Frequently Asked Questions

FBI whistleblower cases are governed by 5 U.S.C. § 2303 and 28 C.F.R. part 27.

5 U.S.C. § 2303, entitled, “Prohibited personnel practices in the Federal Bureau of Investigation,” provides:

(a) Any employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information --

(1) Made --

(A) in the case of an employee, to a supervisor in the direct chain of command of the employee, up to and including the head of the employing agency;
(B) to the Inspector General;
(C) to the Office of Professional Responsibility of the Department of Justice;
(D) to the Office of Professional Responsibility of the Federal Bureau of Investigation;
(E) to the Inspection Division of the Federal Bureau of Investigation;
(F) as described in section 7211;
(G) to the Office of Special Counsel; or
(H) to an employee designated by any officer, employee, office, or division described in subparagraphs (A) through (G) for the purpose of receiving such disclosures; and  

(2) which the employee or applicant reasonably believes evidences --

(A) any violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

For the purpose of this subsection, "personnel action" means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of this title with respect to an employee in, or applicant for, a position in the Bureau (other than a position of a confidential, policy-determining, policymaking, or policy-advocating character).

(b) The Attorney General shall prescribe regulations to ensure that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information described in subsection (a) of this section.

(c) The President shall provide for the enforcement of this section in a manner consistent with applicable provisions of sections 1214 and 1221 of this title.

(d)(1) An employee of the Federal Bureau of Investigation who makes an allegation of a reprisal under regulations promulgated under this section may appeal a final determination or corrective action order by the Bureau under those regulations to the Merit Systems Protection Board pursuant to section 1221.

(2) If no final determination or corrective action order has been made or issued for an allegation described in paragraph (1) before the expiration of the 180-day period beginning on the date on which the allegation is received by the Federal Bureau of Investigation, the employee described in that paragraph may seek corrective action directly from the Merit Systems Protection Board pursuant to section 1221.

28 C.F.R. part 27, entitled, "Whistleblower Protection for [FBI] Employees," provides:

SUBPART A--PROTECTED DISCLOSURES OF INFORMATION

§ 27.1 Making a protected disclosure.

(a) When an employee of, or applicant for employment with, the Federal Bureau of Investigation (FBI) (FBI employee) makes a disclosure of information to a supervisor in the direct chain of command of the employee, up to and including the Attorney General; to the Department of Justice's (Department's) Office of the Inspector General (OIG), the Department's Office of Professional Responsibility (OPR), the FBI Office of Professional Responsibility (FBI OPR), or the FBI Inspection Division (FBI-INSD) (collectively, Receiving Offices); to Congress as described in 5 U.S.C. 7211; to the Office of Special Counsel; or to an employee of any of the foregoing entities when designated by any officer, employee, office, or division named in this subsection for the purpose of receiving such disclosures, the disclosure will be a “protected disclosure” if the person making it reasonably believes that it evidences:

(1) Any violation of any law, rule or regulation; or

(2) Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(b) Any office or official (other than the OIG or OPR) receiving a protected disclosure shall promptly report such disclosure to the OIG or OPR for investigation. The OIG and OPR shall proceed in accordance with procedures establishing their respective jurisdiction. The OIG or OPR may refer such allegations to FBI-INSD Internal Investigations Section for investigation unless the Deputy Attorney General determines that such referral shall not be made.

(c) To be a “protected disclosure” under this part, the disclosure must be made to an office or official specified in paragraph (a) of this section.

§ 27.2 Prohibition against reprisal for making a protected disclosure.

(a) Any employee of the FBI, or of any other component of the Department, who has authority to take, direct others to take, recommend, or approve any personnel action shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, a personnel action, as defined below, with respect to any FBI employee as a reprisal for a protected disclosure.

(b) Personnel action means any action described in clauses (i) through (xii) of 5 U.S.C. 2302(a)(2)(A) taken with respect to an FBI employee other than one in a position which the Attorney General has designated in advance of encumbrance as being a position of a confidential, policy-determining, policy-making, or policy-advocating character.

Subpart B—INVESTIGATING REPRISAL ALLEGATIONS AND ORDERING CORRECTIVE ACTION

§ 27.3 Investigations: The Department of Justice's Office of Professional Responsibility and Office of the Inspector General.

(a)

(1) An FBI employee who believes that another employee of the FBI, or of any other Departmental component, has taken or has failed to take a personnel action as a reprisal for a protected disclosure (reprisal), may report the alleged reprisal to either the Department's OPR or the Department's OIG (collectively, Investigative Offices). The report of an alleged reprisal must be made in writing.

(2) For purposes of this subpart, references to the FBI include any other Departmental component in which the person or persons accused of the reprisal were employed at the time of the alleged reprisal.

(b) The Investigative Office that receives the report of an alleged reprisal shall consult with the other Investigative Office to determine which office is more suited, under the circumstances, to conduct an investigation into the allegation. The Attorney General retains final authority to designate or redesignate the Investigative Office that will conduct an investigation.

(c) Within 15 calendar days of the date the allegation of reprisal is first received by an Investigative Office, the office that will conduct the investigation (Conducting Office) shall provide written notice to the person who made the allegation (Complainant) indicating—

(1) That the allegation has been received; and

(2) The name of a person within the Conducting Office who will serve as a contact with the Complainant.

(d) The Conducting Office shall investigate any allegation of reprisal to the extent necessary to determine whether there are reasonable grounds to believe that a reprisal has been or will be taken.

