughout our 

report collectively as eight whistleblower advocates and attorneys—is not 

generalizable, but provides perspectives on whistleblowers’ experiences 

with DOJ’s process.6

To determine the extent to which DOJ has taken steps to resolve 

complaints more quickly, we interviewed senior DOJ officials in each of 

the four offices responsible for investigating or adjudicating whistleblower 

retaliation complaints—OIG, DOJ-OPR, OARM, and ODAG. We asked 

about the factors that affect the timely processing of these complaints and 

any efforts to address them. In addition, to identify any practices that have 

improved timeliness in comparable federal settings, we interviewed senior 

officials in the Department of Defense’s Office of the Inspector General as 

well as the U.S. Office of Special Counsel (OSC) and the U.S. Merit 

Systems Protection Board (MSPB)—federal agencies that handle 

whistleblower retaliation complaints for other federal employees—about 

those agencies’ processes for handling whistleblower retaliation 

complaints. To identify the extent to which DOJ officials have taken steps 

to determine the impact of their efforts to improve timeliness, we 

 4

The five whistleblower advocacy groups we interviewed were the American Civil Liberties 

Union, the Brennan Center for Justice at New York University School of Law, the 

Government Accountability Project, the National Whistleblowers Center, and the Project 

on Government Oversight.

5

This includes all five closed cases in which DOJ ordered corrective action in favor of an 

FBI whistleblower since DOJ issued its regulations in 1998. In all of these cases, DOJ 

substantiated the complaint and ordered that the FBI take corrective action, such as 

providing the complainant back pay or restoring that person to a prior position. In one 

case, the complainant represented his/her self and so did not have an attorney and in 

another case we attempted to meet with the attorney numerous times but the attorney was 

unable to meet because of schedule conflicts.

6

Two representatives of a whistleblower advocacy group also represented an FBI 

whistleblower who obtained corrective action. Therefore, the eight whistleblower 

advocates and attorneys referred to throughout our report include four representatives of 

whistleblower advocacy groups, two attorneys who represented FBI whistleblowers, and 

two attorneys who represent a whistleblower advocacy group and have also represented 

an FBI whistleblower who obtained corrective action.
Appendix I: Scope and Methodology

Page 48 GAO-15-112 FBI Whistleblower Retaliation Complaints

interviewed DOJ officials and reviewed DOJ’s April 2014 report to the 

President7 and compared DOJ’s stated plans with standards in Standards 

for Internal Control in the Federal Government.

8

To determine the extent to which OIG and DOJ-OPR have complied with 

regulatory reporting requirements, we compared evidence we saw in 

DOJ’s case files with DOJ’s regulations and analyzed the extent of any 

discrepancies. Specifically, for each case file, we reviewed OIG’s and 

DOJ-OPR’s documented communications with the complainants, 

including initial and ongoing outreach, and recorded the dates of all 

communications in our data collection instrument. We calculated the 

length of time between all documented communications to determine the 

number of complaints in which OIG and DOJ-OPR complied with the 

deadlines for reporting requirements in DOJ’s regulations. In addition, we 

reviewed the content of the investigating office’s final notice to the 

complainant that the office had closed its investigation or declined to open 

an investigation, as applicable, as well as the content of any interim 

notices stating the office’s decision. We compared the content of these 

communications with DOJ’s regulatory requirements. We also reviewed 

documentation and interviewed OIG and DOJ-OPR officials responsible 

for handling these complaints about any oversight mechanisms to ensure 

compliance with regulatory requirements. For example, we reviewed an 

electronic copy of an OIG spreadsheet for tracking regulatory deadlines 

for these complaints. We then compared these mechanisms against 

standards in Standards for Internal Control in the Federal Government to 

determine the extent to which OIG and DOJ-OPR met the relevant 

standards related to oversight.9

 7

Presidential Policy Directive 19, dated October 10, 2012, required that within 180 days, 

DOJ report to the President on the efficacy of its regulations pertaining to FBI 

whistleblower retaliation and describe any proposed revisions to these regulations to 

increase their effectiveness. DOJ submitted the required report to the President in April 

2014, a year after the due date.

