[Federal Register Volume 88, Number 60 (Wednesday, March 29, 2023)]
[Proposed Rules]
[Pages 18487-18496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05927]
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DEPARTMENT OF JUSTICE
28 CFR Parts 0 and 27
[Docket No. JMD 154; AG Order No. 5618-2023]
RIN 1105-AB47
Whistleblower Protection for Federal Bureau of Investigation
Employees
AGENCY: Department of Justice.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Department of Justice (``Department'') proposes to update
its regulations on the protection of whistleblowers in the Federal
Bureau of Investigation (``FBI''). This update reflects changes
resulting from an assessment conducted by the Department in response to
Presidential Policy Directive-19 of October 10, 2012, ``Protecting
Whistleblowers with Access to Classified Information'' (``PPD-19''),
and the Federal Bureau of Investigation Whistleblower Protection
Enhancement Act of 2016 (``FBI WPEA of 2016''). The proposed changes
include updating the description of protected whistleblower disclosures
and covered personnel actions to conform to the FBI WPEA of 2016;
providing for more equal access to witnesses; and specifying that
compensatory damages may be awarded as appropriate. The proposed
changes also include new provisions to formalize practices that have
been implemented informally, including providing for the use of
acknowledgement and show-cause orders, providing access to alternative
dispute resolution through the Department's FBI Whistleblower Mediation
Program, clarifying the authority to adjudicate allegations of a breach
of a settlement agreement, and reporting information about those
responsible for unlawful reprisals. The proposed regulation reiterates
that the determinations by the Director of the Office of Attorney
Recruitment and Management (``OARM'') must be independent and
impartial. Finally, through this proposed rule, the Department is
inviting specific comments on and recommendations for
[[Page 18488]]
how the Department might further revise the regulations to increase
fairness, effectiveness, efficiency, and transparency, including to
provide enhanced protections for whistleblowers, in addition to the
proposed changes identified above.
DATES: Written comments and related material must be postmarked, and
other comments and related material must be submitted, on or before May
30, 2023. You should be aware that the Federal eRulemaking Portal will
accept comments submitted prior to midnight Eastern Time on the last
day of the comment period.
ADDRESSES: You should submit comments identified by docket number using
any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov;
(2) Mail or Delivery: Morton J. Posner, General Counsel, Justice
Management Division, U.S. Department of Justice, 145 N St. NE, Suite
8E.500, Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT: Morton J. Posner, General Counsel,
Justice Management Division, telephone 202-514-34; or Hilary S.
Delaney, Assistant Director, Office of Attorney Recruitment and
Management, telephone 202-532-3188; email: [email protected] or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials, if any. All comments received will be
posted without change to http://www.regulations.gov and will include
any personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation. You may submit your comments and material online at
http://www.regulations.gov or by email, mail, or hand delivery, but
please use only one of these means. If you submit a comment online, it
will be considered received by the Department when you successfully
transmit the comment. The Department recommends that you include your
name and a mailing address, an email address, or a telephone number in
the body of your document.
To submit your comment online, go to http://www.regulations.gov,
type the docket number ``JMD 154'' in the ``SEARCH'' box, and click
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with
this rulemaking.
B. Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying
information (such as your name and address) that you voluntarily
submit, unless the process described below is followed.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you want to submit
personal identifying information (such as your name and address) as
part of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You also must place all the personal
identifying information you do not want posted online in the first
paragraph of your comment and identify what information you want
redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, the Department may make the determination not to
post all or part of that comment on http://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file but not posted online. If you wish to
inspect the agency's public docket file in person by appointment,
please see the paragraph above entitled FOR FURTHER INFORMATION
CONTACT.
C. Viewing Comments and Documents
To view comments, go to http://www.regulations.gov, type the docket
number ``JMD-154'' in the ``SEARCH'' box, and click ``SEARCH.'' Click
on ``Open Docket Folder'' on the line associated with this rulemaking.
D. Privacy Act
Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
the individual signing the comment if comments are submitted on behalf
of an association, business, labor union, etc.).
II. Executive Summary
On November 1, 1999, the Department issued a final rule entitled
``Whistleblower Protection For Federal Bureau of Investigation
Employees,'' published in the Federal Register at 64 FR 58782,
establishing procedures under which (1) FBI employees or applicants for
employment with the FBI may make disclosures of information protected
by the Civil Service Reform Act of 1978, Public Law 95-454 (``CSRA''),
and the Whistleblower Protection Act of 1989 (``WPA''), Public Law 101-
12; and (2) the Department will investigate allegations by FBI
employees and applicants for employment of reprisal for making such
protected disclosures and take appropriate corrective action. The rule
is codified at 28 CFR part 27.
On January 9, 2008, the Department updated part 27 as well as 28
CFR 0.29d primarily to conform to organizational changes brought about
by a restructuring of relevant offices of the FBI. Technical Amendments
to the Regulations Providing Whistleblower Protection for Federal
Bureau of Investigation Employees, 73 FR 1493.
On October 10, 2012, President Barack Obama issued PPD-19, which,
in part, directed that the Department prepare a report that (1)
assesses the efficacy of the Department's FBI whistleblower protection
regulations found in 28 CFR part 27 in deterring the personnel
practices prohibited in 5 U.S.C. 2303, and in ensuring appropriate
enforcement of section 2303, and (2) describes any proposed revisions
to those regulations that would increase their effectiveness in
fulfilling the purposes of section 2303. PPD-19 at 5.
In response to this directive, the Office of the Deputy Attorney
General conducted a comprehensive review of the Department's
whistleblower regulations and historical experience with their
operation.\1\ As part of that process, the Department formed a working
group, seeking participation from the other key participants in
[[Page 18489]]
administering the Department's FBI whistleblower regulations--the FBI,
OARM, the Office of the Inspector General, and the Office of
Professional Responsibility--as well as the Justice Management
Division. In addition, the Department consulted with the Office of
Special Counsel (``OSC'') and FBI employees, as required by PPD-19. The
Department also consulted with representatives of non-governmental
organizations that support whistleblowers' rights and with private
counsel for whistleblowers (collectively, whistleblower advocates).\2\
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\1\ On November 27, 2012, President Obama signed the
Whistleblower Protection Enhancement Act of 2012, Public Law 112-
199, (``WPEA of 2012''). The Department considered the WPEA of 2012
as part of its PPD-19 review.
