[Congressional Record Volume 161, Number 179 (Thursday, December 10, 2015)]
[Senate]
[Pages S8605-S8607]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY (for himself and Mr. Leahy):
  S. 2390. A bill to provide adequate protections for whistleblowers at 
the Federal Bureau of Investigation; to the Committee on the Judiciary.
  Mr. GRASSLEY. Mr. President, in his 2013 confirmation hearing, FBI 
Director James Comey called whistleblowers ``a critical element of a 
functioning democracy.''
  That is what I have been saying for years. Whistleblowers expose 
waste, fraud, and abuse. They help keep Government honest and make sure 
taxpayer dollars are spent wisely. By pointing out problems, 
whistleblowers foster transparency and make it possible for an 
organization to do better.
  Agencies should value their contributions. Instead, agencies often 
ignore whistleblower complaints or worse--retaliate against 
whistleblowers for bringing wrongdoing to light.
  Across the Federal Government, whistleblowers are treated like skunks 
at a picnic, instead of the dedicated public servants they are. 
Unfortunately, the Federal Bureau of Investigation is no exception on 
that point. However, the FBI is the exception when it comes to legal 
protections for whistleblowers.
  Unlike every other federal agency, the FBI is the only agency where 
employees are not protected for reporting wrongdoing to their direct 
supervisors or others within their chain-of-command. This makes no 
sense.
  Studies show the great majority of whistleblowers first make 
disclosures to their supervisors. The FBI's own policy encourages 
reports to supervisors within the chain-of-command. Nevertheless, an 
FBI employee who makes a disclosure of waste, fraud, or abuse to their 
supervisor has no protection under law if the supervisor retaliates.
  It is no surprise, then, that a 2015 report by the Government 
Accountability Office found that, of the 54 closed FBI whistleblower 
complaints it reviewed where documentation showed the reason for 
closing the case, at least 17 cases were dismissed in part because an 
employee made a disclosure to someone in their chain-of-command or 
management.
  Why is there this gaping hole in FBI whistleblower protections? 
Because, unlike every other federal law enforcement agency, the FBI is 
statutorily exempt from government-wide whistleblower protection laws. 
As a result, it lives under its own unique regulatory scheme conceived, 
created, and controlled entirely within the Department of Justice. 
There is no independent review.
  This unique exemption for the FBI has led to outrageous delays in the 
adjudication of FBI whistleblower complaints due to endless internal 
appeals and the low priority that FBI whistleblower cases receive at 
the Justice Department.
  Currently, FBI whistleblower cases are adjudicated by the 
Department's Office of Attorney Recruitment and Management--an office 
whose very name clearly shows it was not designed to address reprisal 
cases. Appeals are considered by the Deputy Attorney General's office. 
That office has made clear that it has other priorities that render it 
incapable of even minimal communications with whistleblowers to inform 
them of their case status. Clearly, we need to do better.
  I have worked with many FBI whistleblowers over the years who put 
everything on the line just to tell the truth. In exchange for their 
courage, they faced delays of up to a decade in adjudicating their 
cases, a deaf ear from the highest levels of the Justice Department, 
and in many cases, no protection at all.
  Consider the case of Michael German. Michael testified at our hearing 
in March this year where we examined the effectiveness--or lack 
thereof--of the Justice Department's FBI whistleblower regulations.
  Before he resigned from the FBI in 2004, Michael German was a 
decorated undercover special agent who successfully risked his life to 
infiltrate white supremacist and neo-Nazi hate groups across the United 
States, some with ties to foreign terrorist groups. He discovered that 
a portion of a meeting between two such groups had been illegally 
recorded by mistake.
  Rather than following the rules and documenting the error, as he 
suggested, a supervisor told him to ``pretend it didn't happen.'' But 
he refused to back down. He reported the wrongdoing to his Assistant 
Special Agent in Charge. Then the FBI ``froze him out and made him a 
`pariah.' ''
  Because Special Agent German disclosed wrongdoing to his ASAC instead 
of one of the nine specifically designated entities in the Justice 
Department regulations, he was not protected. His case was not even 
investigated ``in earnest,'' according to him, until he resigned from 
the FBI and reported the matter to Congress.
  This is the tragedy of weak FBI whistleblower protections: If this 
bill had been law when Michael German first blew the whistle, this 
country might still have the benefit of this decorated FBI Special 
Agent in our fight against terrorism. He is by far not the only FBI 
whistleblower sidelined and ostracized by the failures of current law 
and policy.
  In today's world, we cannot afford to lose public servants like 
Michael German. That is why today, with my cosponsor Senator Leahy, I 
am introducing this hi-partisan legislation, the FBI Whistleblower 
Protection Enhancement Act of 2015.
  Among other things, this bill will for the first time provide legal 
protection to FBI employees who report wrongdoing to their supervisors, 
provide a more independent process for whistleblowers who have suffered 
reprisal, and increase oversight and transparency of the FBI 
whistleblower complaint process.
  This bill is a long time coming. I urge my colleagues to support it.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

[[Page S8606]]

  


                                S. 2390

       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 
     2015''.