Further, we interviewed eight 

whistleblower advocates and attorneys, as noted above, to obtain 

whistleblower perspectives on the extent of DOJ’s compliance with 

regulatory requirements and the effects of this compliance. In addition, 

because OSC serves a function comparable to those of OIG and DOJOPR in handling whistleblower complaints for most other executive 

8

GAO/AIMD-00-21.3.1.

9

GAO-AIMD-00-21.3.1.
Appendix I: Scope and Methodology

Page 49 GAO-15-112 FBI Whistleblower Retaliation Complaints

branch employees and has similar regulatory reporting requirements, we 

interviewed OSC officials about OSC’s processes and mechanisms for 

ensuring compliance with its requirements.

We conducted this performance audit from September 2013 to January 

2015 in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives.
Appendix II: Department of Justice’s Reasons 

for Closing Federal Bureau of Investigation 

Whistleblower Retaliation Complaints

Page 50 GAO-15-112 FBI Whistleblower Retaliation Complaints

This appendix provides information on the Department of Justice’s (DOJ)

reasons for closing the 62 Federal Bureau of Investigation (FBI)

whistleblower retaliation complaints we reviewed. These 62 complaints 

represent the universe of FBI whistleblower retaliation complaints that 

were closed within the last 5 calendar years (from 2009 through 2013) by 

the final DOJ office to review the complaint.1 We reviewed case files at 

both of the offices responsible for investigating these complaints—the 

Office of the Inspector General (OIG) and the Office of Professional 

Responsibility (DOJ-OPR)—as well as at the office responsible for 

adjudicating these complaints—the Office of Attorney Recruitment and 

Management (OARM)—and identified the final outcome in each 

complaint.2

The DOJ office reviewing a whistleblower retaliation complaint may close 

the complaint before conducting an investigation (in the case of OIG and 

DOJ-OPR) or considering the merits of the complaint (in the case of 

OARM) if the office determines that the complaint does not meet 

threshold requirements under the FBI whistleblower regulations. If the 

investigating office finds that a complaint meets threshold regulatory 

requirements, the office will open an investigation to determine if there 

are reasonable grounds to believe that a personnel action had been taken 

or will be taken in retaliation for a protected disclosure. If OARM first 

determines that a complaint meets threshold requirements, OARM 

adjudicates the complaint to determine whether the disclosure was a 

contributing factor in the personnel action based on a preponderance of 

 1

The regulations require that whistleblower retaliation complaints be filed directly with OIG 

or DOJ-OPR. However, OIG officials report that OIG will investigate a retaliation complaint 

referred by the FBI if the complaint is sufficient to establish the elements of a retaliation 

claim under the regulations. Therefore, in addition to these 62 complaints, we also 

reviewed case files for 18 complaints that OIG received from the FBI. OIG officials told us 

that OIG reviews all complaints submitted to the FBI to determine if any complaints 

submitted to the FBI fall under OIG’s jurisdiction, such as complaints that appear to allege 

FBI whistleblower retaliation. Because these 18 complaints were not submitted directly to 

OIG or DOJ-OPR, as required by § 27.3(a)(1), and OIG did not investigate these 

complaints as whistleblower retaliation complaints (or the complaint was withdrawn by the 

complainant before OIG made a determination), we excluded these 18 complaints from 

our review.

2

We also reviewed Office of the Deputy Attorney General (ODAG) case files for the 4 

complaints that were appealed to that office. Because the Deputy Attorney General either 

upheld OARM’s decision or returned the complaint to OARM for review, we determined 

that OARM made the final determination in each complaint and, therefore, we included 

OARM’s final determination for complaints that were appealed.

Appendix II: Department of Justice’s Reasons 

for Closing Federal Bureau of Investigation 

Whistleblower Retaliation Complaints
Appendix II: Department of Justice’s Reasons 

for Closing Federal Bureau of Investigation 

Whistleblower Retaliation Complaints

Page 51 GAO-15-112 FBI Whistleblower Retaliation Complaints

the evidence and whether the FBI has demonstrated by clear and 

convincing evidence that it would have taken the same personnel action 

in the absence of such disclosure. If the complaint is substantiated and 

the FBI is unable to meet its burden of proof, OARM will order that the 

FBI take appropriate corrective action. In addition complainants may 

voluntarily withdraw their complaints. Table 1 summarizes the final 

outcome of the 62 complaints we reviewed, sorted by the final DOJ office 

to review the complaint and the overall length of the complaint.3

Table 1: Final Outcome in Federal Bureau of Investigation (FBI) Whistleblower Retaliation Complaints, by Final Department of 