\2\ The Department convened a meeting with the following
whistleblower advocate organizations: Project on Government
Oversight; Kohn, Kohn & Colapinto; Government Accountability
Project; American Civil Liberties Union; and a former chief counsel
to the chairman of the Merit Systems Protection Board.
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With respect to consultation with FBI employees, the FBI's
representatives on the Department's working group consulted with
various FBI entities: the Ombudsman; the Office of Equal Employment
Opportunity Affairs; the Office of Integrity and Compliance; the Office
of Professional Responsibility; the Human Resources Division; and the
Inspection Division. The representatives also solicited the views of
each of the FBI's three official advisory committees that represent FBI
employees--the All-Employees Advisory Committee, the Agents Committee,
and the Middle-Management Committee.
In April 2014, after completion of the PPD-19 review, the
Department issued a report, ``Department of Justice Report on
Regulations Protecting FBI Whistleblowers'' (``PPD-19 Report''). (A
copy of this report is available at www.regulations.gov in connection
with this rulemaking, or as provided above under the heading FOR
FURTHER INFORMATION CONTACT.) The report considered the historical
context of the Department's efforts to protect FBI whistleblowers from
reprisal and the Department's current policies and procedures for
adjudicating claims of reprisal against FBI whistleblowers; summarized
and analyzed statistics regarding the use of these policies and
procedures in recent years; and identified desired changes to existing
policies and procedures as a result of this assessment.
The Department's proposed rule reflects the PPD-19 Report's
findings and recommendations, as modified to comply with the FBI WPEA
of 2016, discussed in further detail below in this preamble, which
President Obama signed on December 16, 2016. In addition, through this
notice of proposed rulemaking, the Department is inviting specific
comments on and recommendations for how the Department might further
revise the regulations to increase fairness, effectiveness, efficiency,
and transparency, including to provide enhanced protections for
whistleblowers.
III. Historical Background on FBI Whistleblower Protection
Legislative protection of civilian Federal whistleblowers from
reprisal began in 1978 with passage of the CSRA, and was expanded by
the WPA and the WPEA of 2012. Currently, Federal employees fall into
three categories. Most civilian Federal employees are fully covered by
the statutory regime established by the CSRA, which permits them to
challenge alleged reprisals through the OSC and the Merit Systems
Protection Board (``MSPB''). By contrast, some Federal agencies that
deal with intelligence are expressly excluded from the whistleblower
protection scheme established by these statutes.
The FBI is in an intermediate position: Although it is one of the
agencies expressly excluded from the scheme established for Federal
employees generally, its employees nevertheless are protected by a
separate statutory provision and special regulations promulgated
pursuant to that provision, which forbid reprisals against FBI
whistleblowers and provide an administrative remedy within the
Department. See 28 CFR part 27.
To elaborate, the CSRA sets forth ``prohibited personnel
practices,'' which are a range of personnel actions that the Federal
Government may not take against Federal employees. One such prohibited
personnel practice is retaliating against an employee for revealing
certain agency information. Specifically, the CSRA originally made it
illegal for an agency to take or fail to take a personnel action with
respect to any employee or applicant for employment as a reprisal for
disclosure of information that the employee or applicant reasonably
believed evidenced a violation of any law, rule, or regulation, or
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Public Law
95-454, sec. 101(a), codified at 5 U.S.C. 2302(b)(8). The CSRA also
created the MSPB and OSC to enforce the prohibitions on specified
personnel practices.
The CSRA, however, expressly excluded from this scheme the FBI, the
Central Intelligence Agency, various intelligence elements of the
Department of Defense, and any other executive agency or unit thereof
as determined by the President with the principal function of
conducting foreign intelligence or counterintelligence activities.
Public Law 95-454, sec. 101(a), codified at 5 U.S.C. 2302(a)(2)(C)(ii).
For the FBI alone, the CSRA specifically prohibited taking a
personnel action against employees or applicants for employment as a
reprisal for disclosing information that the employee or applicant
reasonably believed evidenced a violation of any law, rule, or
regulation, or mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety. Id., codified at 5 U.S.C. 2303(a)(1), (2). The CSRA defined a
``personnel action'' for the purpose of the FBI-specific prohibition as
any action specifically described in clauses (i) through (x) of 5
U.S.C. 2302(a)(2)(A), taken with respect to an employee in--or an
applicant for--a position other than one of a confidential, policy-
determining, policymaking, or policy-advocating character. Id.,
codified at 5 U.S.C. 2303(a). In addition, the CSRA limited the
protection of the FBI-specific prohibition to only those disclosures
that the FBI employee made through narrowly defined internal channels--
i.e., to the Attorney General or the Attorney General's designee. Id.
Finally, the CSRA directed the President to provide for the enforcement
of the provision relating to FBI whistleblowers in a manner consistent
with applicable provisions of 5 U.S.C. 1206, the section of the CSRA
that originally set out the responsibilities of the OSC, the MSPB, and
agency heads in response to a whistleblower complaint and provided for
various remedies. Id., codified at 5 U.S.C. 2303(c).
In April 1980, the Department published a final rule implementing
section 2303. The rule provided, among other things, for a stay of any
personnel action if there were reasonable grounds to believe that the
personnel action was taken, or was to be taken, as a reprisal for a
disclosure of information by the employee to the Attorney General or
the Attorney General's designee that the employee reasonably believed
evidenced wrongdoing covered by section 2303. Office of Professional
Responsibility; Protection of Department of Justice Whistleblowers, 45
FR 27754, 27755 (Apr. 24, 1980).
In 1989, the statutory scheme for most civilian employees changed
in some respects when Congress passed the WPA, which significantly
expanded the avenues of redress generally available to
[[Page 18490]]
civilian Federal employees. In doing so, it replaced section 1206 with
sections 1214 and 1221; these new sections set forth the procedures
under which OSC would investigate prohibited personnel practices and
recommend or seek corrective action, and the circumstances under which
an individual right of action before the MSPB would be available.
