Whistleblower Protection: Additional Actions Needed to Improve DOJ's Handling of FBI Retaliation Complaints
Published: 2015-01-23T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.
section_title: What GAO Recommends
paragraphs: 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.

section_title: Letter
paragraphs: 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.  These regulations require that FBI whistleblower retaliation complaints be  directed to DOJ’s Office of the Inspector General (OIG) or Office of  Professional Responsibility (DOJ-OPR) for investigation and provide  specific timeliness and reporting requirements for these offices to meet as  they manage these complaints. The regulations also establish roles for  the Director of DOJ’s Office of Attorney Recruitment and Management  (OARM) and the Deputy Attorney General (DAG). In some instances, the  total process for resolving a complaint—including investigation,  adjudication, and appeals—has taken several years. For example, in  2002, former FBI agent Jane Turner filed a whistleblower complaint with  DOJ alleging that her colleagues had stolen items from Ground Zero after  the September 11, 2001, terrorist attacks. After making this whistleblower  disclosure, she was given a “does not meet expectations” rating, placed  on leave, and given a notice of proposed removal. According to Ms.  Turner’s attorneys, she retired from the FBI in order to avoid formal  termination being placed on her record. Ms. Turner filed a whistleblower  retaliation complaint that DOJ ultimately found in her favor in 2013—over  10 years later. Members of Congress and whistleblower advocates have  raised questions about the length of time it takes DOJ to investigate and  adjudicate FBI whistleblower retaliation complaints.
To assist Congress in overseeing DOJ’s efforts to protect FBI  whistleblowers, you asked us to examine DOJ’s process for handling FBI  whistleblower retaliation complaints. Specifically, our report examines: how long DOJ has taken to resolve FBI whistleblower retaliation  complaints and what factors have affected these time frames;  the extent to which DOJ has taken steps to resolve complaints more  quickly and determine the impact of any such efforts; and  the extent to which DOJ’s OIG and DOJ-OPR have complied with  regulatory reporting requirements.
To determine how long DOJ has taken to resolve FBI whistleblower  retaliation complaints and the factors that affected these time frames, we  reviewed DOJ case files for all FBI whistleblower retaliation complaints  closed within the last 5 calendar years (from 2009 through 2013), and  calculated the duration of each complaint from initial filing to appeal, as  applicable; the length of time between interim steps throughout this  process; and factors affecting the time frames in each case, among other  things. Specifically, we reviewed a total of 62 closed cases representing  62 complaints. In addition, we reviewed documentation, such as internal  procedures and memos, and interviewed senior DOJ officials in each of  the four offices responsible for investigating or adjudicating whistleblower  retaliation complaints—OIG, DOJ-OPR, OARM, and the Office of the  Deputy Attorney General (ODAG)—about the factors that affected these  time frames and DOJ’s process for handling these complaints and  compared aspects of this process against standards in Standards for  Internal Control in the Federal Government. Because of the sensitivity of  FBI whistleblowers’ identities, to obtain whistleblower perspectives on  these issues, we met with representatives of five whistleblower advocacy  groups knowledgeable about DOJ’s process and attorneys who have  represented three FBI whistleblowers through this process. 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.
To determine the extent to which DOJ has taken steps to resolve  complaints more quickly, we interviewed DOJ officials responsible for  handling these complaints about the factors that affect the timely  processing of these complaints and steps DOJ has taken to address  them. In addition, to identify any practices that have improved timeliness  in comparable federal settings, we interviewed senior officials in the  Department of Defense Office of the Inspector General (DOD-OIG) as  well as the U.S. Office of Special Counsel (OSC) and the U.S. Merit  Systems Protection Board (MSPB)—federal agencies that handle  whistleblower retaliation complaints for other federal employees—about  those agencies’ processes for handling whistleblower retaliation  complaints. To identify the extent to which DOJ officials have taken steps  to determine the impact of their efforts to improve timeliness, we  interviewed DOJ officials and reviewed DOJ’s April 2014 report to the  President and compared DOJ’s stated plans to standards in Standards for  Internal Control in the Federal Government.
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.
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.
subsections: section_title: Background
paragraphs: 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.  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. 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. 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. Provisions  providing recourse for employees of intelligence community elements  who are retaliated against for making disclosures of protected information  were established by Presidential Policy Directive 19 in 2012, and in  statute in 2014.
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. 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).
The regulations also define what disclosures by FBI employees qualify as  protected disclosures, entitling the employees to recourse should they  experience retaliation. Specifically, the regulations state that disclosures  are protected if the complainants   1.  reasonably believe that they are reporting wrongdoing, defined as a  violation of any law, rule, or regulation; mismanagement; a gross  waste of funds; an abuse of authority; or a substantial and specific  danger to public health or safety, and 2.  report the alleged wrongdoing to one of nine designated officials or  offices (e.g., the Attorney General, the DAG, and OIG, among other  entities).
28 C.F.R. pt. 27.
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.
subsections: section_title: Division of Responsibility for FBI Whistleblower Retaliation Complaints
paragraphs: 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.
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). 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.  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. At the conclusion of an  investigation, if OIG or DOJ-OPR finds that there are reasonable  grounds, it then forwards its investigative report with any  recommended actions to OARM for adjudication. In cases in which  OIG or DOJ-OPR has not found in the complainant’s favor or has not  completed its investigation, the complainant may go directly to OARM  to request corrective action.