(e) Within 90 calendar days of providing the notice required in paragraph (c) of this section, and at least every 60 calendar days thereafter (or at any other time if the Conducting Office deems appropriate), the Conducting Office shall notify the Complainant of the status of the investigation.

(f) The Conducting Office shall determine whether there are reasonable grounds to believe that there has been or will be a reprisal for a protected disclosure. The Conducting Office shall make this determination within 240 calendar days of receiving the allegation of reprisal unless the Complainant agrees to an extension.

(g) If the Conducting Office decides to terminate an investigation, it shall provide, no later than 10 business days before providing the written statement required by paragraph (h) of this section, a written status report to the Complainant containing the factual findings and conclusions justifying the termination of the investigation. The Complainant may submit written comments on such report to the Conducting Office. The Conducting Office shall not be required to provide a subsequent written status report after submission of such comments.

(h) If the Conducting Office terminates an investigation, it shall prepare and transmit to the Complainant a written statement notifying him/her of—

(1) The termination of the investigation;

(2) A summary of relevant facts ascertained by the Conducting Office;

(3) The reasons for termination of the investigation; and

(4) A response to any comments submitted under paragraph (g) of this section.

(i) Such written statement prepared pursuant to paragraph (h) of this section may not be admissible as evidence in any subsequent proceeding without the consent of the Complainant.

(j) Nothing in this part shall prohibit the Receiving Offices, in the absence of a reprisal allegation by an FBI employee under this part, from conducting an investigation, under their pre-existing jurisdiction, to determine whether a reprisal has been or will be taken.

§ 27.4 Corrective action and other relief; Director, Office of Attorney Recruitment and Management.

(a) If, in connection with any investigation, the Conducting Office determines that there are reasonable grounds to believe that a reprisal has been or will be taken, the Conducting Office shall report this conclusion, together with any findings and recommendations for corrective action, to the Director, Office of Attorney Recruitment and Management (the Director). If the Conducting Office's report to the Director includes a recommendation for corrective action, the Director shall provide an opportunity for comments on the report by the FBI and the Complainant. The Director, upon receipt of the Conducting Office's report, shall proceed in accordance with paragraphs (e) and (f) of this section. A determination by the Conducting Office that there are reasonable grounds to believe that a reprisal has been or will be taken shall not be cited or referred to in any proceeding under these regulations, without the Complainant's consent.

(b) At any time, the Conducting Office may request the Director to order a stay of any personnel action for 45 calendar days if it determines that there are reasonable grounds to believe that a reprisal has been or is to be taken. The Director shall order such stay within three business days of receiving the request for stay, unless the Director determines that, under the facts and circumstances involved, such a stay would not be appropriate. The Director may extend the period of any stay granted under this paragraph for any period that the Director considers appropriate. The Director shall allow the FBI an opportunity to comment to the Director on any proposed extension of a stay, and may request additional information as the Director deems necessary. The Director may terminate a stay at any time, except that no such termination shall occur until the Complainant and the Conducting Office shall first have had notice and an opportunity to comment.

(c)

(1) The Complainant may present a request for corrective action directly to the Director within 60 calendar days of receipt of notification of termination of an investigation by the Conducting Office or at any time after 120 calendar days from the date the Complainant first notified an Investigative Office of an alleged reprisal if the Complainant has not been notified by the Conducting Office that it will seek corrective action. Within 5 business days of the receipt of the request, the Director shall issue an Acknowledgement Order in accordance with paragraph (f)(1) of this section.

(2) The Director may not direct the Conducting Office to reinstate an investigation that the Conducting Office has terminated in accordance with § 27.3(h).

(d) Where a Complainant has presented a request for corrective action to the Director under paragraph (c) of this section, the Complainant may at any time request the Director to order a stay of any personnel action allegedly taken or to be taken in reprisal for a protected disclosure. The request for a stay must be in writing, and the FBI shall have an opportunity to respond. The request shall be granted within 10 business days of the receipt of any response by the FBI if the Director determines that such a stay would be appropriate. A stay granted under this paragraph shall remain in effect for such period as the Director deems appropriate. The Director may modify or dissolve a stay under this paragraph at any time if the Director determines that such a modification or dissolution is appropriate.

(e)

(1) The Director shall determine based upon all the evidence, whether a protected disclosure was a contributing factor in a personnel action taken or to be taken. Subject to paragraph (e)(2) of this section, if the Director determines that a protected disclosure was a contributing factor in a personnel action taken or to be taken, the Director shall order corrective action as the Director deems appropriate. The Director may conclude that the disclosure was a contributing factor in the personnel action based upon circumstantial evidence, such as evidence that the employee taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. The determination made by the Director under this section shall be independent and impartial.

(2) Corrective action may not be ordered if the FBI demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.

(3) In making the determinations required under this paragraph, the Director may hold a hearing at which the Complainant may present evidence in support of his or her claim, in accordance with such procedures as the Director may adopt. The Director is hereby authorized to compel the attendance and testimony of, or the production of documentary or other evidence from, any person employed by the Department if doing so appears reasonably calculated to lead to the discovery of admissible evidence, is not otherwise prohibited by law or regulation, and is not unduly burdensome. The Director may prohibit a party from adducing or relying on evidence from a person whom the opposing party does not have an opportunity to examine, or the Director may give less weight to such evidence. In excluding such evidence, the Director may consider certain factors, including, but not limited to: the probative value of the evidence; whether the evidence is supported by sufficient guarantees of trustworthiness after considering the totality of the circumstances under which it was made and any corroborating evidence; and whether the evidence is duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. Any privilege available in judicial and administrative proceedings relating to the disclosure of documents or the giving of testimony shall be available before the Director. All assertions of such privileges shall be decided by the Director. The Director may, upon request, certify a ruling on an assertion of privilege for review by the Deputy Attorney General.