Justice (DOJ) Office to Review Complaint and Length of Complaint 

Final office to review complaint Final outcome

Number of 

complaints 

closed in less 

than 1 year

Number of 

complaints 

closed after 

1 year

Total number 

of complaints

Investigating office—Office of the 

Inspector General (OIG) or Office of 

Professional Responsibility (DOJ-OPR)

Complaint did not meet 

threshold regulatory 

requirements. The office found 

that the complaint did not meet 

threshold requirements under the 

FBI whistleblower regulations.

33 6a 39b

No reasonable grounds. The 

office investigated at least one 

allegation made by the complainant 

and found that there were not 

reasonable grounds to believe that 

a personnel action had been taken 

in retaliation for a protected 

disclosure.

3 3 6c

Complainant withdrew complaint 1 0 1

Total number of complaints closed 

by the investigating office

37 9 46

 3

As discussed previously in this report, if the investigating office finds that there are 

reasonable grounds to believe that there had been retaliation for a protected disclosure, 

the office forwards its investigative report with any recommended actions to OARM for 

adjudication. In certain circumstances in which OIG or OPR has not found in the 

complainant’s favor or has not completed its investigation, the complainant may go directly 

to OARM to request corrective action. We did not identify any complaints in which the 

investigating office found reasonable grounds; however, in 12 of the complaints we 

reviewed, the complainant brought the complaint to OARM directly after submitting the 

complaint to an investigating office. In these 12 complaints, we considered the reasons 

cited in OARM’s case file as the final reasons for closing the complaint, although, in some 

instances, OARM’s determination differed from the investigating office’s determination.
Appendix II: Department of Justice’s Reasons 

for Closing Federal Bureau of Investigation 

Whistleblower Retaliation Complaints

Page 52 GAO-15-112 FBI Whistleblower Retaliation Complaints

Final office to review complaint Final outcome

Number of 

complaints 

closed in less 

than 1 year

Number of 

complaints 

closed after 

1 year

Total number 

of complaints

Adjudicating office—Office of Attorney 

Recruitment and Management (OARM)

Complaint did not meet 

threshold regulatory 

requirements. OARM found that 

the complaint did not meet 

threshold requirements for OARM 

to review the merits of the 

complaint under the FBI 

whistleblower regulations.

7 2 9

No reprisal found. OARM 

reviewed the merits of at least one 

allegation made by the complainant 

and found either that the protected 

disclosure was not a contributing 

factor in the personnel action, or 

that the FBI had demonstrated by 

clear and convincing evidence that 

it would have taken the same 

action in the absence of the 

disclosure.

0 1 1

Complainant withdrew complaint 0 3d 3

OARM found reprisal and 

ordered corrective action

0 3 3e

Total number of complaints closed 

by OARM

7 9f 16

Total number of complaints closed 

by DOJ

44 16 62

Source: GAO review of OIG, DOJ-OPR, and OARM case files. | GAO-15-112

a

In 1 of these complaints, OIG found that the complaint did not meet threshold requirements under 

the FBI whistleblower regulations but investigated the complaint under its preexisting authority.

b

In most instances, the investigating office determined that the complaint did not meet threshold 

regulatory requirements based on initial information submitted by the complainant; however, in some 

instances, the investigating office made this determination after taking some investigative steps, such 

as interviewing the complainant or requesting additional information. We included those complaints in 

this category.

c

Some complaints we reviewed included multiple disclosures or alleged acts of retaliation. In some 

instances, OIG or DOJ-OPR investigated one allegation but determined other aspects of the 

complaint did not meet threshold requirements. We included those complaints in this category.

d

In 2 of these complaints, the complainants withdrew after OARM determined that the complaints met 

threshold regulatory requirements. In the third complaint, the complainant withdrew before OARM 

determined whether the complaint met threshold regulatory requirements.

e

In all 3 of these complaints, an investigating office had previously reviewed and terminated the 

complaint because, among other reasons, there was sufficient evidence to conclude that the 

personnel action would have been taken absent the disclosure. However, in all 3 complaints, OARM 

determined that at least one personnel action had been taken in reprisal for a protected disclosure. 