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. As with  the investigating offices, when OARM receives the complaint, OARM  first determines whether the complaint meets threshold regulatory  requirements, before proceeding to review the merits of the complaint.  For OARM, considering the merits of the complaint entails reviewing  the supporting evidence (e.g., documents and testimony), as well as  the arguments each party—the complainant and the FBI—submits,  and then determining, based on all of the evidence, if the individual  substantiated the claim of retaliation. If the complaint is substantiated  and the FBI is unable to prove by clear and convincing evidence that it  would have taken the same personnel action even if the complainant  had not made the protected disclosure, OARM will order that the FBI  take corrective action, such as providing the complainant back pay or  reimbursement for attorney’s fees.
Appeals: DOJ’s DAG is responsible for reviewing and ruling on  parties’ appeals of OARM decisions. Once OARM rules on a case, the  parties have 30 days to file an appeal with the DAG. The DAG has the  authority to set aside or modify OARM’s decisions when found to be  arbitrary, capricious, an abuse of discretion, or otherwise not in  accordance with law; obtained without procedures required by law,  rule, or regulation having been followed; or unsupported by  substantial evidence. The DAG has full discretion to review and  modify the corrective action ordered.
section_title: DOJ’s Regulatory Timeliness and Reporting Requirements
paragraphs: DOJ’s regulations also set forth timeliness and reporting requirements for  the investigating offices. Specifically, the investigating offices must provide written notice to the complainant acknowledging receipt of the  complaint within 15 calendar days of either investigating office  receiving it; 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; and determine within 240 calendar days of receiving the complaint  whether there are reasonable grounds to believe that there has been  or will be a reprisal for a protected disclosure, unless the complainant  agrees to an extension.
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. 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.
section_title: 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
paragraphs: 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.
subsections: section_title: DOJ Closed Majority of Complaints within a Year; Some Because the Employee Did Not Report Wrongdoing to a Designated Official
paragraphs: 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. In 15 of the 32 (47 percent) complaints closed within a  year where documentation in the case files was sufficient for us to  determine why DOJ determined threshold requirements were not met, the  fact that the complainant made a disclosure to the wrong person— someone not designated in the regulations to receive whistleblower  complaints—was at least a partial basis for DOJ deciding the complaint  did not meet threshold regulatory requirements. 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.
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. 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.
See appendix II for a summary of DOJ’s final determinations in all cases  we reviewed.
subsections: section_title: FBI Employees Are Not Protected for Reporting Wrongdoing to Their Supervisors or Others in Their Chain of Command Not Designated in DOJ Regulations
paragraphs: 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. 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.
When issuing its interim and final regulations in 1998 and 1999,  respectively, DOJ considered which individuals and offices the Attorney  General would designate to receive protected disclosures from FBI  employees. DOJ officials who developed these regulations included eight  designated entities but did not include supervisors at that time because  the officials maintained that Congress intended DOJ to limit the universe  of recipients of protected disclosures, in part because of the sensitive  information to which FBI employees have access.rule, DOJ responded to commenter suggestions to add additional entities  to receive such disclosures—including FBI-INSD, supervisors, and  coworkers. Among other things, DOJ stated its view that Congress  contemplated that recipients for whistleblower disclosures would be a  relatively restricted group and “to designate a large (and in the case of  supervisors, arguably ill-defined) group of employees as recipients would  be inconsistent with Congress’s decision, given the sensitivity of  information to which FBI employees have access.” In addition, DOJ’s rule  explained that “designating the highest ranking official in each field office,  but not all supervisors, as recipients of protected disclosures . . . provides  a way to channel such disclosures to those in the field who are in a  position to respond and to correct management and other problems while  also providing an on-site contact in the field for making protected  disclosures.”
In October 2012, the President issued Presidential Policy Directive 19,  which established whistleblower protections for employees serving in the  intelligence community, including, among other things, explicitly providing  protection to employees who are retaliated against for reporting  wrongdoing “to a supervisor in the employee’s direct chain of command  up to and including the head of the employing agency.” Presidential  Policy Directive 19 excluded the FBI from the scope of these protections,  and instead required DOJ to report to the President on the efficacy of its  regulations pertaining to FBI whistleblower retaliation and describe any  proposed revisions to these regulations to increase their effectiveness.
In response to this requirement, ODAG officials led an effort to review FBI  whistleblower retaliation complaints filed from January 1, 2005, through  March 15, 2014, and, consistent with our review, found that DOJ had  terminated a significant portion of complaints because they were not  made to the proper individual or office. In addition, DOJ officials met with  whistleblower advocates and OSC officials to solicit their views and found  that these individuals and officials recommended that DOJ broaden its  regulations to protect disclosures to any supervisor in the employee’s  chain of command. According to DOJ’s April 2014 report in response to  Presidential Policy Directive 19, the whistleblower advocates noted that  the directive instructs intelligence community elements to protect  disclosures to any supervisor in the employee’s direct chain of command  and that this is consistent with whistleblower protection laws that similarly  protect other civil service employees. Further, DOJ’s report notes that  OSC officials believe that to deny employees protection unless their  disclosure is made to the high-ranked supervisors in the office would  undermine a central purpose of whistleblower protection laws.
