Inspector General responsible for FBI whistleblower retaliation investigations

(a)

In general

Section 2303 of title 5, United States Code, is amended— (1)in subsection (a)— (A)in paragraph (1), by redesignating subparagraphs (A) through (H) as clauses (i) through (viii), respectively; (B)in paragraph (2), by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively; (C)by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; (D)in the matter preceding subparagraph (A), as so redesignated, by striking reprisal for and all that follows and inserting the following:

reprisal for— (1)a disclosure described in section 2302(b)(8)(A), if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or (2)a disclosure of information—

;

(E)by striking clauses (i) through (x) and inserting clauses (i) through (xii); and (F)by inserting after of this title with respect to the following: , or the initiation or extension of an investigation into or denial, suspension, or revocation of the security clearance of,; (2)in subsection (c)— (A)by inserting subsections (d), (g), and (e) and the before applicable provisions; and (B)by striking sections 1214 and and inserting section; (3)by redesignating subsection (d) as subsection (g); and (4)by inserting after subsection (c) the following new subsections:

(d) (1)The Inspector General of the Department of Justice shall, in accordance with subsection (e), receive and investigate each allegation made by an employee or former employee of, or applicant for a position in, the Federal Bureau of Investigation of a reprisal in violation of subsection (a) and, where appropriate— (A)bring petitions for stays, and petitions for corrective action, under subsection (e); and (B)file a complaint or make recommendations for disciplinary action under subsection (f). (2)For the purposes of carrying out subsection (d), the Inspector General of the Department of Justice shall have the same authorities and responsibilities provided to, and be subject to the same requirements as, the Special Counsel under subsections (b) through (g) of section 1212 with respect to an investigation, review, or inquiry conducted under section 1214 or 1215, except that the requirement described in subsection (b)(6) of section 1212 shall not apply with respect to the Inspector General. (e) (1) (A) (i)The Inspector General of the Department of Justice shall receive each allegation described in subsection (d) and shall investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a reprisal in violation of subsection (a) has occurred, exists, or is going to be taken. (ii)Within 15 days after the date of receiving an allegation of a reprisal in violation of subsection (a) under subparagraph (A), the Inspector General of the Department of Justice shall provide written notice to the person who made the allegation that— (I)the allegation has been received by the Inspector General; and (II)shall include the name of a person at the Office of Inspector General of the Department of Justice who shall serve as a contact with the person making the allegation. (iii)Unless an investigation is terminated under subparagraph (B), the Inspector General of the Department of Justice shall— (I)within 90 days after notice is provided under clause (ii), notify the person who made the allegation of the status of the investigation and any action taken by the Office of the Inspector General of the Department of Justice since the filing of the allegation; (II)notify such person of the status of the investigation and any action taken by such Office since the last notice, at least every 60 days after notice is given under subclause (I); and (III)notify such person of the status of the investigation and any action taken by the Inspector General at such time as determined appropriate by the Inspector General. (iv)No later than 10 days before the Inspector General of the Department of Justice terminates any investigation of a prohibited personnel practice, the Inspector General shall provide a written status report to the person who made the allegation of the proposed findings of fact and legal conclusions. The person may submit written comments about the report to the Inspector General. The Inspector General shall not be required to provide a subsequent written status report under this clause after the submission of such written comments. (B) (i)Not later than 30 days after the Inspector General of the Department of Justice terminates any investigation under subparagraph (A), the Inspector General shall prepare and transmit to any person on whose allegation the investigation was initiated a written statement notifying the person of— (I)the termination of the investigation; (II)a summary of relevant facts ascertained by the Inspector General, including the facts that support, and the facts that do not support, the allegations of such person; (III)the reasons for terminating the investigation; and (IV)a response to any comments submitted under subparagraph (A)(iv). (ii)A written statement under clause (i) may not be admissible as evidence in any judicial or administrative proceeding, without the consent of the person who received such statement under such clause. (C)In addition to any authority granted under subparagraph (A), the Inspector General may, in the absence of an allegation, conduct an investigation for the purpose of determining whether there are reasonable grounds to believe that a reprisal in violation of subsection (a) has occurred, exists, or is going to be taken. (D) (i)Notwithstanding any other provision of this subsection, not later than 30 days after the date on which the Inspector General of the Department of Justice receives an allegation of a reprisal in violation of subsection (a) under subparagraph (A), the Inspector General may terminate an investigation of the allegation without further inquiry if the Inspector General determines that— (I)the same allegation, based on the same set of facts and circumstances, had previously been— (aa) (AA)made by the individual; and (BB)investigated by the Inspector General; or (bb)filed by the individual with the Merit Systems Protection Board; (II)the Inspector General does not have jurisdiction to investigate the allegation; or (III)the individual knew or should have known of the alleged reprisal in violation of subsection (a) on or before the date that is 3 years before the date on which the Inspector General received the allegation. (ii)Not later than 30 days after the date on which the Inspector General of the Department of Justice terminates an investigation under clause (i), the Inspector General shall provide a written notification to the individual who submitted the allegation of a reprisal in violation of subsection (a) that states the basis of the Inspector General for terminating the investigation. (2) (A) (i) (I)The Inspector General of the Department of Justice may request any member of the Merit Systems Protection Board to order a