Whistleblower Protection: Additional Actions Needed to Improve DOJ's Handling of FBI Retaliation Complaints
Released: 2015-02-23T00:00:00

Letter

Background

As established by the Civil Service Reform Act of 1978, federal law generally prohibits retaliation against federal government employees or applicants for employment for reporting wrongdoing, or whistleblowing. 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.

Division of Responsibility for FBI Whistleblower Retaliation Complaints

The regulations lay out DOJ’s process for handling FBI whistleblower retaliation complaints and describe various offices’ responsibilities for investigating, adjudicating, and reviewing appeals related to these complaints. See figure 1.

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.

DOJ’s Regulatory Timeliness and Reporting Requirements

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.

DOJ Closed Majority of Complaints within a Year, Some because Employee Did Not Report Wrongdoing to Designated Official; Complaints DOJ Adjudicated Took up to 10 Years

DOJ closed the majority of the 62 complaints we reviewed within 1 year, generally because the complaints did not meet DOJ’s threshold regulatory requirements. The most common reason these complaints did not meet DOJ’s threshold regulatory requirements was because the complainants made their disclosures to individuals or offices not designated in the regulations. Further, FBI whistleblowers may not be aware that they must report an allegation of wrongdoing to certain designated officials to qualify as a protected disclosure, in part because information DOJ has provided to its employees has not consistently explained to whom an employee must report protected disclosures. The 4 complaints we reviewed that met DOJ’s threshold regulatory requirements and OARM ultimately adjudicated on the merits lasted from 2 to just over 10.6 years from the initial filing of the complaints with OIG or DOJ-OPR to the final OARM or DAG ruling. In some cases, parties have waited a year or more for a DOJ decision without information on when they might receive it. Figure 2 shows the duration and outcome of all 62 complaints we reviewed.

DOJ Closed Majority of Complaints within a Year; Some Because the Employee Did Not Report Wrongdoing to a Designated Official

DOJ closed 44 of the 62 complaints (71 percent) that we reviewed within 1 year, most often because the complaint did not meet DOJ’s threshold regulatory requirements. Specifically, for 40 of these 44 cases (91 percent), DOJ found that the complaint did not meet threshold regulatory requirements. 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.

FBI Employees Are Not Protected for Reporting Wrongdoing to Their Supervisors or Others in Their Chain of Command Not Designated in DOJ Regulations

Unlike employees of other executive branch agencies—including intelligence agencies—FBI employees do not have a process to seek corrective action if they experience retaliation based on a disclosure of wrongdoing to their supervisors or others in their chain of command who are not designated officials. 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.

DOJ Guidance Is Not Always Clear

In the course of our review, in addition to several DOJ and FBI guidance documents that accurately describe DOJ’s FBI whistleblower regulations, we also found instances of DOJ guidance that could lead FBI employees to believe that reporting an allegation of wrongdoing to a supervisor in their chain of command would be a protected disclosure when that is not the case. 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.

DOJ Took up to 10 Years to Resolve the 4 Complaints It Adjudicated on the Merits and Did Not Provide Parties with Expected Time Frames for Its Decisions

OARM adjudicated the merits of 4 of the 62 complaints we reviewed (6 percent), and these 4 cases lasted from 2 to just over 10.6 years, from the initial filing of the complaints with OIG or DOJ-OPR to the final OARM or ODAG ruling.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.

DOJ Officials Have Taken Some Steps to Resolve Complaints More Quickly but Have Limited Plans to Assess Impact

In the last 3 years, and in light of the Presidential Policy Directive 19 requirement that DOJ assess the efficacy of its current process, DOJ officials have identified some opportunities to improve their timeliness in resolving whistleblower retaliation complaints and have taken some steps to do so. However, DOJ officials have limited plans to assess the impacts of these actions. Specifically, OARM has developed a mediation program, hired an additional staff person, and developed procedures with stricter time frames, while DOJ-OPR and OIG have taken steps to streamline their intake procedures. DOJ leadership is also considering taking steps to revise DOJ’s regulations to streamline OARM’s process upon receiving a new complaint.

Developing a mediation program: In the spring of 2014, OARM launched an alternative dispute resolution program that will provide complainants with the option to pursue mediation with the FBI at any point from initial filing of the complaint to appeal. OARM officials anticipate that this option will help to expedite processing of some complaints that can be more quickly resolved through mediation and permit DOJ to focus limited resources on the remaining cases. As of October 1, 2014, two complainants had pursued mediation, but, according to OARM officials, because these cases are pending, it is too soon to analyze the impact of the mediation program.