In response to PPD-19, DOJ officials led by ODAG revisited their 1999  regulations and in April 2014 recommended expanding the persons to  whom individuals can make protected disclosures to include—in addition  to the highest-ranking official in FBI field offices, who is already  included—the second highest ranking tier of officials in these field offices,  which includes the two or three assistant special agents in charge in 53  field offices and the special agents in charge in the 3 largest field offices.  Senior DOJ officials told us that DOJ leadership has approved this  change and the agency is beginning the public notice and comment  process; as of December 2014, DOJ has not issued any notice of  proposed rulemaking or publicly moved forward on these stated plans.  DOJ officials reported that they plan to evaluate the impact of this  expansion, and they may choose subsequently to further expand the set  of persons to whom an employee can make a protected disclosure, if  DOJ determines that such expansion is warranted. However, as of  December 2014, senior FBI and ODAG officials report that they do not  have an estimated date or specific plans for this evaluation and could not  provide specifics on how this evaluation would be conducted.
DOJ officials gave us several explanations about why DOJ did not  recommend expanding the list to include supervisors and others in the  employee’s chain of command, a change that would bring the FBI into  line with other executive branch agencies. First, in DOJ’s April 2014  report, DOJ officials state that “the Department believes the set of  persons to whom a protected disclosure can be made is extensive and  diverse, and has seen no indication that the list has impeded disclosures  of wrongdoing.” However, when we asked officials how they arrived as  this conclusion—particularly in light of our and DOJ’s previous findings  that numerous complainants had at least one claim dismissed for making  a disclosure to someone in management or their chain of command— they could not provide supporting evidence or analysis for their  conclusions. Rather, these officials cited concerns about striking the right  balance between the benefits of an expanded list and the level of  resources the department would have to expend assessing more  complaints if the department added more designated officials, and the  potential impact of these additional complaints on the timeliness of the  process. While DOJ’s focus on the timeliness of complaint processing is  important, dismissing retaliation complaints made to an employee’s  supervisor or someone in his or her chain of command who is not a  designated entity leaves some FBI whistleblowers with no recourse if they  experience retaliation. We found at least 17 whistleblowers whose cases  were dismissed—at least in part—for making a disclosure of wrongdoing  to someone in their chain of command or management. 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.  This means that these employees had no recourse for retaliation they  may have experienced for making those disclosures. Moreover, with  respect to DOJ’s concerns about resources and timeliness, DOJ has  discretion in determining its regulatory process for enforcing protections  for FBI whistleblowers and, as described in more detail later this report, is  taking other steps to improve the timeliness of the process.
Senior FBI and ODAG officials also explained that the department plans  to provide FBI employees with additional training on the list of entities  designated to receive whistleblower complaints. While training could help  provide information on how to make a protected disclosure, this planned  training would have little effect for employees who initially raise a concern  to their supervisors not expecting that this action would ever be a  whistleblower disclosure. All seven of the whistleblower advocates and  attorneys we interviewed who had relevant personal and professional  experience stated that it is common practice for employees to report  wrongdoing to their supervisors before reporting it to a more senior  official, such as those designated in DOJ’s regulations. 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.
Last, senior FBI and ODAG officials noted that the statute establishing  whistleblower protections for FBI employees differs from the statute  governing protections for other federal employees, so there is no legal  requirement that DOJ designate supervisors or others in an employee’s  chain of command to receive protected disclosures. The separate  statutory provision for the FBI has existed since enactment of the CSRA  in 1978, but has generally not been revisited by Congress when passing  amendments to legislation governing other executive branch  whistleblowers. Over the years, Congress has passed amendments to the  legislation covering employees in other executive branch agencies that  explicitly strengthen and expand protections for other federal  whistleblowers. For example, Congress added language clarifying that  disclosures to supervisors who participated in the misconduct are  protected disclosures. The Whistleblower Act of 1989 provides, among  other things, that employees should not suffer adverse consequences as  a result of prohibited personnel practices. 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. 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. 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.
section_title: DOJ Guidance Is Not Always Clear
paragraphs: In the course of our review, in addition to several DOJ and FBI guidance  documents that accurately describe DOJ’s FBI whistleblower regulations,  we also found instances of DOJ guidance that could lead FBI employees  to believe that reporting an allegation of wrongdoing to a supervisor in  their chain of command would be a protected disclosure when that is not  the case. 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.  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. 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. OIG and FBI officials report that they are currently developing  a training video that will address FBI-specific issues and will be required  for all FBI employees. This planned training could improve employee  awareness of the FBI-specific procedures, but such an effort could be  undercut if unclear written policies and communications continue to be  provided to FBI employees.
Standards for Internal Control in the Federal Government provides that  agencies should distribute pertinent information so employees may  efficiently carry out their duties. 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.
section_title: 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
paragraphs: 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.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.
section_title: DOJ Officials Have Taken Some Steps to Resolve Complaints More Quickly but Have Limited Plans to Assess Impact
paragraphs: 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.
Hiring additional staff: To reduce the impact of competing priorities  for limited staff, in November 2013, OARM senior officials stated that  they hired a part-time attorney to help write OARM decisions in FBI  whistleblower retaliation cases. OARM officials report that they have  been able to reduce overall case-processing times, in good part  because of the work of the part-time attorney.