(4) Subject to paragraph (f) of this section, the Director may establish such procedures as the Director deems reasonably necessary to carry out the functions assigned under this paragraph.

(f)

(1) Within 5 business days of receipt by the Director under paragraph (a) of this section of a report from a Conducting Office, or a request for corrective action from a Complainant under paragraph (c)(1) of this section, the Director shall issue an Acknowledgement Order that:

(i) Acknowledges receipt of the report or request;

(ii) Informs the parties of the relevant case processing procedures and timelines, including the manner of designation of a representative, the time periods for and methods of discovery, the process for resolution of discovery disputes, and the form and method of filing of pleadings;

(iii) Informs the parties of the jurisdictional requirements for full adjudication of the request; and

(iv) Informs the parties of their respective burdens of proof.

(2) In cases where the Director determines that there is a question about the Director's jurisdiction to review a request from the Complainant, the Director shall, simultaneously with the issuance of the Acknowledgement Order, issue a Show-Cause Order explaining the grounds for such determination and directing that the Complainant, within 15 calendar days of receipt of such order, submit a written statement, accompanied by evidence, to explain why the request should not be dismissed for lack of jurisdiction. The Complainant's written statement must provide the following information as necessary to address the jurisdictional question or as otherwise directed:

(i) The alleged protected disclosure or disclosures;

(ii) The date on which the Complainant made any such disclosure;

(iii) The name and title of any individual or office to whom the Complainant made any such disclosure;

(iv) The basis for the Complainant's reasonable belief that any such disclosure evidenced any violation of law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety;

(v) Any action the FBI allegedly took or failed to take, or threatened to take or fail to take, against the Complainant because of any such disclosure, the name and title of all officials responsible for each action, and the date of each action;

(vi) The basis for the Complainant's belief that any official responsible for an action knew of any protected disclosure, and the date on which the official learned of the disclosure;

(vii) The relief sought; and

(viii) The date the reprisal complaint was filed with the Investigative Office and the date on which the Conducting Office notified the Complainant that it was terminating its investigation into the complaint, or if the Complainant has not received such notice, evidence that 120 days have passed since the Complainant filed a complaint of reprisal with the Investigative Office.

(3) The FBI shall file a reply to the Complainant's response to the Show-Cause Order within 20 calendar days of receipt of such reply.

(i) The reply shall address issues identified by the Director in the Show-Cause Order and matters raised in the Complainant's response to that order under paragraph (f)(2) of this section, and shall include: a statement identifying any FBI actions taken against the Complainant and the reasons for taking such actions; designation of and signature by the FBI legal representative; and any other documents or information requested by the Director.

(ii) The reply may also include any and all documents contained in the FBI record of the action or actions.

(4) After receipt of the FBI's response, the record on the jurisdictional issue will close, absent a request from either party establishing exigent circumstances requiring the need for the presentation of additional evidence or arguments.

(g) If the Director orders corrective action, such corrective action shall, as appropriate, include: placing the Complainant, as nearly as possible, in the position the Complainant would have been in had the reprisal not taken place; reimbursement for attorney's fees, reasonable costs, medical costs incurred, and travel expenses; back pay and related benefits; compensatory damages to the extent authorized by law; and any reasonable and foreseeable consequential damages.

(h) Whenever the Director determines that there has been a reprisal prohibited by § 27.2 of this part, the Director, in addition to ordering any corrective action as authorized by § 27.4(g), shall forward to FBI OPR, FBI-INSD, and the Director of the FBI, a copy of the Director's written opinion finding that there has been a prohibited reprisal. FBI OPR shall make an independent determination of whether disciplinary action is warranted.

(i) If the Director determines that there has not been any reprisal prohibited by § 27.2, the Director shall report this finding in writing to the Complainant, the FBI, and the Conducting Office.

(j) The Director will not cite or rely upon any unpublished FBI whistleblower decision issued by the Director or Deputy Attorney General in rendering any decision under § 27.4.

§ 27.5 Review.

(a) Within 30 calendar days of a finding of a lack of jurisdiction, a final determination on the merits, or corrective action ordered by the Director, the Complainant or the FBI may request review by the Deputy Attorney General of that determination or order. The Deputy Attorney General shall set aside or modify the Director's actions, findings, or conclusions found to be arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. The Deputy Attorney General has full discretion to review and modify corrective action ordered by the Director, provided, however that if the Deputy Attorney General upholds a finding that there has been a reprisal, then the Deputy Attorney General shall order appropriate corrective action.

(b) The parties may not file an interlocutory appeal to the Deputy Attorney General from a procedural ruling made by the Director during proceedings pursuant to § 27.4 of this part. The Deputy Attorney General has full discretion to review such rulings by the Director during the course of reviewing an appeal of the Director's finding of a lack of jurisdiction, final determination, or corrective action order brought under paragraph (a) of this section.

