[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5790 Reported in House (RH)]

<DOC>





                                                 Union Calendar No. 656
114th CONGRESS
  2d Session
                                H. R. 5790

                          [Report No. 114-835]

   To provide adequate protections for whistleblowers at the Federal 
                        Bureau of Investigation.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 14, 2016

    Mr. Chaffetz (for himself, Mr. Jeffries, Mr. Sensenbrenner, Mr. 
Conyers, Mr. Poe of Texas, Ms. Speier, Mr. Coffman, Mr. Blum, Mr. Rice 
  of South Carolina, and Mr. Cummings) introduced the following bill; 
 which was referred to the Committee on Oversight and Government Reform

                           November 29, 2016

 Additional sponsors: Mr. Lynch, Mr. Van Hollen, and Miss Rice of New 
                                  York

                           November 29, 2016

Committed to the Committee of the Whole House on the State of the Union 
                       and ordered to be printed


_______________________________________________________________________

                                 A BILL


 
   To provide adequate protections for whistleblowers at the Federal 
                        Bureau of Investigation.


 


    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Bureau of Investigation 
Whistleblower Protection Enhancement Act of 2016''.

SEC. 2. FBI WHISTLEBLOWER PROTECTIONS.

    (a) In General.--Section 2303 of title 5, United States Code, is 
amended to read as follows:
``Sec. 2303. Prohibited personnel practices in the Federal Bureau of 
              Investigation
    ``(a) Definitions.--In this section--
            ``(1) the term `administrative law judge' means an 
        administrative law judge appointed by the Attorney General 
        under section 3105 or used by the Attorney General under 
        section 3344;
            ``(2) the term `Inspector General' means the Inspector 
        General of the Department of Justice;
            ``(3) the term `personnel action' means any action 
        described in section 2302(a)(2)(A) with respect to an employee 
        in, or applicant for, a position in the Federal Bureau of 
        Investigation (other than a position of a confidential, policy-
        determining, policymaking, or policy-advocating character);
            ``(4) the term `prohibited personnel practice' means a 
        prohibited personnel practice described in subsection (b); and
            ``(5) the term `protected disclosure' means any disclosure 
        of information by an employee in, or applicant for, a position 
        in the Federal Bureau of Investigation--
                    ``(A) made--
                            ``(i) in the case of an employee, to a 
                        supervisor in the direct chain of command of 
                        the employee, up to and including the head of 
                        the employing agency;
                            ``(ii) to the Inspector General;
                            ``(iii) to the Office of Professional 
                        Responsibility of the Department of Justice;
                            ``(iv) to the Office of Professional 
                        Responsibility of the Federal Bureau of 
                        Investigation;
                            ``(v) to the Inspection Division of the 
                        Federal Bureau of Investigation;
                            ``(vi) as described in section 7211;
                            ``(vii) to the Office of Special Counsel; 
                        or
                            ``(viii) to an employee designated by any 
                        officer, employee, office, or division 
                        described in clauses (i) through (vii) for the 
                        purpose of receiving such disclosures; and
                    ``(B) which the employee or applicant reasonably 
                believes evidences--
                            ``(i) any violation of any law, rule, or 
                        regulation; or
                            ``(ii) gross mismanagement, a gross waste 
                        of funds, an abuse of authority, or a 
                        substantial and specific danger to public 
                        health or safety.
    ``(b) Prohibited Practices.--Any employee of the Federal Bureau of 
Investigation or another component of the Department of Justice who has 
authority to take, direct others to take, recommend, or approve any 
personnel action, shall not, with respect to such authority--
            ``(1) take or fail to take, or threaten to take or fail to 
        take, a personnel action with respect to an employee in, or 
        applicant for, a position in the Federal Bureau of 
        Investigation because of a protected disclosure;
            ``(2) take or fail to take, or threaten to take or fail to 
        take, any personnel action against an employee in, or applicant 
        for, a position in the Federal Bureau of Investigation because 
        of--
                    ``(A) the exercise of any appeal, complaint, or 
                grievance right granted by any law, rule, or 
                regulation--
                            ``(i) with regard to remedying a violation 
                        of paragraph (1); or
                            ``(ii) other than with regard to remedying 
                        a violation of paragraph (1);
                    ``(B) testifying for or otherwise lawfully 
                assisting any individual in the exercise of any right 
                referred to in clause (i) or (ii) of subparagraph (A);
                    ``(C) cooperating with or disclosing information to 
                the Inspector General of an agency, or the Special 
                Counsel, in accordance with applicable provisions of 
                law; or
                    ``(D) refusing to obey an order that would require 
                the individual to violate a law; or
            ``(3) implement or enforce any nondisclosure policy, form, 
