Investigation procedures for complaints

Under 1986.104(a) the Assistant Secretary must notify the respondent that a complaint was filed and give the respondent a redacted copy of the complaint, while providing the unredacted complaint to the complainant (or the complainant's counsel) and the U.S. Coast Guard.

• The notice to the respondent must include the respondent's rights under paragraphs (b) and (f) of the section. See 1986.104(a).

Under 1986.104(b) the respondent has 20 days from receipt of the notice of filing to submit a written statement and any affidavits or documents that support its position.

• Include any sworn affidavits or documentary evidence that substantiates your facts. See 1986.104(b).

Under 1986.104(b) and 1986.104(c) the respondent may request a meeting to present its position, and that request must be made within the same 20-day period provided for submitting a written statement.

• Requests made after the 20-day window may be less likely to be granted; make your meeting request and submit documents within 20 days. See 1986.104(b) and 1986.104(c).

Under 1986.104(c) the Agency will give the complainant (or the complainant's counsel) copies of all of the respondent's submissions that respond to the whistleblower complaint, after redacting material as required by the Privacy Act and other confidentiality laws.

• The complainant will also be given an opportunity to respond to those submissions. See 1986.104(c).

Under 1986.104(d) the Agency must protect the confidentiality of anyone who provides information on a confidential basis (other than the complainant) in accordance with part 70 of this title.

• Confidential informants’ identities and identifying information are protected consistent with the Agency's procedures. See 1986.104(d).

Under 1986.104(e)(1) the complainant must make a prima facie showing that protected activity was a contributing factor in the adverse action alleged; otherwise the complaint will be dismissed.

• This is a threshold showing to determine whether an investigation will proceed. See 1986.104(e)(1).

Under 1986.104(e)(2) the complaint must allege facts and evidence showing that: (i) the seaman engaged in protected activity; (ii) the respondent knew or suspected the seaman engaged in that protected activity; (iii) the seaman suffered an adverse action; and (iv) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action.

• Spell out facts or evidence for each element when you file the complaint. See 1986.104(e)(2) and its subparts 1986.104(e)(2)(i), 1986.104(e)(2)(ii), 1986.104(e)(2)(iii), and 1986.104(e)(2)(iv).

Under 1986.104(e)(3) a complaint can meet the prima facie burden with facts and either direct or circumstantial evidence that give rise to an inference the respondent knew or suspected the protected activity and that the protected activity was a contributing factor in the adverse action.

• For example, timing (an adverse action shortly after protected activity) can be sufficient circumstantial evidence. See 1986.104(e)(3).

Under 1986.104(e)(4) yes—the respondent can prevent or stop an investigation if it demonstrates by clear and convincing evidence that it would have taken the same adverse action even without the complainant's protected activity.

• This is a high standard (clear and convincing) and applies after the complainant has made the prima facie showing. See 1986.104(e)(4).

Under 1986.104(e)(5) if the respondent does not respond on time or fails to show by clear and convincing evidence that it would have taken the same action, the Assistant Secretary will proceed with the investigation as necessary to confirm or verify the respondent's information.

• The Agency will continue the investigation to gather and test evidence when appropriate. See 1986.104(e)(5).

Under 1986.104(f) the Assistant Secretary may consider preliminary reinstatement when there is reasonable cause, based on investigation information, to believe the respondent violated the Act and that preliminary reinstatement is warranted; the Assistant Secretary will notify the respondent of the substance of the evidence supporting the complainant's allegations and give the respondent an opportunity to respond before issuing findings or a preliminary order.

• The notice includes witness statements (redacted or summarized to protect confidential informants) and the respondent may submit written responses or meet with investigators. See 1986.104(f) and 1986.105.

Under 1986.104(f) witness statements that could reveal confidential informants will be redacted to protect identities, and if redaction is impossible without revealing the informant, summaries of the statements will be provided instead.

• This balances the respondent's right to know the evidence and the need to protect confidential sources. See 1986.104(f).

Under 1986.104(a) the respondent receives a redacted copy of the complaint, while the complainant (or complainant's counsel) and the U.S. Coast Guard receive the unredacted complaint; under 1986.104(c) respondent submissions provided to the complainant will also be redacted as required.

• The Agency redacts per the Privacy Act and other confidentiality laws before sharing materials. See 1986.104(a) and 1986.104(c).

Under 1986.104(e)(3) close timing between the protected activity and the adverse action can provide circumstantial evidence that the protected activity was a contributing factor and therefore help the complainant meet the prima facie showing.

• Document dates and a clear timeline to strengthen your complaint. See 1986.104(e)(3).

Under 1986.104(b) a respondent should include a clear written statement of its position plus any affidavits, documentary evidence, and factual explanations that rebut the complainant's allegations.

• Attach supporting documents (emails, personnel records, witness affidavits) and identify witnesses you may later present. See 1986.104(b).

Under 1986.104(c) yes—the complainant (or complainant's counsel) will receive responsive submissions from the respondent (redacted as necessary) and will be given an opportunity to reply.

• Use that opportunity to correct factual errors or add evidence. See 1986.104(c).

Under 1986.104(e) if the complainant fails to make the required prima facie showing, the complainant (or the complainant's counsel) will be notified and the investigation will not commence.

• This initial screening ensures only complaints that allege sufficient facts proceed to a full investigation. See 1986.104(e).

Under 1986.104(f) before issuing findings and a preliminary order under 1986.105, the respondent must be notified of the relevant evidence, allowed to submit a written response, allowed to meet with investigators, to present witness statements in support of its position, and to present legal and factual arguments.

• These steps ensure the respondent can meaningfully contest the evidence before preliminary remedies are considered. See 1986.104(f) and 1986.105.

Under 1986.104 the Agency must redact documents as necessary to comply with the Privacy Act of 1974 and other confidentiality laws before sharing them with parties in the investigation.

• Expect personal identifiers and other protected information to be removed from shared materials. See 1986.104(a) and 1986.104(c).