Figure 3 shows the overall length of these complaints, including the length of each office’s review.

f

These 9 complaints were reviewed by an investigating office before being reviewed by OARM. The 

investigating office completed its review of 6 of the complaints in less than a year and exceeded 1 

year in 3 of the complaints.
Appendix II: Department of Justice’s Reasons 

for Closing Federal Bureau of Investigation 

Whistleblower Retaliation Complaints

Page 53 GAO-15-112 FBI Whistleblower Retaliation Complaints

In addition to determining the final outcome in each complaint, we 

reviewed the case files to determine the reasons for the final DOJ office’s 

decision to close the complaint.4 For example, in some complaints, the 

final office determined that the complaint did not meet threshold 

regulatory requirements because the complainant’s underlying disclosure 

had been made to an individual or entity not designated in the regulations 

and therefore the disclosure was not protected. In other complaints, the 

investigating office found that there were not reasonable grounds to 

believe the personnel action had been taken in reprisal for a protected 

disclosure because the evidence indicated that the personnel action 

would have been taken in the absence of the disclosure. Table 2

summarizes the reasons DOJ offices cited in their case files as reasons 

for closing whistleblower retaliation complaints and the number of 

complaints in which the final DOJ office to review the complaint cited 

each.5

Table 2: Reasons for the Department of Justice’s (DOJ) Final Decision to Close Federal Bureau of Investigation (FBI) 

Whistleblower Retaliation Complaints

Total number of 

complaints

One or more of the disclosures did not meet the 

definition of “protected disclosure” under 28 C.F.R. 

§ 27.1(a).

30

The complainant made the disclosure to an individual or 

entity not listed in the regulations.

23

The disclosure did not evidence a violation of any law, 

rule, or regulation or other subject covered by the 

regulations.

7

The complainant did not have a reasonable belief of 

wrongdoing when making the disclosure.

2

The complainant did not claim to have made a 

protected disclosure.

1

 4

We did not assess whether the evidence in the case file supported the office’s 

determination.

5

In some instances, the office did not inform the complainant of the reasons it determined 

that the complaint did not meet threshold regulatory requirements, such as through a final 

report, but discussed its rationale elsewhere in the case file. We included in table 2 all 

reasons noted in the case file for the final office’s determination, including reasons cited in 

internal documents as well as reasons communicated to the complainant.
Appendix II: Department of Justice’s Reasons 

for Closing Federal Bureau of Investigation 

Whistleblower Retaliation Complaints

Page 54 GAO-15-112 FBI Whistleblower Retaliation Complaints

Total number of 

complaints

One or more of the alleged acts of retaliation did not 

meet the definition of “personnel action” under 28 

C.F.R. § 27.2(b) or the complainant did not claim to 

have experienced a personnel action related to the 

disclosure.

14

The facts of the complaint did not demonstrate that the 

alleged retaliation had been taken in reprisal for the 

disclosure.

16

The alleged retaliation occurred before the disclosure. 7

The timing of the personnel action was not reasonably 

close to the timing of the disclosure.

3

The personnel action would have occurred had the 

complainant not made the disclosure.

6

The evidence did not show that the alleged retaliator was 

aware of the disclosure.

4

The evidence did not demonstrate a causal connection 

between the alleged retaliation and the disclosure.

2

The complainant did not demonstrate that the disclosure 

was a contributing factor in the personnel action based 

on a preponderance of the evidence.

1

The complainant did not respond to requests for 

information necessary to show that the complaint met 

threshold regulatory requirements.

3

The complaint related to Equal Employment Opportunity 

(EEO) matters and should be addressed through that 

process.a

7

The allegations had previously been addressed by 

another office.

1

The complainant was not an FBI employee or applicant 

for employment with the FBI, as required by 28 C.F.R. 

§ 27.1(a).

2

The complainant filed a request for corrective action 

with the Office of Attorney Recruitment and 

Management (OARM) before bringing the complaint to 

an investigating office, as required by 28 C.F.R. 

