Developments at the GAO: On January 23, 2015, the Government Accountability Office (GAO) issued a new report, "Whistleblower Protection: Additional Actions Needed to Improve DOJ's Handling of FBI Retaliation Complaints", Report GAO-15-112. In the report, GAO analyzed whistleblower reprisal cases from the Federal Bureau of Investigation (FBI) over a four-year period.
Under current statutes, complaints of whistleblower reprisal from FBI employees are not handled by the Office of Special Counsel or the Merit Systems Protection Board. Instead, the complaints are adjudicated by several offices within the Department of Justice (DOJ). GAO noted that this process is often extremely slow: the report identifies one case which took 10.6 years to process. In 2012, President Obama issued Presidential Policy Directive 19 (PPD-19), previously analyzed in this blog, which required DOJ to issue a report on the FBI whistleblower reprisal complaints program within 180 days. According to the GAO report, DOJ did issue its report--a year late. Based on that report, DOJ in 2014 looked at expanding the list of persons to whom protected whistleblower disclosures could be made. However, the GAO report notes that no rulemaking has yet occurred to implement these changes, and its statistical analysis shows a large portion of FBI whistleblower reprisal complaints being dismissed on grounds that the disclosures were not made to persons on the list of approved recipients and so were not 'protected disclosures.' GAO cited disclosures made to the whistleblower's supervisors as being a common situation where DOJ dismissed the claims (a situation specifically addressed for most ordinary federal employees in the 2012 Whistleblower Protection Enhancement Act (WPEA), as discussed in this blog). In all, DOJ only found whistleblower reprisal and ordered corrective action in less than 5% of cases--and all of those took longer than one year to process.
While GAO reported some DOJ efforts to expedite case processing (such as instituting a mediation program and adding additional staff), GAO observed that more could be done. GAO recommended that Congress consider modifying present law to ensure that FBI employees who make disclosures to supervisors and others in their chain of command are covered by the whistleblower reprisal statute. GAO also recommended that DOJ issue better guidance to FBI employees so that they know where to direct whistleblowing disclosures, as well as take several actions to better monitor case processing times and case status.
If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan to request an initial consultation.