WASHINGTON, D.C. – Empower Oversight is pressing the Justice Department Inspector General and Office of Professional Responsibility to investigate retaliation against an FBI unit chief and program manager after she made protected disclosures to her chain of command.
Monica Shillingburg, a program manager and unit chief at the FBI National Instant Criminal Background Check System (“NICS”) before being retaliated against, brought to light numerous deficiencies in moving NICS background check appeals to the Biometric Services Section of the Criminal Justice Information Services Division of the FBI.
Despite her warnings, the FBI forged ahead with the move, including creating a report touting the move which was subsequently proven to contain numerous errors. The Bureau’s own actions confirm her beliefs were reasonable, because it has since moved the program from the Biometric Services Section back to the NICS Section, telling employees the decision was based on many of the same reasons Shillingburg had cited in her whistleblower complaint.
Since her protected disclosures, FBI management has reassigned Shillingburg, denied previously approved work arrangements, and threatened to reduce her pay.
In a letter to the Justice Department’s Inspector General and the Office of Professional Responsibility, Empower Oversight recounted Shillingburg’s case (see text of letter below and here) and asked the two offices to investigate the reprisal against Shillingburg and take corrective action.
January 16, 2024
Via Electronic Transmission
Inspector General Michael Horowitz
U.S. Department of Justice
Office of the Inspector General
950 Pennsylvania Avenue NW
Washington, DC 20530-0001
Counsel Jeffrey Ragsdale
U.S. Department of Justice
Office of Professional Responsibility
950 Pennsylvania Avenue NW, Suite 3266
Washington, DC 20530-0001
RE: Complaint of Reprisal Against Federal Bureau of Investigation Employee for Making a Protected Disclosure
Dear Inspector General Horowitz and Counsel Ragsdale:
INTRODUCTION
Empower Oversight Whistleblowers & Research (“Empower Oversight”) is a nonpartisan, nonprofit educational organization dedicated to enhancing independent oversight of government and corporate wrongdoing. We work to help insiders safely and legally report waste, fraud, abuse, corruption, and misconduct to the proper authorities, and seek to hold those authorities accountable to act on such reports by, among other means, publishing information concerning the same.
REPRISAL COMPLAINT
Empower Oversight represents Monica Shillingburg, who is employed by the Federal Bureau of Investigation (“FBI”) at its Criminal Justice Information Services Branch (“CJIS”) in Clarksburg, West Virginia. Prior to reprisal taken against her, she served as a program manager/unit chief in the FBI National Instant Criminal Background Check System (“NICS”). Pursuant to 28 C.F.R. § 27.3(a), through undersigned counsel, Mrs. Shillingburg makes a complaint against various CJIS officials for taking personnel actions with respect to her as reprisal for her protected disclosures, in violation of 5 U.S.C. § 2303(a) and 28 C.F.R. § 27.2.
A. Protected Disclosures
The NICS section is responsible for conducting criminal background checks of individuals who seek to purchase firearms. The section performed the initial checks, as well as appeals of checks that were delayed or where there was a denial.
Mrs. Shillingburg had served in that section since 1997 and was an original member of the NICS development team when the section was formed. Because of her vast experience, she became a program manager/unit chief in the NICS section. She has been a unit chief or the lead manager in every single unit of NICS during her career, making her one of the most knowledgeable managers of NICS in the FBI. Mrs. Shillingburg was nominated by the FBI and was the recipient of a national award from the Women in Federal Law Enforcement Foundation in 2016.
- Protected Disclosures
During the spring of 2018, Mrs. Shillingburg was informed by a deputy assistant director that the background check appeals were being moved to CJIS’s Biometric Services Section (“BSS”) on October 1, 2018. Prior to the October 1, 2018 move, Mrs. Shillingburg disclosed that moving NICS appeals to BSS was improper for three general reasons.
First, she reasonably believed the move would violate the Brady Handgun Violence Protection Act of 1993 (“the Brady Act”), Public Law No. 103-159 and 28 C.F.R. Part 25, which mandate that background check procedures, including appeals, must be performed by the NICS section. Only the attorney general may delegate NICS functions to another entity, and the attorney general did not make any such delegation when the FBI moved the background check appeals to BSS. Mrs. Shillingburg based her opinion, in part, on an FBI attorney’s legal opinion on the matter when the issue previously arose in 2013.