Developing procedures with stricter time frames: Senior OARM  officials report that in June 2011 they met with an MSPB  administrative judge and an MSPB senior executive to gather ideas  for shortening the time frames in OARM’s cases. These officials  further report that in response to the input from MSPB, in October of  that same year OARM issued procedures that included stricter time  frames for the complainant and FBI, such as shortening the period of  time OARM initially provides for parties to gather evidence. In  addition, OARM officials report that around this same time, they  revised their practice of generally approving parties’ requests for  extensions. The OARM officials report that they began reviewing  requests for an extension more critically and often do not approve the  full length of the extension requested.
Streamlining intake procedures: Senior OIG officials report that  they could improve their timeliness in processing initial complaints and  have since taken steps to ensure that complaints are transmitted for  initial review within 1 to 2 days of receipt, if possible. DOJ-OPR  officials report that in the last 2 years, they have established a new  intake procedure so that an intake attorney handles the initial notice to  the whistleblower instead of waiting until the complaint is assigned to  an investigator.
Streamlining OARM’s process: DOJ’s April 2014 report to the  President included a recommendation intended to expedite OARM’s  process upon receiving new complaints. DOJ’s report states: “Under  OARM’s current process, when a complainant files a request for  corrective action with OARM, OARM usually forwards it to the FBI and  provides the FBI 25 calendar days to file its response. In some  instances, however, the allegations in a complainant’s request are so  deficient that neither OARM nor the FBI can reasonably construe the  specific claims raised.” Under the recommended revised procedures,  where it appears that a complaint may not meet DOJ’s threshold  regulatory requirements, OARM would give the complainant a very  short time period to clarify why the case should not be dismissed.  DOJ officials state that this could allow for quick resolution of cases  that plainly fail to meet the threshold regulatory requirements and  increase efficiency of case adjudication.
As DOJ implements these changes intended to improve the efficiency of  DOJ’s handling of FBI whistleblower retaliation complaints, as detailed  above, assessing the impact would help DOJ officials ensure that these  changes are in fact shortening total case length without sacrificing quality,  and identify any additional opportunities to improve efficiency. OARM  officials report that given the length of these cases, it is too early to  assess whether the efforts implemented thus far are having the desired  impact on the timeliness of OARM’s adjudication process, but they  explained that in the future, they could use their case docket to determine  impact. For example, they could review the number of cases resolved  through mediation and whether the revised procedures from 2011 have  made a difference in the time needed to adjudicate large cases. OARM’s  stated plans to monitor the impact is a good first step by one of the  relevant offices, but assessing the impact on timeliness and quality  throughout the entire investigation, adjudication, and appeal process to  determine the impact on total complaint-processing time will require a  joint effort among OIG, DOJ-OPR, OARM, and ODAG.
In DOJ’s April 2014 report to the President, DOJ stated plans to evaluate  the impact of two policy changes to increase the effectiveness of DOJ’s  regulations, but stated no such plans for the policy changes intended to  improve DOJ’s timeliness in handling these complaints. Standards for  Internal Control in the Federal Government calls for agencies to compare  actual performance with planned or expected results and analyze  significant differences. 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.
section_title: OIG and DOJ-OPR Have Not Consistently Met Regulatory Requirements to Provide Complainants with Information Needed to Determine Next Steps for Their Complaints
paragraphs: 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.
subsections: section_title: OIG and DOJ-OPR Have Not Consistently Provided Complainants with Required Status Updates and Extension Requests; OIG Has Begun Tracking Compliance, but DOJ- OPR Has Not
paragraphs: 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. Specifically, in 65 percent of the complaints we reviewed  (37 of 57), the investigating office did not meet the regulatory requirement  to contact the complainant to acknowledge that the office had received  the complaint within 15 days of the date either OIG or DOJ-OPR received  the complaint. In particular, OIG did not meet the requirement in 20 of 36  complaints (56 percent) and DOJ-OPR did not meet the requirement in 17  of 21 complaints (81 percent). See appendix III for more detail on the  number and percentage of complaints in which OIG and DOJ-OPR met  each reporting requirement.
After the deadline to acknowledge that the office received the complaint,  we saw evidence in the case files for the majority of complaints we  reviewed (27 of 37, or 73 percent) that OIG and DOJ-OPR provided the  first status update within the 90-day time frame; however, both offices  were less consistent about meeting the time frames for subsequent status  updates, which are required at least every 60 days. 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.
We considered a complaint to have met the 240-day requirement if the investigating  office provided the complainant a final termination report or otherwise closed the  complaint within 240 days from the date the office received the complaint. In 1 DOJ-OPR  complaint we reviewed, the complainant initially provided an incorrect address and DOJ- OPR sent both a proposed and final termination report to the incorrect address within 240  days, but closed the complaint after more than 240 days because of the time needed to  obtain the correct address. We excluded that complaint from our analysis with regard to  this requirement. complaints within 240 days (40 of 57, or 70 percent).files for over half (10 of 17) of the complaints that exceeded 240 days— including 6 of 7 OIG complaints and 4 of 10 DOJ-OPR complaints—did  not contain documentation that the complainant had agreed to an  extension.
