[Title 28 CFR 27]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 27 - WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF INVESTIGATION EMPLOYEES]
[From the U.S. Government Printing Office]


28JUDICIAL ADMINISTRATION12002-07-012002-07-01falseWHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF INVESTIGATION EMPLOYEES27PART 27JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 27--WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF INVESTIGATION EMPLOYEES--Table of Contents




             Subpart A--Protected Disclosures of Information

Sec.
27.1  Making a protected disclosure.
27.2  Prohibition against reprisal for making a protected disclosure.

 Subpart B--Investigating Reprisal Allegations and Ordering Corrective 
                                 Action

27.3  Investigations: The Department of Justice's Office of Professional 
          Responsibility and Office of the Inspector General.
27.4  Corrective action and other relief; Director, Office of Attorney 
          Recruitment and Management.
27.5  Review.
27.6  Extensions of time.

    Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; 5 U.S.C. 
2303; President's Memorandum to the Attorney General, Delegation of 
Responsibilities Concerning FBI Employees Under the Civil Service Reform 
Act of 1978, 3 CFR p. 284 (1997).

    Source: Order No. 2264-99, 64 FR 58786, Nov. 1, 1999, unless 
otherwise noted.



             Subpart A--Protected Disclosures of Information



Sec. 27.1  Making a protected disclosure.

    (a) When an employee of, or applicant for employment with, the 
Federal Bureau of Investigation (FBI) (FBI employee) makes a disclosure 
of information to the Department of Justice's (Department's) Office of 
Professional Responsibility (OPR), the Department's Office of Inspector 
General (OIG), the FBI Office of Professional Responsibility (FBI OPR) 
(collectively, Receiving Offices), the Attorney General, the Deputy 
Attorney General, the Director of the FBI, the Deputy Director of the 
FBI, or to the highest ranking official in any FBI field office, the 
disclosure will be a ``protected disclosure'' if the person making it 
reasonably believes that it evidences:
    (1) A violation of any law, rule or regulation; or
    (2) Mismanagement, a gross waste of funds, an abuse of authority, or 
a substantial and specific danger to public health or safety.
    (b) Any office or official (other than the OIG or OPR) receiving a 
protected disclosure shall promptly report such disclosure to the OIG or 
OPR for investigation. The OIG and OPR shall proceed in accordance with 
procedures establishing their respective jurisdiction. The OIG or OPR 
may refer such allegations to FBI-OPR for investigation unless the 
Deputy Attorney General determines that such referral shall not be made.

[Order No. 2264-99, 64 FR 58786, Nov. 1, 1999, as amended by Order No. 
2492-2001, 66 FR 37904, July 20, 2001]



Sec. 27.2  Prohibition against reprisal for making a protected disclosure.

    (a) Any employee of the FBI, or of any other component of the 
Department, who has authority to take, direct others to take, recommend, 
or approve any personnel action shall not, with respect to such 
authority, take or fail to take, or threaten to take or fail to take, a 
personnel action, as defined below, with respect to any FBI employee as 
a reprisal for a protected disclosure.
    (b) Personnel action means any action described in clauses (i) 
through (xi) of 5 U.S.C. 2302(a)(2)(A) taken with respect to an FBI 
employee other than one in a position which the Attorney General has 
designated in advance of encumbrance as being a position of a 
confidential, policy-determining, policy-making, or policy-advocating 
character.



 Subpart B--Investigating Reprisal Allegations and Ordering Corrective 
                                 Action



Sec. 27.3  Investigations: The Department of Justice's Office of Professional Responsibility and Office of the Inspector General.

    (a)(1) An FBI employee who believes that another employee of the 
FBI, or of any other Departmental component,

[[Page 435]]

has taken or has failed to take a personnel action as a reprisal for a 
protected disclosure (reprisal), may report the alleged reprisal to 
either the Department's OPR or the Department's OIG (collectively, 
Investigative Offices). The report of an alleged reprisal must be made 
in writing.
    (2) For purposes of this subpart, references to the FBI include any 
other Departmental component in which the person or persons accused of 
the reprisal were employed at the time of the alleged reprisal.
    (b) The Investigative Office that receives the report of an alleged 
reprisal shall consult with the other Investigative Office to determine 
which office is more suited, under the circumstances, to conduct an 
investigation into the allegation. The Attorney General retains final 
authority to designate or redesignate the Investigative Office that will 
conduct an investigation.
    (c) Within 15 calendar days of the date the allegation of reprisal 
is first received by an Investigative Office, the office that will 
conduct the investigation (Conducting Office) shall provide written 
notice to the person who made the allegation (Complainant) indicating--
    (1) That the allegation has been received; and
    (2) The name of a person within the Conducting Office who will serve 
as a contact with the Complainant.
    (d) The Conducting Office shall investigate any allegation of 
reprisal to the extent necessary to determine whether there are 
reasonable grounds to believe that a reprisal has been or will be taken.
    (e) Within 90 calendar days of providing the notice required in 
paragraph (c) of this section, and at least every 60 calendar days 
thereafter (or at any other time if the Conducting Office deems 
appropriate), the Conducting Office shall notify the Complainant of the 
status of the investigation.
    (f) The Conducting Office shall determine whether there are 
reasonable grounds to believe that there has been or will be a reprisal 
for a protected disclosure. The Conducting Office shall make this 
determination within 240 calendar days of receiving the allegation of 
reprisal unless the Complainant agrees to an extension.
    (g) If the Conducting Office decides to terminate an investigation, 
it shall provide, no later than 10 business days before providing the 
written statement required by paragraph (h) of this section, a written 
status report to the Complainant containing the factual findings and 
conclusions justifying the termination of the investigation. The 
Complainant may submit written comments on such report to the Conducting 
Office. The Conducting Office shall not be required to provide a 
subsequent written status report after submission of such comments.
    (h) If the Conducting Office terminates an investigation, it shall 
prepare and transmit to the Complainant a written statement notifying 
him/her of--
    (1) The termination of the investigation;
    (2) A summary of relevant facts ascertained by the Conducting 
Office;
    (3) The reasons for termination of the investigation; and
    (4) A response to any comments submitted under paragraph (g) of this 
section.
    (i) Such written statement prepared pursuant to paragraph (h) of 
this section may not be admissible as evidence in any subsequent 
proceeding without the consent of the Complainant.
    (j) Nothing in this part shall prohibit the Receiving Offices, in 
the absence of a reprisal allegation by an FBI employee under this part, 
from conducting an investigation, under their pre-existing jurisdiction, 
to determine whether a reprisal has been or will be taken.



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

[[Page 436]]

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 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

[[Page 437]]

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 
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]



Sec. 27.5  Review.

    The Complainant or the FBI may request, within 30 calendar days of a 
final determination or corrective action order by the Director, review 
by the Deputy Attorney General of that determination or order. The 
Deputy Attorney General shall set aside or modify the Director's 
actions, findings, or conclusions found to be arbitrary, capricious, an 
abuse of discretion, or otherwise not in accordance with law; obtained 
without procedures required by law, rule, or regulation having been 
followed; or unsupported by substantial evidence. The Deputy Attorney 
General has full discretion to review and modify corrective action 
ordered by the Director, provided, however that if the Deputy Attorney 
General upholds a finding that there has been a reprisal, then the 
Deputy Attorney general shall order appropriate corrective action.



Sec. 27.6  Extensions of time.

    The Director may extend, for extenuating circumstances, any of the 
time limits provided in these regulations relating to proceedings before 
him and to requests for review by the Deputy Attorney General.