(c) In carrying out the functions set forth in this section, the Deputy Attorney General may issue written directives or orders to the parties as necessary to ensure the efficient and fair administration and management of the review process.

§ 27.6 Extensions of time.

The Director may extend, for extenuating circumstances, any of the time limits provided in these regulations relating to proceedings before him and to requests for review by the Deputy Attorney General.

§ 27.7 Right to appeal to or seek corrective relief from the U.S. Merit Systems Protection Board.

An FBI whistleblower may appeal to, or seek corrective relief from, the U.S. Merit Systems Protection Board in accordance with the provisions of 5 U.S.C. 2303(d).

§ 27.8 Alternative dispute resolution.

(a) At any stage in the process set forth in §§ 27.3 through 27.5 of this part, the Complainant may request Alternative Dispute Resolution (ADR) through the Department of Justice Mediator Corps (DOJMC) Program. The Complainant may elect to participate in ADR by notifying in writing the office before which the matter is then pending.

(b) If the Complainant elects mediation, the FBI, represented by the Office of General Counsel, will participate.

(c) When the Complainant requests to engage in ADR, the process set forth in §§ 27.3 through 27.5, as applicable, including all time periods specified therein, will be stayed for an initial period of 90 days, beginning on the date of transmittal of the matter to the DOJMC Program office. Upon joint request by the parties to the office before which the matter is stayed, the period of the stay may be extended up to an additional 45 days. Further requests for extension of the stay may be granted only by the Director, regardless of the office before which the matter is pending, upon a joint request showing good cause. The stay otherwise will be lifted if the DOJMC Program notifies the office before which the matter is stayed that the Complainant no longer wishes to engage in mediation, or that the parties are unable to reach agreement on resolution of the complaint and that continued efforts at mediation would not be productive.

§ 27.9 Authority of the Director to review and decide claims of a breach of a settlement agreement.

(a) Any party to a settlement agreement reached in proceedings and in a forum under this part may file a claim of a breach of that settlement agreement with the Director within 30 days of the date on which the grounds for the claim of breach were known or should have been known.

(b) The Director shall adjudicate any timely claim of a breach of a settlement agreement. The Director shall exercise the authority granted under § 27.4(e)(4) to ensure the efficient administration and management of the adjudication of the breach claim, pursuant to any procedures the Director deems reasonably necessary to carry out the functions assigned under this paragraph.

(c) A party may request, within 30 calendar days of a decision on a claim of a breach of a settlement agreement by the Director, review of that decision by the Deputy Attorney General.

A pleading is a written submission that sets out claims, allegations, arguments, or evidence. Pleadings include briefs, motions, attachments, and responses.

All pleadings must be filed by the date set by the applicable regulations, 28 C.F.R. part 27, or OARM. The date of filing is the date on which the submission is postmarked or emailed. Extensions of filing dates will be granted only if requested in writing and supported by good cause.

Yes. A request for corrective action or response to a request for corrective action, whether computer generated, typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a request for corrective action is limited to 15 pages or 3750 words, whichever is less. Computer generated and typed pleadings must use no less than 12-point typeface and 1-inch margins and must be double-spaced and use only one side of a page. The length limitation is exclusive of any table of contents, table of authorities, attachments, and certificate of service. OARM may grant a motion to exceed the page limits for good cause shown. A request for leave to file a pleading that exceeds the limitations prescribed in this paragraph must be received by OARM at least 3 days before the filing deadline. Such requests must give the reasons for a waiver, as well as the desired length of the pleading, and are granted only in exceptional circumstances. The page and word limits set forth above are maximum limits. Parties are not expected or required to submit pleadings of the maximum length.

Yes. All pleadings and attachments filed with OARM must be filed on 8 ½" X 11" paper, except for good cause shown. All electronic submissions must be formatted so that they will print on 8 ½" X 11" paper.

Generally, yes. Except for your request for corrective action, you are required to provide (i.e., “serve”) the FBI’s representative with a copy of each pleading you file with OARM. Likewise, the FBI is required to serve you or your representative with a copy of each pleading it files with OARM.

To prove that you have served the other party with a copy of your pleading filed with OARM, you must provide OARM with a certificate of service (which should accompany each pleading submitted to OARM).

A certificate of service is a written statement certifying that you have served the other party with a copy of your pleading and must include the:

• Method of service (e.g., by mail, facsimile or email);
• Date of service (i.e., the date on which documents are served on the other party); and
• Name and address of the individual(s) served.

The parties shall not file any classified information with OARM. In the event such information becomes relevant to proceedings before OARM, appropriate arrangements for the protection, transmission, and handling of such materials must be in compliance with FBI and other applicable requirements regarding classified materials.

No. You may file your request for corrective action “pro se” (i.e., on your own behalf, without representation).

No. You may choose any representative as long as that person is willing and available to serve. If you choose to designate a representative to handle your request for corrective action, you must do so in writing. Additionally, you must notify OARM and the FBI in writing of any change in representation within 5 calendar days of the change.

If you choose to hire an attorney to handle your request for corrective action, you are responsible for paying the costs associated with that legal representation. OARM will not cover any of your legal costs. However, should you prevail on the merits of your request for corrective action, you may be entitled to reimbursement of your attorney’s fees.

A request for corrective action must be received by OARM either:

• Within 60 calendar days of receipt of notification of termination of an investigation by the Conducting Office (i.e., the Department of Justice's Office of Professional Responsibility or the Department of Justice's Office of the Inspector General); or
• At any time after 120 calendar days from the date you first notified one of those offices of an alleged reprisal and have not been notified that either office will seek corrective action.

Prior to terminating its investigation of your reprisal complaint, the Conducting Office must provide you with a written status report containing the factual findings and conclusions justifying its decision to terminate its investigation. You will have the opportunity to submit to the Conducting Office written comments to its status report. Thereafter, the Conducting Office will provide you with a written statement notifying you of its final decision to terminate its investigation, a summary of relevant facts ascertained by the Conducting Office, the reasons for its decision, and a response to any comments to the status report you may have submitted to the Conducting Office.

You may file a request for corrective action with OARM anytime after 120 calendar days from the date you first notified either the Department of Justice’s Office of Professional Responsibility or the Department of Justice’s Office of the Inspector General of an alleged reprisal, and have not received notice that either office will seek corrective action in your case.

A request for corrective action may be filed electronically (by e-mail or facsimile) or hard copy (by mail). The date of filing of a request for corrective action sent by e-mail or mail is the date it was emailed or postmarked, not the date on which OARM receives it. The filing date for a request for corrective action sent by facsimile is the date on which it is received by OARM.

To demonstrate that your request for corrective action is timely filed, you must either:

• Establish that you filed your request for corrective action within 60 days of the date you received notification of termination of the investigation by the Conducting Office (the Conducting Office’s termination letter is not admissible in OARM proceedings without your consent; you may redact or refrain from submitting all portions other than the date and the statement identifying the letter as a termination letter); or
• Submit a statement attesting to the fact that you did not receive, within 120 days of reporting an alleged reprisal to either the Department of Justice’s Office of Professional Responsibility or the Department of Justice’s Office of the Inspector General, notification that either office will seek corrective action in your case.

A request for corrective action filed beyond the required time limits will be dismissed absent a showing of good cause for the delay in filing. If you file your request for corrective action beyond the applicable time limits, your filing must include a written statement establishing that good cause exists to excuse the delay in filing.

In determining whether you have shown good cause for the delay in filing, OARM will consider several factors, including: the length of the delay; the reasonableness of your excuse and your showing of due diligence or ordinary prudence; whether you are proceeding pro se (i.e., without representation); and whether you have presented evidence of the existence of circumstances beyond your control that affected your ability to comply with the time limits.

Before filing a request for corrective action with OARM, you must show that you "exhausted" your Conducting Office remedies by first filing a complaint of whistleblower reprisal with either the Department of Justice's Office of Professional Responsibility or Office of the Inspector General.

You may establish exhaustion by providing OARM with a copy of your reprisal complaint previously submitted to the Conducting Office.

No. OARM is precluded from admitting as evidence, absent your consent, any written statement by the Conducting Office terminating an investigation of your whistleblower reprisal complaint.

Jurisdiction refers to the authority and power of the Director of OARM to adjudicate (i.e., judge) your request for corrective action. 

As the Complainant, you bear the burden of proving OARM’s jurisdiction over your request for corrective action.

In order for you to prove OARM’s jurisdiction over your request for corrective action, you must make a nonfrivolous allegation that you made a protected disclosure that was a contributing factor in the FBI’s decision to take or fail to take, or threaten to take or fail to take, a personnel action against you.

A “protected disclosure” under 5 U.S.C. § 2303(a)(1) is a disclosure of information to specified individuals or offices which you reasonably believe evidences: any violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

The test for whether you had a reasonable belief about the information you disclosed is an objective one, meaning you must show that the information you disclosed was one that a reasonable person in your position would believe evidenced any violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

No. In order for you to establish that you had a reasonable belief that your disclosure evidenced a type of wrongdoing set forth in 5 U.S.C. § 2303(a)(2) (i.e., any violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety) you need not prove that the information disclosed actually evidenced such wrongdoing. Rather, you must show that the information disclosed was one that a reasonable person in your position would believe evidenced any of the situations described in 5 U.S.C. § 2303(a)(2).

In order to be protected, your disclosure must have been made to at least one of the following individuals or offices, to include:

• a supervisor in your direct chain of command, up to and including the Director of the FBI and the Attorney General (if you are an FBI employee);
• the Inspector General of the Department of Justice;
• the Office of Professional Responsibility of the Department of Justice;
• the Office of Professional Responsibility of the FBI;
• the Inspection Division of the FBI;
• the United States Congress, including a committee or member thereof;
• the Office of Special Counsel; or
• to an employee designated by any of the above to receive such disclosures.

You will not have access to recourse if you experience retaliation for reporting alleged wrongdoing to an office or individual not listed above.

You may rely on circumstantial evidence to support a nonfrivolous allegation that your disclosure was a contributing factor in the personnel action against you, including that:

• The official taking the personnel action knew of your disclosure; and
• The personnel action occurred within a period of time such that a reasonable person could conclude that your disclosure was a contributing factor in the personnel action.

In addition to the knowledge/timing factors, OARM may consider other circumstantial evidence relevant to the contributing factor issue, to include:

• The strength or weakness of the FBI’s reasons for the personnel action against you;
• Whether the FBI official responsible for the action was the subject of your disclosure; and
• Whether the FBI official(s) responsible for the personnel action had a desire or motive to retaliate against you.