The regulatory requirements help ensure that both complainants and the  investigating office receive information necessary to make decisions  regarding the complaint. For example, the requirement to send notice to  the complainant within 15 days acknowledging that the office has  received the complaint ensures that the complainant is aware of whom to  contact within OIG or DOJ-OPR if he or she has questions or additional  information to provide regarding their complaint. Further, three of the  eight whistleblower advocates and attorneys we spoke with stated that  regular communication between investigators and complainants ensures  that complainants provide the investigating office with follow-up  information that the office needs to make a timely and appropriate  decision. In addition, as previously discussed, the regulations provide  complainants the right to bring their complaints directly to OARM after  120 days if they have not received notice that the investigating office will  seek corrective action. Two of the whistleblower advocates we spoke with  said that it is generally beneficial to the complainant to wait for OIG or  DOJ-OPR to complete their investigations so that these offices can obtain  a complete factual record, which is helpful if the complainant pursues his  or her case with OARM. However, according to these whistleblower  advocates, if the complainant is not satisfied with the investigating office’s  progress, the complainant may prefer to go directly to OARM. Regulatory  requirements to provide periodic status updates and receive the  complainant’s approval for an extension when investigations are running  long helps ensure complainants have the information they need to make  this decision.
More broadly, regular status updates provide reassurance to  complainants during the investigative process. Four of the eight  whistleblower advocates and attorneys we spoke with said that regular  status updates reassure complainants that the investigating office is  continuing to make progress on their complaints. Further, six of the  attorneys and advocates said that, without regular status updates,  complainants can become discouraged and develop a negative view of  the process. Five of these attorneys and advocates said that, as a result  of these negative experiences, potential whistleblowers may be less likely  to come forward to report wrongdoing.
At the time the case files we reviewed were open, OIG and DOJ-OPR did  not have oversight mechanisms in place to ensure compliance with the  status update and extension requirements. According to senior OIG  officials and a DOJ-OPR official responsible for managing these  complaints, managers regularly discussed individual complaints with the  investigator assigned to the complaint, but the investigator was  responsible for setting due dates to ensure compliance with the  regulations. The OIG and DOJ-OPR officials we spoke with said that their  investigators were frequently in communication with complainants, but  these communications were not always documented within their case  files. Without documentation of these communications, managers could  not verify that investigators had communicated with complainants, as  required. In addition, senior OIG officials and the DOJ-OPR official said  that they maintained information on the dates whistleblower retaliation  complaints were opened and closed within their case management  systems; however, these systems were not specific to whistleblower  retaliation complaints and did not contain dates of interim  communications. As a result, managers could not use these systems to  oversee investigators’ compliance with requirements to provide status  updates within prescribed time frames or obtain the complainant’s  approval for an extension, if required.
OIG has taken steps to begin tracking compliance with these  requirements; however, DOJ-OPR has not yet taken similar action.  Specifically, in July 2014, during the course of our review, an OIG  manager informed staff responsible for these complaints of the  importance of documenting status updates within case files to ensure  documentation of OIG’s compliance with regulatory requirements to  update complainants within prescribed time frames. Further, over the last  2 years, OIG has developed a database it now uses as a management  tool to oversee investigators’ compliance with requirements for  communicating with complainants. According to senior OIG officials we  spoke with, OIG decided to develop this database to help ensure that OIG  meets its regulatory requirements. OIG managers use the database to  track dates of interim communications, such as status updates, and the  database calculates regulatory deadlines for subsequent updates and for  closing the complaint. In addition, according to senior OIG officials,  managers can use the database to run reports, such as to see upcoming  deadlines for all open complaints. Although it is too soon to tell how  effective this database will be, if used consistently, this database could  help OIG managers ensure investigators communicate with complainants  in accordance with regulatory requirements.
According to a DOJ-OPR official responsible for managing these  complaints, DOJ-OPR could place an even greater emphasis on the  deadlines for these complaints and take additional steps to oversee  communications with complainants. This official stated that DOJ-OPR  investigators may lose track of deadlines for status updates in FBI  whistleblower retaliation cases because similar requirements are not in  place for other cases DOJ-OPR typically handles. Further, as discussed  previously, in many of the case files we reviewed we did not see evidence  of communication between the DOJ-OPR investigator and the  complainant within required time frames. For example, in one case file we  reviewed, the complainant listed numerous attempts to contact DOJ-OPR  over the prior year and expressed frustration at not receiving the required  status updates.
According to senior DOJ-OPR officials, DOJ-OPR has taken some steps  to improve its management of whistleblower retaliation cases, but does  not track investigators’ compliance with specific regulatory requirements  and does not have a formal oversight mechanism to do so. In the last  year and a half, DOJ-OPR managers have started to receive weekly  reports with information on all open complaints, according to a DOJ-OPR  official responsible for managing these complaints. However, the official  said that the reports do not contain information on status updates. A  senior DOJ-OPR official reported that DOJ-OPR is in the initial stages of  upgrading its case management system, and DOJ-OPR officials expect  that the new system could eventually be tailored to allow them to capture  additional information on the office’s handling of FBI whistleblower  retaliation complaints, such as the dates of communications between  investigators and complainants.
Standards for Internal Control in the Federal Government calls for  agencies to conduct ongoing monitoring in the course of normal  operations, such as when investigating whistleblower retaliation  complaints, to help managers ensure compliance with applicable  regulations and achieve desired results. DOJ-OPR has begun taking  steps to upgrade its case management system but is very early in this  process. As DOJ-OPR upgrades its case management system, tailoring  the system to capture data specific to FBI whistleblower retaliation  complaints, or developing some other mechanism, could provide DOJ- OPR managers and investigators information necessary to track  compliance with regulatory requirements. Further, using that information  to conduct ongoing monitoring of DOJ-OPR attorneys’ compliance with  regulatory requirements could help DOJ-OPR ensure complainants  receive the periodic updates that they are entitled to and that they need to  determine next steps for their complaints.
section_title: 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
paragraphs: 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. In addition, we found that OIG sent the  complainant a final termination report when OIG terminated most of these  investigations (7 of 8). 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.
