In March, the U.S. Department of Justice (DOJ) published new proposed regulations for the Federal Bureau Investigation (FBI) whistleblower procedures. The new rules update FBI whistleblower procedures to align with the 2016 FBI Whistleblower Protection Enhancement Act of 2016.
The FBI has a long history of retaliating against whistleblowers who have come forward to expose misconduct at the agency. In 2015, the Government Accountability Office (GAO) released a scathing report “Whistleblower Protection: Additional Actions Needed to Improve DOJ’s Handling of FBI Retaliation Complaints.”
Partially in response to the GAO Report, Congress passed the FBI Whistleblower Protection Enhancement Act of 2016. This stripped-down reform bill expanded the list of appropriate officials who could receive protected disclosures.
The DOJ’s new proposed regulations “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,” according to the proposal.
“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 proposal further adds.
According to leading whistleblower attorney Stephen M. Kohn of Kohn, Kohn & Colapinto there are “important improvements in the regulations.” He states “given the culture at the FBI, agents who report misconduct often suffer retaliation. These changes to the regulations will improve the administrative process and help ensure that agents can obtain proper compensation and due process. However, we still strongly endorse full court access for FBI whistleblowers, and other federal employees.”
Whistleblower advocates have fought for court access for federal employees for decades. The Whistleblower Protection Improvement Act (WPIA), which passed the House in September 2022, expands whistleblower protections for federal employees, including granting federal employee whistleblowers access to federal court trials.
“It is exciting that the DOJ is taking action to improve protections for FBI whistleblowers,” Siri Nelson, Executive Director of the National Whistleblower Center, told GovExec. “However, the FBI and DOJ should take accountability for failures in the past and communicate to employees about their rights especially in regard to what the shift from ‘mismanagement’ to ‘gross mismanagement’ means.”
In early April, Senator Chuck Grassley (R-IA) wrote a letter to Attorney General Merrick Garland outlining the culture of whistleblower retaliation at the DOJ and posing questions aimed to remedy the situation.