Personnel actions covered under the FBI whistleblower regulations include:

• An appointment;
• A promotion;
• An action under chapter 75 of [Title 5 of the United States Code] or other disciplinary or corrective action;
• A detail, transfer, or reassignment;
• A reinstatement;
• A restoration;
• A reemployment;
• A performance evaluation under chapter 43 of [Title 5 of the United States Code];
• A decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action;
• A decision to order psychiatric testing or examination;
• The implementation or enforcement of any nondisclosure policy, form, or agreement; and
• Any other significant change in duties, responsibilities, or working conditions.

Discovery is the process by which you may obtain facts and information about your case from the FBI in order to assist your preparation in arguing the substance of the claims underlying your request for corrective action. Similarly, during the discovery process, the FBI may obtain evidence from you that may be necessary for it to prepare its own case in response to your request for corrective action.

Proceedings before OARM will be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed to prepare the party's case.  Parties are expected to start and complete discovery with a minimum of OARM intervention. Discovery requests and responses thereto are not to be filed in the first instance with OARM. They are only filed with OARM in connection with a motion to compel discovery or as substantive evidence to be considered in the case.

Discovery covers any non-privileged matter that is relevant to the issues involved in the request for corrective action, including the existence, description, nature, custody, condition, and location of documents or other tangible things, and the identity and location of persons with knowledge of relevant facts. Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence.

Discovery between the parties may be permitted after the Director of OARM finds, in writing, that OARM has jurisdiction over your request for corrective action.

Parties may use one or more of the methods provided under the Federal Rules of Civil Procedure for conducting discovery, including, but not limited to:

• Requests for the identification of potential witnesses;
• Depositions upon oral and written questions;
• Written interrogatories and requests for admission; and
• Requests for the production of documents or things for inspection or copying.

The Federal Rules of Civil Procedure, as well as the practices and procedures of the U.S. Merit Systems Protection Board may be used as a general guide for discovery practices in proceedings before OARM; however, those rules and procedures are instructive rather than controlling.

A party seeking discovery from another party must start the discovery process by serving an initial request for discovery on the other party (or the party’s representative, if any) within 30 calendar days after the date on which the Director of OARM issues a written decision finding jurisdiction over your request for corrective action. A party’s response to an initial discovery request must be filed no later than 20 calendar days after the date of service of the request.

Yes. Absent prior approval by OARM, interrogatories served by parties upon another party may not exceed 25 in number, including all discrete subparts, and each party may not take more than 10 depositions. Requests to exceed these discovery limitations may be granted at the discretion of OARM.

The Director of OARM is authorized to compel the attendance and testimony of, or the production of documentary or other evidence from, any person employed by the Department of Justice if doing so appears reasonably calculated to lead to the discovery of admissible evidence, is not otherwise prohibited by law or regulation, and is not unduly burdensome. If a party fails or refuses to respond in full to a discovery request, the party requesting the discovery may file with the Director of OARM (and serve a copy on the other party from whom the discovery is sought) a written motion for an order to compel discovery.

Yes. The Director of OARM’s authority to compel the attendance and testimony of any person employed by the Department of Justice under § 27.4(e)(3) is not limited to attendance and testimony at a hearing before the Director. The Director of OARM’s authority to compel the attendance and testimony of Department employees applies with equal force to Department employees’ attendance and testimony at a deposition if doing so appears reasonably calculated to lead to the discovery of admissible evidence, is not otherwise prohibited by law or regulation, and is not unduly burdensome.

A motion for an order to compel discovery must be filed with the Director of OARM within 10 calendar days of the date of service of any objections to your discovery request, or, if no response to your discovery request is received, within 10 calendar days after the time limit for a response has expired. Any pleading in opposition to a motion to compel discovery must be filed with OARM within 5 calendar days of the date of service of the motion.

A motion for an order to compel discovery must include:

• A copy of your original discovery request and a statement showing that the information sought is relevant and material;
• A copy of the other party’s response to your discovery request (including the objections to discovery) or, if no response was received, a statement by you that no response has been received, along with an affidavit or sworn statement supporting your statement; and
• A statement that the parties have discussed the anticipated motion and have made a good faith effort to resolve the discovery dispute and narrow the areas of disagreement

Yes. Either party may seek to obtain discovery documents from the Conducting Office (i.e., the Department of Justice’s Office of Professional Responsibility or Office of the Inspector General). Such request must be made in writing to OARM and must include a statement identifying the relevancy and materiality of the documents sought. After providing the other party with an opportunity to respond to the request, OARM will make a determination as to the relevancy and/or materiality of the requested documents. OARM will then forward its determination to the Conducting Office, along with a written directive that the Conducting Office produce the relevant documents to OARM. Unless advised by the Conducting Office otherwise, OARM will release copies of the documents to the parties for their review. Any documents that may contain law enforcement sensitive material will first be sent to the FBI’s Discovery Processing Unit for prepublication review and release.

Discovery must be completed within the time OARM designates.

Within 25 calendar days of the completion of discovery, you shall file written arguments detailing the evidence in support of your request for corrective action. The FBI may respond with its own written arguments within 20 calendar days of the date of service of your written arguments.  OARM may also afford you and the FBI additional time to file any respective reply/surreply briefs. Thereafter, the Director of OARM will adjudicate your request for corrective action, either based on the written record, or following a hearing.

