[Senate Report 114-261]
[From the U.S. Government Publishing Office]
Calendar No. 421
114th Congress { } Report
SENATE
2d Session { } 114-261
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FEDERAL BUREAU OF INVESTIGATION WHISTLEBLOWER PROTECTION ENCHANCEMENT
ACT OF 2016
_______
May 25, 2016.--Ordered to be printed
_______
Mr. Grassley, from the Committee on the Judiciary,
submitted the following
R E P O R T
[To accompany S. 2390]
The Committee on the Judiciary, to which was referred the
bill (S. 2390), to provide adequate protections for
whistleblowers at the Federal Bureau of Investigation, having
considered the same, reports favorably thereon, with an
amendment, and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Background and Purpose of the Federal Bureau of Investigation
Whistleblower Protection Enhancement Act of 2016.................1
II. History of the Bill and Committee Consideration..................6
III. Section-by-Section Summary of the Bill...........................7
IV. Congressional Budget Office Cost Estimate.......................20
V. Regulatory Impact Evaluation....................................20
VI. Conclusion......................................................20
VII. Changes to Existing Law Made by the Bill, as Reported...........20
I. Background and Purpose of the Federal Bureau of Investigation
Whistleblower Protection Enhancement Act of 2016
The Federal Bureau of Investigation Whistleblower
Protection Act of 2016 (``the Act'') will strengthen and
enhance the rights and protections afforded to employees of the
Federal Bureau of Investigation (FBI)\1\ so that they can more
effectively help root out waste, fraud, and abuse.
Whistleblowers play a critical role in keeping our government
efficient and honest, yet they also risk retaliation from their
employers, sometimes being demoted, reassigned, or fired as a
result of their actions. The Civil Service Reform Act of 1978
(CSRA) first established statutory protections for federal
employees to encourage disclosure of government illegality,
waste, fraud, and abuse.\2\ However, protections for FBI
employees were codified in a separate statutory provision--5
U.S.C. 2303--that left enforcement of protections largely to
the President.\3\ Minimal legislative history exists explaining
why the FBI was carved out of the whistleblower protection
framework created in the CSRA, which is applicable to most
federal employees, and covered instead under a separate, more
limited, statutory framework in 5 U.S.C. 2303. Comments made by
Members of Congress at the time suggest it was a compromise
meant to recognize the sensitive nature of the agency but also
to address the need to create channels within the FBI to raise
whistleblower matters, given past improprieties.\4\ A framework
for the handling, disclosure, investigation, and adjudication
of FBI whistleblower reprisal complaints was not established
until after the President delegated his authority to the
Justice Department (DOJ) in 1997,\5\ and final regulations were
promulgated by the Justice Department in 1999.\6\
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\1\Consistent with the Act, the term ``employee'' also encompasses
an applicant for a position in the FBI for most of the rights conveyed
in the Act.
\2\Civil Service Reform Act of 1978, 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, 1201-1222, respectively).
\3\Id. Sec. 101, 92 Stat. at 1117 (codified at 5 U.S.C. Sec. 2303).
\4\See, e.g., 124 Cong. Rec. S14300 (daily ed. Aug. 24, 1978)
(statement of Sen. Percy) (stating ``the FBI is not held guiltless in
some of its activities because of the charges that have been made . . .
the public's erosion of confidence in the Federal Government must be
arrested ''); 124 Cong. Rec. H9359 (daily ed. Sept. 11, 1978)
(statement of Rep. Derwinski) (stating that ``[t]he rigorous and
dangerous duties performed by the Bureau's employees do not lend
themselves to same [sic] aspects of this legislation. The best argument
for exclusion of the FBI is probably the exclusion in the bill of other
national security agencies The FBI is a sensitive agency.''); 124 Cong.
Rec. H9359-60 (daily ed. Sept. 11, 1978) (statement of Rep. Udall)
(stating ``the public should have confidence that there are channels
within the Government so that people can blow the whistle' on the FBI
just as they can on other agencies.''); 124 Cong. Rec. H11822 (daily
ed. Oct. 6, 1978) (statement of Rep. Schroeder) (``Special
whistleblower protections are provided in the Federal Bureau of
Investigations [sic], necessitated, in part, by the woeful history of
this agency in terms of eliminating internal wrongdoing.'').
\5\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).
\6\Whistleblower Protection For Federal Bureau of Investigation
Employees, 64 Fed. Reg. 58,782 (Nov. 1, 1999). Interim regulations were
issued on November 10, 1998 and the Department solicited post-
promulgation comments, due January 11, 1999. Whistleblower Protection
For Federal Bureau of Investigation Employees, 63 Fed. Reg. 62,937
(Nov. 10, 1998).
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Since the passage of the CSRA in 1978, Congress has amended
and strengthened whistleblower protections for employees across
the rest of the federal government, but has not made
corresponding changes to provisions applicable to employees at
the FBI.\7\ This has left protections for FBI whistleblowers
inferior to those of other Executive Branch employees. Prior
attempts to address these shortcomings were made in the 107th
and 108th Congresses.\8\ A renewed examination of the
protections provided to FBI whistleblowers and the procedures
afforded to them by the Justice Department to protect those
limited rights has revealed numerous deficiencies. At the
request of Chairman Grassley, the Government Accountability
Office (GAO) conducted a review of DOJ's process for handling
FBI whistleblower reprisal complaints, which was issued in
January 2015.\9\ In addition, the President directed the
Attorney General to assess the efficacy of its regulations in
deterring reprisal for protected disclosures and in ensuring
appropriate enforcement, and to propose revisions to its
regulations that would increase their effectiveness.\10\ Both
evaluations confirmed that, unlike all other Executive Branch
employees, including employees in the intelligence community
under statutorily and presidentially created protections,\11\
FBI employees enjoy no legal protection for making reports of
wrongdoing to supervisors or others in their chain of
command.\12\ Instead, FBI employees may only seek redress for
reprisal for reporting wrongdoing to a designated list of nine
persons and entities, which includes the Department of
Justice's Office of Professional Responsibility (DOJ-OPR), the
Department's Office of Inspector General (DOJ-OIG), the FBI
Office of Professional Responsibility (FBI-OPR), the FBI
Inspection Division Internal Investigations Section, the
Attorney General, the Deputy Attorney General, the Director of
the FBI, the Deputy Director of the FBI, and to the highest
ranking official in any FBI field office.\13\
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\7\See Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 4,
9, 103 Stat. 16, 33, 34-45; Whistleblower Protection Enhancement Act of
2012, Pub. L. No. 112-199, 101-105, 112, 126 Stat. 1465, 1465-1468,
1472; Presidential Policy Directive/PPD-19, Protecting Whistleblowers
with Access to Classified Information (Oct. 10, 2012), available at
https://www.whitehouse.gov/sites/default/files/image/ppd-19.pdf
[hereinafter ``PPD-19'']; Intelligence Authorization Act for Fiscal
Year 2014, Pub. L. No. 113-126, tit. VI, 128 Stat. 1390, 1414-1422;
Intelligence Authorization Act for Fiscal Year 2015, Pub. L. No. 113-
293, 310, 128 Stat. 3990, 3999-4000 (2014).
\8\S. 1974, 107th Cong. (2002); S. 1440, 108th Cong. (2003).
\9\U.S. Gov't Accountability Office, GAO-15-112, Whistleblower
Protection: Additional Actions Needed to Improve DOJ's Handling of FBI
Retaliation Complaints (2015) [hereinafter ``GAO Report''].
\10\PPD-19, supra note 7, at 5. DOJ issued its report in April
2014. U.S. Dep't of Justice, Report on Regulations Protecting FBI
Whistleblowers (2014) [hereinafter ``DOJ Report''].
\11\5 U.S.C. Sec. 2302(b)(8); PPD-19, supra note 7, at 6-7.
\12\GAO Report, supra note 9, at 6; DOJ Report, supra note 10, at
4.
\13\28 C.F.R. 27.1(a).
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This structure has resulted in legitimate complaints of
reprisal being dismissed because the underlying disclosure was
initially made to the ``wrong'' person or entity. GAO reviewed
54 complaints that DOJ had closed over a period of five
calendar years where documentation was sufficient to determine
why the case had closed.\14\ Of these complaints, forty-three
percent (23 cases) had at least one claim dismissed because the
complainant made his or her disclosure to an official or entity
not designated in the regulations.\15\ In 17 of these 23 cases,
GAO was able to determine, however, that a disclosure was made
to someone in the employee's chain of command or
management.\16\ The findings by GAO are consistent with those
made by the Department in its own review of FBI whistleblower
cases,\17\ and are unsurprising given the FBI's culture that
requires a deep respect for the chain of command and FBI's own
policy that encourages reporting of wrongdoing to
supervisors.\18\
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\14\GAO Report, supra note 9, at 14.
\15\Id.
\16\Id.
\17\DOJ Report, supra note 10, at 7 (``OIG reviewed a total of 89
cases . . . Of the 85 cases that were closed, OIG found that 69 were
`non-cognizable.' In a significant portion of cases, the claim was
found non-cognizable because it was not made to the proper individual
or office under 28 C.F.R. Sec. 27.l(a).'').
\18\The FBI's October 15, 2011, Domestic Investigations and
Operations Guide states: ``In general, the FBI requires employees to
report known or suspected failures to adhere to the law, rules or
regulations by themselves or other employees, to any supervisor in the
employees' chain of command; any Division Compliance Officer; any
Office of the General Counsel Attorney; any FBI-INSD personnel; any FBI
Office of Integrity and Compliance staff; or any person designated to
receive disclosures pursuant to the FBI Whistleblower Protection
Regulation (28 Code of Federal Regulations 27.1), including the
Department of Justice Inspector General,'' available at https://
vault.fbi.gov/
FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20
%28DIOG%29.
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The Committee is familiar with individual cases that were
dismissed because FBI employees made disclosures of serious
wrongdoing to the wrong person or entity, and has received
testimony regarding such employees. Michael German, a decorated
undercover special agent within the FBI, who successfully
risked his life to infiltrate white supremacist and neo-Nazi
hate groups across the United States, discovered that a portion
of a meeting between two such groups had been illegally
recorded by mistake. He testified that his supervisor refused
to address the matter and told him to pretend it did not
happen.\19\ Because he was aware that a failure to provide
notice to his chain of command would cause problems, Mr. German
called his supervisor to inform the supervisor that he intended
to call the assistant special agent in charge (ASAC) in order
to tell the ASAC that he, Mr. German, was going to call the
Special Agent in Charge (SAC) to make a whistleblower
report.\20\ The ASAC directed him to write the complaint in an
email that the ASAC would forward to the SAC.\21\ The FBI would
later argue that by transmitting his complaint through the
ASAC, Mr. German had forfeited his right to be protected from
the reprisals he ultimately faced for sending that email.\22\
Richard Kiper previously worked at the FBI Training Division in
Quantico, where he made multiple disclosures regarding waste,
fraud, and abuse to the highest ranking official in the
Training Division, the Assistant Director. Following his
disclosures, he was demoted two grades through a ``Loss-of-
Effectiveness'' order.\23\ Mr. Kiper testified that while the
FBI conceded that he made his disclosures to the highest-
ranking official within the FBI Academy, the FBI argued that
the disclosures were not made to the highest ranking official
in any FBI office, and therefore not protected.\24\
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\19\Whistleblower Retaliation at the FBI: Improving Protections and
Oversight: Hearing Before the S. Comm. on the Judiciary, 114th Cong.
(2015) (statement of Michael German, Fellow, Liberty and National
Security Program, Brennan Center for Justice at New York University
School of Law).
\20\Id.
\21\Id.
\22\Id.
\23\Under FBI Policy, a ``Loss-of Effectiveness'' order is a
management-directed reassignment of an FBI employee based on an
employee's inability to satisfactorily perform his or her duties while
remaining in his or her currently assigned position. Federal Bureau of
Investigation, Policy Directive 0773D, Loss of Effectiveness Transfers
(2015).
\24\Whistleblower Retaliation at the FBI: Improving Protections and
Oversight: Hearing Before the S. Comm. on the Judiciary, 114th Cong.
(2015) (statement of J. Richard Kiper, Special Agent, Federal Bureau of
Investigation).
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Evaluation of the existing statutory and regulatory
protections for FBI whistleblowers also demonstrates that the
investigation and adjudication process for these complaints
lacks independence, transparency, and efficiency in key
regards. All complaints are investigated and adjudicated
completely within the Justice Department without any
opportunity for independent review. Enforcement of
whistleblower protections is statutorily required to be
consistent with applicable provisions of sections 1214 and 1221
of title 5 of the U.S. Code, which govern the Office of Special
Counsel and Merit Systems Protection Board (where nearly all
other federal employees' whistleblower retaliation claims are
investigated and adjudicated), but the Department's regulatory
processes have not provided commensurate protections. Offices
within the Department involved in this process have missions
that are wholly unrelated to FBI whistleblowers and have stated
that competing priorities and resources contribute to
delays.\25\ FBI whistleblowers lack access to case precedent
because the Department has failed to publish decisions from
prior cases, yet the FBI as a repeat litigant has access to all
prior decisions. Moreover, resolution of cases has taken up to
more than a decade. GAO reviewed all 62 complaints closed over
a period of five calendar years (2009 through 2013) and found
that the Department ruled in favor of the whistleblower in just
three instances; these three cases lasted from just over eight
years to 10.6 years.\26\
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\25\GAO Report, supra note 9, at 23-24; see also Letter from
Charles E. Grassley, Chairman, U.S. Senate Committee on the Judiciary,
to Sally Quillian Yates, Deputy Attorney General, U.S. Dep't of Justice
(Sep't 29, 2015) (citing the Department's statement to a whistleblower
that ``given . . . the demands on [Deputy Attorney General Yates'] time
are vast and quite unpredictable, it is not practical to require her to
provide the parties with an estimated timeframe . . .'').
\26\GAO Report, supra note 9, at 22.
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The FBI Whistleblower Protection Act of 2016, S.2390, which
has been endorsed by more than 25 organizations and numerous
current and former whistleblowers, would address identified
deficiencies in the substantive protections applicable to FBI
whistleblowers and the procedures by which they may obtain
redress by: (1) expanding the list of persons and entities to
which FBI employees may make protected disclosures and the
definition of a prohibited practice and (2) enhancing
procedures for the investigation and adjudication of complaints
of reprisal made by FBI whistleblowers. To ensure that FBI
employees are protected from reprisal for reporting wrongdoing
consistent with other law enforcement personnel, S.2390
specifies persons and entities to which FBI employees may make
protected disclosures. This list includes persons and entities
already permitted to receive disclosures of wrongdoing pursuant
to current law and regulation and it adds to the list
supervisors within the employee's chain of command, who were
already permitted to receive disclosures of wrongdoing under
FBI's policy.\27\ The list includes the Office of Special
Counsel, which is authorized to receive complaints from FBI
employees under 5 U.S.C. Sec. 1213\28\ and reiterates that
employees are protected as described by the Lloyd-La Follette
Act, 5 U.S.C. 7211.\29\ The legislation ensures that an FBI
employee who is retaliated against for making a protected
disclosure to this specific list of individuals and entities
may obtain a remedy for the retaliation suffered.
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\27\See Domestic Investigations and Operations Guide, supra note
17.
\28\Under 5 U.S.C. Sec. 1213, the Office of Special Counsel may
refer such disclosures to the head of the agency which the information
concerns for investigation. 5 U.S.C. Sec. 1213(g).
\29\In addition to the Lloyd-La Follette Act, under an annual
appropriations provision, no funds are available to pay the salary of
an FBI officer or employee who:
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(1) prohibits or prevents, or attempts or threatens to
prohibit or prevent, any other officer or employee of the
Federal Government from having any direct oral or written
communication or contact with any Member, committee, or
subcommittee of the Congress in connection with any matter
pertaining to the employment of such other officer or
employee or pertaining to the department or agency of such
other officer or employee in any way, irrespective of
whether such communication or contact is at the initiative
of such other officer or employee or in response to the
request or inquiry of such Member, committee, or
subcommittee; or
(2) removes, suspends from duty without pay, demotes,
reduces in rank, seniority, status, pay, or performance or
efficiency rating, denies promotion to, relocates,
reassigns, transfers, disciplines, or discriminates in
regard to any employment right, entitlement, or benefit, or
any term or condition of employment of, any other officer
or employee of the Federal Government, or attempts or
threatens to commit any of the foregoing actions with
respect to such other officer or employee, by reason of any
communication or contact of such other officer or employee
with any Member, committee, or subcommittee of the Congress
as described in paragraph (1).
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Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, div. E,
tit. VII, 713, 129 Stat. 2242, 2476 (2015).
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With nearly 35,000 personnel and an enacted budget of
almost $9 billion, the FBI is essential to combating serious
and complex criminal activity, protecting the nation against
terrorism and espionage, and serving all federal, state, and
local law enforcement agencies with training, laboratory and
fingerprint examinations, and centralized crime information.
The FBI's vital role in these functions and the protection of
our nation make it all the more critical that FBI employees are
encouraged to report, without fear of reprisal, incidents that
they reasonably believe constitute a violation of the
Constitution, rule, law, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. This will serve
to create a more effective Bureau for the benefit of the
American people.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
On December 10, 2015, Chairman Charles Grassley and Ranking
Member Patrick Leahy introduced the Federal Bureau of
Investigation Whistleblower Protection Enhancement Act of 2015.
Senators McCaskill, Wyden, Johnson, Tillis, Kirk, Hatch,
Markey, Baldwin, and Lee joined as cosponsors. The bill was
referred to the Committee on the Judiciary.
B. COMMITTEE CONSIDERATION
The Committee on the Judiciary held a hearing on March 4,
2015 titled, ``Whistleblower Retaliation at the FBI: Improving
Protections and Oversight.''\30\ The hearing considered the
findings and recommendations for improving protections for FBI
whistleblowers made by the Department of Justice and the
Government Accountability Office in reports issued by each
office respectively.\31\ Testimony was received from the first
panel of witnesses: Stephen M. Kohn, Attorney Trustee, National
Whistleblower Center; Michael German, Fellow, Liberty and
National Security Program, Brennan Center for Justice at New
York University School of Law; J. Richard Kiper, Special Agent,
Federal Bureau of Investigation. A second panel also provided
testimony: David C. Maurer, Director, Homeland Security and
Justice Issues, Government Accountability Office; Kevin L.
Perkins, Associate Deputy Director, Federal Bureau of
Investigation; Michael E. Horowitz, Inspector General,
Department of Justice.
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\30\Whistleblower Retaliation at the FBI: Improving Protections and
Oversight: Hearing Before the S. Comm. on the Judiciary, 114th Cong.
(2015).
\31\DOJ Report, supra note 10; GAO Report, supra note 9.
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On December 10, 2015, Senator Grassley introduced S.2390,
the Federal Bureau of Investigation Whistleblower Protection
Enhancement Act of 2015. Senator Leahy was an original
cosponsor. The bill was referred to the Committee on the
Judiciary.
The Committee on the Judiciary considered S.2390 on April
14, 2016. Senators Grassley and Leahy offered an amendment in
the nature of a substitute. The amendment was accepted without
objection by a voice vote.
The Committee then voted to report the Federal Bureau of
Investigation Whistleblower Protection Enhancement Act of 2016,
with an amendment in the nature of a substitute, favorably to
the Senate by voice vote.
III. Section-by-Section Summary of the Bill
Section 1. Short title
This section provides that the legislation may be cited as
the ``Federal Bureau of Investigation Whistleblower Protection
Enhancement Act of 2016.''
Section 2. FBI whistleblower protections
This section amends section 2303 of title 5 to provide new
definitions of a protected disclosure and a prohibited
personnel practice and to improve procedures for the
investigation and adjudication of FBI whistleblower reprisal
complaints.
Definitions
The Act amends section 2303(a) to define terms and phrases
used in the Act, including ``administrative law judge,''
``Inspector General,'' ``personnel action,'' ``prohibited
personnel practice,'' and ``protected disclosure.''
The definition of a personnel action for purposes of this
bill is made by cross reference to section 2302(a)(2)(A) of
title 5 (which is the definition for personnel action as it
applies to nearly all other federal employees). ``Personnel
action'' was previously defined for the FBI by reference to
section 2302(a)(2)(A), but only clauses (i) through (x).
However, Congress amended section 2302 to include additional
clauses (xi) and (xii) in 1994 and 2012.\32\ Corresponding
amendments to section 2303 were not made. The Justice
Department determined it had authority to include the 1994
addition when it promulgated its regulations in 1999.\33\
However, since 2012, the Justice Department has not similarly
included clause (xii) in its definition of a personnel action.
The revised definition in this Act will ensure that the
definition of a personnel action in section 2302 remains
consistent with the definition in section 2303, thus bringing
protections for FBI employees in line with those of other
federal employees under the Whistleblower Protection
Enhancement Act.
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\32\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)).
\33\Whistleblower Protection For Federal Bureau of Investigation
Employees, 64 Fed. Reg. at 58,784-0984 (``We believe that the Attorney
General has authority under 5 U.S.C. [Sec. ]301 to expand the
definition of ``personnel action'' for purposes of these
regulations.'').
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The Committee intends for a ``Loss-of-Effectiveness Order''
(LOE) to constitute a personnel action for purposes of section
2302(a)(2), and thus, correspondingly, under section 2303.
According to FBI policy, an LOE is a management-directed
reassignment of an FBI employee based on the employee's
inability to satisfactorily perform his or her duties while
remaining in his or her currently assigned position.\34\ Such
reassignments are clearly within the scope of a ``personnel
action'' under section 2302 and should not be made for reasons
of reprisal.
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\34\Loss of Effectiveness Transfers, supra note 23.
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The Act provides for an expanded definition of a protected
disclosure. Prior statutory language limited protection to
disclosures ``made by the employee to the Attorney General (or
an employee designated by the Attorney General for such
purpose).''\35\ The Department of Justice promulgated
regulations limiting disclosures to nine designated persons and
entities.\36\ The new definition of protected disclosure
encompasses all persons and entities designated by the
Department. It also adds supervisors in the employee's direct
chain of command up to and including the head of the employing
agency. This new language defining a protected disclosure as
including an employee's supervisor is the same as is applicable
to employees of the intelligence community as provided by the
President in Presidential Policy Directive 19.\37\ In testimony
and statements provided to the Judiciary Committee, FBI
Director James Comey,\38\ Attorney General Loretta Lynch,\39\
and the Department of Justice Inspector General endorsed
providing protections for employees who report wrongdoing to
their supervisor.\40\ The GAO Report also explicitly
recommended that such protections be considered by
Congress.\41\ The definition of a protected disclosure also
reiterates that employees may make disclosures as described by
the Lloyd-La Follette Act, 5 U.S.C. Sec. 7211, and to the
Office of Special Counsel, which is statutorily authorized to
receive complaints from FBI employees under 5 U.S.C. Sec. 1213.
In response to questions from Committee Chairman Grassley, the
FBI has acknowledged the applicably of section 7211 to its
employees.\42\
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\35\5 U.S.C. Sec. 2303.
\36\28 C.F.R. Sec. 27.1(a).
\37\PPD-Sec. 19, supra note 7, at 7.
\38\Chairman Grassley. First question, do you support legal
protections for FBI employees who follow FBI's own policies and report
wrongdoing to their supervisors? If not, why not?
Director Comey. I do, very much. Oversight of the Federal Bureau of
Investigation: Hearing Before the S. Comm. on the Judiciary, 114th
Cong. (2015).
\39\Chairman Grassley. * * * Do you support legal protections for
FBI employees who report wrongdoings to their supervisor?
Attorney General Lynch. Well, thank you, sir. I think certainly I
do support the protection of whistleblowers in general. The situation
that you raised I think is also one that we--all of us in law
enforcement have an obligation to support and protect as well. * * *
[W]e certainly support protecting those who report within their chain
of command, and as you, yourself, noted within the intelligence
community. Oversight of the Justice Department: Hearing Before the S.
Comm. on the Judiciary, 114th Cong. (2016).
\40\Whistleblower Retaliation at the FBI: Improving Protections and
Oversight: Hearing Before the S. Comm. on the Judiciary, 114th Cong.
(2015) (statement of Michael E. Horowitz, Inspector Gen., Dep't of
Justice) (``One particularly important proposed change recommended by
that group, was expanding the definition of persons to whom a protected
disclosure can be made, which the OIG endorses.'').
\41\GAO Report, supra note 9, at 41 (``To ensure that the purposes
of 5 U.S.C. Sec. 2303--which prohibits a personnel action taken against
an FBI employee as a reprisal for a protected disclosure--are met,
Congress may wish to 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.'').
\42\Chairman Grassley. [S]hould DOJ's regulations be amended to
clearly protect the FBI employee disclosures to Congress, and if not,
why not?
Associate Deputy Director Perkins. I think it falls within the
realm if someone's disclosing whistleblower type of role, and
disclosure to Congress, certainly it's something that should be
protected with. Whistleblower Retaliation at the FBI: Improving
Protections and Oversight: Hearing Before the S. Comm. on the
Judiciary, 114th Cong. (2015).
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Although the whistleblower protection provisions set out at
5 U.S.C. Sec. 2303 and 28 C.F.R. Part 27 do not encompass
disclosures to Congress, a separate Federal law provides
that ``[t]he right of employees, individually or
collectively, to petition Congress or a Member of Congress,
or to furnish information to either House of Congress, or
to a committee or Member thereof, may not be interfered
with or denied.'' (5 U.S.C. Sec. 7211.)
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Answers from FBI Associate Deputy Director Perkins to Questions for
the Record from Chairman Grassley Arising from the March 4, 2015,
Hearing Before the Senate Committee on the Judiciary Regarding
``Whistleblower Retaliation at the FBI: Improving Protections and
Oversight'' (Mar. 27, 2015), available at https://
www.judiciary.senate.gov/imo/media/doc/
Perkins%20Responses%20to%20Grassley.pdf
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Most employees in the Executive Branch generally do not
have a proscribed list of persons or entities to which they may
make disclosures of protected information. Given the nature of
the work conducted by the FBI, coupled with the carve-out under
which its whistleblower protection authority has been
functioning for some time, such a list of entities is
appropriate to ensure the rights of employees are protected
while addressing concerns the agency has expressed about
protecting sensitive information.
The definition of protected disclosure is not intended to
alter or amend any statutory or Executive Branch protections
for classified information. FBI employees who make protected
disclosures containing such information must comply with rules
regarding the proper handling and safeguarding of such
information and ensure that recipients have proper
authorization and facilities to receive such information
securely.
Prohibited Practices
The revised definition of a prohibited personnel practice
continues to protect employees who make disclosures that they
reasonably believe evidence wrongdoing under the same standard
as 5 U.S.C. Sec. 2303, with modifications made to conform to
current language applicable to other federal employees, as most
recently amended by the Whistleblower Protection Enhancement
Act of 2012.\43\ In 1989, the Whistleblower Protection Act
amended section 2302 to protect ``gross mismanagement,'' as
opposed to ``mismanagement.''\44\ A corresponding change was
not made to section 2303. The new definition of prohibited
personnel practice accounts for this change and other
amendments made to section 2302(b)(8).
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\43\5 U.S.C. Sec. 2302(b)(8).
\44\Pub. L. No. 101-0912, Sec. 104, 103 Stat. at 32.
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The new definition of prohibited personnel practice
additionally prohibits retaliation against FBI employees
because of the exercise of any appeal, complaint, or grievance
right related to a protected disclosure or as otherwise granted
by law, rule, or regulation; testifying or lawfully assisting
any individual in the exercise of such rights; cooperating with
or disclosing information to the Department of Justice Office
of Inspector General, which has the authority to conduct
reviews of the operations of the FBI, or to the Office of
Special Counsel, which has authority to require the head of an
agency to conduct an investigation of a violation of any law,
rule, or regulation, or gross mismanagement, gross waste of
funds, abuse of authority, or substantial and specific danger
to public health and safety and submit a written report to the
Office of Special Counsel; or refusing to obey an order that
would require the individual to violate a law. These
protections are equivalent to those granted to other employees
in the Executive Branch under 5 U.S.C. Sec. 2303(b)(9).
The Act prohibits the FBI from implementing or enforcing
any nondisclosure policy, form, or agreement that does not
contain the statement described in 5 U.S.C. Sec. 2302(b)(13).
That statement reads as follows:
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 created by
controlling Executive orders and statutory provisions
are incorporated into this agreement and are
controlling.\45\
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\45\5 U.S.C. Sec. 2302(b)(13).
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Such a requirement has been applicable to the FBI via a
provision in its annual appropriations act.\46\ Thus, it is not
a new requirement but one that already exists in statute and is
made permanent by this Act.
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\46\See, e.g., Consolidated Appropriations Act, 2016, Pub. L. No.
114-113, div. E, tit. VII, 744 (2015); Consolidated and Further
Continuing Appropriations Act, 2015, Pub. L. No. 113-235, div. E, tit.
VII,1A747, 128 Stat. 2129, 2392 (2014).
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Procedures
The Department's current process for investigating and
adjudicating FBI whistleblower reprisal complaints is contained
in 28 C.F.R. part 27. Those procedures are required to be
consistent with applicable provisions of 5 U.S.C.
Sec. Sec. 1214, 1221.\47\ As further detailed below, the
procedures provided for by the Act maintain consistency with
these sections, but also specify requirements intended to
address deficiencies in DOJ's process, including where DOJ's
regulations had failed to ensure protections commensurate with
sections 1214 and 1221.
