Exhaustion & Jurisdiction
Applicable Law | Pleadings | Representation | Time Limits for Filing | Exhaustion & Jurisdiction | Discovery | Burdens of Proof | Hearing | Relief | Right to Further Review | Mediation
What does exhaustion mean?
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.
How do I prove that I have exhausted my remedies with a Conducting Office?
You may establish exhaustion by providing OARM with a copy of your reprisal complaint previously submitted to the Conducting Office.
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 is jurisdiction?
Jurisdiction refers to the authority and power of the Director of OARM to adjudicate (i.e., judge) your request for corrective action.
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 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.
What constitutes a protected disclosure?
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.
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 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.
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 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).
To whom must my disclosure be made in order to be protected?
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.
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 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.