In order to prove the merits of your request for corrective action, you must prove by preponderant evidence that you made a protected disclosure under 28 C.F.R. § 27.1(a) that was a contributing factor in the FBI’s decision to take or fail to take, or threaten to take or fail to take, a personnel action covered by 28 C.F.R. § 27.2(b) against you.

Preponderant evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely true than not true.

No. Even if you prove by preponderant evidence that you made a protected disclosure that was a contributing factor in the FBI’s decision to take a personnel action against you, OARM cannot order corrective action if the FBI establishes by clear and convincing evidence that it would have taken the same personnel action against you in the absence of your disclosure.

Clear and convincing evidence is the measure or degree of proof that produces in the mind of the Director of OARM a firm belief that the FBI’s claim that it would have taken the same personnel action against you in the absence of your protected disclosure is true. It is a higher standard of proof than the preponderant evidence standard.

In determining whether the FBI has shown by clear and convincing evidence that it would have taken the same personnel action against you in the absence of your protected disclosure, OARM will consider the strength of the FBI’s evidence in support of its actions; the existence and strength of any motive to retaliate on the part of the FBI officials involved in the action; plus any evidence that the FBI has taken similar actions against employees who are not whistleblowers, but who are otherwise similarly situated to you.

No. You are not automatically entitled to a hearing on your request for corrective action. A hearing may be held at the discretion of OARM where you have presented a legal claim supported by sufficient evidence of a triable issue of fact. Notably, however, during the course of the proceedings on your request for corrective action, either party may request (or OARM may order) a conference with the Director of OARM to address matters such as the status of the case, jurisdiction, discovery, etc.

A request for a hearing must be made in writing to the Director of OARM, submitted no later than 5 calendar days after the close of merits briefing, and shall:

• Include a list of all agreed upon material facts;
• Identify any disputed material issues of fact that need resolution through testimonial evidence; and
• State that the other party has been consulted and either agrees or disagrees with the need for a hearing.

If neither party requests a hearing, or if a hearing is requested, but not granted, OARM will set a schedule for briefing on the merits.

Generally, the parties, the witnesses, and the Director/Assistant Director of OARM shall attend hearings in-person. However, OARM in its discretion, may hold the hearing in whole or in part by telephone, videoconference, or in-person at OARM's hearing/conference room (or designated alternate hearing site). Among the factors OARM will consider in deciding whether to hold a hearing in whole or in part by videoconference or telephone are:

1. The distance that Complainant and/or Complainant's representative must travel to access video-teleconferencing equipment;
2. A comparison of the total costs of holding an in-person, video, or telephonic hearing;
3. The distance the parties and their witnesses would have to travel to appear in person; and
4. Whether appearance by videoconference or telephone of the parties and their respective witnesses would unduly prejudice Complainant and/or the FBI.

Corrective action may include:

• Placing you, as nearly as possible, in the position you would have been in had the reprisal not taken place;
• Reimbursement for attorney’s fees;
• Reasonable costs, medical costs incurred, and travel expenses;
• Back pay and related benefits;
• Compensatory damages to the extent authorized by law; and
• Any reasonable and foreseeable consequential damages.

No. OARM lacks the authority to discipline or recommend to the FBI that it discipline, individuals responsible for engaging in unlawful reprisal against a complainant. However, the Department of Justice and the FBI retain the authority to take appropriate disciplinary action if it is determined that such action is necessary.

Either party may request, within 30 calendar days of a final determination or corrective action order by the Director of OARM, review by the Deputy Attorney General of that determination or order.  Any requests for review shall be emailed to Stephen Pfleger at stephen.pfleger3@usdoj.gov. 

Procedures of the Office of the Deputy Attorney General, as related to FBI whistleblower reprisal appeals, can be found via the link: Office of the Deputy Attorney General's Procedures for FBI Whistleblower Reprisal Appeals Brought Pursuant to 28 C.F.R. § 27.5

There is also a right to appeal a final determination or corrective action order to the U.S. Merit Systems Protection Board under 5 U.S.C. § 2303(d).

No. The applicable FBI whistleblower laws do not expressly provide for a right to an interlocutory appeal to the Deputy Attorney General. The parties have the right to appeal only the Director of OARM's final determination on the merits of a complainant's request for corrective action and/or any corrective action order resulting therefrom.

In an effort to provide an alternative to the regulatory investigative and adjudicative processes under 28 C.F.R. part 27, the Department of Justice, through the Department of Justice Mediator Corps (DOJMC) Program, offers the parties to an FBI whistleblower reprisal complaint the option to resolve the dispute through mediation.  The DOJMC Program offers a form of alternative dispute resolution in which a third-party neutral, a mediator, meets with the parties — including the whistleblower complainant (you and your designated counsel, if any), an FBI Executive Manager, the FBI Responding Management Official (i.e., the individual allegedly responsible for the alleged reprisal), and the FBI’s Office of General Counsel —  to assist them in resolving their dispute.  Mediation is an informal process that is unbinding unless agreement is reached by both parties.  Mediation is not a legal process based on documentation; it is a collaborative problem-solving process where the goal is to improve or restore working relationships and foster better communication and is based on open communication.

No. You have the option to pursue mediation voluntarily.  If you elect mediation, the FBI, represented by the Office of General Counsel, will participate.

