Proposed Legislation to Protect DOJ/OIG Whistleblowers from BOP Retaliation

By: Donald V. Watkins

Copyrighted and Published by January 29, 2021

In the aftermath of the documented retaliation I suffered at the hands of FCI Talladega prison officials as punishment for filing a January 27, 2020 U.S. Department of Justice (DOJ) “whistleblower” complaint with the Department’s Office of the Inspector General (OIG) regarding widespread public corruption at the prison and disclosing the existence of a contraband trafficking ring that operated from the Warden’s office and the Special Investigative Services (SIS) Unit, I am preparing a formal request to the Senate and House Judiciary Committees in the U.S. Congress to draft and sponsor new “whistleblower” protection legislation designed to protect DOJ/OIG “whistleblowers” from the risk of retaliation, psychological abuse, physical harm, and/or death at the hands of vindictive U.S. Bureau of Prisons (BOP) officials.

The proposed legislation would apply to any BOP inmate who has (a) submitted a DOJ/OIG “fraud, waste, or abuse” complaint pending with the OIG, (b) been subsequently charged with a Series 100 and/or 200 level infraction, and (c) been subjected to a detention segregation order and/or Incident Report. The “whistleblower” must invoke these rights in writing on a BOP form that acknowledges the charges against him/her and disputes them.

The proposed new protections are as follows:

1. All BOP Series 100 and 200 Incident Reports must be signed by the reporting officer under penalties of perjury and pursuant to a declaration under 28 U.S. Code § 1746.

2. Disciplinary hearings for “whistleblowers” must be conducted by licensed attorneys within seven days of the date of the Incident Report. The disciplinary hearing officer shall be prohibited from conducting ex parte communications with institutional BOP officials once the Incident Report is issued.

3. The standard of proof in a disciplinary hearing conducted for a DOJ/OIG “whistleblower” shall be “clear and convincing”, rather than “some evidence”. Furthermore, the “whistleblower” shall be entitled to a minimum of one hour to present his/her defense to the charges.

4. Adverse rulings from a “whistleblower's” disciplinary hearing officer shall be appealed by the affected inmate directly to the BOP’s Office of General Counsel (OGC), which must decide the appeal on the merits within fourteen days from receipt of the “whistleblower’s” appeal. The “whistleblower” shall have fourteen days from receipt of the hearing officer’s adverse ruling to appeal to the OGC. No further “exhaustion of administrative remedies” is required before the “whistleblower” may proceed with civil litigation against the BOP and offending officials in a federal court of competent jurisdiction.

5. No “whistleblower” shall be detained in a BOP correctional institution’s Special Housing Unit for longer than 30 days for any reason. There is no “operational security” or “business exception” to this prohibition.

6. Any BOP official who retaliates against a DOJ/OIG “whistleblower” for any reason shall forfeit his/her immunity from damages in a civil lawsuit initiated by the “whistleblower”. If the “whistleblower” is the “prevailing party” in such litigation, he/she shall be entitled to recover a reasonable attorney’s fee and reimbursement of litigation cost.

These protective measures are warranted in federal correctional institutions where public corruption, contraband trafficking, and BOP retaliation against DOJ/OIG “whistleblowers” are systemic.

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