Portman, Grassley, Bipartisan Lawmakers Request New Review of FBI Whistleblower Protections & Reports of Retaliation

WASHINGTON, DC – Today, U.S. Senators Rob Portman (R-OH), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, Gary Peters (D-MI), Chairman of the Senate Homeland Security and Governmental Affairs Committee, and U.S. Representatives Carolyn B. Maloney (D-NY), Chairwoman of House Oversight and Reform Committee, and Jackie Speier (D-CA) sent a bipartisan and bicameral letter requesting a new Government Accountability Office (GAO) review of the FBI’s whistleblower protection rules as well as reports of retaliation against whistleblowers. The letter is in response to the FBI’s and the Justice Department’s failure to implement new regulations to comply with more stringent protections enacted by Congress in 2016. The statutory protections enacted in 2016 followed a 2015 GAO report on the weakness of FBI whistleblower protections and retaliation. The lawmakers are seeking answers on the relative weakness of protections extended to FBI employees compared to counterparts across government to the use of security clearance revocation as retaliation to the appeals process for those who face retaliation. 

“In January 2015, the Government Accountability Office (GAO) published a report describing the weaknesses of statutory protections for whistleblowers from the Federal Bureau of Investigation (FBI) and the failures of the FBI and the Department of Justice (DOJ) to effectively administer them. In 2016, Congress enacted GAO's recommendation to more closely align protections for the FBI with those available to other federal employees… Despite these efforts, problems remain. DOJ still has not promulgated regulations to implement Congress' changes. Our offices also continue to receive reports that many of the previous flaws found in the GAO report persist and that additional issues, such as retaliation against FBI employees via revocation of security clearances, are on the rise. Finally, unlike other federal employees, FBI employees still are required to make their claims internally and have no recourse to an independent appeals process. DOJ' s failure to update its regulations presents significant challenges for FBI whistleblowers. Even now, the GAO notes that the FBI has not clarified "to whom FBI employees may make protected disclosures" nor have they explicitly stated if employees will have access to recourse if they experience retaliation for reporting alleged wrongdoing to someone not designated in DOJ' s regulations…These extensive issues with the FBI’s current whistleblower program make the bureau one of the most difficult places in the federal government to report malfeasance. One [FBI] attorney…even reportedly told a prospective whistleblower that the FBI’s rules ‘do not guarantee that you will not be retaliated against…,” the lawmakers wrote.   

Full text of the letter to GAO can be found here and below. 

Dear Comptroller General Dodaro: 

In January 2015, the Government Accountability Office (GAO) published a report describing the weaknesses of statutory protections for whistleblowers from the Federal Bureau of Investigation (FBI) and the failures of the FBI and the Department of Justice (DOJ) to effectively administer them. In 2016, Congress enacted GAO's recommendation to more closely align protections for the FBI with those available to other federal employees. Specifically, Congress expanded the definition of "protected disclosure" to include not only disclosures to key FBI and DOJ leadership but also employees' immediate supervisors and chain of command, Congress, and the Office of Special Counsel.   

Despite these efforts, problems remain. DOJ still has not promulgated regulations to implement Congress' changes. Our offices also continue to receive reports that many of the previous flaws found in the GAO report persist and that additional issues, such as retaliation against FBI employees via revocation of security clearances, are on the rise. Finally, unlike other federal employees, FBI employees still are required to make their claims internally and have no recourse to an independent appeals process. 

DOJ' s failure to update its regulations presents significant challenges for FBI whistleblowers. Even now, the GAO notes that the FBI has not clarified "to whom FBI employees may make protected disclosures" nor have they explicitly stated if employees will have access to recourse if they experience retaliation for reporting alleged wrongdoing to someone not designated in DOJ' s regulations.   

This delay has had real-world consequences for FBI whistleblowers. One prominent example is the case of Special Agent John Parkinson. Parkinson reported that FBI employees were using government planes to take personal flights to Reno, Nevada, as well as other egregious abuses of taxpayer funds and government property. He was subsequently fired and since then has been shuffled from review to review, as multiple bodies have attempted to decipher the FBI's opaque internal rules. Similarly, Supervisory Contract Specialist Darin Jones was fired in 2016 after disclosing over $40 million in improper spending. But he has had few routes to seek justice since he reported this impropriety to a direct supervisor under prior rules that did not protect those disclosures. Instead of heeding the calls of numerous members of Congress and giving him a fair hearing after the passage of the Federal Bureau of Investigation Whistleblower Protection Enhancement Act (FBI WPEA), the DOJ refused to re-hear his case and has yet to update many of the rules that caused him to be fired. 