stay of any personnel action (as defined in subsection (a)) for 45 days if the Inspector General determines that there are reasonable grounds to believe that the personnel action was taken, or is going to be taken, as a result of a reprisal in violation of subsection (a). (II)Any member of the Merit Systems Protection Board requested by the Inspector General of the Department of Justice to order a stay under subclause (I) shall order such stay unless the member determines that, under the facts and circumstances involved, such a stay would not be appropriate. (III)Unless denied under subclause (II), any stay under this clause shall be granted within 3 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date of the request for the stay by the Inspector General of the Department of Justice. (ii) (I)The Merit Systems Protection Board may extend the period of any stay granted under clause (i) for any period which the Board considers appropriate. (II)If the Merit Systems Protection Board lacks the number of members appointed under section 1201 required to constitute a quorum, any remaining member of the Board may, upon request by the Inspector General of the Department of Justice, extend the period of any stay granted under clause (i). (iii)A stay may be terminated by the Merit Systems Protection Board at any time, except that a stay may not be terminated by the Board— (I)on its own motion or on the motion of an agency, unless notice and opportunity for oral or written comments are first provided to the Inspector General of the Department of Justice and the individual on whose behalf the stay was ordered; or (II)on motion of the Inspector General, unless notice and opportunity for oral or written comments are first provided to the individual on whose behalf the stay was ordered. (iv)If the Merit Systems Protection Board grants a stay under clause (i), the Attorney General shall give priority to a request for a transfer submitted by the employee who is the subject of the action. (B) (i) (I)Except as provided under subclause (II), no later than 240 days after the date of receiving an allegation of a reprisal in violation of subsection (a) under subparagraph (A), the Inspector General of the Department of Justice shall make a determination whether there are reasonable grounds to believe that a reprisal in violation of subsection (a) has occurred, exists, or is going to be taken. (II)If the Inspector General of the Department of Justice is unable to make the required determination within the 240-day period specified under subclause (I) and the person submitting the allegation of a reprisal in violation of subsection (a) agrees to an extension of time, the determination shall be made within such additional period of time as shall be agreed upon between the Inspector General and the person submitting the allegation. (ii)If, in connection with any investigation, the Inspector General of the Department of Justice determines that there are reasonable grounds to believe that a reprisal in violation of subsection (a) has occurred, exists, or is going to be taken which requires corrective action, the Inspector General shall report the determination together with any findings or recommendations to the Merit Systems Protection Board, the Attorney General, and the Office of Personnel Management, and may report such determination, findings and recommendations to the President. The Inspector General may include in the report recommendations for corrective action to be taken. (iii)If, after a reasonable period of time, but not later than 30 days after the Inspector General of the Department of Justice submits the report under clause (ii), the Federal Bureau of Investigation does not act to correct the reprisal in violation of subsection (a), the Inspector General may petition the Merit Systems Protection Board for corrective action. (iv)If the Inspector General of the Department of Justice finds, in consultation with the individual subject to the reprisal in violation of subsection (a), that the Federal Bureau of Investigation has acted to correct the reprisal in violation of subsection (a), the Inspector General shall file such finding with the Merit Systems Protection Board, together with any written comments which the individual may provide. (v)A determination by the Inspector General of the Department of Justice under this subparagraph shall not be cited or referred to in any proceeding under this subparagraph or any other administrative or judicial proceeding for any purpose, without the consent of the person submitting the allegation of a reprisal in violation of subsection (a). (C) (i)Whenever the Inspector General of the Department of Justice petitions the Merit Systems Protection Board for corrective action under this section, the Board shall provide an opportunity for— (I)oral or written comments by the Inspector General, the Federal Bureau of Investigation, and the Office of Personnel Management; and (II)written comments by any individual who alleges to be the subject of the reprisal in violation of subsection (a). (ii)The Merit Systems Protection Board shall make available the oral and written comments described in clause (i)(I) to any individual who alleges to be the subject of a reprisal in violation of subsection (a) with respect to which such comments were made. (D) (i)Subject to the provisions of clause (ii), the Merit Systems Protection Board shall order such corrective action as the Board considers appropriate if the Inspector General of the Department of Justice has demonstrated that a disclosure described in subsection (a) was a contributing factor in the personnel action (as defined in such subsection) which was taken or is going to be taken against the individual. (ii)Corrective action under clause (i) may not be ordered if, after a finding that a disclosure described in subsection (a) was a contributing factor, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure. (3) (A)Judicial review of any final order or decision of the Merit Systems Protection Board under this subsection may be obtained by any employee, former employee, or applicant for employment adversely affected by such order or decision. (B)A petition for review under this subsection shall be filed with such court, and within such time, as provided for under section 7703(b). (4)If, in connection with any investigation under this section, the Inspector General of the Department of Justice determines that there is reasonable cause to believe that a criminal violation has occurred, the Inspector General of the Department of Justice shall report the determination to the Attorney General, and shall submit a copy of the report to the Director of the Office of Personnel Management and the Director of the Office of Management and Budget. (5)If, in connection with any investigation under this section, the Inspector General of the Department of Justice determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred other than one referred to in paragraph (2) or (4), the Inspector General shall report such violation to the Attorney General. The Inspector General shall require, within 30 days after the receipt of the report by the Attorney General, a certification by the Attorney General which states— (A)that the Attorney General has personally reviewed the report; and (B)what action has been or is going to be taken, and when the action will be completed. (6)During any investigation initiated under this section, no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Inspector General of the Department of Justice. (7)If the Merit Systems Protection Board orders corrective action under this subsection, such corrective action may include— (A)that the individual be placed, as nearly as possible, in the position the individual would have been in had the reprisal in violation of subsection (a) not occurred, including with respect to the individual’s security clearance and access determination and the expungement of any record of an adverse determination as a result of such reprisal in the current investigation file (as such term is defined in section 3001(a)(5) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(a)(5))) of the individual; and (B)reimbursement for attorney’s fees, back pay and related benefits, medical costs incurred, travel expenses, any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs). (8)Any corrective action ordered under this subsection to correct a reprisal in violation of subsection (a) may include fees, costs, or damages reasonably incurred due to an agency investigation of the employee, if such investigation was commenced, expanded, or extended in retaliation for the disclosure that formed the basis of the corrective action. (9)The Inspector General of the Department of Justice may petition the Merit Systems Protection Board to order corrective action, including fees, costs, or damages reasonably incurred by an employee due to an investigation of the employee by an agency, if the investigation by an agency was commenced, expanded, or extended in retaliation for a disclosure described in subsection (a), without regard to whether a personnel action (as defined in such subsection), is taken. (f) (1)If the Inspector General of the Department of Justice determines that disciplinary action should be taken against any employee for having committed a reprisal in violation of subsection (a) or knowingly and willfully refused or failed to comply with an order of the Merit Systems Protection Board with respect to such a violation, the Inspector General shall prepare a written complaint against the employee containing the determination of the Inspector General, together with a statement of supporting facts, and present the complaint and statement to the employee and the Board, in accordance with this subsection. (2)Any employee against whom the Inspector General of the Department of Justice presents a complaint to the Merit Systems Protection Board under paragraph (1) is entitled to— (A)a reasonable time to answer orally and in writing, and to furnish affidavits and other documentary evidence in support of the answer; (B)be represented by an attorney or other representative; (C)a hearing before the Board or an administrative law judge appointed under section 3105 and designated by the Board; (D)have a transcript kept of any hearing under subparagraph (C); and (E)a written decision and reasons therefor at the earliest practicable date, including a copy of any final order imposing disciplinary action. (3) (A)A final order of the Merit Systems Protection Board pursuant a case brought under paragraph (1) may impose— (i)disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand; (ii)an assessment of a civil penalty not to exceed $10,000; or (iii)any combination of disciplinary actions described under clause (i) and an assessment described under clause (ii). (B)In any case brought under paragraph (1) in which the Merit Systems Protection Board finds that an employee has committed a reprisal in violation of subsection (a), the Board may impose disciplinary action if the Board finds that the disclosure described in subsection (a) was a significant motivating factor, even if other factors also motivated the decision, for the decision of the employee to take, fail to take, or threaten to take or fail to take a personnel action (as defined in subsection (a)), unless that employee demonstrates, by a preponderance of the evidence, that the employee would have taken, failed to take, or threatened to take or fail to take the same personnel action, in the absence of such protected activity. (4)There may be no administrative appeal from an order of the Merit Systems Protection Board. An employee subject to a final order imposing disciplinary action under this subsection may obtain judicial review of the order by filing a petition therefor with such court, and within such time, as provided for under section 7703(b). (g) (1)Not later than one year after the date of the enactment of this subsection, and annually thereafter, the Inspector General of the Department of Justice shall submit to the Committees on the Judiciary of the House of Representatives and the Senate, the Committee on Oversight and Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate a report on the investigations conducted by the Inspector General under this section during the one-year period preceding such report. (2)Each report required by paragraph (1) shall include, for the period covered by such report— (A)the number of completed investigations conducted by the Inspector General of the Department of Justice under this section; (B)the duration of each such investigation; (C)the number of reprisals in violation of subsection (a) found pursuant to such investigations; (D)the number of employees of the Federal Bureau of Investigation who made such a reprisal; (E)the number of such reprisals with respect to which the Inspector General, under this section, petitioned to the Merit Systems Protection Board for corrective action or presented a complaint to the Board; (F)how long the Merit Systems Protection Board took to make a final decision or issue a final order with respect to each such petition or complaint; (G)the disciplinary actions and penalties imposed on employees described in subparagraph (D) by the Board under subsection (f); and (H)the number of allegations of reprisals in violation of subsection (a) for which the Attorney General did not correct the reprisal, as determined by the Inspector General determined under subsection (e).

(b)

Regulations

Not later than 90 days after the date of the enactment of this Act, the Attorney General shall revise such regulations as are necessary to implement the amendments made by this Act. (c)

Effective date

The amendments made by subsection (a) shall take effect on the date that is 90 days after the date of the enactment of this Act.