FAR 3.907-6—Remedies and enforcement authority.
Plain-English Summary
FAR 3.907-6 explains the remedies and enforcement process for whistleblower reprisal complaints involving non-Federal employers under the Recovery Act framework. It covers the burden of proof for showing that a protected disclosure was a contributing factor in a reprisal, the employer’s opportunity to rebut the claim by clear and convincing evidence, the agency head’s duty to act within 30 days after receiving the Inspector General’s report, and the types of relief that may be ordered. It also addresses when a complainant is deemed to have exhausted administrative remedies and may file a de novo action in federal district court, including the right to a jury trial, the Department of Justice’s role in enforcing agency orders, and judicial review in the court of appeals. In practice, this section determines how whistleblower retaliation claims are proven, what remedies can be imposed, how quickly agencies must respond, and what litigation options remain available if administrative relief is denied, delayed, or ignored. For contractors and other non-Federal employers, it creates significant exposure to reinstatement, back pay, damages, fees, and enforcement litigation if reprisal is found.
Key Rules
Contributing factor standard
An employee establishes reprisal if the protected disclosure was a contributing factor in the adverse action. The employee may prove this through circumstantial evidence, including the decisionmaker’s knowledge of the disclosure or close timing between the disclosure and the reprisal.
Employer rebuttal by clear evidence
Even if reprisal is affirmatively established, the agency head may not find reprisal if the non-Federal employer proves by clear and convincing evidence that it would have taken the same action without the disclosure. This is a demanding rebuttal standard for the employer.
Agency action within 30 days
Within 30 days after receiving the Inspector General’s report, the agency head must decide whether there is sufficient basis to conclude reprisal occurred and must either deny relief or order corrective action. The section requires prompt administrative resolution rather than open-ended delay.
Available administrative remedies
If reprisal is found, the agency head may order affirmative action to abate the reprisal, reinstatement with back pay and related employment benefits, and payment of the complainant’s reasonable costs and expenses, including attorneys’ fees and expert witness fees.
De novo court action
A complainant is deemed to have exhausted administrative remedies and may sue in federal district court for compensatory damages and other available relief if the agency denies relief, fails to act within the statutory time limits, or declines/discontinues the investigation, unless the delay or decision was caused by the complainant’s bad faith.
Jury trial right
In a de novo court action, either party may request a jury trial. This means the dispute is not limited to paper review and may be tried before a jury if requested.
Enforcement of agency orders
If the employer does not comply with an order, the agency head must ask the Department of Justice to seek enforcement in federal district court. The court may grant injunctive relief, compensatory and exemplary damages, and attorneys’ fees and costs.
Appellate review of orders
Any person adversely affected by the agency’s order may seek review in the appropriate federal court of appeals within 60 days. The review is limited to whether the order conforms to law and the section’s requirements.
Responsibilities
Employee / Complainant
Show that a protected disclosure was a contributing factor in the reprisal, using direct or circumstantial evidence. If administrative relief is denied, delayed, or the investigation is discontinued, the complainant may file a de novo federal court action within the statutory framework and may request a jury trial.
Non-Federal Employer
Rebut an affirmatively established reprisal claim by clear and convincing evidence that the same action would have been taken absent the disclosure. If an order is issued, the employer must comply with corrective relief such as reinstatement, back pay, damages, and fee awards.
Head of Agency
Within 30 days of receiving the Inspector General report, determine whether reprisal is sufficiently supported and either deny relief or order appropriate remedies. If the employer fails to comply with an order, request DOJ enforcement, and ensure the administrative process is handled within the statutory deadlines.
Inspector General
Provide the report to the agency head under the Recovery Act complaint process, which triggers the agency head’s 30-day decision period.
Department of Justice
File an enforcement action in federal district court when the employer fails to comply with an agency order issued under this section.
Federal District Court
Hear de novo whistleblower reprisal actions, conduct jury trials when requested, and grant appropriate relief including compensatory and exemplary damages, injunctive relief, and attorneys’ fees and costs in enforcement actions.
Court of Appeals
Review timely petitions challenging whether the agency’s order conforms to law and this section, if filed within 60 days of issuance.
Practical Implications
This section gives whistleblowers a relatively strong proof path: timing and decisionmaker knowledge can be enough to establish a prima facie reprisal case. Contractors should assume emails, meeting notes, and personnel records may become critical evidence.
The employer’s rebuttal burden is high. To defend against a claim, the employer needs well-documented, legitimate reasons for the action and evidence showing the same decision would have been made anyway.
Agency deadlines matter. A missed 30-day decision window can open the door to a de novo lawsuit in federal court, so agencies must track Inspector General referrals carefully.
Remedies can be expensive and broad, including reinstatement, back pay, compensatory damages, attorneys’ fees, expert fees, and potentially exemplary damages in enforcement litigation. Contractors should treat reprisal allegations as high-risk matters.
There are multiple litigation paths and deadlines: a 60-day deadline for appellate review of agency orders, and separate conditions for filing a district court action. Missing these deadlines can forfeit rights or limit available relief.
Official Regulatory Text
(a) Burden of Proof . (1) Disclosure as contributing factor in reprisal. (i) An employee alleging a reprisal under this section shall be deemed to have affirmatively established the occurrence of the reprisal if the employee demonstrates that a disclosure described in section 3.907-2 was a contributing factor in the reprisal. (ii) A disclosure may be demonstrated as a contributing factor in a reprisal for purposes of this paragraph by circumstantial evidence, including- (A) Evidence that the official undertaking the reprisal knew of the disclosure; or (B) Evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the disclosure was a contributing factor in the reprisal. (2) Opportunity for rebuttal . The head of an agency may not find the occurrence of a reprisal with respect to a reprisal that is affirmatively established under section 3.907-6 (a)(1) if the non-Federal employer demonstrates by clear and convincing evidence that the non-Federal employer would have taken the action constituting the reprisal in the absence of the disclosure. (b) No later than 30 days after receiving an Inspector General report in accordance with section 1553 of the Recovery Act, the head of the agency concerned shall determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a reprisal prohibited by subsection 3.907-2 and shall either issue an order denying relief in whole or in part or shall take one or more of the following actions: (1) Order the employer to take affirmative action to abate the reprisal. (2) Order the employer to reinstate the person to the position that the person held before the reprisal, together with the compensation (including back pay), compensatory damages, employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken. (3) Order the employer to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys’ fees and expert witnesses’ fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal. (c) (1) The complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the employer to seek compensatory damages and other relief available under this section in the appropriate district court of United States, which shall have jurisdiction over such an action without regard to the amount in controversy if- (i) The head of an agency- (A) Issues an order denying relief in whole or in part under paragraph (a) of this section; (B) Has not issued an order within 210 days after the submission of a complaint in accordance with section 1553 of the Recovery Act, or in the case of an extension of time in accordance with section 1553 of the Recovery Act, within 30 days after the expiration of the extension of time; or (C) Decides in accordance with section 1553 of the Recovery Act not to investigate or to discontinue an investigation; and (ii) There is no showing that such delay or decision is due to the bad faith of the complainant. (2) Such an action shall, at the request of either party to the action, be tried by the court with a jury. (d) Whenever an employer fails to comply with an order issued under this section, the head of the agency shall request the Department of Justice to file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this section, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorneys fees and costs. (e) Any person adversely affected or aggrieved by an order issued under paragraph (b) of this subsection may obtain review of the order’s conformance with the law, and this section, in the United States Court of Appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency.