[House Report 114-835]
[From the U.S. Government Publishing Office]


114th Congress    }                                         {   Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                         {  114-835

======================================================================



 
 FEDERAL BUREAU OF INVESTIGATION WHISTLEBLOWER PROTECTION ENHANCEMENT 
                              ACT OF 2016

                                _______
                                

 November 29, 2016.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Chaffetz, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 5790]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 5790) to provide adequate 
protections for whistleblowers at the Federal Bureau of 
Investigation, having considered the same, report favorably 
thereon without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     7
Explanation of Amendments........................................    11
Committee Consideration..........................................    11
Roll Call Votes..................................................    11
Application of Law to the Legislative Branch.....................    11
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    11
Statement of General Performance Goals and Objectives............    11
Duplication of Federal Programs..................................    11
Disclosure of Directed Rule Makings..............................    11
Federal Advisory Committee Act...................................    12
Unfunded Mandate Statement.......................................    12
Earmark Identification...........................................    12
Committee Estimate...............................................    12
Budget Authority and Congressional Budget Office Cost Estimate...    12
Changes in Existing Law Made by the Bill, as Reported............    13

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 5790, the Federal Bureau of Investigation 
Whistleblower Protection Enhancement Act of 2016, strengthens 
protections for whistleblowers at the Federal Bureau of 
Investigation (FBI) by expanding the list of persons authorized 
to receive protected disclosures of waste, fraud, and abuse, 
expanding the categories of prohibited personnel practices, and 
replacing the lengthy and inefficient process of adjudicating 
reprisal complaints with an improved process of adjudication by 
Administrative Law Judges and judicial review in a federal 
court of appeals.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 5790, the Federal Bureau of Investigation 
Whistleblower Protection Act of 2016 (``the Act''), aims to 
correct long-standing inadequacies in the laws protecting 
whistleblowers in the FBI. Such employees who make disclosures 
of waste, fraud, and abuse are not sufficiently protected 
against improper retaliation from their supervisors, often in 
the form of demotion, reassignment, or termination. Despite 
these risks, the current process for investigating and 
adjudicating claims for FBI whistleblowers is lengthy and 
ineffective.
    The Civil Service Reform Act of 1978 (CSRA) established 
statutory protections for federal employees who disclosed 
waste, fraud, and abuse, and also prohibited retaliation 
against those employees for making such disclosures.\1\ In 
addition to codifying the creation of the Merit Systems 
Protection Board, it created the position of Special Counsel to 
investigate retaliation and recommend corrective action.\2\ The 
Office of Special Counsel (OSC) was established as an 
independent arm of the Board to carry out these functions.
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    \1\Pub. L. No. 95-454, Sec. Sec. 101, 202, 92 Stat. 1111, 1113-8, 
1121-31 (codified as amended at 5 U.S.C. Sec. Sec. 2301-2306, 1201-122, 
respectively).
    \2\Id.
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    FBI employees, however, were exempted from the protections 
afforded to other executive branch employees--including other 
federal law enforcement agencies--and instead were provided for 
in a separate section of the statute, 5 U.S.C. Sec. 2303.\3\ 
According to the U.S. Government Accountability Office (GAO):
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    \3\5 U.S.C. Sec. Sec. 2302-2303.

          Minimal legislative history exists explaining the 
        separate statutory provision for the FBI. Comments made 
        by Members of Congress at the time suggest a compromise 
        was adopted given the sensitive nature of the agency 
        but also in recognition of past improprieties and the 
        need to ensure public confidence that there are 
        channels within the FBI to raise whistleblower matters, 
        among other things.\4\
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    \4\U.S. Gov't Accountability Office, GAO-15-22, Whistleblower 
Protection: Additional Actions Needed to Improve DOJ's Handling of FBI 
Retaliation Complaints, 15 fn. 35 (Jan. 2015) [hereinafter ``GAO 
Report''].

