[Federal Register Volume 63, Number 217 (Tuesday, November 10, 1998)]
[Rules and Regulations]
[Pages 62937-62940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29700]


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DEPARTMENT OF JUSTICE

28 CFR Parts 0 and 27

[A.G. Order No. 2190-98]
RIN 1105-AA60


Whistleblower Protection For Federal Bureau of Investigation 
Employees

AGENCY: Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule establishes procedures under which employees 
of the Federal Bureau of Investigation may make disclosures of 
information protected by the Civil Services Reform Act of 1978 (Pub. L. 
No. 95-454) and the Whistleblower Protection Act of 1989 (Pub. L. No. 
101-12), codified at 5 U.S.C. 2303. It also establishes procedures 
under which the Department of Justice (the Department) will investigate 
allegations by Federal Bureau of Investigation (FBI) employees of 
retaliation for making such disclosures and provide appropriate 
corrective action.

DATES: Effective date: November 10, 1998.

    Comment Date: Comments are due on or before January 11, 1999.

ADDRESSES: Interested parties should submit written comments to: Stuart 
Frisch, General Counsel, Office of the General Counsel, Justice 
Management Division, United States Department of Justice, 10th and 
Pennsylvania Ave., N.W., Washington, D.C., 20530.
    E-mail comments submitted over the Internet should be addressed to 
[email protected].

FOR FURTHER INFORMATION CONTACT:
Stuart Frisch, General Counsel, or John Caterini, Attorney-Advisor, 
Office of the General Counsel, Justice Management Division, U.S. 
Department of Justice, (202) 514-3452.

SUPPLEMENTARY INFORMATION: 

A. Background

    Under sections 1214 and 1221 of title 5 of the United States Code, 
most Federal employees who believe they have been the victim of a 
prohibited personnel practice, including retaliation for 
whistleblowing, have the right to request an investigation by the 
Office of Special Counsel (OSC) (section 1214) or, in appropriate 
circumstances, to pursue an individual right of action before the Merit 
Systems Protection Board (MSPB) (sections 1214(a)(3) & 1221). Under 5 
U.S.C. 2302(a)(2)(C)(ii), the FBI is expressly excluded from the scheme 
established by sections 1214 and 1221. Section 2303(a) of title 5, 
however, separately prohibits employees of the FBI from retaliating 
against whistleblowers. Section 2303(b) charges the Attorney General 
with prescribing regulations to ensure that such retaliation not be 
taken, and section 2303(c) charges the President with providing for the 
enforcement of section 2303 ``in a manner consistent with applicable 
provisions of section 1214 and 1221.''
    On April 14, 1997, the President delegated to the Attorney General 
his ``functions concerning employees of the Federal Bureau of 
Investigation vested in [him] by . . . section 2303(c) of title 5, 
United States Code,'' and directed the Attorney General to establish 
``appropriate processes within the Department of Justice to carry out 
these functions.'' See 62 FR 23123 (1997).
    Accordingly, this interim rule implements 5 U.S.C. 2303 (b) & (c). 
It supersedes and replaces 28 CFR 0.39c, which gave the Counsel for the 
Department's Office of Professional Responsibility authority to request 
a stay of a personnel action when he determined that there were 
reasonable grounds to believe that the action was taken as a reprisal 
for whistleblowing.
    The rule designates the Department's Office of Professional 
Responsibility (OPR), the Department's Office of Inspector General 
(OIG), and the FBI's Office of Professional Responsibility as offices 
to which an FBI employee (or applicant for employment with the FBI) may 
disclose information that the employee or applicant reasonably believes 
evidences: 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. Any such disclosure to one 
of these offices is protected, and the rule prohibits retaliation for 
making it. The rule further provides that OPR and OIG will investigate 
whistleblower retaliation claims, recommend stays of personnel actions, 
and recommended corrective action where appropriate. The Director, 
Office of Attorney Personnel Management (the Director), or his 
designee, will decide whistleblower retaliation claims presented to him 
by OPR or OIG, as well as those claims brought to him directly by an 
employee or applicant in appropriate circumstances. He will also grant 
stays