For these whistleblowers and the vast majority of FBI employees, there is no one else they can appeal to outside the silo of the Justice Department. Only FBI employees that are also military veterans are allowed to have their wrongful termination case heard before the Merit Systems Protection Board (MSPB), a "quasi-judicial agency" that decides cases regarding federal employment. Despite this significant hurdle, multiple FBI whistleblowers have been reinstated to their positions after bringing and winning their cases before the MSPB only to have their clearances subsequently revoked by the FBI. In some cases this occurs on their first day back with the FBI citing to the very same charges the MSPB overturned. Unfortunately, the MSPB does not have the authority to restore clearances. That power lies only with the agency that revoked it and there seems to be little incentive for them to act unless they are forced to do so under Presidential Policy Directive-19 (PPD-19). FBI whistleblowers have reported that it is known in the bureau that the only way to regain a revoked clearance is to beg forgiveness from the FBI's deciding authority for tarnishing the FBI's reputation.  

These extensive issues with the FBI' s current whistleblower program make the bureau one of the most difficult places in the federal government to report malfeasance. One attorney in the Office oflntegrity and Compliance even reportedly told a prospective whistleblower that the FBI's current rules "[do] not guarantee that you will not be retaliated against, even though retaliation/reprisal for making protected disclosures is illegal." 16 To this end, we request that you review the following: 

1. How do FBI whistleblower protections compare to those available to other federal employees? Do current FBI whistleblower protections adequately shield whistleblowers from retaliation? 

2. What is the current basis and rationale for the two separate mechanisms for making protected disclosures and reprisal complaints? What concerns does this separate system seek to address? Are those concerns valid? 

3. Why hasn't the FBI fully implemented the aforementioned GAO recommendations first published on January 23, 2015? 

4. How has DOJ monitored and improved timeframes for adjudicating complaints, if at all, since GAO's 2015 report? 

5. What is DOJ' s time line for issuing new regulations for FBI whistleblowers, and what steps will DOJ take to ensure that FBI whistleblower regulations are consistent with statutory provisions enacted in 2016? 

6. What controls does DOJ have in place over its security clearance process?

7. To what extent do DOJ and FBI ensure that those who have been found to have retaliated against whistleblowers are subject to appropriate disciplinary action? Please provide data on retaliations and related disciplinary actions.

8. How many whistleblowers have made protected disclosures since the enactment of the FBI WPEA and how do those numbers compare to the years prior to its passage? 

9. What percentage of those whistle blowers reported their allegations to direct supervisors? 

10. How many FBI employees have made reprisal claims following protected disclosures since the enactment of the FBI WPEA, and how do those numbers compare to the years prior to its passage? How many claims have proceeded through to the adjudication phase? How many claims were successful, and what were the results of those claims, including any relief granted? 

11. What effect are the case outcomes described in question 6 likely to have on potential future FBI whistleblowers' willingness to make protected disclosures? 

12. What is the FBI's process for revoking and reinstating clearances? What is the process for individuals who have their clearances suspended or revoked to challenge those determinations? 

13. How many times has an FBI whistleblower succeeded in bringing a reprisal claim, and obtained relief, only to face a suspension or revocation of their clearance? 

14. How does the FBI' s ability to revoke a clearance impact potential whistle blowers from coming forward? 

15. When a whistleblower believes that their clearance has been revoked because of retaliation they can bring the issue before the DOI OIG and have the matter heard by a panel of intelligence-related inspectors general. How does this process affect whistleblower reporting for the FBI? 

a. How often does this panel find for the employee? 

b. How often does this panel find for the agency? 

c. Please provide statistics regarding agency implementation of the panel's opinions. 

16. What is the justification for the Office of Attorney Recruitment and Management handling FBI whistleblower appeals, instead of an Administrative Law Judge? 

17. Does the FBI object to initiating a practice of publishing decisions on FBI whistleblower appeals? 

Should you have any questions please reach out to Danny Boatright on Senator Grassley' s Senate Judiciary staff at (202) 224-5225. Thank you for your time and consideration regarding this important matter.

Sincerely, 

###