10 November 1998
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html

-----------------------------------------------------------------------

[Federal Register: November 10, 1998 (Volume 63, Number 217)]
[Rules and Regulations]
[Page 62937-62940]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10no98-12]

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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
caterini@justice.usdoj.gov.

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]
BILLING CODE 4410-AR-M
