Whistleblower Protection: DOJ and FBI Need to Improve Employees' Awareness of Rights
Fast Facts
Whistleblowers can help fight waste, fraud, and abuse. However, they also risk retaliation, such as demotion.
We examined how the Department of Justice handles FBI whistleblower retaliation complaints following our 2015 report.
DOJ closed about 5 times more FBI whistleblower retaliation complaints since our 2015 report
DOJ took 7 years to update its regulations to address a related 2016 law
FBI mandatory training doesn't mention the review process for complainants alleging that they experienced retaliatory security clearance and access determinations (i.e., access to classified information)
We recommended updating training and other changes.
Highlights
What GAO Found
The Department of Justice (DOJ) closed a higher volume of FBI whistleblower retaliation complaints from 2018 to 2022 compared to GAO's last review of complaints closed from 2009 to 2013. See figure for the number of complaints DOJ closed since GAO's last report.
FBI Whistleblower Retaliation Complaints Closed by Department of Justice from 2009 through 2013 and 2018 through 2022
DOJ took 7 years to update its regulations to address the FBI Whistleblower Protection Enhancement Act of 2016, which, among other things, provides that FBI employees can report wrongdoing, or make protected disclosures, to supervisors in their direct chain of command. Until DOJ updated its regulations in 2024 to align with the statute, some complainants experienced difficulties when making protected disclosures to supervisors. Identifying an office primarily responsible for a regulation involving multiple components and establishing anticipated time frames for the stages of the rulemaking process can help ensure regulations are timely issued.
Statutory changes in fiscal year 2023 provide FBI employees with rights to seek relief from the U.S. Merit Systems Protection Board. However, the amendments contain ambiguities—such as when determinations and corrective action orders are considered final—creating challenges for DOJ in consistently interpreting the new rights. As a result, DOJ is unable to provide clear information to complainants of their rights. Clarifying the statute would help ensure FBI whistleblower retaliation complainants can appropriately exercise their rights to seek relief from the U.S. Merit Systems Protection Board. Previously, FBI whistleblower retaliation complainants could only appeal within DOJ.
DOJ's Office of the Inspector General has a process for reviewing allegations of retaliatory security clearance and access determinations, including suspensions, revocations, and denials. GAO found that four FBI whistleblower retaliation complainants alleged such retaliatory actions from 2018 through 2023. However, mandatory training does not mention DOJ's Office of the Inspector General review of such retaliatory actions. Updating the training would ensure individuals know that they may utilize DOJ's Office of the Inspector General's review to seek corrective action. Further, GAO found that DOJ's policy concerning the review of retaliatory security clearance and access determinations was inconsistent with statute. In July 2024, DOJ updated the policy, but further revisions are needed to ensure complainants receive appropriate corrective action when DOJ's Office of the Inspector General finds that retaliation occurred.
Why GAO Did This Study
Whistleblowers help safeguard the federal government against waste, fraud, and abuse—however, they also risk retaliation by their employers. FBI employees are protected from retaliation for reporting wrongdoing by specific statutory provisions. DOJ has issued regulations and established a process to handle their complaints.
GAO was asked to review DOJ's process for handling FBI whistleblower retaliation complaints since GAO's last report in 2015.
This report examines the timeliness and outcomes of complaints, progress DOJ made to address new protections, and the extent to which DOJ and FBI have processes for reviewing retaliatory security clearance and access determinations. GAO reviewed a generalizable sample of 169 FBI whistleblower retaliation complaints closed from 2018 through 2022. GAO also interviewed FBI whistleblowers, attorneys, and advocates as well as officials from DOJ, FBI, and other agencies about the complaint process.
Recommendations
GAO recommends that Congress should consider clarifying when determinations and corrective action orders are considered final and when complainants should be able to exercise their rights to seek corrective action from the U.S. Merit Systems Protection Board. In addition, GAO is making five recommendations to DOJ, including to update mandatory training and policy related to retaliatory security clearance and access determinations. DOJ concurred with the recommendations.
Matter for Congressional Consideration
| Matter | Status | Comments |
|---|---|---|
| Congress should consider amending 5 U.S.C. ยง 2303(d) to clarify when FBI whistleblower retaliation complainants should be able to exercise their rights to seek corrective action from the U.S. Merit Systems Protection Board, including when determinations and corrective action orders are considered final under (d)(1) and when 180 days begins for the purposes of establishing U.S. Merit Systems Protection Board jurisdiction under (d)(2). (Matter for Consideration 1) | When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information. |
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Department of Justice | The Deputy Attorney General should direct that the Counsel for Office of Professional Responsibility, in consultation with the Inspector General, identify and address issues with meeting regulatory notification requirements to contact the complainant within 15 days of receiving the complaint. (Recommendation 1) |
When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
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| Department of Justice | The Assistant Attorney General for the Office of Legal Policy should ensure that DOJ guidance for developing regulations requires that an office is identified as primarily responsible for each rulemaking, particularly when regulations involve multiple components. (Recommendation 2) |
When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
|
| Department of Justice | The Assistant Attorney General for the Office of Legal Policy should ensure that DOJ guidance for developing future regulations requires that each rulemaking process establishes anticipated time frames for each stage of the process. (Recommendation 3) |
When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
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| Department of Justice | The Director of the FBI, in consultation with the Inspector General, should update mandatory training to communicate that FBI complainants may seek additional review by the Office of the Inspector General if they believe a retaliatory security clearance or access determination has been taken in retaliation for a protected disclosure. (Recommendation 4) |
When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
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| Department of Justice | The Assistant Attorney General for Administration should update DOJ's policy on security clearance or access determinations to align with statute regarding when corrective action must be taken. (Recommendation 5) |
When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.
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