[Code of Federal Regulations]

[Title 28, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 28CFR27.4]



[Page 448-450]

 

                    TITLE 28--JUDICIAL ADMINISTRATION

 

                    CHAPTER I--DEPARTMENT OF JUSTICE

 

PART 27_WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF INVESTIGATION 

EMPLOYEES--Table of Contents

 

  Subpart B_Investigating Reprisal Allegations and Ordering Corrective 

                                 Action

 

Sec. 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 paragraph (e) of this section. 

A determination by the Conducting Office that there are reasonable 

grounds to believe 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



[[Page 449]]



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. The Director shall notify the FBI of the receipt 

of the request and allow the FBI 25 calendar days to respond in writing. 

If the Complainant presents a request for corrective action to the 

Director under this paragraph, the Conducting Office may continue to 

seek corrective action specific to the Complainant, including the 

submission of a report to the Director, only with the Complainant's 

consent. Notwithstanding the Complainant's refusal of such consent, the 

Conducting Office may continue to investigate any violation of law, 

rule, or regulation.

    (2) The Director may not direct the Conducting Office to reinstate 

an investigation that the Conducting Office has terminated in accordance 

with Sec. 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 or 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.

    (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 subsection, 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. 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.

    (f) If the Director orders corrective action, such corrective action 

may include: placing the Complainant, as nearly as possible, in the 

position he would have been in had the reprisal not taken place; 

reimbursement for attorneys fees, reasonable costs, medical costs 

incurred, and travel expenses; back pay and related benefits; and any



[[Page 450]]



other reasonable and foreseeable consequential damages.

    (g) If the Director determines that there has not been a reprisal, 

the Director shall report this finding in writing to the complainant, 

the FBI, and the Conducting Office.



[Order No. 2264-99, 64 FR 58786, Nov. 1, 1999, as amended by Order No. 

2492-2001, 66 FR 37904, July 20, 2001]