28 C.F.R. § 27.3

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

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

Notes of Decisions

Cited in 5 cases, 2005–2017 · leading case: Runkle v. Gonzales, 391 F. Supp. 2d 210 (D.D.C. 2005).

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Runkle v. Gonzales, 391 F. Supp. 2d 210 (D.D.C. 2005). · cites it 3× “28 C.F.R. § 27.3 (a)(1). One of the two offices then conducts an investigation into whether a reprisal for a protected disclosure has occurred and is required to reach a determination within 240 days of receiving an employee’s complaint.”

Parkinson v. Dep't of Just., 874 F.3d 710 (Fed. Cir. 2017). · cites it 2× “28 C.F.R. § 27.3 . If OPR or OIG determines “that there are reasonable grounds to believe that a reprisal has been or will be taken, [OPR or OIG] shall report this conclusion, together with any findings and recommenda- tions for corrective action, to the Director, Office of…”

Roberts v. United States Dep't of Just., 366 F. Supp. 2d 13 (D.D.C. 2005). “28 C.F.R § 27.3(a)(1). Jointly, the Investigative Offices must determine which office (the “Conducting Office”) is more suited to conduct an investigation into the allegation.”

United States v. Stevens, 593 F. Supp. 2d 177 (D.D.C. 2009). · cites it 2× “As you may also be aware, pursuant to 28 C.F.R. § 27.3 , OPR also has jurisdiction to act as an “Investigating Office” regarding allegations of “reprisals” against FBI employees disclosing violations of laws, rules or regulations.”

United States v. Stevens, 715 F. Supp. 2d 1 (D.D.C. 2009). · cites it 2× “As you may also be aware, pursuant to 28 C.F.R. § 27.3 , OPR also has jurisdiction to act as an “Investigating Office” regarding allegations of “reprisals” against FBI employees disclosing violations of laws, rules or regulations.”

— 28 C.F.R. § 27.3(a)(1) — 1 case

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