     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) for 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) to a Member of Congress;
       ``(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--
       ``(i) shall issue a decision containing the findings of the 
     Inspector General supporting the determination of the 
     Inspector General; and
       ``(ii) if the Inspector General determines that reasonable 
     grounds exist to believe that a personnel action occurred, 
     exists, or is to be taken, in violation of subsection (b), 
     the Inspector General shall request from an administrative 
     law judge, and the administrative law judge, without further 
     proceedings, shall issue, a preliminary order staying the 
     personnel action.
       ``(3) Filing of objections.--
       ``(A) In general.--Not later than 60 days after the 
     Inspector General issues a decision under paragraph 
     (2)(B)(i), either party may file objections to the decision 
     and request a hearing on the record.
       ``(B) No effect on stay.--The filing of objections under 
     subparagraph (A) shall not affect the stay of a personnel 
     action under a preliminary order issued under paragraph 
     (2)(B)(ii).
       ``(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 permanently staying the 
     personnel action; and
       ``(II) upon motion by the employee, 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).

       ``(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 
     (4)(C) and written decisions issued by the Attorney General 
     under paragraph (5)(B) publicly available.
       ``(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.--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; and
       ``(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.
       ``(e) Reporting.--Not later than March 1 of each year, the 
     Attorney General shall make publically 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;

[[Page S8607]]

       ``(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 a reasonable basis 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) Rule of Construction.--Nothing in this section shall 
     be construed to 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.''.
       (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 added 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 effects of 
     the amendment made by subsection (a), which shall include--
       (A) an evaluation of the timeliness of resolution of 
     allegations of a prohibited personnel practice;
       (B) an analysis of the corrective action provided in 
     instances of a prohibited personnel practice;
       (C) the number and type of disciplinary actions taken in 
     instances of a prohibited personnel practice;
       (D) an evaluation of the communication by the Inspector 
     General of the Department of Justice with an individual 
     alleging a prohibited personnel practice regarding the 
     investigation and resolution of the allegation;
       (E) an assessment of the mediation process of the 
     Department of Justice; and
       (F) 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.
  Mr. LEAHY. Mr. President, whistleblowers serve an essential role in 
providing transparency and accountability in the Federal Government. It 
is important that all government employees are provided with strong and 
effective avenues to come forward with evidence of government abuse and 
misuse. To ensure that whistleblowers feel comfortable speaking up when 
they discover wrongdoing, it is also imperative that they are afforded 
protections from retaliation. That is why Senator Grassley and I are 
joining together to introduce the Federal Bureau of Investigation, 
``FBI'', Whistleblower Protection Enhancements Act of 2015.
  Current FBI policies do not go far enough to protect whistleblowers. 
In March, the Judiciary Committee held a hearing that highlighted a 
number of serious problems facing whistleblowers at the FBI. We 
received testimony about the lack of protections for employees who 
report waste, fraud, or abuse to their direct supervisors. We also 
heard instances of the FBI failing to comply with regulatory 
requirements when conducting retaliation investigations, and that 
adjudication of contested cases can take years. One former employee, 
Michael German, testified in detail about how he was forced to end his 
distinguished career at the FBI after he disclosed to Congress serious 
deficiencies in the agency's handling of counterterrorism 
investigations. He chose to do this after making a protected 
whistleblower disclosure at the FBI that went nowhere while the 
retaliation continued.
  The concerns expressed at the hearing echo concerns that were 
identified in two recent reports on the FBI whistleblower framework, 
one by the Department of Justice and the other by Government 
Accountability Office. Clearly the status quo is unacceptable. Congress 
should extend to FBI whistleblowers the same level of protection that 
is afforded other Federal employees who speak out about waste, fraud, 
or abuse. That is what Senator Grassley and I seek to do today with 
this bill.
  Our legislation closely tracks the protections contained in the 
Whistleblower Protection Act. Importantly, we extend whistleblower 
protections to FBI employees who blow the whistle to supervisors in 
their chain of command. This common sense fix is crucial to protect 
those employees who dare to speak up and report concerns to their 
superiors. The bill also provides clear guidance on the investigation 
and adjudication of retaliation claims. Investigations will now be 
handled solely by the Office of Inspector General, rather than sharing 
this responsibility with the Office of Professional Responsibility. 
This will provide much needed clarity and consistency in the process. 
Contested cases will now be adjudicated by Administrative Law Judges 
instead of by the Office of Attorney Recruitment and Management. Under 
this new process the Administrative Procedures Act will apply, ensuring 
a hearing on the record and strong procedural protections for all 
parties.
  This bipartisan bill will help to ensure that FBI employees are able 
to blow the whistle on waste, fraud, or abuse at the FBI and not face 
personal repercussions for doing so. I urge the Senate to act quickly 
to take up and pass this important bipartisan legislation.
                                 ______