        or agreement, if such policy, form, or agreement does not 
        contain the statement described in section 2302(b)(13).
    ``(c) Procedures.--
            ``(1) Filing of a complaint.--An employee in, or applicant 
        for, a position in the Federal Bureau of Investigation may seek 
        review of a personnel action alleged to be in violation of 
        subsection (b) by filing a complaint with the Office of the 
        Inspector General.
            ``(2) Investigation.--
                    ``(A) In general.--The Inspector General shall 
                investigate any complaint alleging a personnel action 
                in violation of subsection (b), consistent with the 
                procedures and requirements described in section 1214.
                    ``(B) Determination.--The Inspector General shall 
                issue a decision containing the findings of the 
                Inspector General supporting the determination of the 
                Inspector General.
                    ``(C) Preliminary relief.--
                            ``(i) In general.--If the Inspector General 
                        determines under subparagraph (B) that 
                        reasonable grounds exist to believe that a 
                        personnel action occurred, exists, or is to be 
                        taken, in violation of subsection (b)--
                                    ``(I) the Inspector General shall 
                                request from an administrative law 
                                judge a preliminary order providing 
                                relief from the personnel action; and
                                    ``(II) except as provided in clause 
                                (ii), the administrative law judge, 
                                without further proceedings, shall 
                                issue such an order.
                            ``(ii) Good cause.--Upon motion by the 
                        Government, after notice and an opportunity to 
                        be heard, and if the administrative law judge 
                        determines that there is a particularized 
                        showing of good cause that an order should not 
                        be issued returning an employee to the position 
                        the employee would have held had the personnel 
                        action not been taken, the administrative law 
                        judge shall issue an order directing that the 
                        employee be returned, as nearly as practicable 
                        and reasonable, to such position.
            ``(3) Filing of objections.--
                    ``(A) In general.--Not later than 60 days after the 
                Inspector General issues a decision under paragraph 
                (2)(B), either party may file objections to the 
                decision and request a hearing on the record.
                    ``(B) No effect on preliminary relief.--The filing 
                of objections under subparagraph (A) shall not affect 
                an order issued under clause (i) or (ii) of paragraph 
                (2)(C).
                    ``(C) No objections filed.--If no party has filed 
                objections as of the date that is 61 days after the 
                date the Inspector General issues a decision--
                            ``(i) the decision is final and not subject 
                        to further review; and
                            ``(ii) if the Inspector General had 
                        determined that reasonable grounds exist to 
                        believe that a personnel action occurred, 
                        exists, or is to be taken, in violation of 
                        subsection (b)--
                                    ``(I) an administrative law judge, 
                                without further proceedings, shall 
                                issue an order providing permanent 
                                relief from the personnel action; and
                                    ``(II) upon motion by the employee 
                                or applicant, and after an opportunity 
                                for a hearing, an administrative law 
                                judge may issue an order that provides 
                                for corrective action as described 
                                under section 1221(g), which shall be 
                                accompanied by a written decision 
                                explaining the grounds for the order.
            ``(4) Review by administrative law judge.--
                    ``(A) In general.--If objections are filed under 
                paragraph (3)(A), an administrative law judge shall 
                review the decision by the Inspector General on the 
                record after opportunity for agency hearing.
                    ``(B) Corrective action.--An administrative law 
                judge may issue an order providing for corrective 
                action as described under section 1221(g).
                    ``(C) Determination.--An administrative law judge 
                shall issue a written decision explaining the grounds 
                for the determination by the administrative law judge 
                under this paragraph.
                    ``(D) Effect of determination.--The determination 
                by an administrative law judge under this paragraph 
                shall become the decision of the Department of Justice 
                without further proceedings, unless there is an appeal 
                to, or review on motion of, the Attorney General within 
                such time as the Attorney General shall by rule 
                establish.
            ``(5) Review by attorney general.--
                    ``(A) Timeframe.--
                            ``(i) In general.--Upon an appeal to, or 
                        review on motion of, the Attorney General under 
                        paragraph (4)(D), the Attorney General, through 
