DOJ Proposes New FBI Whistleblower Protection Regulations
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
The Department of Justice recently published a proposal to update its regulations on whistleblower protection for Federal Bureau of Investigation employees. DOJ said the proposed rules reflect its assessment of a 2012 presidential policy directive and the Federal Bureau of Investigation Whistleblower Protection Act of 2016, known as the FBI WPEA.
The timing of DOJ’s proposed new regulations appears prompted by Congressional action in December 2022, which for the first time creates independent oversight of FBI employee whistleblower reprisal claims by allowing FBI employees to appeal those claims to the Merit Systems Protection Board. Congress included the new appeal rights in the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023.
Under the new law, if FBI does not issue a final determination or corrective action order within 180 days of receiving an employee’s whistleblower reprisal allegation, the employee may also appeal the matter to the MSPB. Once at the MSPB, employee whistleblower reprisal claims are processed as “individual right of action” claims under the same statutory provision that covers most other federal employees. According to the DOJ notice of proposed rulemaking, the new MSPB appeal right for FBI employees will be codified at 5 U.S.C. § 2303(d).
Now that MSPB has the authority to review FBI whistleblower reprisal claims, DOJ is bringing its whistleblower protection regulations up to date. If the proposed regulations are finalized, they will be DOJ’s first update to the FBI whistleblower protection regulations since 2008. The proposed new regulations include updating the description of protected whistleblower disclosures and covered personnel actions, providing for more equal access to witnesses, and specifying that compensatory damages may be awarded to whistleblowers as appropriate.
Most civilian federal employees are covered by whistleblower protections established by a comprehensive scheme created by Congress through the Civil Service Reform Act of 1978, the Whistleblower Protection Act, and the Whistleblower Protection Enhancement Act of 2012.
FBI is one of the agencies expressly excluded from the comprehensive whistleblower protection scheme enacted by Congress. However, FBI employees are protected by a separate statutory provision and special regulations promulgated pursuant to that provision. Those existing regulations (which DOJ now proposes to update) prohibit retaliation against FBI whistleblowers and provide administrative remedy within DOJ.
In 2012, President Obama issued a policy directive to ensure employees with access to classified information could effectively blow the whistle on government wrongdoing while protecting classified information. Four years later, in 2016, Congress enacted the FBI WPEA which expanded the list of individuals to whom FBI employees could make protected disclosures and broadened the definition of what qualified as a legally protected disclosure.
To conform with the 2012 policy directive and 2016 FBI WPEA, DOJ has just issued these proposed regulations that would expand the list of officials to whom FBI employees could make protected disclosures. DOJ proposes the list now include OSC and any supervisor in the direct chain of command of the whistleblowing employee. DOJ also proposes to give the Director of the FBI’s Office of Attorney Recruitment and Management, who internally adjudicates FBI claims of whistleblower reprisal: the discretion to prohibit reliance on evidence from a witness who could not be cross-examined, and the authority to award compensatory damages to whistleblowers who suffered retaliation for their protected whistleblower activity.
DOJ’s proposal states 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 those it already proposes. Instructions for how to submit comments are included in the proposal. Public comments are due by May 30, 2023.
For over forty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.