[[Page 62938]]

of personnel actions and order corrective action when appropriate. The 
rule grants powers and functions to the investigating offices (i.e., 
OPR or OIG) and to the Director that are consistent with those granted 
to the OSC and MSPB in sections 1214 and 1221. Time frames specified in 
the statute generally were imported from those provided for in the OSC/
MSPB system. The regulations allow for an extension of any time limit 
in extenuating circumstances.
    Sections 1214(c) and 1221(h) of title 5 provide for judicial review 
by the Court of Appeals for the Federal Circuit. Section 2303(c), 
however, authorizes the Executive Branch to resolve allegations of 
whistleblower reprisal involving the FBI without reference to judicial 
review. Because only Congress is empowered to waive sovereign immunity, 
and section 2303 does not include such a waiver, this rule does not 
provide for judicial review. The rule provides for review of the 
Director's decision by the Deputy Attorney General or his designee, who 
will review the decision under the standard set forth in 5 U.S.C. 
7703(c). That is, the Deputy Attorney General shall review the record 
and modify or set aside the Director's actions, findings, or 
conclusions found to be: (1) arbitrary, capricious, an abuse of 
discretion, or otherwise not in accordance with law; (2) obtained 
without procedures required by law, rule, or regulation having been 
followed; or (3) unsupported by substantial evidence. The Deputy 
Attorney General has full discretion to review and modify corrective 
action ordered by the Director, provided, however, that if the Deputy 
Attorney General upholds a finding that there has been a reprisal, then 
the Deputy Attorney General shall order appropriate corrective action. 
The regulation provides this discretionary review because the Attorney 
General, as head of the Department, must retain ultimate authority over 
any decision that might relate to or affect the management of the FBI; 
under 28 CFR 0.15, the Deputy Attorney General is generally authorized 
to exercise all the power and authority of the Attorney General.
    This interim rule is effective upon publication in the Federal 
Register, although the Department invites post-promulgation comments 
and will address any such comments in a final rule. The Department 
finds that good cause exists under 5 U.S.C. 553(b) and (d)(3) for 
adopting this as an interim rule without the prior notice and comment 
period ordinarily required by 5 U.S.C. 553. This rule provides formal 
procedures under which employees of, or applicants for employment with, 
the FBI may make certain protected disclosures of information and 
establishes procedures under which the Department will investigate 
allegations of reprisal for making any such disclosure. It provides a 
benefit to FBI employees or applicants for employment with the FBI. 
These procedures provide additional protection to such employees and 
applicants, and it is in the public interest to provide such protection 
without delay.

B. Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it 
certifies that it will not have a significant economic impact on a 
substantial number of small entities. This rule merely establishes 
procedures under which employees or applicants for employment with the 
FBI, may make certain protected disclosures of information and 
establishes procedures under which the Department will investigate 
allegations of retaliation against such individuals.

C. Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866. The Department has determined that this rule is 
not a ``significant regulatory action'' under section 3(f) of Executive 
Order 12866, Regulatory Planning and Review, and accordingly this rule 
has not been reviewed by the Office of Management and Budget.

D. Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

E. Unfunded Mandates Reform Act of 1995

    This rule will not, in the aggregate, result in the expenditure by 
State, local and tribal governments, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

F. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

List of Subjects in 28 CFR Part 27

    Government Employees; Justice Department; Organization and 
functions (Government agencies); Whistleblowing.

    For the reasons stated in the preamble, title 28 of the Code of 
Federal Regulations is amended as follows:


Sec. 0.39c   [Removed]

    1. In Subpart G-2 of Part 0, remove section 0.39c.
    2. Add Part 27 to read as follows:

PART 27--WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF 
INVESTIGATION EMPLOYEES

Subpart A--Protected Disclosures of Information

Sec. 27.1  Making a protected disclosure.
Sec. 27.2  Prohibition against reprisal for making a protected 
disclosure.

Subpart B--Investigating Reprisal Allegations and Ordering Corrective 
Action

Sec. 27.3  Investigations: Office of Professional Responsibility and 
Office of the Inspector General.
Sec. 27.4  Corrective action and other relief: Director, Office of 
Attorney Personnel Management.
Sec. 27.5  Review.
Sec. 27.6  Extensions of time.

    Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; 5 
U.S.C. 2303; President's Memorandum to the Attorney General, 
Delegation of Responsibilities Concerning FBI Employees Under the 
Civil Service Reform Act of 1978, 3 CFR p. 284 (1997).

Subpart A--Protected Disclosures of Information


Sec. 27.1   Making a protected disclosure.

    (a) When an employee of, or applicant for employment with, the 
Federal Bureau of Investigation (FBI) (FBI employee) makes a disclosure 
of information to either the Department of Justice's (Department's) 
Office of Professional Responsibility (OPR), the Department's Office of 
Inspector

[[Page 62939]]

General (OIG), or the FBI Office of Professional Responsibility 
(collectively, Receiving Offices), the disclosure will be a ``protected 
disclosure'' if the person making it reasonably believes that it 
evidences:
    (1) A violation of any law, rule or regulation; or
    (2) Mismanagement, a gross waste of funds, an abuse of authority, 
or a substantial and specific danger to public health or safety.
    (b) When a Receiving Office receives a protected disclosure, it 
shall proceed in accordance with existing procedures establishing 
jurisdiction among the respective Receiving Offices.


Sec. 27.2   Prohibition against reprisal for making a protected 
disclosure.

    (a) Any employee of the FBI, or of any other component of the 
Department, who has authority to take, direct others to take, 
recommend, or approve any personnel action shall not, with respect to 
such authority, take or fail to take a personnel action, as defined 
below, with respect to any FBI employee as a reprisal for a protected 
disclosure.
    (b) Personnel action means any action described in clauses (i) 
through (x) of 5 U.S.C. 2302(a)(2)(A) taken with respect to an FBI 
employee other than one in a position which the Attorney General has 
designated in advance of encumbrance as being a position of a 
confidential, policy-determining, policy-making, or policy-advocating 
character.

Subpart B--Investigating Reprisal Allegations and Ordering 
Corrective Action


Sec. 27.3   Investigations: Office of Professional Responsibility and 
Office of the Inspector General.

    (a)(1) An FBI employee who believes that another employee of the 
FBI, or of any other Departmental component, has taken or has failed to 
take a personnel action as a reprisal for a protected disclosure 
(reprisal), may report the alleged reprisal to either the Department's 
OPR or the Department's OIG (collectively, Investigative Offices). The 
report of an alleged reprisal must be made in writing.
    (2) For purposes of this Subpart, references to the FBI include any 
other Departmental component in which the person or persons accused of 
the reprisal were employed at the time of the alleged reprisal.
    (b) The Investigative Office that receives the report of an alleged 
reprisal shall consult with the other Investigative Office to determine 
which office is more suited, under the circumstances, to conduct an 
investigation into the allegation. The Attorney General retains final 
authority to designate or redesignate the Investigative Office that 
will conduct an investigation.
    (c) Within 15 calendar days of the date the allegation of reprisal 
is first received by an Investigative Office, the office that will 
conduct the investigation (Conducting Office) shall provide written 
notice to the person who made the allegation (Complainant) indicating--
    (1) That the allegation has been received; and
    (2) The name of a person within the Conducting Office who will 
serve as a contact with the Complainant.
    (d) The Conducting Office shall investigate any allegation of 
reprisal to the extent necessary to determine whether there are 
reasonable grounds to believe that a reprisal has been or will be 
taken.
    (e) Within 90 calendar days of providing the notice required in 
paragraph (c) of this section, and at least every 60 calendar days 
thereafter (or at any other time if the Conducting Office deems 
appropriate), the Conducting Office shall notify the Complainant of the 
status of the investigation.
    (f) The Conducting Office shall determine whether there are 
reasonable grounds to believe that there has been or will be a reprisal 
for a protected disclosure. The Conducting Office shall make this 
determination within 240 calendar days of receiving the allegation of 
reprisal.
    (g) If the Conducting Office decides to terminate an investigation, 
it shall provide, no later than 10 business days before providing the 
written statement required by paragraph (h) of this section, a written 
status report to the Complainant containing the factual findings and 
conclusions justifying the termination of the investigation. The 
Complainant may submit written comments on such report to the 
Conducting Office. The Conducting Office shall not be required to 
provide a subsequent written status report after submission of such 
comments.
    (h) If the Conducting Office terminates an investigation, it shall 
prepare and transmit to the Complainant a written statement notifying 
him/her of--
    (1) The termination of the investigation;
    (2) A summary of relevant facts ascertained by the Conducting 
Office;
    (3) The reasons for termination of the investigation; and
    (4) A response to any comments submitted under paragraph (g) of 
this section.
    (i) Such written statement prepared pursuant to paragraph (h) of 
this section may not be admissible as evidence in any subsequent 
proceeding without the consent of the Complainant.
    (j) Nothing in this part shall prohibit the Receiving Offices, in 
the absence of a reprisal allegation by an FBI employee under this 
part, from conducting an investigation, under their pre-existing 
jurisdiction, to determine whether a reprisal has been or will be 
taken.