Public Law 101-12, sec. 3. Consistent with this change, the WPA amended
section 2303, governing FBI whistleblowers, to replace the requirement
that enforcement of whistleblower protections be consistent with
applicable provisions of section 1206 with a requirement that
enforcement be consistent with applicable provisions of newly-added
sections 1214 and 1221. Public Law 101-12, sec. 9(a)(1).
The WPA also amended the regime generally applicable to civil
service employees by revising section 2302 to protect only disclosures
of information the employee reasonably believes evidences ``gross
mismanagement,'' rather than ``mismanagement,'' as originally provided
by the CSRA. Pub. L. 101-12, sec. 4(a). However, the WPA did not make a
corresponding change to section 2303, the statute applicable to FBI
whistleblowers.
On April 14, 1997, President William J. Clinton issued a memorandum
delegating to the Attorney General the functions concerning employees
of the FBI vested in the President by the CSRA, and directing the
Attorney General to establish appropriate processes within the
Department to carry out these functions. Delegation of Responsibilities
Concerning FBI Employees Under the Civil Service Reform Act of 1978, 62
FR 23123 (Apr. 28, 1997). In November 1999, the Department published a
final rule establishing procedures under which FBI employees or
applicants for employment may make disclosures of wrongdoing. 64 FR
58782 (Nov. 1, 1991). The rule created a remedial scheme within the
Department through which FBI employees can seek redress when they
believe they have suffered reprisal for making a protected disclosure.
Subject to minor amendments in 2001 and 2008, the rule, codified at 28
CFR part 27, remains in force.
On November 27, 2012, the month following President Obama's
issuance of PPD-19, he signed the WPEA of 2012 into law. That act,
among other things, amended 5 U.S.C. 1214 and 5 U.S.C. 1221 to
authorize awards of compensatory damages. Although the FBI is expressly
excluded from coverage under these statutory provisions and is instead
covered by 5 U.S.C. 2303, section 2303 directs that the President
ensure enforcement of section 2303 in a ``manner consistent with the
applicable provisions of sections 1214 and 1221.'' 5 U.S.C. 2303(c).
The WPEA of 2012 also expanded the number of prohibited personnel
actions set out in section 2302(a)(2), but made no corresponding change
to the cross-reference in section 2303(a). Accordingly, the Department
has considered the WPEA of 2012's changes to sections 1214, 1221, and
2302(a) and their impact on the FBI's whistleblower protection program
under section 2303 and has concluded that corresponding technical
amendments to the current regulations are appropriate, as described
further below.
On December 16, 2016, President Obama signed Public Law 114-302,
the FBI WPEA of 2016. That statute made two changes to the statutory
whistleblower protection scheme applicable to FBI employees. First, it
expanded the list of recipients set forth in 5 U.S.C. 2303(a) to whom a
disclosure could be made to be protected (assuming the substantive
requirements are met). Protected disclosures now may be made to an
employee's supervisor in the employee's direct chain of command, up to
and including the Attorney General; the Inspector General; the
Department's Office of Professional Responsibility; the FBI Office of
Professional Responsibility; the FBI Inspection Division; Congress, as
described in 5 U.S.C. 7211; OSC; or an employee designated to receive
such disclosures by any officer, employee, office, or division of the
listed entities. See Public Law 114-302, sec. 2.
Second, the FBI WPEA of 2016 changed the substantive requirement
for a protected disclosure, requiring that the disclosure be one that
the discloser reasonably believes evidences any violation (previously,
``a violation'') of any law, rule, or regulation, or gross
mismanagement (previously, just ``mismanagement''), in addition to the
previous (and unchanged) provision for disclosures of a gross waste of
funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id.
And most recently, Public Law 117-263, the James M. Inhofe National
Defense Authorization Act for Fiscal Year 2023, amended section 2303,
specifically allowing FBI employees to appeal a final determination or
corrective action order to the MSPB pursuant to section 1221. See
Public Law 117-263, sec. 5304(a), codified at 5 U.S.C. 2303(d).
The changes contemplated by this proposed rule are intended to (1)
improve, pursuant to PPD-19 and consistent with the Department's
recommendations in the PPD-19 Report, the internal investigation and
adjudication of whistleblower retaliation claims by FBI employees and
applicants for employment under the remedial scheme initially
established in 1999 and codified at 28 CFR parts 0 and 27; and (2)
ensure that this process is consistent with changes enacted by the WPEA
of 2012 and the FBI WPEA of 2016.
Finally, through this notice of proposed rulemaking, the Department
is inviting specific comments on and recommendations for how the
Department might further revise the regulations to increase fairness,
effectiveness, efficiency, and transparency, including to provide
enhanced protections for whistleblowers, in addition to the proposed
changes.
IV. Proposed Changes in This Rule
A. Revising the Description of a Protected Disclosure in Part 0.29d To
Conform to the Requirements of the FBI WPEA of 2016
The Department proposes amendments to 28 CFR 0.29d to conform to
the substantive requirements of a protected disclosure found in 5
U.S.C. 2303(a)(2)(A) and (B), as amended by the FBI WPEA of 2016.
Specifically, the Department proposes that, in the first sentence of 28
CFR 0.29d(a), the phrase ``a violation of any law, rule, or regulation,
or mismanagement'' be changed to ``any violation of any law, rule, or
regulation, or gross mismanagement'' to conform to the statutory text.
The Department invites comments on this proposed change.
B. Proposed Changes to Part 27
1. Expanding the Definition of Persons to Whom a Protected Disclosure
Must Be Made To Conform to the Requirements of the FBI WPEA of 2016
To conform to the requirements of the FBI WPEA of 2016, the
Department proposes to expand the set of offices and officials to whom
a ``protected disclosure'' must be made. Under the current rule, a
disclosure is considered protected if (1) its content qualifies for
protection, and (2) it was made to one of these identified entities or
individuals:
the Department's Office of Professional Responsibility;
the Department's Office of the Inspector General;
[[Page 18491]]
the FBI Office of Professional Responsibility;
the FBI Inspection Division Internal Investigations
Section;
the Attorney General;
the Deputy Attorney General;
the Director of the FBI;
the Deputy Director of the FBI; or
the highest ranking official in any FBI field office.
