In order to implement the statute governing FBI whistleblower protections,  in 1998, DOJ issued regulations to protect FBI whistleblowers from  retaliation for reporting alleged wrongdoing, and established the process  for handling FBI whistleblower retaliation complaints. DOJ Closed Majority of Complaints within a Year, Some because Employee Did Not Report Wrongdoing to Designated Official; Complaints DOJ Adjudicated Took up to 10 Years

DOJ closed the majority of the 62 complaints we reviewed within 1 year,  generally because the complaints did not meet DOJ’s threshold  regulatory requirements. In at least 12 of these  15 instances, the complainant reported the alleged wrongdoing to  someone in management or within the complainant’s chain of command,  such as the complainant’s supervisor, who was not one of the nine  designated entities. FBI Employees Are Not Protected for Reporting Wrongdoing to Their Supervisors or Others in Their Chain of Command Not Designated in DOJ Regulations

Unlike employees of other executive branch agencies—including  intelligence agencies—FBI employees do not have a process to seek  corrective action if they experience retaliation based on a disclosure of  wrongdoing to their supervisors or others in their chain of command who  are not designated officials. . . provides  a way to channel such disclosures to those in the field who are in a  position to respond and to correct management and other problems while  also providing an on-site contact in the field for making protected  disclosures.”
In October 2012, the President issued Presidential Policy Directive 19,  which established whistleblower protections for employees serving in the  intelligence community, including, among other things, explicitly providing  protection to employees who are retaliated against for reporting  wrongdoing “to a supervisor in the employee’s direct chain of command  up to and including the head of the employing agency.” Presidential  Policy Directive 19 excluded the FBI from the scope of these protections,  and instead required DOJ to report to the President on the efficacy of its  regulations pertaining to FBI whistleblower retaliation and describe any  proposed revisions to these regulations to increase their effectiveness. Dismissing these whistleblower retaliation  complaints could deny whistleblowers access to recourse, could permit  retaliatory activity to go uninvestigated, and may have a chilling effect on  other potential whistleblowers. DOJ Guidance Is Not Always Clear

In the course of our review, in addition to several DOJ and FBI guidance  documents that accurately describe DOJ’s FBI whistleblower regulations,  we also found instances of DOJ guidance that could lead FBI employees  to believe that reporting an allegation of wrongdoing to a supervisor in  their chain of command would be a protected disclosure when that is not  the case. DOJ Took up to 10 Years to Resolve the 4 Complaints It Adjudicated on the Merits and Did Not Provide Parties with Expected Time Frames for Its Decisions

OARM adjudicated the merits of 4 of the 62 complaints we reviewed (6  percent), and these 4 cases lasted from 2 to just over 10.6 years, from  the initial filing of the complaints with OIG or DOJ-OPR to the final OARM  or ODAG ruling.the whistleblower. The regulatory requirements help ensure that both complainants and the  investigating office receive information necessary to make decisions  regarding the complaint. According to senior DOJ-OPR officials, DOJ-OPR has taken some steps  to improve its management of whistleblower retaliation cases, but does  not track investigators’ compliance with specific regulatory requirements  and does not have a formal oversight mechanism to do so. Specifically, we found that in 15 of the 24 final  termination reports (63 percent) we reviewed for complaints OIG declined  to investigate, OIG did not clearly explain the reasons for this decision. Conclusions

Whistleblowers play an important role in safeguarding the federal  government against waste, fraud, and abuse, but they often risk  retaliation from their employers as a result of their actions. While DOJ officials’ concern about  timeliness is important, they are already taking other steps to improve the  efficiency of this process. More importantly, dismissing retaliation  complaints made to an employee’s supervisor or someone in that  person’s chain of command leaves some FBI whistleblowers with no  recourse if they allege retaliation, as our review of case files  demonstrated. To ensure that complainants receive the periodic updates that they are  entitled to and need to determine next steps for their complaint, such as  whether or not to seek corrective action from OARM, we recommend that  Counsel, DOJ-OPR tailor its new case management system or otherwise  develop an oversight mechanism to capture information on the office’s  compliance with regulatory requirements and, further, use that information  to monitor and identify opportunities to improve DOJ-OPR’s compliance  with regulatory requirements. GAO staff who made key contributions to this  report are listed in appendix V.

Appendix I: Scope and Methodology

This appendix discusses in detail our methodology for addressing the  following three objectives: determining how long the Department of Justice (DOJ) has taken to  resolve Federal Bureau of Investigation (FBI) whistleblower retaliation  complaints and what factors have affected these time frames, determining the extent to which DOJ has taken steps to resolve  complaints more quickly and determine the impact of any such efforts;  and determining the extent to which DOJ’s Office of the Inspector General  (OIG) and Office of Professional Responsibility (DOJ-OPR) have  complied with regulatory reporting requirements.
Why GAO Did This Study

Whistleblowers help safeguard the federal government against waste, fraud, and abuse—however, they also risk retaliation by their employers. For example, in 2002, a former FBI agent alleged she suffered retaliation after disclosing that colleagues had stolen items from Ground Zero following the September 11, 2001, terrorist attacks. DOJ found in her favor over 10 years after she reported the retaliation. GAO was asked to review DOJ's process for handling such complaints.
GAO examined (1) the time DOJ took to resolve FBI whistleblower retaliation complaints, (2) the extent to which DOJ took steps to resolve complaints more quickly, and (3) the extent to which DOJ complied with certain regulatory reporting requirements.
GAO reviewed all DOJ case files for FBI whistleblower retaliation complaints DOJ closed from 2009 to 2013, and interviewed whistleblower attorneys, advocates, and government officials about the complaint process. The interview results are not generalizable.

What GAO Found

The Department of Justice (DOJ) closed 44 of the 62 (71 percent) Federal Bureau of Investigation (FBI) whistleblower retaliation complaints we reviewed within 1 year, took up to 4 years to close 15 complaints, and took up to 10.6 years to close the remaining 3. DOJ terminated 55 of the 62 complaints (89 percent) and awarded corrective action for 3. (Complainants withdrew 4.) We found that DOJ terminated many (48 of 62) complaints we reviewed because they did not meet certain regulatory requirements. For example, DOJ terminated at least 17 complaints in part because a disclosure was made to someone in the employee's chain of command or management, such as a supervisor, who was not one of the nine high-level FBI or DOJ entities designated under DOJ regulations to receive such disclosures. Unlike employees of other executive branch agencies, FBI employees do not have a process to seek corrective action if they experience retaliation based on a disclosure of wrongdoing to their supervisors or others in their chain of command who are not designated officials. This difference is due, in part, to DOJ's decisions about how to implement the statute governing FBI whistleblowers. In 2014, DOJ reviewed its regulations and, in an effort to balance competing priorities, recommended adding more senior officials in FBI field offices to the list of designated entities, but did not recommend adding all supervisors. DOJ cited a number of reasons for this, including concerns about the additional resources and time needed to handle a possible increase in complaints if DOJ added supervisors. However, DOJ is already taking other steps to improve the efficiency of the complaint process. More importantly, dismissing retaliation complaints made to an employee's supervisor or someone in that person's chain of command leaves some FBI whistleblowers—such as the 17 complainants we identified—without protection from retaliation. By dismissing potentially legitimate complaints in this way, DOJ could deny some whistleblowers access to recourse, permit retaliatory activity to go uninvestigated, and create a chilling effect for future whistleblowers.
We also found that DOJ and FBI guidance is not always clear that FBI employees reporting alleged wrongdoing to a supervisor or someone in their chain of command may not be a protected disclosure. Ensuring that guidance always clearly explains to whom an FBI employee can report wrongdoing will help FBI whistleblowers ensure that they are fully protected from retaliation.
DOJ took from 2 to 10.6 years to resolve the 4 complaints we reviewed that DOJ adjudicated, and DOJ did not provide complainants with estimates of when to expect DOJ decisions throughout the complaint process. Providing such estimates would enhance accountability to complainants and provide additional assurance about DOJ management's commitment to improve efficiency.
Further, DOJ offices responsible for investigating whistleblower retaliation complaints have not consistently complied with certain regulatory requirements, such as obtaining complainants' approvals for extensions of time. One investigating office does not track investigators' compliance with specific regulatory requirements and does not have a formal oversight mechanism to do so. Effectively monitoring investigators' compliance with such requirements could help assure complainants that their cases are making progress and that they have the information they need to determine next steps for their complaints.

What GAO Recommends

Congress may wish to consider whether FBI whistleblowers should have means to seek corrective action if retaliated against for disclosures to supervisors, among others. Further, GAO recommends that DOJ clarify guidance to clearly convey to whom employees can make protected disclosures, provide complainants with estimated complaint decision timeframes, and develop an oversight mechanism to monitor regulatory compliance. DOJ and the Office of the Inspector General concurred with GAO's recommendations.