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.  Seven of these 15 reports indicated that OIG found that the complaint did  not meet threshold regulatory requirements under the FBI whistleblower  regulations, but the report did not communicate why. For example, in one  instance, OIG’s report to the complainant explained the general finding  that the allegations, even if accepted as true, did not demonstrate a  personnel action in retaliation for a protected disclosure. Information we  reviewed elsewhere in this case file specified that OIG found that the  complainant had not made the underlying disclosure to a designated  entity under the regulations. However, OIG did not include this  information in its final report to the complainant. In the 8 other complaints,  OIG’s final report to the complainant stated that another office should  review the complaint, such as the FBI Inspections Division, but did not  indicate the reason for this decision. In particular, the report did not  indicate that OIG had considered the complaint as a whistleblower  retaliation matter and determined the complaint did not meet threshold  regulatory requirements for OIG to conduct an investigation.
In contrast, DOJ-OPR generally provided complainants proposed  termination reports before closing their complaints and included required  information in its final termination reports, including in complaints DOJ- OPR closed without conducting an investigation. Specifically, we found  that DOJ-OPR sent a proposed termination report in 17 of 19 complaints  (89 percent) that DOJ-OPR terminated, and included the office’s findings  and conclusions that justified terminating the investigation in all 17 of  these reports. In addition, we found that DOJ-OPR sent a final  termination report in all 19 complaints and included relevant facts and the  reasons for terminating the investigation in all 19 of these reports.  Further, in all 9 complaints in which the complainant provided comments  on the proposed termination report, DOJ-OPR responded to the  complainant’s comments in the final termination report.
Providing the complainant a proposed termination report describing the  investigating office’s findings and conclusions ensures that the  complainant is aware of the office’s rationale for the decision and has an  opportunity to provide additional information or written comments before  the office closes the complaint. According to two senior OSC officials we  spoke with about their process for reviewing whistleblower retaliation  complaints for most federal employees, OSC provides the complainant a  letter when OSC intends to close a complaint that does not meet  threshold requirements without conducting an investigation. In some  instances, according to these officials, the complainant’s response to  OSC’s proposed termination report has caused OSC to reconsider its  initial decision to terminate the complaint. As with OIG and DOJ-OPR, if  OSC intends to terminate a whistleblower retaliation investigation, OSC is  required to provide the complainant a written statement including the facts  and OSC’s conclusions and provide the complainant an opportunity to  provide comments. As previously discussed, OIG and DOJ-OPR are  required to provide for the enforcement of whistleblower protection in a  manner consistent with certain OSC processes.
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. 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.
Officials with both OIG and OARM told us that OIG’s decision not to investigate a  complaint is sufficient for the complainant to have met the requirement to bring the  complaint to an investigating office—either OIG or DOJ-OPR—before filing it with OARM. 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.
section_title: Conclusions
paragraphs: Whistleblowers play an important role in safeguarding the federal  government against waste, fraud, and abuse, but they often risk  retaliation from their employers as a result of their actions. DOJ has  established a process by which FBI whistleblowers can seek recourse  should they experience such retaliation, and DOJ generally has the  discretion to revise this process, as needed. We found that DOJ has  terminated many FBI whistleblower complaints based on complainants’  failure to meet threshold regulatory requirements rather than whether the  retaliation occurred. In particular, FBI employees are protected if they  report wrongdoing to certain high-level FBI or DOJ officials and other  specified entities, and—unlike employees of other executive branch  agencies—are not protected if they report wrongdoing to their  supervisors. DOJ officials have stated plans to partially address this by  adding several more senior officials in FBI field offices to the list of  individuals to whom complainants may report protected disclosures, but  the timing and outcome of this stated plan are uncertain. DOJ officials  said they do not plan to expand the list to include supervisors or others in  an employee’s chain of command in part because of their concerns about  the additional resources that would be needed to handle a possible  increase in complaints and the potential effect on the timeliness of DOJ’s  process to handle these complaints. While DOJ officials’ concern about  timeliness is important, they are already taking other steps to improve the  efficiency of this process. More importantly, dismissing retaliation  complaints made to an employee’s supervisor or someone in that  person’s chain of command leaves some FBI whistleblowers with no  recourse if they allege retaliation, as our review of case files  demonstrated. Training that DOJ officials plan to provide to FBI  employees could help provide information on how to make a protected  disclosure; however, this planned training will not address the fact that  some employees report alleged wrongdoing first to their supervisors or  others in their chain of command without ever expecting that this will lead  to retaliation and a whistleblower claim.
As a result, congressional consideration of whether the purposes of 5  U.S.C. § 2303, which prohibits a personnel action taken against an FBI  employee as a reprisal for a protected disclosure, are being met—in  particular, whether FBI employees should, like employees of other  executive branch agencies, have a means to obtain corrective action for  retaliation for disclosures of wrongdoing made to supervisors and others  in the employees’ chain of command—could help ensure that DOJ’s  process for handling these complaints is consistent with congressional  action to strengthen and expand protections for other federal  whistleblowers. Further, it is important that, regardless of what changes  DOJ may make to the list of entities designated to receive protected  disclosures, information DOJ and the FBI provide to FBI employees on  the process for making a protected disclosure is clear and consistent so  FBI employees who consult such guidance make decisions based on  accurate information.