§ 27.4(c)(1).

3

The complainant brought the complaint to OARM but 

did not file a request for corrective action. 

2b

The case file did not provide sufficient information to 

determine the reason DOJ determined that one or more 

of the complainant’s allegations did not meet threshold 

regulatory requirements.

10c

Source: GAO review of Office of the Inspector General (OIG), DOJ Office of Professional Responsibility (DOJ-OPR), and OARM case files. | GAO-15-112

Notes:

This includes all reasons cited in the case files for complaints DOJ closed because the complaint did 

not meet threshold regulatory requirements, complaints the investigating office closed after finding no 
Appendix II: Department of Justice’s Reasons 

for Closing Federal Bureau of Investigation 

Whistleblower Retaliation Complaints

Page 55 GAO-15-112 FBI Whistleblower Retaliation Complaints

reasonable grounds, and complaints OARM closed after finding no reprisal. The number of reasons 

exceeds the number of complaints we reviewed because, in some complaints, the final DOJ office 

cited multiple reasons in its decision to close the complaint. For example, in some instances, the final 

office found that the complaint did not meet threshold regulatory requirements but also noted that the 

facts did not demonstrate that the alleged retaliation had been taken in reprisal. Similarly, because 

some complainants alleged multiple disclosures, in some instances the final DOJ office determined 

that one or more of the disclosures did not meet the definition of a protected disclosure but opened an 

investigation with regard to one or more disclosures that it determined were protected. We counted 

complaints under each reason cited within the case files.

a

Federal law protects federal employees and job applicants from discrimination because of race, 

color, religion, sex, national origin, age (40 or older), disability, or genetic information. These laws 

also make it illegal to fire, demote, harass, or otherwise “retaliate” against applicants or employees 

because they filed a charge of discrimination, because they complained to their employer or other 

covered entity about discrimination on the job, or because they participated in an employment 

discrimination proceeding (such as an investigation or lawsuit). Federal employees who believe that 

they have been retaliated against for a protected activity may file a complaint with the Equal 

Employment Opportunity Commission for corrective action. DOJ-OPR and OARM officials told us that 

they generally do not have jurisdiction over complaints of EEO-related reprisal, while OIG officials told 

us they generally do not exercise jurisdiction over complaints of EEO-related reprisal.

b

In one of these complaints, the complainant had previously submitted the complaint to an 

investigating office and the investigating office found that the complaint did not meet threshold 

regulatory requirements. The complainant then submitted a letter to OARM stating an intention to file 

a request for corrective action but did not respond to OARM’s request for additional information 

required to file the request for corrective action. In the second complaint, the complainant e-mailed 

OARM but did not file a request for corrective action after OARM informed the complainant that the 

complaint must first be filed with an investigating office before the complainant can file such a request 

with OARM.

c

In these 10 complaints, we were not able to determine a specific reason for the investigating office’s 

finding that one or more of the complainant’s allegations did not meet threshold requirements based 

on information contained in the case file. For example, in some of these complaints, the investigating 

office’s final letter to the complainant stated that the matters were more appropriate for review by 

another office or agency, but the case file did not indicate the office’s basis for this determination.
Appendix III: Department of Justice (DOJ) 

Investigating Offices’ Compliance with 

Selected Reporting Requirements

Page 56 GAO-15-112 FBI Whistleblower Retaliation Complaints

Percentage and number of complaints that met 

requirement, by investigating office

Requirement

Office of the 

Inspector General 

(OIG)

Office of Professional 

Responsibility 

(DOJ-OPR)

Acknowledgment of complaint: The investigating office must notify the 

complainant that it has received the complaint and provide the name of a contact 

person within the office within 15 days of either OIG or DOJ-OPR receiving the 

complaint. 

44 percent

(16 of 36)a,b

19 percent

(4 of 21)a,b

First status update: The investigating office must provide the complainant with 

the first status update within 90 calendar days of acknowledging receipt of the 

complaint. 

82 percent

(14 of 17)c

65 percent

(13 of 20)c

Subsequent status updates: The investigating office must provide the 

complainant with a status update at least every 60 calendar days after the first 

status update.