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.

OIG and DOJ-OPR Have Not Consistently Met Regulatory Requirements to Provide Complainants with Information Needed to Determine Next Steps for Their Complaints

OIG and DOJ-OPR have not consistently provided complainants with status updates or obtained the complainant’s approval for an extension when the investigator reviewing the complaint needed more time, as stipulated under agency regulations. In the last 2 years, OIG developed a database to increase management oversight of investigators’ compliance with requirements to provide updates and obtain the complainants’ approval for extensions, but DOJ-OPR does not have a similar mechanism in place. In addition, OIG did not inform complainants of its intent before closing complaints it declined to investigate and did not consistently explain the basis for its decisions to complainants, but plans to begin doing so.

OIG and DOJ-OPR Have Not Consistently Provided Complainants with Required Status Updates and Extension Requests; OIG Has Begun Tracking Compliance, but DOJ- OPR Has Not

OIG and DOJ-OPR have not consistently provided complainants with periodic status updates nor have they always obtained complainants’ approvals for extensions when the investigator reviewing the complaint needed more time, as required under DOJ’s FBI whistleblower regulations. 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.

OIG Has Not Informed Complainants before Closing Complaints It Declined to Investigate or Consistently Communicated Reasons for Its Decision, but Plans to Begin Doing So

OIG has not informed complainants before closing complaints it declines to investigate and has not always communicated the reasons for its decision not to investigate because, according to senior OIG officials, OIG does not view the regulations as requiring them to do so. Specifically, these officials said that the regulations state that the office must provide the complainant with a written statement that indicates the office’s intention to close the complaint when the investigating office decides to terminate an investigation. As a result, according to these officials, this provision does not apply if OIG declines the complaint before initiating an investigation. Similarly, these officials said that OIG does not view the requirement to send a final termination report including a summary of relevant facts and the reasons for terminating an investigation as applying to complaints OIG declines to investigate. Unlike in OIG’s process, a DOJ-OPR official responsible for managing these complaints said that DOJ-OPR provides a draft report to the complainant when DOJ-OPR decides to close a complaint, including when DOJ-OPR makes this decision without initiating an investigation.

We found that OIG provided a proposed termination report including the factual findings and conclusions that justified terminating the investigation before OIG finalized its decision to close the complaint in 8 of the 9 complaints OIG investigated. 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.

Conclusions

Whistleblowers play an important role in safeguarding the federal government against waste, fraud, and abuse, but they often risk retaliation from their employers as a result of their actions. DOJ has established a process by which FBI whistleblowers can seek recourse should they experience such retaliation, and DOJ generally has the discretion to revise this process, as needed. We found that DOJ has terminated many FBI whistleblower complaints based on complainants’ failure to meet threshold regulatory requirements rather than whether the retaliation occurred. In particular, FBI employees are protected if they report wrongdoing to certain high-level FBI or DOJ officials and other specified entities, and—unlike employees of other executive branch agencies—are not protected if they report wrongdoing to their supervisors. DOJ officials have stated plans to partially address this by adding several more senior officials in FBI field offices to the list of individuals to whom complainants may report protected disclosures, but the timing and outcome of this stated plan are uncertain. DOJ officials said they do not plan to expand the list to include supervisors or others in an employee’s chain of command in part because of their concerns about the additional resources that would be needed to handle a possible increase in complaints and the potential effect on the timeliness of DOJ’s process to handle these complaints. While DOJ officials’ concern about timeliness is important, they are already taking other steps to improve the efficiency of this process. More importantly, dismissing retaliation complaints made to an employee’s supervisor or someone in that person’s chain of command leaves some FBI whistleblowers with no recourse if they allege retaliation, as our review of case files demonstrated. Training that DOJ officials plan to provide to FBI employees could help provide information on how to make a protected disclosure; however, this planned training will not address the fact that some employees report alleged wrongdoing first to their supervisors or others in their chain of command without ever expecting that this will lead to retaliation and a whistleblower claim.