In some instances—particularly where OARM ordered corrective action in  favor of the complainant—the process for resolving these complaints has  taken many years, and DOJ has stated a commitment to improving its  efficiency in handling these cases. Committing to specific time frames for  returning DOJ decisions on the outcomes of FBI whistleblower retaliation  cases could help DOJ achieve its commitment to improving efficiency in  handling these complaints. Additionally, assessing the impacts of DOJ  actions to improve timeliness could help ensure that these actions are  achieving the intended results. Finally, establishing an oversight  mechanism to monitor DOJ-OPR investigators’ compliance with  regulatory reporting requirements—either by tailoring DOJ-OPR’s case  management system or another means—can assist DOJ in ensuring that  complainants receive timely information they need to make informed  decisions regarding their complaints, such as whether or not to seek  corrective action from OARM.
section_title: Matter for Congressional Consideration
paragraphs: 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.
section_title: Recommendations for Executive Action
paragraphs: We recommend the following four actions.
To better ensure that FBI whistleblowers have access to recourse under  DOJ’s regulations should the individuals experience retaliation, and to  minimize the possibility of discouraging future potential whistleblowers,  we recommend that the Attorney General clarify in all current relevant  DOJ guidance and communications, including FBI guidance and  communications, to whom FBI employees may make protected  disclosures and, further, explicitly state that employees will not have  access to recourse if they experience retaliation for reporting alleged  wrongdoing to someone not designated in DOJ’s regulations.
To better ensure that DOJ is fulfilling its commitment to improving  efficiency in handling these complaints, we recommend the following to  the heads of the relevant offices:
OARM and ODAG should provide parties with an estimated time  frame for returning each decision, including whether the complaint  meets threshold regulatory requirements, merits, and appeals. If the  time frame shifts, OARM and ODAG should timely communicate a  revised estimate to the parties.
DOJ-OPR, OIG, OARM, and ODAG should jointly assess the impact  of ongoing and planned efforts to reduce the duration of FBI  whistleblower retaliation complaints throughout the entire  investigation, adjudication, and appeal process to ensure that these  changes are in fact shortening total complaint length, without  sacrificing quality.
To ensure that complainants receive the periodic updates that they are  entitled to and need to determine next steps for their complaint, such as  whether or not to seek corrective action from OARM, we recommend that  Counsel, DOJ-OPR tailor its new case management system or otherwise  develop an oversight mechanism to capture information on the office’s  compliance with regulatory requirements and, further, use that information  to monitor and identify opportunities to improve DOJ-OPR’s compliance  with regulatory requirements.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to DOJ and OIG for review and  comment. On January 16, 2015, an official with DOJ’s Justice  Management Division sent us an email stating that the department  concurred with our recommendations. DOJ also provided technical  comments which we incorporated, as appropriate. In its technical  comments, DOJ stated a commitment to monitoring the implementation of  its April 2014 recommendations to ensure that FBI employees are not  unfairly excluded from whistleblower protection because they had  disclosed information to their immediate supervisor. DOJ also reported  that DOJ-OPR is taking steps, such as developing a report template and  upgrading its case management system which, when completed, could  help the agency begin systematically tracking investigators’ compliance  with regulatory reporting requirements. These initial steps position the  agency to satisfy our recommendation that DOJ-OPR tailor its new case  management system or otherwise develop an oversight mechanism to  capture information on the office’s compliance with regulatory reporting  requirements.
In written comments provided by OIG, (reproduced in app. IV) the  Inspector General concurred with our recommendation to OIG and  provided technical comments which we incorporated, as appropriate. In  its comment letter, OIG stated that OIG has consistently supported and  continues to support broadening the list of persons to whom protected  disclosures can be made. Further, with regard to guidance provided to  FBI employees, the OIG fully supports providing clear and comprehensive  guidance as to all aspects of whistleblower rights and protections. To this  end, OIG’s letter stated that the office is working with the FBI to create a  specialized training program that highlights the specific requirements and  procedures for FBI whistleblowers and on enhancements to OIG’s  website to include additional information specific to FBI employees.
The OIG letter also raised several additional issues. First, OIG’s letter  stated that, with regard to the total duration of Jane Turner’s complaint,  for example, the GAO draft does not distinguish between the  responsibilities of OIG and the department. We appreciate the differing  roles and responsibilities of each office and describe these in our report.  In reporting our findings, we clearly distinguish between the separate  offices’ timeframes and records of compliance with certain regulatory  requirements. However, it is important for us to also consider the total  length of cases, which is particularly important to the whistleblowers.  Second, the OIG letter mentioned that GAO’s analysis excluded more  recent complaints. Given the sensitive nature of open cases, we reviewed  only complaints closed as of December 31, 2013. Third, the OIG letter  commented that the GAO report failed to fully acknowledge the high  priority and personal attention OIG senior staff give to FBI whistleblower  retaliation matters. We disagree. Our report explains that the Inspector  General personally reviews each complaint, but also recognizes that  competing priorities for this high level of attention has resulted in delays.  Fourth, OIG’s letter noted that in many instances OIG has relied on  telephone contact with complainants to meet regulatory notification  requirements and because such contacts were not consistently  documented, we would not always have identified them in our case file  review. In our review of both DOJ and OIG case files, we noted all  evidence of contact with the complainants, including evidence of written  and oral communication, but it is correct that we would not have identified  undocumented contact with complainants. As OIG acknowledged in its  letter, it is important that evidence of contact be documented in case files  to demonstrate compliance with the regulations. As discussed in our  report, OIG has taken steps to address this.