                        reference to such categories of cases, or other 
                        means, as the Attorney General determines 
                        appropriate, shall establish and announce 
                        publicly the date by which the Attorney General 
                        intends to complete action on the matter, which 
                        shall ensure expeditious consideration of the 
                        appeal or review, consistent with the interests 
                        of fairness and other priorities of the 
                        Attorney General.
                            ``(ii) Failure to meet deadline.--If the 
                        Attorney General fails to complete action on an 
                        appeal or review by the announced date, and the 
                        expected delay will exceed 30 days, the 
                        Attorney General shall publicly announce the 
                        new date by which the Attorney General intends 
                        to complete action on the appeal or review.
                    ``(B) Determination.--The Attorney General shall 
                issue a written decision explaining the grounds for the 
                determination by the Attorney General in an appeal or 
                review under paragraph (4)(D).
            ``(6) Publication of determinations.--
                    ``(A) Public availability.--Except as provided in 
                subparagraph (B), the Attorney General shall make 
                written decisions issued by administrative law judges 
                under paragraph (3)(C) or (4)(C) and written decisions 
                issued by the Attorney General under paragraph (5)(B) 
                publicly available in a manner that is--
                            ``(i) to the maximum extent practicable, 
                        consistent with the manner in which the Merit 
                        Systems Protection Board makes decisions of the 
                        Board available to the public; and
                            ``(ii) in accordance with section 552.
                    ``(B) Rule of construction.--Nothing in 
                subparagraph (A) shall be construed to limit the 
                authority of an administrative law judge or the 
                Attorney General to limit the public disclosure of 
                information under law or regulations.
            ``(7) Judicial review.--Any determination by an 
        administrative law judge or the Attorney General under this 
        subsection shall be subject to judicial review under chapter 7. 
        A petition for judicial review of such a determination shall be 
        filed in the United States Court of Appeals for the Federal 
        Circuit or any court of appeals of competent jurisdiction.
    ``(d) Regulations.--Not later than 18 months after the date of 
enactment of the Federal Bureau of Investigation Whistleblower 
Protection Enhancement Act of 2016, the Attorney General shall 
prescribe regulations to carry out subsection (c) that--
            ``(1) ensure that prohibited personnel practices shall not 
        be taken against an employee in, or applicant for, a position 
        in the Federal Bureau of Investigation;
            ``(2) provide for the administration and enforcement of 
        subsection (c) in a manner consistent with applicable 
        provisions of sections 1214 and 1221 and in accordance with the 
        procedures under subchapter II of chapter 5 and chapter 7;
            ``(3) ensure that employees of the Federal Bureau of 
        Investigation are informed of the rights and remedies available 
        to the employees under this section, including how to make a 
        lawful disclosure of information that is specifically required 
        by law or Executive order to be kept classified in the interest 
        of national defense or the conduct of foreign affairs; and
            ``(4) provide for the protection of classified information 
        and intelligence sources and methods.
    ``(e) Reporting.--Not later than March 1 of each year, the Attorney 
General shall make publicly available a report containing--
            ``(1) the number and nature of allegations of a prohibited 
        personnel practice received during the previous year;
            ``(2) the disposition of each allegation of a prohibited 
        personnel practice resolved during the previous year;
            ``(3) the number of unresolved allegations of a prohibited 
        personnel practice pending as of the end of the previous year 
        and, for each such unresolved allegation, how long the 
        allegation had been pending as of the end of the previous year;
            ``(4) the number of disciplinary investigations and actions 
        taken with respect to each allegation of a prohibited personnel 
        practice during the previous year;
            ``(5) the number of instances during the previous year in 
        which the Inspector General found reasonable grounds existed to 
        believe that a prohibited personnel practice had occurred that 
        were appealed by the Federal Bureau of Investigation; and
            ``(6) the number of allegations of a prohibited personnel 
        practice resolved through settlement, including the number that 
        were resolved as a result of mediation.
    ``(f) Rules of Construction.--Nothing in this section shall be 
construed to--
            ``(1) limit the jurisdiction of any office under any other 
        provision of law to conduct an investigation to determine 
        whether a prohibited personnel practice has been or will be 
        taken; or
            ``(2) alter or amend any law, regulation, or Executive 
        order regarding the handling or disclosure of information, 
        including classified information.''.
    (b) GAO Report.--
            (1) Definition.--In this subsection, the term ``prohibited 
        personnel practice'' means a prohibited personnel practice 
        described in section 2303(b) of title 5, United States Code, as 
