FBI Whistleblower Protections May Finally Catch Up With Obama-era Policy Changes

March 29th, 2023  By: Courtney Buble

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The Justice Department published a proposed rule on Wednesday that would revise regulations on FBI whistleblower policies. The new rule would include changes from a 2012 presidential policy directive on protecting whistleblowers with access to classified information, and the 2016 FBI Whistleblower Protection Enhancement Act of 2016, both enacted under the Obama administration. 

“The FBI supports the right of whistleblowers to bring forward concerns of waste, fraud, or abuse,” said the FBI in a statement to Government Executive. “This process has been ongoing for several years and we appreciate our close collaboration with the Department of Justice to help update our regulations to codify existing procedures and ensure whistleblower rights will always be protected.”

The proposed regulation would update the descriptions of protected whistleblower disclosures and covered personnel actions to align with the 2016 law, “providing for more equal access to witnesses; and specifying that compensatory damages may be awarded as appropriate,” said the proposed rule. Next, there are “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.”

Additionally, the proposed rule reiterates that determinations from the Justice Department’s Office of Attorney Recruitment and Management, the adjudicative office for FBI Whistleblower cases, have to be impartial and independent. Department officials would like to know how they can further alter the regulations “to increase fairness, effectiveness, efficiency and transparency, including to provide enhanced protections for whistleblowers, in addition to the proposed changes [already] identified.” Public comments are due by May 30. 

The proposed regulation notes that the National Defense Authorization Act for fiscal 2023 amends the law to allow FBI employees to appeal a final determination or corrective action order to the Merit Systems Protection Board. “FBI employees must be treated like every other federal employee,” Rep. Jackie Speier, D-Calif., whose legislation on this was included in the NDAA, said previously. Before this the majority of FBI employees were prohibited from going to MSPB.


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