Sec. 27.4   Corrective action and other relief: Director, Office of 
Attorney Personnel Management.

    (a) If, in connection with any investigation, the Conducting Office 
determines that there are reasonable grounds to believe that a reprisal 
has been or will be taken, the Conducting Office shall report this 
conclusion, together with any findings and recommendations for 
corrective action, to the Director, Office of Attorney Personnel 
Management (the Director). If the Conducting Office's report to the 
Director includes a recommendation for corrective action, the Director 
shall provide an opportunity for comments on the report by the FBI and 
the Complainant. The Director, upon receipt of the Conducting Office's 
report, shall proceed in accordance with paragraph (f) of this section.
    (b) At any time, the Conducting Office may request the Director to 
order a stay of any personnel action for 45 calendar days if it 
determines that there are reasonable grounds to believe that a reprisal 
has been or is to be taken. The Director shall order such stay within 
three business days of receiving the request for stay, unless the 
Director determines that, under the facts and circumstances involved, 
such a stay would not be appropriate. The Director may extend the 
period of any stay granted under this paragraph for any period that the 
Director considers appropriate. The Director shall allow the FBI an 
opportunity to comment to the Director on any proposed extension of a 
stay. The Director may terminate a stay at any time, except that no 
such termination shall occur until the Complainant and the Conducting 
Office shall first have had notice and an opportunity to comment.
    (c)(1) The Complainant may present a request for corrective action 
directly to the Director within 60 calendar days of receipt of 
notification of termination of an investigation by the Conducting 
Office or at any time after 120 calendar days from the date the 
Complainant first notified an Investigative Office of an alleged 
reprisal if the Complainant has not been notified by the Conducting

[[Page 62940]]