See 28 CFR 27.1(a). The proposed rule would expand this list to
comply with the changes made by the FBI WPEA of 2016. See Public Law
114-302, sec. 2. Specifically, the proposed rule would require that, to
be protected, a disclosure must be made to:
a supervisor in the direct chain of command of the
employee, up to and including the Attorney General;
the Inspector General;
the Department's Office of Professional Responsibility;
the FBI Office of Professional Responsibility;
the FBI Inspection Division;
Congress, as described in section 7211;
OSC; or
an employee of any of the above entities, when designated
by any officer, employee, office, or division thereof for the purpose
of receiving such disclosures.
In addition, in order to emphasize the necessity of making a
disclosure to a designated recipient for it to be protected (where it
meets the substantive requirements), the Department proposes adding
paragraph (c) in Sec. 27.1, stating expressly that a disclosure must
be made to one of the offices or officials specified in paragraph (a)
in Sec. 27.1 in order to qualify as a protected disclosure under part
27. This change would not alter the substantive requirements of the
current Sec. 27.1, and does not restrict the expanded list of offices
and officials to whom a disclosure may be made as described immediately
above, but is added to avoid any potential misunderstanding regarding
this key procedural element of a protected disclosure covered by part
27. FBI whistleblowers are only entitled to statutory protection from
reprisals for making protected disclosures when they make disclosures
to offices or officials specifically listed in the FBI WPEA of 2016. To
ensure FBI whistleblowers are fully protected, this change clearly
identifies the expanded list of offices and officials to whom
disclosures must be made. The Department invites comments on this
proposed change.
2. Revising the Substantive Requirements of a Protected Disclosure To
Conform to the Requirements of the FBI WPEA of 2016
The Department proposes amendments to 28 CFR 27.1(a)(1) and (a)(2)
to conform to the substantive requirements of a protected disclosure
found in 5 U.S.C. 2303(a)(2)(A) and (B), as amended by the FBI WPEA of
2016. Specifically, the Department proposes that 28 CFR 27.1(a)(1) be
changed from ``A violation of any law, rule, or regulation'' to ``Any
violation of any law, rule, or regulation.'' The Department also
proposes that, for the same reason, ``Mismanagement'' in 28 CFR
27.1(a)(2) be removed and replaced with ``Gross mismanagement.'' The
Department invites comments on this proposed change.
3. Revising the Definition of ``Prohibited Personnel Practice''
Following Enactment of the WPEA of 2012
The Department also proposes an amendment to 28 CFR 27.2(b) to
conform Sec. 27.2(b)'s definition of ``personnel action'' to the
definition now found in 5 U.S.C. 2302(a)(2)(A). Section 2303 provides
that, ``[f]or the purpose of this subsection, `personnel action' means
any action described in clauses (i) through (x) of section
2302(a)(2)(A).'' When section 2303 was first enacted, section
2302(a)(2)(A) contained only ten clauses, designated (i) through (x),
and thus the definition of ``personnel action'' was identical for both
sections. Clause (x) was a ``catch-all'' provision covering ``any other
significant change in duties, responsibilities, or working
conditions.'' In 1994, Congress added an additional personnel action to
section 2302(a)(2)(A), a decision to order psychiatric testing or
examination. See Public Law 103-424, sec. 5(a) (1994). The additional
personnel action was designated as clause (x), and the catch-all
provision was re-designated as clause (xi). Id. sec. 5(a)(2). This
change did not alter section 2303, which continued to refer only to
``clauses (i) through (x) of section 2302(a)(2)(A).'' Pursuant to the
Attorney General's authority under 5 U.S.C. 301 to ``prescribe
regulations for the government of [the] department [and] the conduct of
its employees,'' the Department accepted commenters' recommendations to
define ``personnel action'' to include all eleven personnel actions in
section 2302(a)(2)(A), including the catch-all provision, in its 1999
final rule, as codified at 28 CFR 27.2(b). See 64 FR 58784-85
Several years after this change, the WPEA of 2012 added a twelfth
personnel action to section 2302(a)(2)(A): ``the implementation or
enforcement of any nondisclosure policy, form, or agreement'' (the
nondisclosure provision). Public Law 112-199, sec. 104(a)(2). This new
provision was designated as clause (xi), while the catch-all provision,
formerly clause (xi), became clause (xii).
The Department proposes to define ``personnel action'' in Sec.
27.2(b) to include all twelve personnel actions currently listed in
section 2302(a)(2)(A), including the nondisclosure provision added by
the WPEA of 2012. Doing so will ensure that FBI employees making
protected disclosures are shielded against the same adverse personnel
actions as other Federal civilian employees, which appears to have been
the underlying purpose of incorporating section 2302's definition of
``personnel action'' into section 2303. The Attorney General has the
authority to incorporate the nondisclosure provision into the
definition of ``personnel action'' in Sec. 27.2(b) pursuant to 5
U.S.C. 301, which authorizes the Attorney General to ``prescribe
regulations for the government of [the] department [and] the conduct of
its employees.'' See In re Boeh, 25 F.3d 761, 763 (9th Cir. 1994)
(explaining that section 301 permits the Department of Justice to
regulate ``the conduct of employees, the performance of the agency's
business, and the use of its records''). The Attorney General invoked
the same authority in the 1999 final rule discussed above. 64 FR 58784-
85. The net effect of the proposed revisions to the definition of
``personnel action'' in Sec. 27.2(b) will be to retain the catch-all
provision, while also including the non-disclosure provision added by
the WPEA of 2012. The Department invites comments on this proposed
change.
4. Equalizing Access to Witnesses
During the PPD-19 review, whistleblower advocate groups raised
concerns that, in an unspecified number of cases, the FBI has been able
to obtain evidence from FBI management officials or employees as
witnesses, either through affidavits or testimony at a hearing, but
that complainants were unable to obtain similar access to FBI
witnesses, particularly former employees. Because the Director of OARM
(``OARM Director'') lacks the authority to compel attendance at a
hearing, appearance at a deposition, or the production of documentary
evidence from individuals not currently employed by the Department, the
groups asked the Department to
[[Page 18492]]
consider a regulatory provision that would help all parties equalize
access to witnesses. Therefore, the Department proposes adding a
sentence to Sec. 27.4(e)(3) to give the OARM Director the discretion
to prohibit a party from adducing or relying on evidence from a person
whom the opposing party does not have an opportunity to examine or to
give less weight to such evidence. The Department invites comments on
this proposed change.