Mrs. Shillingburg was particularly concerned about the legality of the move because NICS and BSS use different funding streams. BSS is funded by user fees, while NICS is funded by congressional appropriation. Thus, it appeared that mixing the two sections’ functions would be a misuse of funds. In fact, after the move, BSS personnel began using the NICS cost code, which further complicated the matter. BSS employees were using NICS funding while supervised by BSS management.
Mrs. Shillingburg’s concern over the legality of the move was heightened when CJIS employees were instructed in an email to avoid saying the appeals had been “moved” to BSS and, instead, to say the work was “surged” or “merged” with BSS. She believed this instruction was an effort by CJIS management to obfuscate the legal and regulatory impropriety of the move.
Second, in addition to the legal and regulatory violations, Mrs. Shillingburg disclosed that moving the appeals to BSS was gross mismanagement and a gross waste of funds. The NICS system had suffered from a backlog of checks for a substantial period of time, and the NICS section repeatedly asked for additional personnel to address the backlog. When insufficient resources were provided, the NICS section used substantial resources to automate some of the appeals work, which allowed it to address the backlog. Moving the appeals to BSS would waste all of the NICS section’s previous work, as BSS would have to develop a new system, and it would cause the backlog to increase. Furthermore, BSS employees received substantially less training in the appeals work, so the quality of work suffered when it was moved to BSS. Some NICS employees had to be transferred to BSS to assist with the appeals work.
Finally, Mrs. Shillingburg disclosed a substantial and specific danger to public safety because the BSS personnel’s lack of experience and training increased the likelihood of an improper gun sale.
- Recipients of Protected Disclosures
Mrs. Shillingburg and other employees, particularly NICS section attorney Julie Baumgardner, disclosed the above improprieties regarding the move to BSS to her chain of command. In response, Deputy Assistant Director (“DAD”) Kim DelGreco communicated down through the Section Chief and Assistant Section Chief Lisa Vincent that Mrs. Shillingburg and Ms. Baumgardner needed to get on board with the decision to move the unit or the FBI would take action against the employees. DAD DelGreco even stated that she would decide to whom early retirement from the FBI would be offered, in what appeared to be a threat to those raising concerns.
After the NICS appeals were moved, Mrs. Shillingburg saw that various problems arose. After seeing that and doing some research on making a whistleblower disclosure, Mrs. Shillingburg made a formal protected disclosure about these improprieties to her Section Chief Robin Stark-Nutter and Assistant Section Chief Vincent on May 29, 2019. Under 5 U.S.C. § 2303(a)(1)(A), a supervisor in an employee’s chain of command is a designated recipient for protected disclosures from FBI personnel.[1]
Mrs. Shillingburg believes her supervisors were required to forward her disclosure to the FBI’s Inspection Division (“INSD”). Under 5 U.S.C. § 2303(a)(1)(E) and 28 C.F.R. § 27.1(a), the FBI Inspection Division is a designated recipient for protected disclosures from FBI personnel.
When the FBI INSD failed to take action, Mrs. Shillingburg disclosed the impropriety to the U.S. Department of Justice (“DOJ”) Office of the Inspector General (“OIG”), receiving an acknowledgment from the OIG dated July 30, 2019. Under 5 U.S.C. § 2303(a)(1)(B) and 28 C.F.R. § 27.1(a), the OIG is a designated recipient for protected disclosures from FBI personnel.
On September 1, 2019, after hearing nothing from INSD and only receiving an acknowledgment from the OIG, Mrs. Shillingburg disclosed the mishandling of the NICS system to the Office of Special Counsel (“OSC”). See Exhibit A. Specifically, she reported that:
- The FBI had failed to provide adequate staffing to NICS, resulting in the failure to complete required background checks prior to the sale of firearms; and
- CJIS management improperly transferred the NICS appeal process to the BSS, in violation of the Brady Act and 28 C.F.R. Part 25.