As agreed with your office, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the Attorney General, the  DOJ Inspector General, appropriate congressional committees, and other  interested Member of Congress. In addition, the report will be available at  no charge on the GAO website at 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.
section_title: Appendix I: Scope and Methodology
paragraphs: 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. We did this by creating  a data collection instrument to identify the key characteristics of  whistleblower retaliation cases, determine the completeness of the files,  and assess time frames for each case in accordance with DOJ’s  regulations. 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.
Because of the sensitivity of FBI whistleblowers’ identities, to obtain  whistleblower perspectives about DOJ’s process and time frames, we met  with representatives of whistleblower advocacy groups knowledgeable  about DOJ’s process and attorneys who have represented FBI  whistleblowers through this process. Specifically, we identified and  interviewed representatives of five whistleblower advocacy groups using  an iterative process often referred to as snowball sampling. At each  interview, we solicited names of additional groups to interview and  selected for interviews those that were most widely recognized as  knowledgeable about DOJ’s process. We also interviewed attorneys who  had represented FBI whistleblowers in three of five cases where  complainants have alleged retaliation and obtained corrective action.  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.
To determine the extent to which DOJ has taken steps to resolve  complaints more quickly, we interviewed senior DOJ officials in each of  the four offices responsible for investigating or adjudicating whistleblower  retaliation complaints—OIG, DOJ-OPR, OARM, and ODAG. We asked  about the factors that affect the timely processing of these complaints and  any efforts to address them. In addition, to identify any practices that have  improved timeliness in comparable federal settings, we interviewed senior  officials in the Department of Defense’s Office of the Inspector General as  well as the U.S. Office of Special Counsel (OSC) and the U.S. Merit  Systems Protection Board (MSPB)—federal agencies that handle  whistleblower retaliation complaints for other federal employees—about  those agencies’ processes for handling whistleblower retaliation  complaints. To identify the extent to which DOJ officials have taken steps  to determine the impact of their efforts to improve timeliness, we  interviewed DOJ officials and reviewed DOJ’s April 2014 report to the  President and compared DOJ’s stated plans with standards in Standards  for Internal Control in the Federal Government.
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. Further, we interviewed eight whistleblower advocates and attorneys, as noted above, to obtain  whistleblower perspectives on the extent of DOJ’s compliance with  regulatory requirements and the effects of this compliance. In addition,  because OSC serves a function comparable to those of OIG and DOJ- OPR in handling whistleblower complaints for most other executive  branch employees and has similar regulatory reporting requirements, we  interviewed OSC officials about OSC’s processes and mechanisms for  ensuring compliance with its requirements.
We conducted this performance audit from September 2013 to January  2015 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
section_title: Appendix II: Department of Justice’s Reasons for Closing Federal Bureau of Investigation Whistleblower Retaliation Complaints
paragraphs: 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. 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.
The DOJ office reviewing a whistleblower retaliation complaint may close  the complaint before conducting an investigation (in the case of OIG and  DOJ-OPR) or considering the merits of the complaint (in the case of  OARM) if the office determines that the complaint does not meet  threshold requirements under the FBI whistleblower regulations. If the  investigating office finds that a complaint meets threshold regulatory  requirements, the office will open an investigation to determine if there  are reasonable grounds to believe that a personnel action had been taken  or will be taken in retaliation for a protected disclosure. If OARM first  determines that a complaint meets threshold requirements, OARM  adjudicates the complaint to determine whether the disclosure was a  contributing factor in the personnel action based on a preponderance of  the evidence and whether the FBI has demonstrated by clear and  convincing evidence that it would have taken the same personnel action  in the absence of such disclosure. If the complaint is substantiated and  the FBI is unable to meet its burden of proof, OARM will order that the  FBI take appropriate corrective action. In addition complainants may  voluntarily withdraw their complaints. Table 1 summarizes the final  outcome of the 62 complaints we reviewed, sorted by the final DOJ office  to review the complaint and the overall length of the complaint.
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. 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.
section_title: Appendix III: Department of Justice (DOJ) Investigating Offices’ Compliance with Selected Reporting Requirements
paragraphs: Requirement  Acknowledgment of complaint: The investigating office must notify the  complainant that it has received the complaint and provide the name of a contact  person within the office within 15 days of either OIG or DOJ-OPR receiving the  complaint.   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.   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. (OIG)  44 percent  (16 of 36) (DOJ-OPR)  19 percent  (4 of 21)
82 percent  (14 of 17)
65 percent  (13 of 20)
33 percent  (4 of 12)
20 percent  (3 of 15)
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)
80 percent  (16 of 20)
subsections: section_title: Obtained complainant’s approval for an extension
paragraphs: 81 percent  (30 of 37)  14 percent  50 percent  (10 of 20)e.f  60 percent  (1 of 7) (6 of 10)
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.  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.
section_title: Appendix IV: Comments from the Department of Justice Office of the Inspector General
section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: 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.