[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