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\47\5 U.S.C. Sec. 2303(b); 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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Filing of a complaint
The Act provides for new and enhanced procedures for the
investigation and adjudication of allegations of FBI
whistleblower reprisal. FBI employees or applicants may seek
review of a personnel action alleged to have been taken in
retaliation for a protected activity by submitting a complaint
to the Department of Justice Office of Inspector General. Any
other office that receives such an allegation is expected to
forward such complaint to the Office of Inspector General. The
Committee intends for the Office of Inspector General to
continue its current practice of reviewing complaints from
other sources, notably the FBI Inspection Division.\48\
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\48\See GAO Report, supra note 9, at 9 n.17.
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Investigation
Under the Act, the Office of Inspector General is the sole
entity responsible for investigating whistleblower reprisal
complaints. This investigatory responsibility is similarly
granted to inspectors general for intelligence community
agencies under Presidential Policy Directive 19.\49\ Justice
Department regulations had additionally authorized DOJ-OPR to
conduct such reviews.\50\ That office is not appropriately
suited for such duties given that its primary responsibility is
to investigate allegations of misconduct involving Department
attorneys that relate to the exercise of their authority to
investigate, litigate, or provide legal advice.\51\ Moreover,
DOJ-OPR does not have the same independence protections as
those provided to the Office of Inspector General.\52\
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\49\PPD-Sec. 19, supra note 7, at 2.
\50\28 C.F.R. Sec. 27.3.
\51\28 C.F.R. Sec. 0.39a.
\52\Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat.
1102, as amended (5 U.S.C. app. Sec. Sec. 1-13).
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The Office of Inspector General continues to be required to
investigate complaints consistent with the procedures and
requirements for the Office of Special Counsel as described in
5 U.S.C. Sec. 1214.\53\ Accordingly, timeframes and reporting
requirements applicable to the Office of Special Counsel are
also applicable to the Office of Inspector General. For
example, the Office of Inspector General must notify the
complainant that it has received the complaint and provide the
name of a contact person within the office within 15 days of
receiving the complaint.\54\ It also includes the authority to
request a stay from an Administrative Law Judge (ALJ) of any
personnel action for 45 days, subject to extension, if the
Inspector General determines that there are reasonable grounds
to believe that the personnel action was taken, or is to be
taken, as a result of a prohibited personnel practice.\55\
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\53\To the extent that requirements applicable to the Office of
Special Counsel are subsequently amended, such amended requirements
shall be applicable to the Office of Inspector General.
\54\5 U.S.C. Sec. 1214(a)(1)(B).
\55\U.S.C. Sec. 1214(b)(1).
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The Inspector General is required by the Act to issue a
decision containing the findings supporting his or her
determination. The Committee expects the Office of Inspector
General to continue its practices instituted in response to
GAO's report. This includes providing complainants with the
opportunity to comment on the Office of Inspector General's
decision to terminate a complaint without initiating an
investigation and providing more specificity to complainants
about the reasons a complaint does not meet jurisdictional
requirements.\56\ Prior to GAO's review, the Office of
Inspector General generally did not send a proposed termination
report to complainants when the office declined to investigate
their cases, and although the Office of Inspector General did
generally send a final termination report to these
complainants, it did not always include the reasons for its
decision in the report.\57\ GAO found that providing this
information helps ensure that complainants have the information
they need to make decisions about their complaints and the
Office of Inspector General recognized the benefits of
providing such information.\58\
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\56\GAO report, supra note 9, at 39-40; Whistleblower Retaliation
at the FBI: Improving Protections and Oversight: Hearing Before the S.
Comm. on the Judiciary, 114th Cong. (2015) (statement of Michael E.
Horowitz, Inspector Gen., Dep't of Justice) (``We also modified our
procedures with respect to decisions not to initiate an investigation.
In the past we closed such complaints in a brief declination letter. In
the interest of enhancing transparency and giving whistleblowers the
fullest possible opportunity to provide relevant information, our
declination letters now identified deficiencies in complaints and
provide complainants an opportunity to submit additional information
prior to the declaration becoming final.'').
\57\GAO Report, supra note 9, at 36-37.
\58\Id. at 39.
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Preliminary relief
The Act provides for automatic preliminary relief at the
conclusion of the Office of Inspector General's investigation
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) of section 2303.
The legislation specifies that once the Inspector General has
made his or her determination, the Inspector General is
required to request from an ALJ an order of preliminary relief
from the identified retaliatory personnel action consistent
with the Inspector General's determination. The ALJ must then
issue an order providing for this relief without further
proceedings. The intent of this provision is to provide relief
as a matter of course to a complainant once the Office of
Inspector General has concluded its investigation and found
that reasonable grounds exist to believe that reprisal has
occurred.
While authority to stay a personnel action has existed
under DOJ's FBI whistleblower regulations, as described
above,\59\ it has rarely been exercised within the Department.
In comparison, stays of personnel actions are more frequently
used by the Office of Special Counsel. The Committee believes
that preliminary relief is appropriate and fair once an
Inspector General has concluded that reasonable grounds exist
to believe that reprisal has occurred.\60\ Such a practice
encourages settlement and gives effect to the investigative
findings of the Office of Inspector General.\61\ The Inspector
General and ALJs are also encouraged to use stays earlier in
the proceedings as provided for in sections 1214 and 1221 and
as currently authorized under Justice Department
regulations.\62\
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\59\28 C.F.R. Sec. 27.4 (``Conducting Office may request the
Director to order a stay of any personnel action for 45 calendar days
if it determines that there are reasonable grounds to believe that a
reprisal has been or is to be taken.'').
\60\In addition to the Office of Special Counsel's practice of
requesting stays of a personnel action, interim relief exists in other
whistleblower contexts. See, e.g., 49 U.S.C. Sec. 31105 (requiring a
preliminary order for relief where the Department of Labor determines
after investigation that it is reasonable to believe a violation
occurred).
\61\Under the current regulatory process, the investigations of the
Office of Inspector General are rendered meaningless even where, at the
end of the independent fact-finding, the Inspector General has made a
determination that there is a reasonable basis to conclude that
reprisal has occurred. This issue was detailed in testimony provided at
the Committee hearing on FBI whistleblowers:
Chairman Grassley. Okay. And then a follow-up, should the
department have to defer to your independent investigative findings and
if not, what's the point in having your office do an independent
review?
Inspector General Horowitz. I've asked that question on a number of
occasions . . . Whistleblower Retaliation at the FBI: Improving
Protections and Oversight: Hearing Before the S. Comm. on the
Judiciary, 114th Cong. (2015).
\62\28 C.F.R. Sec. 27.4(b), (d).
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In the rare instance in which a personnel action has
already been effectuated and the FBI makes a particularized
showing that good cause exists not to return the employee to
the position that the employee would have held had the
personnel action not been taken, the ALJ is provided with
authority to, instead, return the employee, as nearly as
practicable and reasonable, to such position. This provision is
intended to address the concern that, in rare instances, it may
not be appropriate to return the employee to the exact same
position. For example, the ALJ could determine that the
employee could be assigned to an equivalent investigation with
equivalent responsibilities and duties as preliminary relief.
The Committee emphasizes that such an accommodation should not
be the normal course and expects the FBI to make this request
infrequently.
Filing of Objections; Review by Administrative Law Judge;
Review by Attorney General
The Act provides for either party to file objections to the
decision of the Inspector General within 60 days, which is the
amount of time currently provided for under 5 U.S.C. Sec. 1214
and DOJ's regulations.\63\ Under the Act, ALJs are responsible
for reviewing decisions of the Office of Inspector General,
should either party file objections. The filing of objections
does not affect an order of preliminary relief issued under
section 2303(c)(2)(C). If no objections are filed, the ALJ is
required to provide for an order of permanent relief from the
personnel action consistent with the preliminary order. The ALJ
may issue an order for further corrective action as described
under section 1221(g), such as attorney fees and compensatory
damages, after an opportunity for a hearing.
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\63\28 C.F.R. Sec. 27.4(c).
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If objections to the decision of the Inspector General are
filed by either party, the Act provides for the ALJ to review
the decision on the record after opportunity for an agency
hearing. Accordingly, the formal adjudication procedures of the
Administrative Procedure Act (APA) apply to these
adjudications.\64\ Under DOJ's current FBI whistleblower
regulations, hearings are discretionary by the Office of
Attorney Recruitment and Management\65\ (OARM) and have
generally not been held. Consistent with the APA, the bill
provides that the ALJ must issue a written decision explaining
the grounds for his or her determination. The provisions of the
APA provide for, among other things, the ALJ to regulate the
course of the hearing, issue subpoenas, rule on offers of proof
and receive relevant evidence, take depositions or have
depositions taken, hold settlement conferences, rule on
procedural requests, and make findings of fact and conclusions
of law.\66\ ALJ decisions must be supported by reliable and
substantial evidence.\67\ ALJ positions are designed to promote
independent decision making and various requirements are aimed
to ensure that ALJs are autonomous and operate free from agency
influence.\68\ An agency must appoint ALJs as are necessary for
proceedings required to be conducted under sections 556 and 557
of title 5, but may use ALJs from and with the consent of other
agencies when the agency is occasionally or temporarily
insufficiently staffed with ALJs.\69\ The Department should
consider borrowing ALJs from the Department of Labor,
Occupational Safety & Health Administration, which has
authority to protect workers from retaliation under twenty-two
federal laws and whose ALJs are experienced in the adjudication
of whistleblower cases.
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\64\5 U.S.C. Sec. 554.
\65\28 C.F.R. Sec. 27.4(e)(3).
\66\5 U.S.C. Sec. Sec. 556(c), 557(c).
\67\5 U.S.C. Sec. 556(d).
\68\See 5 U.S.C. 554(d), 5 C.F.R. Sec. Sec. 930.201(f)(3),
930.206(a).
\69\5 U.S.C. Sec. Sec. 3105, 3344.
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The ALJ may order corrective action as provided for in
section 1221(g). Under the Justice Department's current
regulatory framework, corrective action may be awarded
consistent with section 1221. However, after section 1221 was
amended in 2012,\70\ the Department did not amend its
regulations to ensure such corrective action was available to
FBI whistleblowers.\71\ The Department committed to do so in
April 2014, but, to date, has not.\72\ Moreover, the Department
has remained silent on whether it will amend its regulations
consistent with section 1221(g)(4), as amended in 2012, which
provides for corrective action to ``include fees, costs, or
damages reasonably incurred due to an agency investigation of
the employee, if such investigation was commenced, expanded, or
extended in retaliation for the disclosure or protected
activity that formed the basis of the corrective action.''\73\
All forms of corrective action under 1221(g) have been
available to FBI whistleblowers by operation of the amendments
to section 1221 since 2012, despite DOJ's failure to timely
update its regulations. All forms of corrective action provided
for under section 1221 may be awarded, as appropriate, by an
ALJ and must be accounted for in the Department's regulations
following the enactment of this Act.
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\70\Pub. L. No. 112-199, Sec. 104, 126 Stat. 1465, 1468-69
(inserting ``any other any other reasonable and foreseeable
consequential damages, and compensatory damages (including interest,
reasonable expert witness fees, and costs)'' and providing that
corrective action ``may include may include fees, costs, or damages
reasonably incurred due to an agency investigation of the employee, if
such investigation was commenced, expanded, or extended in retaliation
for the disclosure or protected activity that formed the basis of the
corrective action'').
\71\See 28 C.F.R. 27.4(f).
\72\DOJ Report, supra note 10, at 12.
\73\5 U.S.C. Sec. 1221(g)(4); see also 5 U.S.C. Sec. 1214(h).
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Unless appealed to the Attorney General, the decision of
the ALJ is final. While the Attorney General does not owe
deference to the ALJ's decision under the APA,\74\ the
Committee anticipates that the Attorney General will recognize
the investigative and adjudicative record before him or her and
not unduly delay resolution of these cases, particularly where,
as here, an independent fact-finder has produced a decision
supported by reliable and substantial evidence. Moreover, the
Attorney General may consider delegating his or her authority
to review such decisions to an independent entity. For example,
the Secretary of Labor, who has the authority to administer the
whistleblower provisions of twenty-two statutes, has generally
delegated her responsibility to issue final agency decisions to
the Administrative Review Board.\75\
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\74\5 U.S.C. Sec. 557(b).
\75\Delegation of Authority and Assignment of Responsibility to the
Administrative Review Board, 75 Fed. Reg. 3924 (Jan. 25, 2010); see
also U.S. Dep't of Labor, Information for Whistleblowers, ARB/OALJ,
available at http://www.dol.gov/appeals/whistleblowers.htm; U.S. Gov't
Accountability Office, GAO-09-106, Whistleblower Protection Program:
Better Data and Improved Oversight Would Help Ensure Program Quality
and Consistency 20, 55-56 (2009).
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Consistent with law applicable to the Merit Systems
Protection Board, this legislation requires the Attorney
General to establish and announce publicly the date by which
the Attorney General intends to complete his or her review of
the matter.\76\ If a delay is expected to be more than 30 days,
the Attorney General is required to publicly announce a new
date by which the review is intended to be completed. The
requirement for the Attorney General to report the date on
which the decision shall be completed and provide updates
should it not be met is also consistent with a recommendation
made by GAO to the Department to provide parties with an
estimated timeframe for returning each decision and, if the
timeframe shifts, communicating a revised estimate to the
parties.\77\ DOJ concurred with this recommendation, but it is
unclear if the Department is fulfilling this obligation. For
example, in one instance, the Office of the Deputy Attorney
General (ODAG) informed the Committee that the Deputy Attorney
General would not provide an estimated timeframe for completing
her review of a particular whistleblower's complaint.\78\ At
the time of the letter, the complaint at issue had been pending
with the Deputy Attorney General for almost one year and the
whistleblower had not been provided an estimated timeframe as
to its completion. Given this, the legislation makes such
requirements mandatory, as they are for the Merit Systems
Protection Board. The Committee expects that such reviews will
be completed expeditiously without sacrificing the quality or
thoroughness of the review process.
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\76\5 U.S.C. Sec. 7701.
\77\GAO Report, supra note 9, at 42 (``OARM and ODAG should provide
parties with an estimated time frame for returning each decision,
including whether the complaint meets threshold regulatory
requirements, merits, and appeals. If the time frame shifts, OARM and
ODAG should timely communicate a revised estimate to the parties.'').
\78\Letter from Peter J. Kadzik, Assistant Attorney General, U.S.
Dep't of Justice, to Charles E. Grassley, Chairmen, U.S. Senate
Committee on the Judiciary (Oct. 13, 2015). The Department stated that
an estimated timeframe will not be provided to the whistleblower until
staff assigned to the matter complete their review and provide their
recommendation to the Office of the Deputy Attorney General. Id. This
effectively negates the intent of GAO's recommendation, which is to
enhance accountability to complainants and provide additional assurance
about DOJ management's commitment to improve efficiency. See GAO
Report, supra note 9, at 27.