5. Improving Case Processing by Use of Acknowledgement and Show-Cause
Orders
The Department proposes to formalize the use of acknowledgement and
show-cause orders by the OARM Director to assist in the management and
adjudication of whistleblower reprisal claims.
Under OARM's current procedures, 28 CFR 27.4(c)(1), when a
complainant files a request for corrective action (``RCA'') with OARM,
the OARM Director is to notify the FBI of the RCA--usually by
forwarding the RCA to the FBI--and provide the FBI 25 calendar days to
file its response. In some instances, however, the allegations in a
complainant's RCA are insufficient to allow either the OARM Director or
the FBI to reasonably construe the specific claims raised. In such
cases, the agency's usual practice is for the OARM Director to issue an
order requiring the complainant to supplement the RCA to specifically
address the elements of a whistleblower claim necessary for OARM's
jurisdiction. The OARM Director then forwards the RCA, as supplemented,
to the FBI for a response. The complainant is afforded an opportunity
to file a reply to the FBI's response, and the FBI is afforded time to
file a surreply. The OARM Director then makes a jurisdictional
determination regarding the complainant's RCA. If the OARM Director
finds that it has jurisdiction to consider all or some of the
complainant's claims, the parties are so notified and are directed to
engage in relevant discovery.
The MSPB's analogous procedures illustrate how the use of
acknowledgment and show-cause orders may expedite the process. See
Merit Sys. Protection Bd., Judges' Handbook 19-21 (2019), https://www.mspb.gov/appeals/files/ALJHandbook.pdf. At the MSPB, an
administrative judge must ordinarily issue an acknowledgment order
within three business days of receipt of an appeal; that order
acknowledges receipt of the appeal and informs the parties of the
MSPB's case processing procedures regarding, for example, designation
of a representative, discovery, and settlement. Id. at 20.
The proposed amendments at Sec. 27.4(f) would formalize the OARM
Director's existing use of acknowledgment and show-cause orders similar
to those issued by the MSPB. The current language pertaining to OARM's
initial case processing procedures in 28 CFR 27.4(c)(1) would be
revised accordingly to reflect the practice used by the OARM Director
in issuing an acknowledgment order, which would also be reflected in a
new paragraph (f) in Sec. 27.4. The new paragraph (f) would also
formalize the practice of issuing a show-cause order where the OARM
Director determines that there is an initial question of jurisdiction
and would contain procedures relating thereto. The Department invites
comments on this proposed change.
6. Awarding Compensatory Damages
In directing agency heads to consider corrective actions in cases
in which reprisal for whistleblowing is found to have occurred, PPD-19
provided that corrective action may include compensatory damages, to
the extent authorized by law. PPD-19 at 2. Accordingly, the Department
proposes amending paragraph (g) of Sec. 27.4 to provide that the OARM
Director may award compensatory damages to the extent authorized by
law, in addition to other available relief. Currently, under Sec.
27.4(f), permissible OARM corrective action includes: placing the
Complainant, as nearly as possible, in the position he would have been
in had the reprisal not taken place; reimbursement for attorney's fees,
reasonable costs, medical costs incurred, and travel expenses; back pay
and related benefits; and any other reasonable and foreseeable
consequential damages. The Department invites comments on this proposed
change.
7. Reporting Findings of Unlawful Reprisal
In drafting the PPD-19 Report, the Department considered a
recommendation that any final decision that includes a finding of
unlawful reprisal be forwarded to the appropriate authority for
consideration of whether disciplinary action is warranted against the
officials responsible for the reprisal. In 2013, the OARM Director
implemented a policy of forwarding to the FBI Office of Professional
Responsibility, the FBI Inspection Division, and the FBI Director a
copy of the final determination in cases where the OARM Director finds
reprisal. That decision includes citations to the supporting evidence
of record as well as the names of the officials found to be responsible
for the reprisal. The Department proposes to formalize this process
through the addition of paragraph (h) in Sec. 27.4. The Department
invites comments on this proposed change.
8. Proposed Statement: Independence and Impartiality of OARM
Determinations
During the Department's PPD-19 review, whistleblower advocates
expressed concern with the internal Departmental adjudication of FBI
reprisal cases brought under part 27. In drafting the PPD-19 Report,
the Department considered whether to amend part 27 to make explicit
what has always been implicit regarding the independence and
impartiality of the determinations made by the OARM Director. The
Department thus proposes adding language to Sec. 27.4(e)(1) to note
expressly that the determinations made by the OARM Director shall be
independent and impartial. The Department invites comments on this
proposed change.
9. Providing Access to Alternative Dispute Resolution (``ADR'')
As a result of its review under PPD-19, the Department determined
that ADR should be made more readily available in whistleblower cases
because ADR can focus the parties' attention at early stages of a
proceeding, enabling each side to learn more about the other side's
goals in a manner that may facilitate early resolution. PPD-19, at 11.
Accordingly, the Department created a voluntary mediation program for
FBI whistleblower cases using the existing Department of Justice
Mediator Corps (``DOJMC'').
The Department's Equal Employment Opportunity (``EEO'') community
created the DOJMC Program in 2009 as a means of informal resolution to
address and, when possible, resolve workplace disputes. Although the
program focuses on EEO issues, the mediators are available to help
resolve any type of dispute. The FBI Office of Equal Employment
Opportunity Affairs is responsible for the operational management of
the DOJMC Program, the scope of which is Department-wide. The DOJMC
currently has approximately 70 collateral-duty mediators. Roughly two-
thirds are FBI employees; the remaining mediators are drawn from across
other Department components. Current mediator resources are expected to
be sufficient to make available a mediator
[[Page 18493]]
from outside the FBI should the complainant so desire.
