FBI Whistleblower Matters

OPR and the Office of the Inspector General (OIG) share jurisdiction to investigate allegations of whistleblower retaliation made by current, former, and prospective employees of the FBI.  FBI personnel who suffered an actual or threatened adverse personnel action in retaliation for a protected disclosure may file a whistleblower retaliation complaint with OPR or the OIG.

The Investigative Process

Because FBI whistleblower retaliation complaints involve a variety of allegations and factual circumstances, the investigative methods used vary accordingly.  Generally, however, the first step after receiving an FBI whistleblower complaint is to conduct an initial review of the allegations to determine whether OPR has jurisdiction to investigate the matter further under the FBI whistleblower regulations.  If OPR determines that it lacks jurisdiction, the complainant can file a request for corrective action with the Office of Attorney Recruitment and Management (OARM).

If OPR has determined that it has jurisdiction to conduct further investigation under the FBI whistleblower regulations, OPR will initiate an investigation, which may include obtaining relevant documents, conducting witness interviews, interviewing the complainant, and interviewing the subject of the complaint.  The decision to conduct an investigation does not give rise to a presumption that retaliation occurred.  OPR will determine whether there are reasonable grounds to believe that whistleblower reprisal occurred only after conducting a full investigation. 

The Standard of Review

An FBI whistleblower retaliation finding is appropriate when there are reasonable grounds to believe that an FBI employee, or an employee of any other Department component, has taken or threatened to take a personnel action as retaliation for a protected disclosure made by the complainant.

Protected Disclosure

OPR first determines whether the complainant was an FBI employee or applicant who made a protected disclosure under 28 C.F.R. § 27.1(a).  To constitute a protected disclosure under the regulation, a complainant must satisfy two essential elements: 

(1) The disclosure was made to one of the officials or entities designated to receive protected disclosures under 28 C.F.R. § 27.1(a) and the FBI Whistleblower Protection Enhancement Act; and

(2)  The complainant must show that he or she reasonably believed that his or her disclosure to the designated official or entity showed a violation of law, rules, or regulations; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. 

If the complainant has not satisfied the elements of a protected disclosure under the regulation, then the complainant is not entitled to whistleblower protection, and OPR will find that it lacks jurisdiction to investigate the matter further.  OPR will inform the complainant of OPR’s conclusion, and the complainant may file a request for corrective action with OARM.

Personnel Action

If the elements of a protected disclosure are satisfied, then OPR will determine whether an FBI employee or an employee of another Department component took or threatened to take an adverse personnel action against the complainant.  A “personnel action” is defined in 28 C.F.R. § 27.2(b), and includes, but is not limited to, an appointment; promotion; a disciplinary or corrective action; a transfer or reassignment; a performance evaluation; a decision concerning pay, benefits, or awards; or any other significant change in duties, responsibilities, or working conditions. 

If OPR determines that the allegedly retaliatory act was not one that meets the definition of a personnel action under the regulations, then the complainant is not entitled to whistleblower protection, and OPR will find that it lacks jurisdiction to investigate the matter further.  OPR will inform the complainant of its conclusion, and the complainant may file a request for corrective action with OARM.

Reasonable Grounds

If OPR finds that the complainant made a protected disclosure and suffered an adverse personnel action, then OPR will proceed to investigate whether there are reasonable grounds to believe that the protected disclosure was a contributing factor in the decision to take the adverse personnel action.  This causal connection between the protected disclosure and the adverse personnel action may be established by evidence of temporal proximity between the disclosure and the personnel action and knowledge of the disclosure by the official who took the personnel action. 

Other factors affecting OPR’s determination include whether there is evidence of a retaliatory motive or mixed motives for the personnel action, and the merits of any reasons given by the official for taking the personnel action.  Finally, OPR will consider whether corrective action for the allegedly retaliatory conduct is foreclosed because the FBI can demonstrate by clear and convincing evidence that it would have taken the adverse personnel action in the absence of the protected disclosure. 

If OPR determines that there are not reasonable grounds to believe that the protected disclosure was a contributing factor in the decision to take the adverse personnel action, it will inform the complainant of its finding, and the complainant may file a request for corrective action with OARM.  On the other hand, if OPR finds reasonable grounds to believe that the personnel action was taken in reprisal for the protected disclosure, OPR will report its findings to OARM for corrective action.