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Publication of determinations
Under the Act, decisions issued by an ALJ and the Attorney
General must be made publicly available consistent with the
requirements under the Freedom of Information Act, and the
Department must also proactively publish these decisions as
does the Merit Systems Protection Board.\79\ Unfortunately, the
Justice Department has never made available to FBI
whistleblowers litigating reprisal cases the precedent of the
Office of Attorney Recruitment and Management or the Deputy
Attorney General. This puts litigants at an extreme
disadvantage when trying to assert their rights in a contested
proceeding. In April 2014, the Department committed to
examining the feasibility of making these decisions available,
but has yet to publish a decision.\80\ Language in this
provision was revised in the managers' amendment in
consultation with Senator Flake to make clear that decisions
are to be published consistent with the practices of the Merit
Systems Protection Board, which currently makes such decisions
available for public review and copying in the Board's
Headquarters' Library and on the Board's website.\81\
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\79\5 U.S.C. Sec. 552(a)(2)(A) (requiring that final opinions in
the adjudication of cases be made available for inspection and
copying); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153-54
(1975) (observing that the proactive disclosure provision ``represents
a strong congressional aversion to `secret [agency] law,' . . . and
represents an affirmative congressional purpose to require disclosure
of documents which have `the force and effect of law''' (quoting H.R.
Rep. No. 89-1497, at 7 (1966)); Attorney General Holder's FOIA
Guidelines, available at http://www.justice.gov/sites/default/files/ag/
legacy/2009/06/24/foia-memo-march2009.pdf (``[A]gencies should readily
and systematically post information online in advance of any public
request.'').
\80\DOJ Report, supra note 10, at 18.
\81\5 C.F.R. Sec. 1204.2(d).
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Language in the Act makes clear that the publication of
decisions is subject to limitations on the disclosure of
information as provided for in law or regulation. In the rare
cases in which, for example, Privacy Act or classified
information must be redacted or otherwise withheld, the ALJ and
Attorney General retain the authority to do so. The Attorney
General may further provide for such a process in regulations
required to be issued under section 2303(d), as amended by this
Act.
Judicial review
The Act provides for judicial review in a federal circuit
court of appeals as provided under chapter 7 of title 5. This
is consistent with whistleblower cases under the Whistleblower
Protection Enhancement Act on appeal from the Merit Systems
Protection Board.\82\ Judicial review is intended to improve
the process by ensuring that a truly independent avenue of
appeal completely outside the Justice Department is available.
Its necessity has been demonstrated by the lengthy delays and
lack of transparency in the Justice Department's current
regulatory process for hearing these cases internally. In
promulgating the FBI whistleblower regulations in 1999, the
Department stated that section 2302 did not provide for
judicial review, even though the President was directed to
provide for enforcement consistent with section 1214 and 1221,
which do provide for judicial review of whistleblower
claims.\83\ The Department has maintained this position.\84\
Regardless of the Department's view, the legislation
unequivocally provides for judicial review of FBI whistleblower
cases. Courts may set aside decisions that are, among other
things, arbitrary and capricious, unsupported by substantial
evidence, or without observance of procedure required by
law.\85\
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\82\5 U.S.C. Sec. 7701.
\83\Whistleblower Protection For Federal Bureau of Investigation
Employees, 64 Fed. Reg. at 58,785-86.
\84\DOJ Report, supra note 10, at 19.
\85\5 U.S.C. Sec. 706.
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The FBI already is required to defend against whistleblower
reprisal allegations in federal court for its veteran's
preference eligible employees, who constitute between 15 and 20
percent of the Bureau.\86\ Under precedent of the Federal
Circuit Court of Appeals, preference eligible employees may
raise whistleblower reprisal as a defense to an adverse
personnel action before the Merit Systems Protection Board and
before a federal court of appeals.\87\ The court explicitly
considered and rejected the Department's assertions that
allowing whistleblower reprisal claims by employees within the
intelligence community raises serious security concerns.\88\
Federal courts are competent to hear and decide cases involving
even sensitive and classified matters, in the rare instances
such information is relevant. GAO has specifically found that
intelligence agencies have experience preparing case files in
adverse action and equal employment opportunity cases and can
convert classified materials into unclassified publicly
available documents where necessary, through declassification
and redaction.\89\ Moreover, they have experience dealing with
judges and attorneys who have security clearances in appeals to
the Equal Employment Opportunity Commission and in court
cases.\90\ GAO also found that very few adverse action cases
involve sensitive information in any event.\91\ In particular,
in its review of FBI whistleblower reprisal cases that had
closed over a period of five calendar years, according to GAO
officials, GAO did not identify any adjudicative case files
containing classified information.
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\86\Information on number of individuals who work at the FBI who
have been identified as veterans and individuals who claimed their
eligibility for veteran preference obtained from the Office of
Personnel Management, Enterprise Human Resources Integration--
Statistical Data Mart, current as of September 2015.
\87\Parkinson v. U.S Dep't of Justice, 815 F.3d 757 (Fed. Cir.
2016).
\88\Id. at 771-773.
\89\U.S. Gov't Accountability Office, GAO/NSIAD-96-6, Intelligence
Agencies: Personnel Practices at CIA, NSA, and DIA Compared With Those
of Other Agencies 5-6 (1996). GAO reviewed all available adverse action
case files at the National Security Agency and Defense Intelligence
Agency for a two-year period (40 cases), and all available case files
at the Merit Systems Protection Board for these agencies and the
Central Intelligence Agency for a five-year period (14 cases). Id. at
14-15. GAO reviewed selected court cases files relating to claims of
equal employment opportunity discrimination. Id. at 15.
\90\Id. at 6.
\91\Id. at 5.
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Regulations
The Justice Department is required to issue regulations to
provide for the enforcement of this Act, as it was when the
original section 2303 was enacted. The legislation requires the
Justice Department to provide regulations to:
(1) Ensure that a prohibited personnel practice is
not taken against an employee or applicant for
employment with the FBI.
(2) Provide for the administration and enforcement of
the Act in a manner consistent with sections 1214 and
1221, which govern the Office of Special Counsel and
Merit Systems Protection Board, as well as the
Administrative Procedure Act. The Justice Department
was previously required to provide for regulations
consistent with sections 1214 and 1221. In addition to
other provisions described in those sections, the
burdens of proof governing these cases as derived from
those sections shall continue to apply. In particular,
the whistleblower has the burden of showing, by a
preponderance of the evidence, that the protected
activity was a contributing factor in the personnel
action that was taken or is to be taken against him or
her. Corrective action may not be ordered if, after a
finding that a protected disclosure was a contributing
factor, the agency demonstrates by clear and convincing
evidence that it would have taken the same personnel
action in the absence of such disclosure.\92\
---------------------------------------------------------------------------
\92\5 U.S.C. Sec. 1221(e).
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(3) Ensure that FBI employees are informed of the
rights and remedies available to 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.
These same obligations already attach to the head of
each agency under the Whistleblower Protection
Enhancement Act.\93\ This Act is not intended to
authorize the disclosure of information in a manner
that is unauthorized under law, regulation, or
Executive Order and it is imperative that FBI employees
know how to make disclosures appropriately.
---------------------------------------------------------------------------
\93\5 U.S.C. Sec. 2302(c).