33 percent

(4 of 12)c,d

20 percent

(3 of 15)c,d

Overall timeliness: The investigating office must determine within 240 days of 

receiving the complaint if there are reasonable grounds to believe whistleblower 

retaliation occurred, unless the complainant agrees to an extension.

84 percent

(31 of 37)e

80 percent

(16 of 20)e

Closed complaint within 240-days 81 percent

(30 of 37)e

50 percent

(10 of 20)e.f

Obtained complainant’s approval for an 

extension 

14 percent

(1 of 7)g

60 percent

(6 of 10)g

Source: GAO analysis of Department of Justice (DOJ) regulations and information contained in OIG and DOJ-OPR case files. | GAO-15-112

Notes: We determined whether the investigating office met each requirement based on information 

contained in the case file for each complaint. In some complaints, the office may have met the 

requirement but not retained documentation in the case file.

a

This excludes 1 OIG complaint in which we could not determine the date of the first notice to the 

complainant from information contained in the case file. We counted all complaints in which the 

investigating office communicated with the complainant within 15 days of the date either OIG or DOJOPR received the complaint as meeting this requirement, including 1 OIG complaint in which the 

communication was not written, as required by 28 C.F.R. § 27.3(c). In 14 of the 16 instances in which 

OIG communicated with the complainant within 15 days, the communication included the name or 

contact information of a specific OIG staff person. We could not determine from the case files for 2 

complaints if OIG included a contact in its first notice to the complainant because the content of the 

communication was not contained in the case files. DOJ-OPR included the name of a specific DOJOPR staff person in its first notice to the complainant in all 4 complaints in which DOJ-OPR 

communicated with the complainant within 15 days.

b

In 2 DOJ-OPR complaints and 1 OIG complaint we reviewed, the investigating office received the 

complaint from the other office after more than 15 days had passed, but provided notice to the 

complainant within 15 days of the date the investigating office received the complaint. In an additional 

2 DOJ-OPR complaints, DOJ-OPR received the complaint from OIG within 15 days of the date OIG 

received the complaint and DOJ-OPR provided notice to the complainant within 15 days of the date 

DOJ-OPR received the complaint, although more than 15 days had passed since the date OIG 

received the complaint. Because in these 5 complaints, more than 15 days had passed since either 

office received the complaint before the investigating office sent the complainant notice, these 5 

complaints did not comply with the regulatory requirement.

c

This excludes complaints closed before the deadline for the notice or update.

d

In 3 of the 8 OIG complaints and 5 of the 12 DOJ-OPR complaints in which we did not see evidence 

that the office communicated with the complainant every 60 days, as required, we identified only one 

period of more than 60 days in which the case file did not contain evidence of communication 

between the investigator and the complainant.

Appendix III: Department of Justice (DOJ) 

Investigating Offices’ Compliance with 

Selected Reporting Requirements
Appendix III: Department of Justice (DOJ) 

Investigating Offices’ Compliance with 

Selected Reporting Requirements

Page 57 GAO-15-112 FBI Whistleblower Retaliation Complaints

e

We considered a complaint to have met the 240-day requirement if the investigating office provided 

the complainant a final termination report or otherwise closed the complaint within 240 days from the 

date the office received the complaint.

f

In 1 DOJ-OPR complaint we reviewed, the complainant initially provided an incorrect address and 

DOJ-OPR sent both a proposed and final termination report to the incorrect address within 240 days, 

but closed the complaint after more than 240 days because of the time needed to obtain the correct 

address. We excluded that complaint from our analysis of the number of complaints that met this 

requirement.

g

In 1 OIG complaint and 1 DOJ-OPR complaint, the case file did not contain documentation that the 

complainant agreed to an extension, but did contain evidence of ongoing communication between the 

complainant or complainant’s attorney and the investigating office after the 240-day deadline. We 

counted these 2 complaints as meeting the requirement.
Appendix IV: Comments from the Department 

of Justice Office of the Inspector General

Page 58 GAO-15-112 FBI Whistleblower Retaliation Complaints

Appendix IV: Comments from the 

Department of Justice Office of the Inspector 

General
Appendix IV: Comments from the Department 

of Justice Office of the Inspector General

Page 59 GAO-15-112 FBI Whistleblower Retaliation Complaints
Appendix IV: Comments from the Department 

