If you are a current or former employee of (or applicant for employment with) the FBI who believes that the FBI has retaliated against you for your whistleblower activities (i.e., for disclosing wrongdoing or perceived wrongdoing), you may be entitled to the protections afforded to FBI whistleblowers under 5 U.S.C. § 2303 and 28 C.F.R. part 27.
You may seek those protections by filing a request for corrective action (RCA) with the Director of the Department of Justice’s Office of Attorney Recruitment and Management (OARM). A RCA is a request that the Director of OARM order the FBI to remedy or “correct” the consequences of the FBI’s alleged unlawful reprisal against you.
General guidelines on the RCA process are as follows:
- Before you may file your RCA with the Director of OARM, you must first file a complaint of whistleblower reprisal with either the Department of Justice’s Office of Professional Responsibility or the Department of Justice’s Office of the Inspector General. Out of those two offices, the one that actually conducts the investigation of your reprisal claim is known as “the Conducting Office.”
- If you choose to file a RCA with the Director of OARM after filing a complaint of reprisal with the Conducting Office, you must do so within the prescribed time limits. To be timely, you must file your RCA either: (1) within 60 calendar days of receiving notification from the Conducting Office that it is terminating its investigation of your reprisal claims; or (2) any time after 120 calendar days from the date that you first notified 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 you have not been notified that either office will seek corrective action in your case.
- After you file your RCA with the Director of OARM, the Director will consider the pleadings submitted by you and the FBI and determine whether OARM can take jurisdiction over your RCA. Jurisdiction is defined as the authority and power of the Director of OARM to adjudicate (i.e., judge) your RCA. As the complainant, you carry the burden of proof with respect to OARM’s jurisdiction over your RCA. To prove OARM’s jurisdiction over your RCA, you must: (1) establish exhaustion of your Conducting Office remedies; and (2) 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. Here, the relevant inquiry conducted by OARM is whether you have made the requisite nonfrivolous allegations. Establishing OARM’s jurisdiction over your RCA is the preliminary step in the RCA process.
- If you establish OARM’s jurisdiction over your RCA, the parties (i.e., both you and the FBI) may engage in discovery relevant to the claims in your RCA over which OARM has found jurisdiction. Discovery is the process by which each party can obtain facts and information about the claims underlying your RCA from the other party in order to assist each party in preparing their side of their case.
- After the parties complete discovery, the Director of OARM will assess the merits (i.e., the substance of your allegations) of your RCA. During this stage of the proceedings, the parties carry different burdens of proof. At this stage, your burden of proof is higher than it was at the jurisdictional stage. That is, you must now prove by preponderant evidence (rather than nonfrivolously allege) 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 you request a hearing on your RCA, the Director of OARM may, at his discretion, decide to hold a hearing in your case. If a hearing is not held, the Director of OARM will decide the merits of your case based on the written evidence of record.
- The Director of OARM will issue a final determination and/or corrective action order on your RCA.
- If the Director of OARM finds that you have proven your RCA by preponderant evidence, he will order corrective action (i.e., relief) as he deems appropriate and as authorized by the FBI Whistleblower regulations, unless the FBI can establish by clear and convincing evidence that it would have taken the same personnel action(s) against you in the absence of your disclosure.
- If you are not satisfied with OARM’s final determination and/or corrective action order, you have a right to further review of that determination/order by the Deputy Attorney General. Any request for further review must be filed with the Deputy Attorney General within 30 calendar days of the date of issuance of OARM’s final determination and/or corrective action order.
Updated: August 2011