The Office of Special Counsel is a designated recipient for protected disclosures from FBI employees under 5 U.S.C. § 2303(a)(1)(G).[2]
At OSC’s request, Mrs. Shillingburg signed a consent form dated October 3, 2019, for the OSC to disclose her name as a whistleblower to the FBI and DOJ.
On October 22, 2019, OSC referred Mrs. Shillingburg’s disclosure to DOJ, which asked the FBI to investigate the matter. In an April 14, 2020 report, FBI INSD found that there had been no improprieties by CJIS, and DOJ concurred with the INSD’s findings. DOJ transmitted INSD’s report to OSC on April 22, 2020. See Exhibit B.
On June 29, 2020, Mrs. Shillingburg responded to the INSD report by disclosing to OSC several errors. See Exhibit C. For example, INSD claimed that the move of appeals to BSS resulted in improvements to the appeals process, particularly with automation, but the NICS section had already been making those improvements and the move to BSS actually delayed their implementation. In fact, before the move to BSS, the NICS section was completing appeals in 17 days. After the move, BSS completed appeals in 45-48 days.
Also, BSS decided not to process an entire set of appeals that are not required by law to be addressed, when a response by NICS is delayed. Before the move to BSS, the NICS section processed appeals of delayed responses. After the move to BSS, the prospective gun buyers’ only option to address the delayed response, which could result in a de facto denial of their ability to buy a gun, was to file a different form of appeal called a voluntary appeal file. Voluntary appeal file submissions were still being processed by the NICS section. Essentially, part of BSS’s claimed success was the result of pushing its work back onto the NICS section. The backlog for voluntary appeal file submissions grew to over 3,000. Furthermore, INSD failed to account for the reduction in the quality of appeals processing. BSS personnel did not require appellants to confirm that the fingerprints submitted were actually theirs, which increased the likelihood of purchasers being allowed to buy a gun by using someone else’s fingerprints.
OSC closed its disclosure file and sent it to the President and Congress on January 27, 2022.[3] See Exhibit D. Mrs. Shillingburg authorized the inclusion of her written comments on the INSD report in OSC’s public release.
- Reasonableness of Disclosures
Mrs. Shillingburg had a reasonable belief that her disclosures evidenced the wrongdoing described in 5 U.S.C. § 2303(a)(2). The reasonableness of her disclosures is further confirmed by recipients of her disclosures.
In its referral of Mrs. Shillingburg’s disclosures to DOJ, Exhibit A, OSC advised DOJ that it “concluded that there is a substantial likelihood that the information provided to OSC discloses a violation of law, rule, or regulation, gross mismanagement, and a substantial and specific danger to public safety.”
Additionally, on October 1, 2023, the FBI moved NICS appeals back to the NICS section from BSS. The FBI’s justification to its employees for moving the appeals back to the NICS section mirrors several of the disclosures Mrs. Shillingburg made against the transfer five years earlier. This further validates the reasonableness of Mrs. Shillingburg’s disclosures.
Thus, Mrs. Shillingburg’s disclosures to her chain of command, FBI Inspection Division, the OIG, and OSC meet all the requirements of a protected disclosure under 5 U.S.C. § 2303(a) and 28 C.F.R. § 27.1(a).
B. Reprisal
Michael Christman served as one of the three DADs at CJIS from 2018 to 2020. This included the period when Mrs. Shillingburg made her protected disclosures and DAD Christman’s colleague, DAD DelGreco, told her the FBI would take action against Mrs. Shillingburg if she continued to object to the improper transfer of NICS appeals to BSS. In May 2020—seven months after OSC referred to DOJ Mrs. Shillingburg’s disclosures, along with her identity as the source—Christman was appointed as the Special Agent in Charge of the FBI’s Pittsburgh Field Office. Christman returned to CJIS as Assistant Director (“AD”) in March 2021.[4]
Mrs. Shillingburg and other NICS employees had been working remotely during the COVID-19 pandemic, including when OSC closed its report in early 2020 on her disclosure. After returning to the office, Mrs. Shillingburg had a meeting with AD Christman and other NICS unit chiefs in August 2021. Thereafter, Section Chief Trudy Ford and Assistant Section Chief Joey Hixenbaugh told Mrs. Shillingburg in September or October 2021 that Mrs. Shillingburg had “left a bad taste” in the mouth of AD Christman during the August 2021 meeting because of her “body language.” Ford and Hixenbaugh also told Mrs. Shillingburg that she needed to work to get on AD Christman’s “good side.”