of Justice Office of the Inspector General

Page 60 GAO-15-112 FBI Whistleblower Retaliation Complaints
Appendix IV: Comments from the Department 

of Justice Office of the Inspector General

Page 61 GAO-15-112 FBI Whistleblower Retaliation Complaints
Appendix IV: Comments from the Department 

of Justice Office of the Inspector General

Page 62 GAO-15-112 FBI Whistleblower Retaliation Complaints
Appendix IV: Comments from the Department 

of Justice Office of the Inspector General

Page 63 GAO-15-112 FBI Whistleblower Retaliation Complaints
Appendix IV: Comments from the Department 

of Justice Office of the Inspector General

Page 64 GAO-15-112 FBI Whistleblower Retaliation Complaints
Appendix IV: Comments from the Department 

of Justice Office of the Inspector General

Page 65 GAO-15-112 FBI Whistleblower Retaliation Complaints
Appendix IV: Comments from the Department 

of Justice Office of the Inspector General

Page 66 GAO-15-112 FBI Whistleblower Retaliation Complaints
Appendix V: GAO Contact and Staff 

Acknowledgments

Page 67 GAO-15-112 FBI Whistleblower Retaliation Complaints

David C. Maurer, (202) 512-8777 or maurerd@gao.gov

In addition to the contact named above, Eileen Larence (Director), Dawn 

Locke (Assistant Director), Claudia Becker (Analyst-in-Charge), Vanessa 

Dillard, Michele Fejfar, Eric Hauswirth, Susan Hsu, Tom Lombardi, 

Signora May, Erin McLaughlin, Linda Miller, Jan Montgomery, and Janet 

Temko-Blinder made key contributions to this report.

Appendix V: GAO Contact and Staff 

Acknowledgments

GAO Contact

Staff 

Acknowledgments

(441180)
The Government Accountability Office, the audit, evaluation, and 

investigative arm of Congress, exists to support Congress in meeting its 

constitutional responsibilities and to help improve the performance and 

accountability of the federal government for the American people. GAO 

examines the use of public funds; evaluates federal programs and 

policies; and provides analyses, recommendations, and other assistance 

to help Congress make informed oversight, policy, and funding decisions. 

GAO’s commitment to good government is reflected in its core values of 

accountability, integrity, and reliability.

The fastest and easiest way to obtain copies of GAO documents at no 

cost is through GAO’s website (http://www.gao.gov). Each weekday 

afternoon, GAO posts on its website newly released reports, testimony, 

and correspondence. To have GAO e-mail you a list of newly posted 

products, go to http://www.gao.gov and select “E-mail Updates.”

The price of each GAO publication reflects GAO’s actual cost of 

production and distribution and depends on the number of pages in the 

publication and whether the publication is printed in color or black and 

white. Pricing and ordering information is posted on GAO’s website, 

http://www.gao.gov/ordering.htm. 

Place orders by calling (202) 512-6000, toll free (866) 801-7077, or 

TDD (202) 512-2537.

Orders may be paid for using American Express, Discover Card, 

MasterCard, Visa, check, or money order. Call for additional information.

Connect with GAO on Facebook, Flickr, Twitter, and YouTube.

Subscribe to our RSS Feeds or E-mail Updates. Listen to our Podcasts.

Visit GAO on the web at www.gao.gov.

Contact:

Website: http://www.gao.gov/fraudnet/fraudnet.htm

E-mail: fraudnet@gao.gov

Automated answering system: (800) 424-5454 or (202) 512-7470

Katherine Siggerud, Managing Director, siggerudk@gao.gov, (202) 512-

4400, U.S. Government Accountability Office, 441 G Street NW, Room 

7125, Washington, DC 20548

Chuck Young, Managing Director, youngc1@gao.gov, (202) 512-4800

U.S. Government Accountability Office, 441 G Street NW, Room 7149 

Washington, DC 20548

GAO’s Mission

Obtaining Copies of 

GAO Reports and 

Testimony

Order by Phone

Connect with GAO

To Report Fraud, 

Waste, and Abuse in 

Federal Programs

Congressional 

Relations

Public Affairs

Please Print on Recycled Paper.