The Department launched the mediation program for FBI whistleblower
cases in April 2014, staffed by a cadre of skilled mediators trained by
the Department for that purpose. The Department proposes to formalize
inclusion of the ADR program by amending part 27 to add Sec. 27.7,
which would provide that the complainant may request ADR from the time
of the filing of the initial claim with the office that will conduct
the investigation (``Conducting Office''), see 28 CFR 27.3(c), and at
any subsequent point thereafter throughout the process. Under proposed
new paragraph (b) of Sec. 27.7, if the Complainant elects ADR, the
FBI, represented by the Office of General Counsel, will participate.
When ADR is elected, under proposed new paragraph (c) of Sec. 27.7,
proceedings will be stayed upon transmittal of the matter to the DOJMC
Program office. The initial period of the stay will be 90 days and may
be extended for up to 45 additional days upon joint request from the
parties to the office before which the matter is stayed. Additional
requests for an extension of the stay would be available only by grant
of the OARM Director, regardless of the office before which the matter
is pending, and only upon joint request by the parties showing good
cause. The Department invites comments on this proposed change.
10. Authority of the OARM Director To Adjudicate Allegations of a
Breach of a Settlement Agreement
The Department has concluded that the OARM Director should
adjudicate allegations of a breach of any settlement agreement reached
in proceedings and in a forum under this part 27. Arguably, the OARM
Director would have the authority to do so under the change proposed
for Sec. 27.4(e)(4) because the provision includes the broad authority
to manage the adjudication of claims of reprisal. The Department
nonetheless proposes to add Sec. 27.8 making clear that the OARM
Director has authority to adjudicate allegations of a breach of a
settlement agreement reached in proceedings and in a forum under this
part 27. In addition, Sec. 27.8 would state that, in carrying out the
function of adjudicating claims of a breach of such settlement
agreements, the OARM Director shall exercise the authorities granted
under the change proposed for Sec. 27.4(e)(4), in accordance with any
procedures the OARM Director may establish to facilitate the efficient
discharge of that function. The new Sec. 27.8 also would provide the
parties with a right of review by the Deputy Attorney General of any
decision by the OARM Director on a breach of settlement claim. The
Department invites comment on this proposed change.
11. Invitation To Submit Comments and Recommendations To Enhance
Fairness, Efficiency and Transparency Regarding Whistleblower Activity,
Including To Provide Enhanced Protections for Whistleblowers
The Department believes that the process by which it adjudicates
allegations that the FBI has retaliated against whistleblowers should
be as fair, effective, efficient, and transparent as possible. The
Department therefore invites specific comments on and recommendations
for how the Department might revise part 27 to increase fairness,
effectiveness, efficiency, and transparency, including to provide
enhanced protections for whistleblowers, in addition to the proposed
changes described above.
V. Regulatory Analyses
In developing this proposed rule, the Department considered
numerous statutes and executive orders applicable to rulemaking. The
Department's analysis of the applicability of those statutes and
executive orders to this rulemaking is summarized below.
A. Executive Orders 12866 (Regulatory Planning and Review) and E.O.
13563 (Improving Regulation and Regulatory Review)
This proposed rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, as supplemented by Executive
Order 13563. The proposed rule proposes procedural changes to the
existing regulatory framework for resolving claims of whistleblower
retaliation by FBI employees and applicants. The proposed changes will
not materially affect the number of claims or the time, cost, or
resources required to address them. The proposed rule if adopted would
not have an annual effect on the economy of $100 million or more,
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; would not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency; would not
materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; and would not raise novel legal or policy issues. Accordingly,
this rule does not require an assessment of potential costs and
benefits under section 6(a)(3) of Executive Order 12866. The Office of
Management and Budget has not reviewed this rule under these Orders.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-12, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. 5 U.S.C. 601.
The Department certifies under 5 U.S.C. 605(b) that this proposed
rule will not have a significant economic impact on a substantial
number of small entities. The proposed rule addresses the Department's
internal process for addressing allegations of retaliation for
protected whistleblowing by FBI employees and applicants. It has no
application to small entities as defined above. The proposed rule, if
adopted, would perhaps have tangential, indirect, and transitory impact
on law firms and advocacy organizations representing FBI whistleblowers
inasmuch as they would have to become familiar with the changes in
procedure.
If your business, organization, or governmental jurisdiction
qualifies as a small entity and you believe this rule would have a
significant economic impact on it, please submit a comment (see
ADDRESSES list, page 2, supra) explaining why you think your entity
qualifies and how and to what degree this rule would economically
affect it.
C. Small Business Regulatory Enforcement Fairness Act of 1996
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Department will
assist small entities in understanding this proposed rule. If you
believe the rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please contact the persons listed
in the FOR FURTHER INFORMATION CONTACT section, above.
D. Paperwork Reduction Act
This proposed rule will not call for a new collection of
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
20. Specifically, the existing and proposed rules regulate
[[Page 18494]]
administrative actions or investigations involving an agency against
specific individuals or entities and thus fall outside the scope of the
Paperwork Reduction Act. See 44 U.S.C. 3518(c)(1)(B)(ii).
E. Executive Order 13132 (Federalism)
A rule has federalism implications under Executive Order 13132 if
it has a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
E.O. 13132, sec. 1(a). The Department has analyzed this proposed rule
under that Order and determined that this rule does not have federalism
implications.
F. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-38,
requires Federal agencies to determine whether a rule, if promulgated,
will result in the expenditure by State, local, or tribal government,
in the aggregate, or by the private sector, of $100 million (adjusted
for inflation) or more in any one year. 2 U.S.C. 1532(a). This proposed
rule would not require or result in expenditures by any of the above-
named entities. The rule addresses the Department's internal procedures
related to protected disclosures.
G. Executive Order 12988 (Civil Justice Reform)
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This proposed rule does not have tribal implications under
Executive Order 13175 because it would not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
I. Congressional Review Act
The reporting requirements of the Congressional Review Act
(Subtitle E of the Small Business Regulatory Enforcement Fairness Act
of 1996), 5 U.S.C. 801-08, do not apply to the proposed rule. First,
this rule relates primarily to agency management, personnel, and
organization. 5 U.S.C. 804(3)(B). Second, to the extent that the rule
affects non-agency parties such as applicants for employment and former
employees, these parties are a small subset of the cases subject to the
proposed rule, and the rule does not substantially affect such parties'
substantive rights or obligations. Id. 803(3)(C). Instead, the rule
makes changes primarily related to administrative processing of
whistleblower retaliation cases. This action is accordingly not a
``rule'' as that term is used by the Congressional Review Act, see 5
U.S.C. 804(3), and the reporting requirement of 5 U.S.C. 801 does not
apply.
