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Jurisdiction

Applicable Law | Pleadings | Representation | Time Limits for Filing | Jurisdiction | Discovery | Burdens of Proof | Hearing | Relief | Right to Further Review



What is jurisdiction?

Jurisdiction refers to the authority and power of the Director of OARM to adjudicate (i.e., judge) your request for corrective action. Establishing OARM’s jurisdiction over your request for corrective action is the preliminary step in the request for corrective action process.

Who has the burden of proving OARM’s jurisdiction over a request for corrective action?

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

How do I establish OARM’s jurisdiction over a request for corrective action?

In order for you to prove OARM’s jurisdiction over your request for corrective action, you must:

Establish that you have exhausted your remedies with the Conducting Office; and
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.

If the Conducting Office has terminated its investigation of my reprisal complaint, will that termination influence OARM’s decision over my request for corrective action?

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.

What does it mean to exhaust my remedies with the Conducting Office?

Before OARM can take jurisdiction over your request for corrective action, you must establish that the alleged protected disclosure(s) and personnel action(s) in your request for corrective action are the same as those previously presented to the Conducting Office (i.e., either the Department of Justice’s Office of Professional Responsibility or the Department of Justice’s Office of the Inspector General).

How do I prove that I have exhausted my remedies with a Conducting Office?

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

What if I have failed to exhaust with the Conducting Office all of the claims raised in my request for corrective action?

Only claims alleged in your reprisal complaint filed with the Conducting Office are properly before OARM. Accordingly, claims not previously exhausted will not be considered, and will be dismissed by OARM for lack of jurisdiction.

What constitutes a protected disclosure?

A “protected disclosure” under 28 C.F.R. § 27.1(a) is a disclosure of information to specified individuals or offices that you reasonably believe evidences: a violation of any law, rule, or regulation; mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

What is a reasonable belief?

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

In making a protected disclosure, do I have to prove that the information disclosed actually evidenced wrongdoing?

No. In order for you to establish that you had a reasonable belief that your disclosure evidenced a type of wrongdoing set forth in 28 C.F.R. § 27.1(a) (i.e., a violation of law, rule or regulation; 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 28 C.F.R. § 27.1(a).

To whom must my disclosure be made in order to be protected?

In order to be protected under the FBI whistleblower regulations, your disclosure must have been made to at least one of the following individuals or entities, to include the:

Department of Justice’s Office of Professional Responsibility or the Department of Justice’s Office of Inspector General;
FBI’s Office of Professional Responsibility;
FBI’s Inspection Division Internal Investigations Section;
Attorney General;
Deputy Attorney General;
Director of the FBI;
Deputy Director of the FBI; or
Highest ranking official in any FBI field office.

Who is the highest ranking official in my FBI field office?

The highest ranking official in each FBI field office is generally a Special Agent in Charge. However, in the FBI field offices located in Los Angeles, California; New York, New York; and Washington, DC, the highest ranking official is an Assistant Director in Charge.

May I make a disclosure to the U.S. Office of Special Counsel (OSC)?

Yes. Although OSC does not have jurisdiction over whistleblower reprisal claims brought by employees of, or applicants for employment with, the FBI, OSC can accept whistleblower disclosures under 5 U.S.C. § 1213(c). For more information on OSC’s disclosure process, go to http://www.osc.gov/wbdisc.htm. Disclosures made to OSC are not protected within the meaning of 28 C.F.R. § 27.1(a).

How do I make a nonfrivolous allegation that my disclosure was a contributing factor in the personnel action against me?

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.

What are the personnel actions covered by the FBI whistleblower regulations?

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 action described in 5 U.S.C. § 2302(a)(2)(A);
A decision to order psychiatric testing or examination; and
Any other significant change in duties, responsibilities, or working conditions.
Updated: September 2013