        amended by subsection (a).
            (2) Report.--Not later than 4 years after the date of 
        enactment of this Act, the Comptroller General of the United 
        States shall submit to Congress a report on the protections for 
        whistleblowers at the Federal Bureau of Investigation and the 
        process of investigating and adjudicating complaints of 
        reprisal by whistleblowers under the amendments made by this 
        Act, which shall include--
                    (A) the number and nature of complaints--
                            (i) that were filed;
                            (ii) that were investigated;
                            (iii) that were adjudicated; and
                            (iv) that were appealed to a court of 
                        appeals of the United States;
                    (B) the number of decisions made publicly available 
                under 2303(c)(6) of title 5, United States Code, as 
                amended by this Act, and the nature of any limitations 
                on public disclosure of the decisions;
                    (C) the nature of corrective action provided in 
                instances of a prohibited personnel practice;
                    (D) the number and type of disciplinary actions 
                taken in instances of a prohibited personnel practice;
                    (E) an evaluation of the timeliness of resolution 
                of allegations of a prohibited personnel practice;
                    (F) an assessment of the mediation process of the 
                Department of Justice;
                    (G) a discussion of how the use of administrative 
                law judges and review under chapters 5 and 7 of title 
                5, United States Code, affected the process of 
                investigating and resolving allegations of a prohibited 
                personnel practice; and
                    (H) a discussion of the perspectives of key 
                stakeholders on the effects of the amendments made by 
                this Act on the Federal Bureau of Investigation.
    (c) Effective Date; Implementation.--
            (1) In general.--Except as provided in paragraph (2), this 
        Act and the amendments made by this Act shall--
                    (A) take effect on the date of enactment of this 
                Act; and
                    (B) apply to any matter pending on, or commenced on 
                or after, the date of enactment of this Act.
            (2) Implementation of investigation and review procedures 
        for pending complaints and complaints made during transition 
        period.--
                    (A) Definition.--In this paragraph, the term 
                ``covered complaint'' means a complaint alleging a 
                personnel action in violation of section 2303 of title 
                5, United States Code--
                            (i) made--
                                    (I) before, on, or after the date 
                                of enactment of this Act; and
                                    (II) before the effective date of 
                                the regulations prescribed by the 
                                Attorney General under section 2303(d) 
                                of title 5, United States Code, as 
                                amended by this Act; and
                            (ii) for which an investigation or review 
                        is pending on or after the date of enactment of 
                        this Act.
                    (B) Application of existing procedures until rules 
                issued.--Subject to subparagraph (C), for any covered 
                complaint--
                            (i) the procedures under section 2303(c) of 
                        title 5, United States Code, as amended by this 
                        Act, shall not apply; and
                            (ii) the covered complaint shall be 
                        investigated and reviewed in accordance with 
                        the regulations and procedures prescribed under 
                        section 2303 of title 5, United States Code, as 
                        in effect on the day before the date of 
                        enactment of this Act.
                    (C) Application of new review procedures to pending 
                investigations.--For any covered complaint for which 
                the investigation is pending on the effective date of 
                the regulations prescribed by the Attorney General 
                under section 2303(d) of title 5, United States Code, 
                as amended by this Act--
                            (i) the procedures under paragraphs (1), 
                        (2), and (3) of section 2303(c) of title 5, 
                        United States Code, as amended by this Act, 
                        shall not apply; and
                            (ii) if either party files objections and 
                        requests a hearing on the record not later than 
                        60 days after the date on which the 
                        investigation is completed, the covered 
                        complaint shall be subject to review in 
                        accordance with paragraphs (4), (5), (6), and 
                        (7) of section 2303(c) of title 5, United 
                        States Code, as amended by this Act.
                                                 Union Calendar No. 656

114th CONGRESS

  2d Session

                               H. R. 5790

                          [Report No. 114-835]

_______________________________________________________________________

                                 A BILL

   To provide adequate protections for whistleblowers at the Federal 
                        Bureau of Investigation.

_______________________________________________________________________

                           November 29, 2016

Committed to the Committee of the Whole House on the State of the Union 
                       and ordered to be printed