As OSC closed its file in January 2022, CJIS management began taking the following personnel actions against Mrs. Shillingburg as reprisal for her protected disclosures: 1) she was transferred from her unit chief position in the NICS section to a non-unit chief position in another section; 2) she has been denied the opportunity to work remotely; and 3) CJIS management has communicated to her that it is considering a reduction in her pay.
- Transfer/Reassignment
On January 3, 2022, CJIS management informed Mrs. Shillingburg she would be transferred from her unit chief position in the NICS section to the Crime and Law Enforcement Statistics Unit (“CLESU”). This move was made without any negative written or verbal personnel action (i.e., reprimand, “write-up,” performance review, etc.), and she was given no choice in the move. When she was moved, she was told that she would be working on a special project for the AD, but she was not actually given that assignment.
Although the transfer has not resulted in a reduction in pay yet, Mrs. Shillingburg lost her position as a unit chief in the transfer. Oddly, even though there was an open unit chief position in CLESU, Mrs. Shillingburg was not moved into that position. Later, a unit chief was selected who had no previous experience at that supervisory level. Also, CJIS management told Mrs. Shillingburg that she was to perform the duties of acting unit chief when the permanent unit chief was out of the office. Mrs. Shillingburg had been a unit chief for eighteen years—from 2004 to 2022. The transfer forced her to work for a far less experienced unit chief and act in his stead. Also, while she previously supervised about 160 employees when she was a unit chief in the NICS section, she only supervised three employees at CLESU when she was initially moved. She currently only supervises ten people: eight employees and two contractors. Finally, as a result of the transfer, Mrs. Shillingburg was moved from a private office to a small cubicle. Amongst employees at CJIS, the loss of a private office is a significant public rebuke of an employee. In fact, after the move, many employees asked her what she had done wrong, which was a humiliating experience for her.
Mrs. Shillingburg’s transfer, causing her to lose her unit chief position, work for a far less experienced manager, supervise far fewer employees, and lose her private office, had the dual effect of demoralizing her and sending a message to other CJIS employees about what management would do to them if they made protected disclosures.
- Significant Change in Working Conditions – Denial of Previously Approved Remote Work and Arbitrary Restrictions on Remote Work and Leave[5]
After her transfer to CLESU, in July 2022, Mrs. Shillingburg received permission to work remotely for three weeks at a recently completed home in North Carolina. Shortly after arriving in North Carolina, Mrs. Shillingburg’s unit chief notified her that the remote work policy had changed. She was not allowed to work remotely for more than one week at a time, even though she had previously received permission to work remotely for longer periods. Mrs. Shillingburg asked her unit chief for a written copy of the policy change, but she was not given one until June 2023, almost a year after her approved remote work was cancelled. Meanwhile, during the fall of 2022, Mrs. Shillingburg was notified that she could no longer work remotely at all from her home in North Carolina because it was considered routine telework. Mrs. Shillingburg has learned that other CJIS employees have been allowed to telework nearly full-time the past two and a half years, including an employee in her same section who has been allowed to telework from a home out of state.
Mrs. Shillingburg learned that AD Christman was taking a personal interest in whether she was working remotely. In April 2023, her unit chief told her that AD Christman had printed out a copy of a Facebook post she posted while she was on leave in North Carolina. The AD reportedly questioned why she was out of state. Upon returning to CJIS, Mrs. Shillingburg met with DAD Brian Griffith, who confirmed that AD Christman had printed out the Facebook post and had given it to him and others in Mrs. Shillingburg’s chain of command. DAD Griffith indicated that he believed this was a “bad move” by the AD and that he would talk to him about it. Mrs. Shillingburg also learned that AD Christman had reportedly searched her work record to determine when she would be retiring. DAD Griffith told Mrs. Shillingburg that AD Christman had a bad impression of her.