As a result, congressional consideration of whether the purposes of 5 U.S.C. § 2303, which prohibits a personnel action taken against an FBI employee as a reprisal for a protected disclosure, are being met—in particular, whether FBI employees should, like employees of other executive branch agencies, have a means to obtain corrective action for retaliation for disclosures of wrongdoing made to supervisors and others in the employees’ chain of command—could help ensure that DOJ’s process for handling these complaints is consistent with congressional action to strengthen and expand protections for other federal whistleblowers. Further, it is important that, regardless of what changes DOJ may make to the list of entities designated to receive protected disclosures, information DOJ and the FBI provide to FBI employees on the process for making a protected disclosure is clear and consistent so FBI employees who consult such guidance make decisions based on accurate information.

In some instances—particularly where OARM ordered corrective action in favor of the complainant—the process for resolving these complaints has taken many years, and DOJ has stated a commitment to improving its efficiency in handling these cases. Committing to specific time frames for returning DOJ decisions on the outcomes of FBI whistleblower retaliation cases could help DOJ achieve its commitment to improving efficiency in handling these complaints. Additionally, assessing the impacts of DOJ actions to improve timeliness could help ensure that these actions are achieving the intended results. Finally, establishing an oversight mechanism to monitor DOJ-OPR investigators’ compliance with regulatory reporting requirements—either by tailoring DOJ-OPR’s case management system or another means—can assist DOJ in ensuring that complainants receive timely information they need to make informed decisions regarding their complaints, such as whether or not to seek corrective action from OARM.

Matter for Congressional Consideration

To ensure that the purposes of 5 U.S.C. § 2303—which prohibits a personnel action taken against an FBI employee as a reprisal for a protected disclosure—are met, Congress may wish to consider whether FBI employees should have a means to obtain corrective action for retaliation for disclosures of wrongdoing made to supervisors and others in the employee’s chain of command who are not already designated officials.

Recommendations for Executive Action

We recommend the following four actions.

To better ensure that FBI whistleblowers have access to recourse under DOJ’s regulations should the individuals experience retaliation, and to minimize the possibility of discouraging future potential whistleblowers, we recommend that the Attorney General clarify in all current relevant DOJ guidance and communications, including FBI guidance and communications, to whom FBI employees may make protected disclosures and, further, explicitly state that employees will not have access to recourse if they experience retaliation for reporting alleged wrongdoing to someone not designated in DOJ’s regulations.

To better ensure that DOJ is fulfilling its commitment to improving efficiency in handling these complaints, we recommend the following to the heads of the relevant offices:

OARM and ODAG should provide parties with an estimated time frame for returning each decision, including whether the complaint meets threshold regulatory requirements, merits, and appeals. If the time frame shifts, OARM and ODAG should timely communicate a revised estimate to the parties.

DOJ-OPR, OIG, OARM, and ODAG should jointly assess the impact of ongoing and planned efforts to reduce the duration of FBI whistleblower retaliation complaints throughout the entire investigation, adjudication, and appeal process to ensure that these changes are in fact shortening total complaint length, without sacrificing quality.

To ensure that complainants receive the periodic updates that they are entitled to and need to determine next steps for their complaint, such as whether or not to seek corrective action from OARM, we recommend that Counsel, DOJ-OPR tailor its new case management system or otherwise develop an oversight mechanism to capture information on the office’s compliance with regulatory requirements and, further, use that information to monitor and identify opportunities to improve DOJ-OPR’s compliance with regulatory requirements.

Agency Comments and Our Evaluation

We provided a draft of this report to DOJ and OIG for review and comment. On January 16, 2015, an official with DOJ’s Justice Management Division sent us an email stating that the department concurred with our recommendations. DOJ also provided technical comments which we incorporated, as appropriate. In its technical comments, DOJ stated a commitment to monitoring the implementation of its April 2014 recommendations to ensure that FBI employees are not unfairly excluded from whistleblower protection because they had disclosed information to their immediate supervisor. DOJ also reported that DOJ-OPR is taking steps, such as developing a report template and upgrading its case management system which, when completed, could help the agency begin systematically tracking investigators’ compliance with regulatory reporting requirements. These initial steps position the agency to satisfy our recommendation that DOJ-OPR tailor its new case management system or otherwise develop an oversight mechanism to capture information on the office’s compliance with regulatory reporting requirements.

