Submitted via www.regulations.gov

Morton J. Posner
General Counsel
Justice Management Division
U.S. Department of Justice

Re: Notice of Proposed Rulemaking; RIN 1105-AB47; 88 Fed.Reg. 18487-18496 (March 29, 2023)

Dear Mr. Posner:

The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Department of Justice’s Notice of Proposed Rulemaking, as published in the Federal Register at 88 Fed.Reg. 18487-18496 (March 29, 2023).

NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance workers’ rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments regularly on relevant proposed rules. NELA also engages in legislative advocacy on behalf of workers throughout the United States. A substantial number of NELA members’ clients are federal employees with whistleblower reprisal complaints. NELA, therefore, has an interest in regulations affecting the FBI’s whistleblower reprisal complaints process.

NELA is encouraged that the Department of Justice is finally addressing the need to update its regulations, an issue identified by the Government Accountability Office in GAO Report No. GA-15-112 (January 13, 2015), and an issue which GAO had identified as a Priority Open Recommendation for the Department of Justice as recently as June 2022.  See GAO Priority Open Recommendations No. GAO-22-105703 (June 2, 2022). 

NELA supports the Department of Justice’s implementation of the FBI WPEA of 2016, Pub.L. 114-302, and Pub.L. 117-263, § 5304(a).  Further, consistent with the Department of Justice’s invitation in its Notice of Proposed Rulemaking seeking “specific comments on and recommendations for how the Department might further revise the regulations to increase fairness, effectiveness, efficiency, and transparency, including to provide enhanced protections for whistleblowers, in addition to the proposed changes,” NELA has some thoughts as to how to effectuate those worthy goals.

NELA is concerned that the current proposed amendments risk not fully implementing 5 U.S.C. § 2303(c), which commands that enforcement of the FBI whistleblower reprisal protections be “in a manner consistent with applicable provisions of sections 1214 and 1221 of this title”—that is, in the manner specified consistent with the Whistleblower Protection Act as implemented by the Office of Special Counsel and the Merit Systems Protection Board.  Pursuant to Pub.L. 117-263, § 5304(a) (to be codified at 5 U.S.C. § 2303(d)), FBI whistleblower reprisal complaints process are now subject to an Independent Right of Action to the Merit Systems Protection Board consistent with 5 U.S.C. § 1221.  Consistent with this manifest Congressional intent, the Department of Justice should include an additional new provision into the FBI whistleblower reprisal complaint program regulations specifying that that all adjudications within the FBI whistleblower program will follow the precedent of the Merit Systems Protection Board and its reviewing courts concerning 5 U.S.C. § 2302(b)(8), unless there is an express statutory distinction between the texts of 5 U.S.C. § 2302(b)(8) and 5 U.S.C. § 2303 that requires a different result.  The Merit Systems Protection Board and its reviewing courts over the last several decades have elaborated a well-developed body of caselaw applying 5 U.S.C. § 2302(b)(8), one which has been widely emulated by state governments in designing their whistleblower protection laws, as well as expressly incorporated by President Obama in Presidential Policy Directive 19.  Clearly adopting this precedent to guide adjudications in the FBI whistleblower reprisal complaints program to the greatest extent practicable will promote efficiency and transparency, avoiding redundant effort in having to elaborate standards anew while also providing a clear corpus of law to help instruct FBI employees in understanding their rights and obligations under 5 U.S.C. § 2303. 

Consistent with Merit Systems Protection Board precedent, proposed 28 C.F.R. § 27.1 should be modified to make clear that protections also extent to retaliation for perceived whistleblowing activity.  This modification is consistent with Merit Systems Protection Board precedent under the “perception theory of reprisal” or “perceived disclosure” line of cases.  See, e.g., King v. Dept. of the Army, 116 M.S.P.R. 689, 696-97 (2011). 

NELA supports the addition of the evidentiary fairness provisions of proposed 28 C.F.R. § 27.4(e)(3).  NELA further suggests that the provision be modified to require the Agency to make attempts to secure testimony from employees in federal service but working outside the Department at the time of adjudication of the whistleblower reprisal complaint.  The Department is in a better position to seek such cooperation in the investigation process than a complaining employee would be, and making such efforts would assist in development of a more complete record for adjudication. 

Proposed section 27.4(e)(3) should clarify the provision referencing evidentiary privileges.  NELA members have observed federal agencies in various federal adjudicative forums improperly invoking alleged privileges (for example, citing the Privacy Act, or improperly invoking deliberative process privilege for personnel decisions regarding individual employees without following the procedural precursors for validly asserting that privilege) to hinder proper discovery in various matters (including adverse actions, discrimination complaints and whistleblower reprisal claims), and permitting such abuses to occur in the FBI whistleblower reprisal complaints process would stand contrary to the Department’s stated policy in the Notice of Proposed Rulemaking of equalizing access to evidence.

NELA recommends that the Department adjust proposed 28 C.F.R. § 27.4(f)(1) to include a new subsection “v”, requiring notice to the complainant of the right to initiate an Independent Right of Action at the Merit Systems Protection Board consistent with 5 U.S.C. § 2303(d)(2) once 180 calendar days of administrative exhaustion has occurred, in a manner analogous to 29 C.F.R. § 1614.108(f).

To ensure that complainants are aware of their rights under Pub.L. 117-263, § 5304(a), the Department should add a new subsection to 28 C.F.R. § 27.4 which requires that merits decisions include disclosure to the employee of the right to appeal under 5 U.S.C. § 2303(d)(1). 

NELA objects to the proposed short 10 calendar-day deadline for show cause order briefs under proposed 28 C.F.R. § 27.4(f)(2).  This timeframe is impracticably short, especially for pro se complainants who may need to seek legal counsel to assist in presenting the technical arguments required for establishing jurisdiction.  There is no reason to limit the deadline to just 10 calendar days. At the Office of Special Counsel, complainants have 13 calendar days to respond to proposed negative determinations, and at the Merit Systems Protection Board appellants are given 14 calendar days to respond to show cause orders.  Given the information controls that apply to some litigation at the FBI, the deadline should be even longer, at least 20 calendar days. 

To further protect pro se litigants, the MSPB requires that any order for jurisdictional show cause briefing include instruction from the presiding administrative judge on the legal standards for pleading whistleblower reprisal jurisdiction. See MSPB Judges Handbook, Ch. 2, § 2.e. Complainants responding to a proposed Office of Special Counsel negative determination also have the benefit of review of the proposed determination to help illustrate the relevant jurisdictional issues to assist their response.  Any show cause order provision in 28 C.F.R. § 27.4(f)(2) should incorporate a similar requirement that the order to show cause include instruction on the legal standards for pleading whistleblower reprisal jurisdiction. 

NELA supports proposed 28 C.F.R. § 27.4(g) clarifying the expansive scope of remedies available in the event a violation is found and supports addition of the provision for referring employees found to have engaged in reprisal for possible discipline under 28 C.F.R. § 27.4(h). 

Proposed 28 C.F.R. § 27.5 needs to be modified to incorporate Pub.L. 117-263, § 5304(a)(1), as the proposed draft text omits mention of the right to seek an Independent Right of Action at the Merit Systems Protection Board.  Additionally, proposed 28 C.F.R. § 27.5 will also need to include a provision specifying the timeframes for when the Department completes adjudication of a whistleblower reprisal complaint, in order to provide clarity as to application of the Independent Right of Action complaint deadlines under 5 U.S.C. § 1214(a)(3) and 5 C.F.R. § 1209.5(a)(3).  As the Office of Special Counsel has no higher-level internal review procedure equivalent to 28 C.F.R. § 27.5, adjustment will need to be made to clarify what dates the Merit System Protection Board should use for computing timeliness of an Independent Right of Action under 5 U.S.C. § 2303(d)(2), specifically to state that the operative deadline for 5 U.S.C. § 1214(a)(3) and 5 C.F.R. § 1209.5(a)(3) purposes is the date of receipt of the written decision under 28 C.F.R. § 27.4 if no request for review is filed, and the date of issuance of the 28 C.F.R. § 27.5 review decision if a request is made.  This revision should also make clear that a complainant remains free to initiate an Independent Right of Action appeal consistent with Pub.L. 117-263, § 5304(a)(1), and that the filing of a request for review under 28 C.F.R. § 27.5 does not affect that right.

NELA supports making ADR available under proposed 28 C.F.R. § 27.7.

NELA supports settlement and the enforceability of settlement agreements.  However, proposed 28 C.F.R. § 27.8 contains a facial conflict of interest, by reserving to the Department the right to decide whether the Department itself breached the settlement agreement.  While there is precedent for permitting an initial review of breach allegations before they are placed into litigation outside the Department in analogous federal sector claims processes (see, e.g., 29 C.F.R. 1614.504(a)), the Department itself should not have the final decision internally.  Accordingly, proposed 28 C.F.R. § 27.8 should be modified to include additional provisions permitting employees alleging breaches the right to ultimately take their breach claims to adjudication under the Tucker Act and/or the Administrative Procedures Act.  As a longer-term solution, the Department should consider exploring a possible Memorandum of Understanding with the Merit Systems Protection Board to allow breach claims to be adjudicated by the Board under its Petition for Enforcement procedural rules, 5 C.F.R. §§ 1201.181 et seq.  Proposed 28 C.F.R. § 27.8(a) should also be modified to utilize a “reasonable suspicion” or “knew/should have known” standard, as those standards are more extensively construed in precedent and thus clearer in their application.

Finally, NELA recommends that the Department include new procedural provisions to clarify certain routine aspects of administrative litigation, including but not limited to clearly stating the right of counsel and requiring communications be directed to counsel once an appearance is entered, specifying deadline calculations as based on dates of receipt, and automatically extending deadlines that fall on a weekend or federal holiday to the next federal workday.  These provisions could be readily adapted from 29 C.F.R. §§ 1614.604-1614.605 or 5 C.F.R. §§ 1201.23, 1201.31.

Thank you for your consideration. If you have questions or wish to discuss these matters, please contact Ashley Westby at awestby@nelahq.org.

Sincerely yours,

Ashley Westby
Program Director
National Employment Lawyers Association