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    Instead, 5 U.S.C. Sec. 2303 directed:

          (a) Any employee of the Federal Bureau of 
        Investigation who has authority to take, direct others 
        to take, recommend, or approve any personnel action, 
        shall not, with respect to such authority, take or fail 
        to take a personnel action with respect to any employee 
        of the Bureau as a reprisal for a disclosure of 
        information by the employee to the Attorney General (or 
        an employee designated by the Attorney General for such 
        purpose) which the employee or applicant reasonably 
        believes evidences--(1) a violation of law, rule, or 
        regulation, or (2) mismanagement, a gross waste of 
        funds, an abuse of authority, or a substantial and 
        specific danger to public health or safety.\5\
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    \5\5 U.S.C. Sec. 2303(a).

    The CSRA required that the Attorney General develop 
regulations to protect FBI whistleblowers from retaliation, and 
that the President provide for the enforcement of those 
regulations.\6\
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    \6\5 U.S.C. Sec. 2303.
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    In January 1980, the Department of Justice (DOJ) published 
a final rule implementing section 2303.\7\ The rule authorized 
DOJ's Office of Professional Responsibility (DOJ OPR) to 
``request the Attorney General to stay any personnel action'' 
if OPR determined ``there are reasonable grounds to believe 
that the personnel action was taken, or is to be taken, as a 
reprisal for a disclosure of information by the employee to the 
Attorney General (or a Department official designated by the 
Attorney General for such purpose). . . .''\8\
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    \7\U.S. Dep't of Justice, Department of Justice Report on 
Regulations Protecting FBI Whistleblowers, 3 (Apr. 2014) [hereinafter 
``DOJ Report''].
    \8\Id.
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    The Whistleblower Protection Act of 1989 (WPA) was the 
first update to whistleblower protections for federal employees 
under the CSRA.\9\ The WPA made OSC an independent agency.\10\ 
It revised the protections in 5 U.S.C. Sec. 2302 from covering 
``mismanagement'' to only covering disclosures of ``gross 
mismanagement.''\11\ It also allowed employees to file a right 
of action for retaliation for protected disclosures.\12\ 
However, the WPA did not make corresponding changes to 5 U.S.C. 
Sec. 2303, covering FBI employees.
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    \9\Pub. L. No. 101-12, 103 Stat. 16.
    \10\Id. at Sec. Sec. 1211-12, 103 Stat. 16, 19-21.
    \11\Id. at Sec. 1213, 103 Stat. 16, 21.
    \12\Id. at Sec. 1221, 103 Stat. 16, 29-31.
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    In April 1997, President William Clinton delegated to 
Attorney General Janet Reno his responsibilities under 5 U.S.C. 
Sec. 2303(c) in order to establish an ``appropriate process 
within [DOJ] to carry out these functions.''\13\ In November 
1998, DOJ requested comment on interim regulations with 
procedures for making protected disclosures in the FBI as well 
as for reporting and investigating complaints of retaliation 
for such protected disclosures.\14\ The final regulations were 
issued in November 1999,\15\ and have remained largely the same 
since then, with only minor amendments in 2001\16\ and 
2008.\17\
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    \13\Delegation of Responsibilities Concerning FBI Employees Under 
the Civil Service Reform Act of 1978, Memorandum for the Attorney 
General, 62 Fed. Reg. 23,123 (Apr. 14, 1997).
    \14\Whistleblower Protection for Federal Bureau of Investigation 
Employees, 63 Fed. Reg. 62,937 (Nov. 10, 1998) (to be codified at 28 
C.F.R. pt. 27).
    \15\Whistleblower Protection for Federal Bureau of Investigation 
Employees, 64 Fed. Reg. 58,782 (Nov. 1, 1999) (codified at 28 C.F.R. 
pt. 27).
    \16\Whistleblower Protection for Federal Bureau of Investigation 
Employees, 66 Fed. Reg. 37,904 (July 20, 2001).
    \17\Whistleblower Protection for Federal Bureau of Investigation 
Employees, 73 Fed. Reg. 1,495 (Jan. 9, 2008).
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    Under the procedures, an employee who believes he or she 
has been retaliated against for making a protected disclosure 
can submit a reprisal complaint to the DOJ Office of Inspector 
General (OIG) or to DOJ OPR.\18\ The OIG and DOJ OPR will 
confer to determine which office will investigate the claim. 
This determination takes into consideration several factors, 
including whether one office has prior experience with the 
complainant, such as if they have previously investigated that 
individual for misconduct, and whether the complaint is 
relevant to the OIG's mission. Typically when there are no 
outstanding reasons for a particular office to take the 
complaint, they alternate.\19\
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    \18\28 C.F.R. Sec. 27.1.
    \19\DOJ Report, supra note 7, at 5.
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    If the investigating office reviews a complaint on its 
merits and determines there has been reprisal for 
whistleblowing, it will forward its determination to the Office 
of Attorney Recruitment and Management (OARM) for adjudication, 
along with any recommendations.\20\ If the investigating 
office, either the OIG or DOJ OPR, opts not to recommend the 
complaint to OARM, a complainant may file a request for 
corrective action with OARM directly.\21\ This request may be 
filed any time after 120 days from the date the complainant 
first notified an investigating office of the alleged reprisal, 
if the complainant was not notified the investigating office 
would seek corrective action. Otherwise, if the investigating 
office opts to terminate the claim, within 60 days the 
complainant may file a request with OARM for corrective 
action.\22\
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    \20\28 C.F.R. Sec. 27.4(a).
    \21\28 C.F.R. Sec. 27.4(c)(1).
    \22\Id.
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    Within 30 days of a final determination by OARM, either 
party may request an appeal to the Deputy Attorney General 
(DAG).\23\ The DAG has discretion to set aside or modify OARM's 
actions, findings, or conclusions found to be arbitrary, 
capricious, an abuse of discretion, or otherwise not in 
accordance with law.\24\ The DAG must order appropriate 
corrective action upon determining there has been a 
reprisal.\25\
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    \23\28 C.F.R. Sec. 27.5.
    \24\Id.
    \25\Id.
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    The current regulatory process for adjudicating claims of 
reprisal has proven ineffective for protecting FBI 
whistleblowers. An April 2014 DOJ report found that of all FBI 
whistleblower complaints between 2005 and March 15, 2014, fewer 
than 10 received corrective action.\26\ Further, the process 
for investigation and adjudication of complaints takes place 
entirely within DOJ and provides little opportunity for 
independent review.
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    \26\DOJ Report, supra note 7, at 8-10.
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    One of the most problematic elements of the regulations is 
a limitation on to whom a protected disclosure must be made. 
The interim regulations issued in 1998 only protected 
disclosures to the OIG, DOJ OPR, or FBI's own Office of 
Professional Responsibility (FBI OPR).\27\ In response to 
comments on this issue, the final regulations issued in 
November 1999 expanded the list slightly to include the 
Attorney General and DAG, the FBI Director and Deputy Director, 
and the highest-ranking official in each FBI field office.\28\ 
In 2008, FBI's Internal Investigations Section was also added 
to the list as a result of FBI OPR being restructured.\29\
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    \27\Whistleblower Protection for Federal Bureau of Investigation 
Employees, 63 Fed. Reg. 62,937 (Nov. 10, 1998) (to be codified at 28 
C.F.R. pt. 27).
    \28\Whistleblower Protection for Federal Bureau of Investigation 
Employees, 64 Fed. Reg. 58,782 (Nov. 1, 1999) (to be codified at 28 
C.F.R. pt. 27).
    \29\GAO Report, supra note 4, at 16 fn. 36.
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    FBI employees have received information regarding reporting 
requirements that may cause them to assume a disclosure made to 
a superior is a protected disclosure when in fact it is 
not.\30\ For example, the FBI Domestic Investigations and 