In written comments provided by OIG, (reproduced in app. IV) the Inspector General concurred with our recommendation to OIG and provided technical comments which we incorporated, as appropriate. In its comment letter, OIG stated that OIG has consistently supported and continues to support broadening the list of persons to whom protected disclosures can be made. Further, with regard to guidance provided to FBI employees, the OIG fully supports providing clear and comprehensive guidance as to all aspects of whistleblower rights and protections. To this end, OIG’s letter stated that the office is working with the FBI to create a specialized training program that highlights the specific requirements and procedures for FBI whistleblowers and on enhancements to OIG’s website to include additional information specific to FBI employees.

The OIG letter also raised several additional issues. First, OIG’s letter stated that, with regard to the total duration of Jane Turner’s complaint, for example, the GAO draft does not distinguish between the responsibilities of OIG and the department. We appreciate the differing roles and responsibilities of each office and describe these in our report. In reporting our findings, we clearly distinguish between the separate offices’ timeframes and records of compliance with certain regulatory requirements. However, it is important for us to also consider the total length of cases, which is particularly important to the whistleblowers. Second, the OIG letter mentioned that GAO’s analysis excluded more recent complaints. Given the sensitive nature of open cases, we reviewed only complaints closed as of December 31, 2013. Third, the OIG letter commented that the GAO report failed to fully acknowledge the high priority and personal attention OIG senior staff give to FBI whistleblower retaliation matters. We disagree. Our report explains that the Inspector General personally reviews each complaint, but also recognizes that competing priorities for this high level of attention has resulted in delays. Fourth, OIG’s letter noted that in many instances OIG has relied on telephone contact with complainants to meet regulatory notification requirements and because such contacts were not consistently documented, we would not always have identified them in our case file review. In our review of both DOJ and OIG case files, we noted all evidence of contact with the complainants, including evidence of written and oral communication, but it is correct that we would not have identified undocumented contact with complainants. As OIG acknowledged in its letter, it is important that evidence of contact be documented in case files to demonstrate compliance with the regulations. As discussed in our report, OIG has taken steps to address this.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to the Attorney General, the DOJ Inspector General, appropriate congressional committees, and other interested Member of Congress. In addition, the report will be available at no charge on the GAO website at 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.

Appendix I: Scope and Methodology

This appendix discusses in detail our methodology for addressing the following three objectives: determining how long the Department of Justice (DOJ) has taken to resolve Federal Bureau of Investigation (FBI) whistleblower retaliation complaints and what factors have affected these time frames, determining the extent to which DOJ has taken steps to resolve complaints more quickly and determine the impact of any such efforts; and determining the extent to which DOJ’s Office of the Inspector General (OIG) and Office of Professional Responsibility (DOJ-OPR) have complied with regulatory reporting requirements.

To determine how long DOJ has taken to resolve FBI whistleblower retaliation complaints and the factors that affected these time frames, we reviewed DOJ case files for all FBI whistleblower retaliation complaints closed within the last 5 calendar years (from 2009 through 2013). Specifically, we reviewed the case files for a total of 62 closed whistleblower retaliation complaints to calculate the duration of each complaint from initial filing to DOJ’s final decision, including, for example, the length of time from initial filing to the investigating office’s final decision; the length of time from filing a request for corrective action with the Office of Attorney Recruitment and Management (OARM) to OARM’s decision; and the length of the appeals process. 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.

Appendix II: Department of Justice’s Reasons for Closing Federal Bureau of Investigation Whistleblower Retaliation Complaints

This appendix provides information on the Department of Justice’s (DOJ) reasons for closing the 62 Federal Bureau of Investigation (FBI) whistleblower retaliation complaints we reviewed. These 62 complaints represent the universe of FBI whistleblower retaliation complaints that were closed within the last 5 calendar years (from 2009 through 2013) by the final DOJ office to review the complaint. 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.

Appendix III: Department of Justice (DOJ) Investigating Offices’ Compliance with Selected Reporting Requirements

Requirement Acknowledgment of complaint: The investigating office must notify the complainant that it has received the complaint and provide the name of a contact person within the office within 15 days of either OIG or DOJ-OPR receiving the complaint. 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)

Obtained complainant’s approval for an extension

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.

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

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Eileen Larence (Director), Dawn Locke (Assistant Director), Claudia Becker (Analyst-in-Charge), Vanessa Dillard, Michele Fejfar, Eric Hauswirth, Susan Hsu, Tom Lombardi, Signora May, Erin McLaughlin, Linda Miller, Jan Montgomery, and Janet Temko-Blinder made key contributions to this report.