List of Subjects
28 CFR Part 0
Authority delegations (Government agencies), Government employees,
National defense, Organization and functions (Government agencies),
Privacy, Reporting and recordkeeping requirements, Whistleblowing.
28 CFR Part 27
Government Employees; Justice Department; Organization and
functions (Government agencies); Whistleblowing.
Authority and Issuance
For the reasons stated above, the Department of Justice proposes to
amend 28 CFR parts 0 and 27 as follows:
PART 0 ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
Sec. 0.29d [Amended]
0
2. Amend Sec. 0.29d, in paragraph (a), by:
0
a. Removing the words ``a violation'' and adding in their place the
words ``any violation'';
0
b. Removing the word ``mismanagement'' and adding in its place the
words ``gross mismanagement''.
PART 27--WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF
INVESTIGATION EMPLOYEES
0
3. The authority citation for part 27 is revised to read as follows:
Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; 5
U.S.C. 2303; President's Memorandum to the Attorney General,
Delegation of Responsibilities Concerning FBI Employees Under the
Civil Service Reform Act of 1978, 3 CFR p. 284 (1997); Presidential
Policy Directive 19, ``Protecting Whistleblowers with Access to
Classified Information'' (October 10, 2012).
0
4. Amend Sec. 27.1 by:
0
a. Revising the introductory text of paragraph (a)
0
b. In paragraph (a)(1), removing the words ``A violation,'' and adding
in their place ``Any violation'';
0
c. In paragraph (a)(2), removing the word ``Mismanagement,'' and adding
in its place ``Gross mismanagement'';
0
d. Adding paragraph (c).
The revisions and addition read as follows.
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 a supervisor in the direct chain of command of the
employee, up to and including the Attorney General; to the Department
of Justice's (Department's) Office of the Inspector General (OIG), the
Department's Office of Professional Responsibility (OPR), the FBI
Office of Professional Responsibility (FBI OPR), or the FBI Inspection
Division (FBI-INSD) (collectively, Receiving Offices); to Congress as
described in 5 U.S.C. 7211; to the Office of Special Counsel; or to an
employee of any of the foregoing entities when designated by any
officer, employee, office, or division named in this subsection for the
purpose of receiving such disclosures, the disclosure will be a
``protected disclosure'' if the person making it reasonably believes
that it evidences:
* * * * *
(c) To be a ``protected disclosure'' under this part, the
disclosure must be made to an office or official specified in paragraph
(a) of this section.
Sec. 27.2 [Amended]
0
5. Amend Sec. 27.2, in paragraph (b), by removing ``(xi)'' and adding
in its place ``(xii)''.
0
6. Amend Sec. 27.4 by:
0
a. In paragraph (a), removing the term ``paragraph (e)'' and adding in
its place ``paragraphs (e) and (f)'';
0
b. Revising the second sentence of paragraph (c)(1);
0
c. Adding a sentence at the end of paragraph (e)(1), revising paragraph
(e)(3), and adding paragraph (e)(4); and
0
d. Revising paragraphs (f) and (g);
0
e. Adding paragraphs (h) and (i).
The revisions and the additions read as follows:
Sec. 27.4 Corrective action and other relief; Director, Office of
Attorney Recruitment and Management.
* * * * *
(c) * * *
(1) * * * Within 5 business days of the receipt of the request, the
Director
[[Page 18495]]
shall issue an Acknowledgment Order in accordance with paragraph (f)(1)
of this section. * * *
* * * * *
(e)(1) * * * The determinations made by the Director shall be
independent and impartial.
* * * * *
(3) In making the determinations required under this paragraph, the
Director may hold a hearing at which the Complainant may present
evidence in support of his or her claim, in accordance with such
procedures as the Director may adopt. The Director is hereby authorized
to compel the attendance and testimony of, or the production of
documentary or other evidence from, any person employed by the
Department if doing so appears reasonably calculated to lead to the
discovery of admissible evidence, is not otherwise prohibited by law or
regulation, and is not unduly burdensome. The Director may prohibit a
party from adducing or relying on evidence from a person whom the
opposing party does not have an opportunity to examine, or the Director
may give less weight to such evidence. Any privilege available in
judicial and administrative proceedings relating to the disclosure of
documents or the giving of testimony shall be available before the
Director. All assertions of such privileges shall be decided by the
Director. The Director may, upon request, certify a ruling on an
assertion of privilege for review by the Deputy Attorney General.
(4) Subject to paragraph (f) of this section, the Director may
establish such procedures as he or she deems reasonably necessary to
carry out the functions assigned under this paragraph.
(f)(1) Within 5 business days of receipt by the Director under
paragraph (a) of this section of a report from a Conducting Office, or
a request for corrective action from a Complainant under paragraph
(c)(1) of this section, the Director shall issue an Acknowledgement
Order that:
(i) Acknowledges receipt of the report or request;
(ii) Informs the parties of the relevant case processing procedures
and timelines, including the manner of designation of a representative,
the time periods for and methods of discovery, the process for
resolution of discovery disputes, and the form and method of filing of
pleadings;
(iii) Informs the parties of the jurisdictional requirements for
full adjudication of the request; and
(iv) Informs the parties of their respective burdens of proof.