Operations Guide specifically states the FBI requires employees 
to report known or suspected failures to adhere to the law, 
rules, or regulations to any supervisor in the employee's chain 
of command.\31\ Despite ambiguous information regarding 
protections for reporting, under the current process 
whistleblowers do not receive corrective action or even a 
consideration of their claim if they make a disclosure to the 
wrong person. Rather, any subsequent reprisal complaint will be 
dismissed--not because the investigating office has examined 
the complaint for its merits and found there was no retaliation 
for a disclosure, but because the underlying disclosure was 
made to the wrong person.
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    \30\GAO Report, supra note 4, at 20-22.
    \31\Fed. Bureau of Investigation, Domestic Investigations and 
Operations Guide, October 15, 2011.
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    An April 2014 DOJ report noted that of 85 closed cases that 
were reviewed by the OIG between 2005 and March 15, 2014, 69 
were found to be ``non-cognizable'' and closed.\32\ According 
to the report, the majority of these were ``non-cognizable'' 
because they were not made to the proper individual or office 
under 28 C.F.R. Sec. 27.1(a).\33\ Some cases were closed for 
similar reasons by DOJ OPR.\34\
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    \32\DOJ Report, supra note 7, at 7.
    \33\Id.
    \34\Id. at 8.
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    Similarly, in January 2015 the U.S. Government 
Accountability Office (GAO) issued a report that examined DOJ's 
review of FBI whistleblower reprisal cases from 2009 through 
2013.\35\ Of 62 whistleblower reprisal claims in that period, 
48 were dismissed for failing to meet ``threshold regulatory 
requirements.''\36\ Of 54 reprisal complaints where DOJ 
(whether the OIG or DOJ OPR) case file documentation was 
sufficient to determine a specific reason a complaint was 
closed, 23 had at least one claim dismissed because the 
disclosure was not made to one of the nine categories of FBI or 
DOJ officials designated in the regulations.\37\ At least 17 of 
those disclosures were made to an individual in the employee's 
chain of command or management.\38\
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    \35\GAO Report, supra note 4.
    \36\Id. at 13 fn. b.
    \37\Id. at 14.
    \38\Id.
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    When DOJ's regulations were developed, DOJ officials 
maintained that due to the sensitive information to which FBI 
employees have access, Congress intended to limit who could 
receive disclosures.\39\ Yet all other executive branch 
employees--including intelligence community officials--have 
protections against retaliation for making disclosures to 
supervisors. On October 10, 2012, President Obama implemented 
some intelligence community whistleblower protections by 
issuing Presidential Policy Directive 19 (PPD-19), which 
established protections for disclosures made to those in an 
intelligence community employee's direct chain of command.\40\
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    \39\Id. at 15-16.
    \40\The White House, Presidential Policy Directive/PPD-19 
(Washington, D.C.: October 10, 2012) [hereinafter PPD-19]. 
Additionally, the Intelligence Authorization Act for Fiscal Year 2014, 
Pub. L. No. 113-126, Sec. 602, 128 Stat. 1390, 1418, provided certain 
statutory protections for disclosures to supervisors. See 50 U.S.C. 
Sec. 3341(j)(3)(A)(i).
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    PPD-19 also required the Attorney General to report within 
180 days on the efficacy of DOJ's regulations regarding FBI 
whistleblower protections.\41\ When the report was finalized 
over 600 days later, it recommended expanding the list of 
persons to whom an employee can make a protected disclosure--
but only to include the second highest ranking official in a 
field office.\42\ According to GAO's subsequent review of the 
DOJ report:
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    \41\Id.
    \42\DOJ Report, supra note 7, at 13-14. In 2014, senior DOJ 
officials told GAO DOJ leadership approved the change and the agency 
would be beginning the public notice and comment process. GAO Report at 
17. However, as of November 2016, DOJ has not issued any notice of 
proposed rulemaking.