In June 2023 Mrs. Shillingburg was questioned by her chain of command about how many times she had worked remotely since October 2022. She had worked one day remotely, and she only worked remotely that day because it was CJIS Family Day, when her section chief encouraged employees to work remotely to make sure there was enough parking for visitors.
In addition, in July 2023, Mrs. Shillingburg has been told by her unit chief that CJIS management decided that she cannot take more than two weeks of consecutive leave at any one time. Before that, she had been able to take more than two weeks of consecutive leave. Also, another employee in the section was allowed to take three consecutive weeks of leave. To Mrs. Shillingburg’s knowledge, she was the only employee whose leave was restricted, and this was not a written policy.
- Threat to Reduce Pay
In June 2023, while she was being questioned about her remote work, Mrs. Shillingburg’s unit chief notified her that AD Christman did not feel she was earning her pay, because she is not a unit chief and does not always act for the current unit chief when he is out of the office.
During September 2023, Mrs. Shillingburg was told that she must act as unit chief for CLESU for a month while the permanent unit chief was on temporary assignment.
CONCLUSION
Mrs. Shillingburg disclosed to her chain of command, FBI INSD, DOJ OIG, and OSC information that she reasonably believed evidenced violations of law, rule, or regulation, gross mismanagement, gross waste of funds, and a substantial and specific danger to public safety. OSC’s referral validates the reasonableness of her belief. The FBI’s own actions confirm her beliefs were reasonable, since it has since reversed the actions that she originally reported and told employees that the decision was based on many of the same reasons Mrs. Shillingburg had cited in her whistleblower complaint. Yet CJIS management, particularly AD Christman, has retaliated against Mrs. Shillingburg for her protected disclosures. We respectfully request that the OIG or DOJ OPR investigate this reprisal and take corrective action.
Cordially,
/Tristan Leavitt/
Tristan Leavitt
President
[1] Currently, DOJ’s regulations regarding FBI whistleblower protections are inconsistent with statutory requirements under 5 U.S.C. § 2303, specifically relevant here, excluding disclosures to a supervisor in an employee’s chain of command. However, DOJ has proposed updating those regulations to conform to statutory requirements. See Whistleblower Protection for Federal Bureau of Investigation Employees (Docket No. JM 154; AG Order No. 5618-2023) 88 Fed. Reg. 18487.
[2] As discussed in n.2 above, DOJ’s regulations regarding FBI whistleblower protections are currently inconsistent with statutory requirements under 5 U.S.C. § 2303. Specifically relevant here, regulations currently exclude protections for disclosures to the OSC. However, DOJ has proposed updating those regulations to conform to statutory requirements. See Whistleblower Protection for Federal Bureau of Investigation Employees (Docket No. JM 154; AG Order No. 5618-2023) 88 Fed. Reg. 18487.
[3] https://osc.gov/Documents/Public%20Files/FY22/DI-19-5076/DI-19-5076%20Letter%20to%20President_Redacted.pdf.
[4] FBI, Press Release, Michael A. Christman Named Assistant Director of the Criminal Justice Information Services Division (Mar. 12, 2021) available at https://www.fbi.gov/news/press-releases/michael-a-christman-named-assistant-director-of-the-criminal-justice-information-services-division (last visited Oct. 27, 2023).
[5] A significant change in working conditions is a “personnel action” under 5 U.S.C. § 2302(a)(2)(A)(xii), but, under 5 U.S.C. § 2303(a) the definition of a personnel action involving an FBI employee only includes the personnel actions listed in clauses (i) through (x) of § 2302(a)(2)(A). However, this discrepancy is a result of Congress including additional personnel actions to § 2302(a)(2)(A) without amending § 2303(a). When § 2303 was originally passed, a significant change in working conditions was clause (x) of § 2302(a)(2)(A), and, thus, a personnel action for FBI employees. DOJ has acknowledged this in its proposed changes to FBI whistleblower regulations and has proposed changing regulations to correct this discrepancy. See Whistleblower Protection for Federal Bureau of Investigation Employees (Docket No. JM 154; AG Order No. 5618-2023) 88 Fed. Reg. 18491.