(2) In cases where the Director determines that there is a question
about the Director's jurisdiction to review a request from the
Complainant, the Director shall, simultaneously with the issuance of
the Acknowledgement Order, issue a Show-Cause Order explaining the
grounds for such determination and directing that the Complainant,
within 10 calendar days of receipt of such order, submit a written
statement, accompanied by evidence, to explain why the request should
not be dismissed for lack of jurisdiction. The Complainant's written
statement must provide the following information as necessary to
address the jurisdictional question or as otherwise directed:
(i) The alleged protected disclosure or disclosures;
(ii) The date on which the Complainant made any such disclosure;
(iii) The name and title of any individual or office to whom the
Complainant made any such disclosure;
(iv) The basis for the Complainant's reasonable belief that any
such disclosure evidenced any violation of law, rule, or regulation;
gross mismanagement; a gross waste of funds; an abuse of authority; or
a substantial and specific danger to public health or safety;
(v) Any action the FBI allegedly took or failed to take, or
threatened to take or fail to take, against the Complainant because of
any such disclosure, the name and title of all officials responsible
for each action, and the date of each action;
(vi) The basis for the Complainant's belief that any official
responsible for an action knew of any protected disclosure, and the
date on which the official learned of the disclosure;
(vii) The relief sought; and
(viii) The date the reprisal complaint was filed with the
Investigative Office and the date on which the Conducting Office
notified the Complainant that it was terminating its investigation into
the complaint, or if the Complainant has not received such notice,
evidence that 120 days have passed since the Complainant filed a
complaint of reprisal with the Investigative Office.
(3) The FBI shall file a reply to the Complainant's response to the
Show-Cause Order within 20 calendar days of receipt of such reply.
(i) The reply shall address issues identified by the Director in
the Show-Cause Order and matters raised in the Complainant's response
to that order under paragraph (f)(2) of this section, and shall
include: a statement identifying any FBI actions taken against the
Complainant and the reasons for taking such actions; designation of and
signature by the FBI legal representative; and any other documents or
information requested by the Director.
(ii) The reply may also include any and all documents contained in
the FBI record of the action or actions.
(4) After receipt of the FBI's response, the record on the
jurisdictional issue will close, absent a request from either party
establishing exigent circumstances requiring the need for the
presentation of additional evidence or arguments.
(g) If the Director orders corrective action, such corrective
action may include: placing the Complainant, as nearly as possible, in
the position he or she would have been in had the reprisal not taken
place; reimbursement for attorney's fees, reasonable costs, medical
costs incurred, and travel expenses; back pay and related benefits;
compensatory damages to the extent authorized by law; and any
reasonable and foreseeable consequential damages.
(h) Whenever the Director determines that there has been a reprisal
prohibited by Sec. 27.2 of this part, the Director, in addition to
ordering any corrective action as authorized by Sec. 27.4(g), above,
shall forward to the FBI OPR and the FBI-INSD, with a copy to the
Director of the FBI, a written summary of the Director's findings of
reprisal, the evidence supporting the findings, and the officials
responsible for the reprisal. FBI OPR shall make a determination of
whether disciplinary action is warranted against any officials the
Director identified as responsible for the reprisal.
(i) If the Director determines that there has not been any reprisal
prohibited by Sec. 27.2, the Director shall report this finding in
writing to the Complainant, the FBI, and the Conducting Office.
0
7. Revise Sec. 27.5 to read as follows:
Sec. 27.5 Review.
(a) Within 30 calendar days of a finding of a lack of jurisdiction,
a final determination on the merits, or corrective action ordered by
the Director, the Complainant or the FBI may request review by the
Deputy Attorney General of that determination or order. The Deputy
Attorney General shall set aside or modify the Director's actions,
findings, or conclusions found to be arbitrary, capricious, 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
[[Page 18496]]
corrective action ordered by the Director, provided, however that if
the Deputy Attorney General upholds a finding that there has been a
reprisal, then the Deputy Attorney general shall order appropriate
corrective action.
(b) The parties may not file an interlocutory appeal to the Deputy
Attorney General from a procedural ruling made by the Director during
proceedings pursuant to section 27.4 of this part. The Deputy Attorney
General has full discretion to review such rulings by the Director
during the course of reviewing an appeal of the Director's finding of a
lack of jurisdiction, final determination, or corrective action order
brought under paragraph (a).
(c) In carrying out the functions set forth in this section, the
Deputy Attorney General may issue written directives or orders to the
parties as necessary to ensure the efficient and fair administration
and management of the review process.
0
8. Add Sec. 27.7 to read as follows:
Sec. 27.7 Alternative dispute resolution.
(a) At any stage in the process set forth in Sec. Sec. 27.3
through 27.5 of this part, the Complainant may request Alternative
Dispute Resolution (ADR) through the Department of Justice Mediator
Corps (DOJMC) Program. The Complainant may elect to participate in ADR
by notifying in writing the office before which the matter is then
pending.
(b) If the Complainant elects mediation, the FBI, represented by
the Office of General Counsel, will participate.
(c) When the Complainant requests to engage in ADR, the process set
forth in Sec. Sec. 27.3 through 27.5, as applicable, including all
time periods specified therein, will be stayed for an initial period of
90 days, beginning on the date of transmittal of the matter to the
DOJMC Program office. Upon joint request by the parties to the office
before which the matter is stayed, the period of the stay may be
extended up to an additional 45 days. Further requests for extension of
the stay may be granted only by the Director, regardless of the office
before which the matter is pending, upon a joint request showing good
cause. The stay otherwise will be lifted if the DOJMC Program notifies
the office before which the matter is stayed that the Complainant no
longer wishes to engage in mediation, or that the parties are unable to
reach agreement on resolution of the complaint and that continued
efforts at mediation would not be productive.
0
9. Add Sec. 27.8 to read as follows:
Sec. 27.8 Authority of the Director to review and decide claims of a
breach of a settlement agreement.
(a) Any party to a settlement agreement reached in proceedings and
in a forum under this part may file a claim of a breach of that
settlement agreement with the Director within 30 days of the date on
which the grounds for the claim of breach were known.
(b) The Director shall adjudicate any timely claim of a breach of a
settlement agreement. The Director shall exercise the authority granted
under Sec. 27.4(e)(4) to ensure the efficient administration and
management of the adjudication of the breach claim, pursuant to any
procedures the Director deems reasonably necessary to carry out the
functions assigned under this paragraph.
(c) A party may request, within 30 calendar days of a decision on a
claim of a breach of a settlement agreement by the Director, review of
that decision by the Deputy Attorney General.
Dated: March 17, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-05927 Filed 3-28-23; 8:45 am]
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