Mediation offers the parties an opportunity to communicate directly in a non-threatening forum.  It offers a private and confidential place to discuss issues.  Emotional involvement in a conflict can cloud one’s ability to think creatively and objectively; mediation can help parties move beyond the barriers created by those emotions.  Mediation can be healing, as it offers an opportunity for participants to come together and tell each other how the conflict has personally affected them (how they feel and/or how they have been hurt).  Mediation is cost effective, expeditious, and efficient.  Formal processes are lengthy, expensive, and often have an adverse effect on the professional relationship and workplace.

A mediator is an unbiased, neutral third party who facilitates discussions to assist parties in conflict.  A mediator is someone who is trained in mediation skills, and has no direct authority to impose a decision on the parties in conflict.

The mediator has no authority or power to render decisions.  He (or she) is merely a facilitator who is skilled at working with the parties to resolve their dispute.  The mediator is not an arbitrator or judge.  The parties dictate the outcome of the mediation, not the mediator.  The mediator will draft any agreements reached by the parties.

The mediator will be an individual trained and experienced in mediation skills. The individual may be employed by the FBI or another Department of Justice entity.

Generally, there are no fees for hiring a mediator since the Department of Justice Mediator Corps is comprised of Department of Justice employees who are trained collateral-duty mediators.

The FBI will cover any costs associated with obtaining a mediator.  If travel is involved, the FBI will fund travel for the FBI employee-complainant, mediators, and other FBI personnel necessary to conduct the mediation.  The FBI will also cover any costs associated with conducting the mediation at a neutral meeting space (e.g., hotel conference room) if other suitable federal space is not located.

If you are represented by counsel, any costs related to legal or other representatives’ attendance are your responsibility.

If you wish to elect mediation, you shall notify OARM and the FBI in writing of your election.  As noted above, if you elect mediation, the FBI, represented by the Office of General Counsel, will participate.  OARM then will refer the matter to the Department of Justice Mediator Corps Manager, who will assign a mediator to the case and handle the scheduling of, and administrative procedures related to, the mediation.

Typically, the mediator meets first with both parties together in a joint session.  At the joint session, the mediator will initially ask you to briefly describe the facts leading up to your reprisal allegation.  Then the mediator will ask the representative from the FBI's Office of General Counsel and the Responding Management Official to do the same.  The mediator may also ask each party what they are seeking to accomplish in the mediation (i.e., what will it take to resolve the matter).

At the conclusion of the joint session, the mediator will typically meet with each party separately in what is called a caucus or a private session.  A caucus or private session affords the parties an opportunity to privately discuss interests, needs, and/or other issues.  These sessions also allow the parties to provide confidential responses to more direct questions posed by the mediator.  Anything discussed during the private sessions is completely confidential, unless the mediator is given permission to disclose the information to the other party.

At the conclusion of the separate sessions, it is up to the mediator whether to convene additional separate sessions or whether to bring the parties back together for another joint session.

Yes.  At the beginning of the mediation, all parties in the room will be required to sign an “Agreement to Mediate,” as well as a “Confidentiality Agreement,” which states that everything discussed in the room is confidential.  The mediator is bound by these requests of confidentiality.  The “Agreement to Mediate” and “Confidentiality Agreement” also state that neither party can subpoena or depose the mediator in the event of future litigation.  The "Confidentiality Agreement" also contains the Whistleblower Protection Enhancement Act's anti-gag notification statement under 5 U.S.C. § 2302(b)(13)(A).

You are permitted to bring whomever you want to the mediation.  You may bring a friend, a relative, or a legal representative.  In the event you opt to bring retained counsel to the mediation, you shall so notify the Department of Justice Mediator Corps Manager at least one week in advance of the scheduled date of the mediation.

It is standard for an attorney from the FBI's Office of General Counsel, a member of the FBI's Executive Management, and the Responding Management Official to attend mediation.  The names of these individuals will be provided to you prior to the mediation session.

Both parties should come to the mediation with an open mind.  To the extent it may move settlement discussions forward, the parties should be prepared to discuss the facts that led up to the alleged reprisal.  Documentation is not necessary and may interfere with the process.  However, if a party has documents or other correspondence it wants to provide to an attendee in advance of mediation, any and all such documentation and correspondence shall be sent to the Department of Justice Mediator Corps (DOJMC) only.  Documentary submissions to the DOJMC Manager shall not exceed 75 single-spaced pages and shall be sent electronically in .pdf format.  Any classified documentation will need to be declassified by the FBI's Discovery Processing Unit which requires a minimum of 14 days to process any documents for release to a party, your attorney, or other non-FBI individuals. 

A typical mediation session lasts from 4-6 hours.

Mediations are generally held in a neutral location and not within the workplace of the parties.  The mediator will contact all parties prior to the session to coordinate a date and time convenient to all parties.  Mediations will be conducted during normal business hours and parties are allowed official time to attend and participate in the mediation.

If you elect mediation while the Conducting Office investigates your complaint, the Conducting Office’s investigation will be suspended while you and the FBI pursue mediation.  As a result, the Conducting Office will likely not be able to complete its investigation within 240 days as required by 28 C.F.R. § 27.3(f).  In this circumstance, the Conducting Office will ask you whether you would agree to an extension of the 240-day deadline.

If mediation is unsuccessful, the Conducting Office will resume its investigation.  If mediation is successful, the Conducting Office will terminate its investigation and the matter will be closed.

Mediation will not affect your rights before OARM, and you will have the ability to continue to pursue your claims before OARM if mediation is unsuccessful.

If mediation is successful, however, OARM’s case processing will conclude and the matter will be closed.