Office that it will seek corrective action. The Director shall notify 
the FBI of the receipt of the request and allow the FBI 25 calendar 
days to respond in writing. If the Complainant presents a request for 
corrective action to the Director under this paragraph, the Conducting 
Office may continue to investigate the reprisal allegation only with 
the consent of the Complainant. If the Complainant refuses such 
consent, the Conducting Office will discontinue investigation of the 
reprisal allegation and will not prepare a report for the Director. In 
such event, however, the Conducting Office may continue to investigate 
any separate violation of law, rule, or regulation discovered during 
the investigation of reprisal that is otherwise within the Conducting 
Office's pre-existing jurisdiction. When the Complainant presents a 
request for corrective action directly to the Director and does not 
consent to the Conducting Office continuing an independent 
investigation of the reprisal allegation, the Conducting Office shall 
submit to the Complainant and to the FBI its Memoranda of Interviews 
(or portions thereof) that relate to the reprisal investigation, 
consistent with the Conducting Office's obligations regarding 
confidentiality and privacy.
    (2) The Director may not direct the Conducting Office to reinstate 
an investigation that the Conducting Office has terminated in 
accordance with section 27.3(h).
    (d) Where a Complainant has presented a request for corrective 
action directly to the Director under paragraph (c)(1) of this section, 
the Director may hold a hearing at which the Complainant may present 
evidence in support of his or her claim, in accordance with such 
procedures as the Director may adopt. The Director is hereby authorized 
to compel the attendance and testimony of, or the production of 
documentary or other evidence from, any person employed by the 
Department if doing so appears reasonably calculated to lead to the 
discovery of admissible evidence, is not otherwise prohibited by law or 
regulation, and is not unduly burdensome. Any privilege available in 
judicial and administrative proceedings relating to the release of 
documents or the giving of testimony shall be available to the parties 
in the hearing before the Director. All assertions of such privileges 
shall be decided by the Director. Upon the request of either the 
Complainant, the Conducting Office, or the FBI, the Director may 
certify a ruling on an assertion of privilege for review by the Deputy 
Attorney General.
    (e) Where a Complainant has presented a request for corrective 
action to the Director under paragraph (c) of this section, the 
Complainant may at any time request the Director to order a stay of any 
personnel action allegedly taken or to be taken in reprisal for a 
protected disclosure. The request for a stay must be in writing, and 
the FBI shall have an opportunity to respond. The request shall be 
granted within 10 business days of the receipt of any response by the 
FBI if the Director determines that such a stay would be appropriate. A 
stay granted under this paragraph shall remain in effect for such 
period as the Director deems appropriate. The Director may modify or 
dissolve a stay under this paragraph at any time if the Director 
determines that such a modification or dissolution is appropriate.
    (f) The Director shall determine, based upon all the evidence, 
whether a protected disclosure was a contributing factor in a personnel 
action taken or to be taken. If the Director determines that a 
protected disclosure was a contributing factor in a personnel action 
taken or to be taken, he shall order corrective action as he deems 
appropriate. The Director may conclude that the disclosure was a 
contributing factor in the personnel action based upon circumstantial 
evidence, such as evidence that the employee taking the personnel 
action knew of the disclosure or that the personnel action occurred 
within a period of time such that a reasonable person could conclude 
that the disclosure was a contributing factor in the personnel action. 
Corrective action may not be ordered, however, if the FBI demonstrates 
by clear and convincing evidence that it would have taken the same 
personnel action in the absence of such disclosure.
    (g) If the Director orders corrective action, such corrective 
action may include: placing the Complainant, as nearly as possible, in 
the position he would have been in had the reprisal not taken place; 
reimbursement for attorneys fees, reasonable costs, medical costs 
incurred, and travel expenses; back pay and related benefits; and any 
other reasonable and foreseeable consequential damages.
    (h) If the Director determines that there has not been a reprisal, 
the Director shall report this finding in writing to the Complainant, 
the FBI, and the Conducting Office.


Sec. 27.5  Review.

    The Complainant or the FBI may request from the Deputy Attorney 
General a review of the Director's decision within 30 calendar days. 
The Deputy Attorney General (or a designee) shall set aside or modify 
the Director's actions, findings, or conclusions 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 
Deputy Attorney General has full discretion to review and modify 
corrective action ordered by the Director, provided, however, that if 
the Deputy Attorney General upholds a finding that there has been a 
reprisal, then the Deputy Attorney General shall order appropriate 
corrective action.


Sec. 27.6  Extensions of time.

    The Director may extend, for extenuating circumstances, any of the 
time limits provided in these regulations relating to proceedings 
before him and to requests for review by the Deputy Attorney General.

    Dated: October 29, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-29700 Filed 11-9-98; 8:45 am]
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