          DOJ officials gave us several explanations about why 
        DOJ did not recommend expanding the list to include 
        supervisors and others in the employee's chain of 
        command. . . . First, in DOJ's April 2014 report, DOJ 
        officials state that ``the Department believes the set 
        of persons to whom a protected disclosure can be made 
        is extensive and diverse, and has seen no indication 
        that the list has impeded disclosures of wrongdoing.'' 
        However, when we asked officials how they arrived as 
        this conclusion--particularly in light of our and DOJ's 
        previous findings that numerous complainants had at 
        least one claim dismissed for making a disclosure to 
        someone in management or their chain of command--they 
        could not provide supporting evidence or analysis for 
        their conclusions.\43\
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    \43\GAO Report, supra note 4, at 17-18.

    GAO expressed concern that dismissing retaliation 
complaints against whistleblowers who had failed to make their 
disclosures to designated persons ``would permit retaliatory 
activity to go uninvestigated, and may have a chilling effect 
on other potential whistleblowers.''\44\ GAO recommended 
Congress consider whether FBI employees should have a means to 
obtain corrective action for retaliation for disclosures of 
wrongdoing made to supervisors and others in the employee's 
chain of command who are not already designated officials.\45\
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    \44\Id. at 20.
    \45\Id. at 41.
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    GAO also noted other problems with DOJ's process for 
adjudicating reprisal claims. For example, GAO's review 
revealed lengthy delays in DOJ's adjudication of such claims. 
Of 22 whistleblower reprisal claims in the examined time period 
that met threshold regulatory requirements, only four were 
closed within one year--one because the complainant withdrew 
the complaint.\46\ Fifteen took between one and four years to 
close, with three of those withdrawing their complaint.\47\ 
Three other cases took between eight and 11 years each to 
close.\48\ In some cases, parties waited a year or more for a 
DOJ decision without information on when they might receive 
it.\49\
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    \46\Id. at 13, 13 fn. 29.
    \47\Id. at 12.
    \48\Id.
    \49\Id.
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                          LEGISLATIVE HISTORY

    H.R. 5790, the Federal Bureau of Investigation 
Whistleblower Protection Enhancement Act of 2016, was 
introduced by Representative Jason Chaffetz (R-UT) on July 14, 
2016 and referred to the Committee on Oversight and Government 
Reform. The bill had nine original cosponsors. On September 15, 
2016, the Committee favorably reported the bill without 
amendment by unanimous consent.
    H.R. 5790 was introduced as a companion to S. 2390, the 
Federal Bureau of Investigation Whistleblower Protection 
Enhancement Act of 2015, which was introduced in the Senate on 
December 10, 2015 by Senate Judiciary Committee Chairman 
Charles Grassley (R-IA) and Ranking Member Patrick Leahy (D-
VT). S. 2390 was referred to the Senate Judiciary Committee. 
When the Committee considered the bill on April 14, 2016, 
Senators Grassley and Leahy offered an amendment in the nature 
of a substitute, which was accepted by voice vote. The measure 
was then favorably reported, as amended, by voice vote.

                           Section-by-Section


Section 1. Short title

    Designates the short title of the bill as the ``Federal 
Bureau of Investigation Whistleblower Protection Enhancement 
Act of 2016.''

Section 2. FBI whistleblower protections

    This section amends 5 U.S.C. Sec. 2303.
            Definitions
    This section provides new definitions for terms in the Act. 
It defines a personnel action as any action in section 
2302(a)(2)(A), which expands the definition of personnel action 
for FBI employees to match that of nearly all other federal 
employees. Of note, the FBI would be subject to two additional 
personnel actions, the first regarding enforcement of 
nondisclosure policies, the second regarding other significant 
change in responsibilities. These were added for other federal 
employees in 1994 and 2012, respectively, but the definition of 
personnel action in Sec. 2303, applicable to FBI employees, did 
not include them.\50\
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    \50\Pub. L. No. 103-424, 5, 108 Stat. 4361, 4363 (1994) (adding a 
new clause (x) to read ``a decision to order psychiatric testing or 
examination,'' and moving the prior clause (x), which read ``any other 
significant change in duties, responsibilities, or working 
conditions,'' to clause (xi)); Pub. L. No. 112-199, Sec. 104, 126 Stat. 
at 1467 (adding a new clause (xi) to read, ``the implementation or 
enforcement of any nondisclosure policy, form, or agreement,'' and 
moving the clause regarding a significant change in duties to clause 
(xii)).
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    The Act also expands the definition of protected disclosure 
to include those persons and entities designated by DOJ, as 
well as supervisors and those in an employee's chain of 
command. This is consistent with the protections afforded to 
other employees in the intelligence community as provided by 
PPD-19.\51\
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    \51\PPD-19, supra note 40, at 7.
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            Prohibited practices
    This section updates the definition of prohibited practice 
to conform to the current law protecting other federal 
employees. The new definition for prohibited personnel practice 
prohibits retaliation against FBI employees for: the exercise 
of an appeal, complaint, or grievance right granted by any law, 
rule, or regulation; testifying for or lawfully assisting any 
individual in the exercise of those rights; cooperating with or 
disclosing information to the Inspector General of an agency or 
OSC; or refusing to obey an order that would require the 
individual to violate a law. These protections mirror those 
granted to other federal employees under 5 U.S.C. 
Sec. 2303(b)(9).
    This section also prohibits the enforcement or 
implementation of any nondisclosure agreement if it does not 
contain the statement in 5 U.S.C. Sec. 2302(b)(13), which 
reads:

          These provisions are consistent with and do not 
        supersede, conflict with, or otherwise alter the 
        employee obligations, rights, or liabilities created by 
        existing statute or Executive order relating to (1) 
        classified information, (2) communications to Congress, 
        (3) the reporting to an Inspector General of a 
        violation of any law, rule, or regulation, or 
        mismanagement, a gross waste of funds, an abuse of 
        authority, or a substantial and specific danger to 
        public health or safety, or (4) any other whistleblower 
        protection. The definitions, requirements, obligations, 
        rights, sanctions, and liabilities create by 
        controlling Executive orders and statutory provisions 
        are incorporated into this agreement and are 
        controlling.\52\
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    \52\5 U.S.C. Sec. 2302(b)(13).

    Although not previously codified in Sec. 2303, this 
provision has applied to the FBI as a result of the government-
wide ``anti-gag'' appropriations restriction in place for 
nearly 30 years.\53\
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    \53\See, e.g., Consolidated Appropriations Act of 2016, Pub. L. No. 
114-113, Div. E, Sec. 713.
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            Filing of a complaint/investigation
    The Act makes the OIG the sole entity responsible for 
investigating whistleblower reprisal complaints. The OIG must 
investigate complaints consistent with the requirements for OSC 
in 5 U.S.C. Sec. 1214.
            Preliminary Relief
    The Act provides that if the OIG determines there are 
reasonable grounds to believe a personnel action occurred, it 
shall request a preliminary order from an administrative law 
judge (ALJ). The OIG must issue a decision containing the 
findings that it relied on in making its conclusion. Further, 
the Act includes the authority to request a 45-day stay of a 
personnel action from an ALJ, subject to extension, if the OIG 
determines there are reasonable grounds to believe the 
personnel action was taken as a result of a protected 
disclosure.
    The ALJ must issue an order providing for the preliminary 
relief without further proceedings. The ALJ is also given 
authority to return an employee to their previous position, or 
as close to such position as is practicable, in instances where 
a personnel action has already been taken.
            Filing of objections; Review by Administrative Law Judge; 
                    Review by Attorney General
    The Act provides that not later than 60 days after the OIG 
issues a decision, either party may file objections to the 
decision and request a hearing on the record. This is the 
amount of time currently provided for under 5 U.S.C. 
Sec. 1214\54\ and DOJ's regulations.\55\ If either party files 
an objection, an ALJ must review the decision of the OIG after 
opportunity for a hearing. The adjudication procedures of the 
Administrative Procedures Act (APA) apply to these 
proceedings.\56\ Current procedure provides for OARM to hold 
hearings at its discretion,\57\ which has resulted in the 
hearings typically not being held.\58\ The Act provides that 
the ALJ must issue a written decision explaining its 
determination. These decisions must be supported by reliable 
and substantial evidence.\59\ The APA provides that the ALJ can 
regulate the course of the hearing, issue subpoenas, rule on 
and receive evidence, have depositions taken, hold settlement 
conferences, rule on procedural requests, and make findings of 
fact and conclusions of law.\60\
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    \54\5 U.S.C. Sec. 1214(a)(3)(A)(ii).
    \55\28 C.F.R. Sec. 27.4(c).
    \56\5 U.S.C. Sec. 554.
    \57\28 C.F.R. Sec. 27.4(e)(3).
    \58\DOJ Report, supra note 7, at 20.
    \59\5 U.S.C. Sec. 556(d).
    \60\5 U.S.C. Sec. Sec. 556(c), 557(c).
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    If neither party files an objection, the ALJ must provide 
an order of permanent relief from the personnel action that is 
consistent with the preliminary order. The ALJ may also provide 
corrective action under 5 U.S.C. Sec. 1221(g).
    Parties may appeal the decision from the ALJ to the 
Attorney General, the timeline for which shall be established 
by the Attorney General. If the Attorney General fails to 
review a decision in the announced timeline, it shall publicly 
announce a new date. The Attorney General is required to issue 
a written decision explaining the grounds for the 
determination.
            Publication of determinations
    The Act requires decisions from the ALJ and the Attorney 
General to be made publicly available consistent with the 
Freedom of Information Act. The Act also requires that DOJ 
proactively publish these decisions consistent with the manner 
of the Merit Systems Protection Board. DOJ has not historically 
made precedents from OARM or DAG decisions available to FBI 
whistleblowers.
            Judicial Review
    The Act provides for judicial review in a federal circuit 
court of appeals, pursuant to chapter 7 of title 5. This is 
consistent with the Whistleblower Protection Enhancement Act's 
procedures to appeal from the Merit Systems Protection 
Board.\61\ Judicial review will improve that process by 
ensuring cases are reviewed by a truly independent entity 
outside DOJ.
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    \61\5 U.S.C. Sec. 7701.
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            Regulations
    This section of the Act requires the Attorney General to 
prescribe regulations to:
          (1) Ensure prohibited personnel practices aren't 
        taken against employees in, or applicants for, 
        positions in the FBI;
          (2) Provide for the administration and enforcement of 
        the Act in a manner consistent with the sections 
        governing the Office of Special Counsel and the Merit 
        Systems Protection Board, as well as with the 
        Administrative Protection Act;
          (3) Ensure FBI employees are informed of the rights 
        and remedies available to them, including how to make a 
        protected disclosure of classified information; and
          (4) Provide for the protection of classified 
        information and intelligence sources and methods.
            Reporting
    The Act codifies annual reporting requirements for DOJ 
currently in place from the President's memorandum to the 
Attorney General.\62\ The requirements include that the 
Attorney General shall report on the number and nature of 
allegations of a prohibited personnel practice during the 
previous year, the disposition of each of those allegations, 
the number of unresolved allegations of a prohibited personnel 
practice, the number of disciplinary actions taken, the number 
of instances in which the IG found reasonable grounds to 
believe that a prohibited personnel practice had occurred, and 
the number of allegations that were resolved through 
settlement.
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    \62\Delegation of Responsibilities Concerning FBI Employees Under 
the Civil Service Reform Act of 1978, Memorandum for the Attorney 
General, 62 Fed. Reg. 23,123 (Apr. 14, 1997).
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            Rules of construction
    This section clarifies that other laws and regulations are 
not affected by the provisions, and that the preexisting 
jurisdiction of other offices to conduct investigations into 
prohibited personnel practices is not limited. The second rule 
of construction ensures that rules regarding the safeguarding 
of information are adhered to by all parties involved.
            GAO report
    This section requires that within four years after the 
enactment of this Act, GAO issue a follow-up to its January 
2015 report and evaluate the amendments made by this Act. This 
analysis will assist Congress in determining whether the new 
protections are sufficient.
            Effective date; implementation
    The Act would be effective upon enactment and apply to 
cases currently pending in DOJ, subject to exceptions. This 
will prevent cases from being dismissed where the applicant or 
employee made a disclosure to a person who is now authorized 
under the Act to receive disclosures, but was not so designated 
at the time of the disclosure. This section also gives DOJ 18 
months from the date of enactment to issue regulations 
necessary to implement the new procedures.

                       Explanation of Amendments

    No amendments to H.R. 5790 were offered or adopted during 
Full Committee consideration of the bill.

                        Committee Consideration

    On September 15, 2016, the Committee met in open session 
and ordered reported favorably the bill, H.R. 5790, by 
unanimous consent, a quorum being present.

                            Roll Call Votes

    No roll call votes were requested or conducted during Full 
Committee consideration of H.R. 5790.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill provides adequate protections for whistleblowers at 
the Federal Bureau of Investigation. As such this bill does not 
relate to employment or access to public services and 
accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal and objective of the bill is to provide adequate 
protections for whistleblowers at the Federal Bureau of 
Investigation.

                    Duplication of Federal Programs

    No provision of this bill establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that enacting this bill does not 
direct the completion of any specific rule makings within the 
meaning of 5 U.S.C. 551.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(2)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for this bill from the Director of 
Congressional Budget Office:

                                                 November 28, 2016.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5790, the Federal 
Bureau of Investigation Whistleblower Protection Enhancement 
Act of 2016.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 5790--Federal Bureau of Investigation Whistleblower Protection 
        Enhancement Act of 2016

    CBO estimates that implementing H.R. 5790 would cost $1 
million annually; such spending would be subject to the 
availability of appropriated funds. Enacting the legislation 
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply. CBO estimates that enacting 
H.R. 5790 would not increase net direct spending or on-budget 
deficits in any of the four consecutive 10-year periods 
beginning in 2027.
    H.R. 5790 would aim to improve legal protections for 
employees at the Federal Bureau of Investigation (FBI) who 
report abuse, fraud, and waste related to government activities 
(such individuals are known as whistleblowers). The legislation 
would change the process for investigating and adjudicating 
complaints regarding reprisals against whistleblowers. The bill 
also would require the Department of Justice (DOD and the 
Government Accountability Office (GAO) to prepare reports 
related to complaints of whistleblower retaliation and the 
handling of those cases by the FBI.
    H.R. 5790 would expand reporting requirements for DOJ and 
could lengthen the time required to adjudicate some complaints 
of retaliation. The legislation also could lead to an increase 
in the number of such cases (about one dozen annually in recent 
years). Based on the costs of similar activities, CBO estimates 
that implementing H.R. 5790 would increase administrative costs 
for DOJ and GAO by a total of about $1 million annually.
    H.R. 5790 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    On November 22, 2016, CBO transmitted a cost estimate for 
S. 2390, the Federal Bureau of Investigation Whistleblower 
Protection Enhancement Act of 2016, as reported by the Senate 
Committee on the Judiciary on April 14, 2016. Both pieces of 
legislation are similar and CBO's estimates of the budgetary 
effects are the same.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

TITLE 5, UNITED STATES CODE

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PART III--EMPLOYEES

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SUBPART A--GENERAL PROVISIONS

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CHAPTER 23--MERIT SYSTEM PRINCIPLES

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[Sec. 2303. Prohibited personnel practices in the Federal Bureau of 
                    Investigation

  [(a) Any employee of the Federal Bureau of Investigation who 
has authority to take, direct others to take, recommend, or 
approve any personnel action, shall not, with respect to such 
authority, take or fail to take a personnel action with respect 
to any employee of the Bureau as a reprisal for a disclosure of 
information by the employee to the Attorney General (or an 
employee designated by the Attorney General for such purpose) 
which the employee or applicant reasonably believes evidences--
          [(1) a violation of any law, rule, or regulation, or
          [(2) mismanagement, a gross waste of funds, an abuse 
        of authority, or a substantial and specific danger to 
        public health or safety.
For the purpose of this subsection, ``personnel action'' means 
any action described in clauses (i) through (x) of section 
2302(a)(2)(A) of this title with respect to an employee in, or 
applicant for, a position in the Bureau (other than a position 
of a confidential, policy-determining, policymaking, or policy-
advocating character).
  [(b) The Attorney General shall prescribe regulations to 
ensure that such a personnel action shall not be taken against 
an employee of the Bureau as a reprisal for any disclosure of 
information described in subsection (a) of this section.
  [(c) The President shall provide for the enforcement of this 
section in a manner consistent with applicable provisions of 
sections 1214 and 1221 of this title.]

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.

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