---------------------------------------------------------------------------
(4) Provide for the protection of classified
information and intelligence sources and methods. The
Justice Department is required to ensure that the
process provided for under this section adequately
protects the handling and transmission of classified
information. The current case processing directive of
the Office of Attorney Recruitment and Management
states that ``parties shall not file any classified
information with [the Office of Attorney Recruitment
and Management]. In the event such information becomes
relevant to the proceedings before [the Office of
Attorney Recruitment and Management], appropriate
arrangements for the protection, transmission, and
handling of such materials must be in compliance with
FBI and other applicable requirements regarding
classified materials.''\94\ Classified information is
rarely relevant to a reprisal action, but, in the event
that it is, it is critical that the Justice Department
transparently provide for procedures to accommodate
such information to give confidence to FBI
whistleblowers and other stakeholders that such
information is adequately protected.\95\ The language
establishing this obligation is the same that applies
to agencies in the intelligence community under
Presidential Policy Directive 19.\96\
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\94\Office of Attorney Recruitment and Management Procedures for
FBI Whistleblower Reprisal Claims Brought Pursuant to 28 C.F.R. Part 27
(eff. Jan. 4, 2016), at 5, available at https://www.justice.gov/oarm/
file/809851/download; see also Office of Attorney Recruitment and
Management Procedures for FBI Whistleblower Reprisal Claims Brought
Pursuant to 28 C.F.R. Part 27 (eff. Oct. 14, 2011), at 5.
\95\The Merit Systems Protection Board provides for a process to
address sensitive and classified information its Judges' Handbook. For
example, when classified material is relevant to a case, a hearing
officer with the appropriate level of security clearance will be
assigned, and the Handbook describes the authority of administrative
judges to seals parts of the record and sanitize initial decisions.
U.S. Merit Systems Protection Board, Judges' Handbook (2007), at 74,
76-77.
\96\PPD-19, supra note 7, at 2.
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Reporting
Annual reporting requirements currently exist for the
Justice Department pursuant to Presidential delegation.\97\
This Act codifies such requirements with minor amendments--such
as how many cases were resolved through the Justice
Department's new mediation program--and provides for public
availability. The Justice Department has previously stated that
it had no objection to making such reports public.\98\
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\97\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).
\98\DOJ report, supra note 10, at 19.
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Rules of construction
The rules of construction under this Act are intended to
make clear that certain types of laws and regulations are
unaffected by the new provisions. The preexisting jurisdiction
of any office to conduct an investigation or determine whether
a prohibited personnel practice has been or will be taken is
not affected by this Act. Similar language is contained in
DOJ's FBI whistleblower regulations\99\ and in Office of
Special Counsel authorizing language.\100\
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\99\28 C.F.R. Sec. 27.3.
\100\5 U.S.C. Sec. 1214(a)(5).
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The second rule of construction provided by this
legislation is intended to ensure that rules, including
penalties for violations thereof, governing the appropriate
safeguarding of information, including classified information,
are adhered to by all parties involved in disclosing,
receiving, handling, investigating, and adjudicating FBI
whistleblower disclosures or reprisal complaints as provided
for in this Act. Nothing in this Act abrogates or amends any
law, regulation, or Executive Order regarding the handling or
disclosure of information, including classified information. A
provision was included in the mangers' amendment to this
effect. Whistleblowers who make lawful disclosures of sensitive
information must ensure that the persons or entities to whom
they make such disclosures are entitled to receive them.
Employees who fail to do so may be subject to penalties. It is
equally important that adverse personnel actions are not taken
against employees under the guise of information protection
when such personnel actions are, in reality, because of a
protected disclosure.
GAO Report
This section requires GAO to issue a report, not later than
four years after the enactment of this Act, to evaluate the
amendments made by this Act. GAO issued a report in 2014 that
thoroughly assessed the Justice Department's FBI whistleblower
regulations.\101\ Instead of waiting almost 30 years to assess
the state of protections for FBI whistleblowers, as occurred
before, this statutorily required report will provide the
Congress with information needed much more quickly to assess
the program in a reasonable time frame and make any adjustments
as needed. The review of the process of investigating and
adjudicating FBI whistleblower reprisal complaints is to
include, among other things, the recently established mediation
program. The Committee is pleased that the Department has
initiated a program that is aimed at producing settlements and
reducing the costs of these disputes, especially in light of
GAO's finding that corrective action may take more than a
decade.\102\
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\101\GAO Report, supra note 9.
\102\Id. at 22.
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GAO is also directed to report on the number and type of
disciplinary actions taken in instances of a prohibited
personnel practice. Discipline of employees who retaliate
against others for their lawful protected activity must be
effectuated by the Bureau, as punishment of these employees
sends the critical message to FBI employees that such behavior
will not be tolerated.
GAO's evaluation of the FBI whistleblower program is
intended to provide for best practices and lessons learned not
only for the regime under the unique statutory carve-out for
FBI whistleblowers, but also the whistleblower protection
regimes affecting whistleblowers in the Executive Branch and in
the intelligence community.
Effective Date; Implementation
This section provides that the Act is effective upon
enactment and applies to pending complaints at the Justice
Department, subject to specified exceptions. This general
effective provision means that substantive changes made to the
definition of a protected disclosure are effective immediately
such that FBI employees will be protected for making a
disclosure of wrongdoing to a supervisor in his or her chain of
command, among other changes. Such substantive requirements
similarly apply to cases currently pending in the investigative
or adjudicative stage within the Justice Department, meaning
that such cases may not be dismissed solely because the FBI
employee or applicant made a disclosure of information to a
person or entity that is now, but was not previously, included
in DOJ's FBI whistleblower regulations.
Department of Justice regulations are necessary to
implement the new procedures established by this Act. The
legislation provides ample time--18 months--for the Department
to issue such regulations and the Committee expects that such
regulations will be adopted no later than that time. Prior to
the adoption of such regulations, FBI whistleblower protection
cases will continue to be investigated and adjudicated as
provided for in DOJ's current regulations, although, as
detailed above, the amendments made to section 2303(a) and (b)
will be effective. At the time that DOJ's regulations are
issued, reprisal complaints that are pending in the review
stage (i.e., at OARM or ODAG) will continue to be adjudicated
under DOJ's preexisting regulatory procedures. Cases that are
pending in the investigative stage will conclude the
investigation under DOJ's prior FBI whistleblower regulations,
and then transition to the new statutory and regulatory
procedures for the adjudication stage. As such, in the case of
an appeal, these cases will be heard by an ALJ and subject to
review in federal court.
IV. Congressional Budget Office Cost Estimate
The cost estimate provided by the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974 was not available for inclusion in this report. The
estimate will be printed in either a supplemental report or the
Congressional Record when it is available.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 2390. In order to
carry out this Act, the Attorney General is required to issue
amended regulations that, among other things, ensure that
prohibited personnel practices shall not be taken against an
employee in, or an applicant for, a position in the FBI and
that provide for the administration and enforcement of this
Act. These regulations merely establish procedures under which
FBI employees or applicants for employment with the FBI may
make certain protected disclosures of information and establish
procedures under which allegations of reprisal against such
individuals will be investigated and adjudicated.
VI. Conclusion
The Federal Bureau of Investigation Whistleblower
Protection Act of 2016, S. 2390, addresses serious deficiencies
in both the substance of protections and process for remedying
the violations thereof for whistleblowers at the FBI. The
reforms instituted as a result of this Act will help ensure
that FBI employees are protected from reprisal when they take
action to help root out waste, fraud, and abuse in our
Government.
VII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 2390, 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):
UNITED STATES CODE
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
* * * * * * *
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).]
(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.
[(b) The] (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) [to] ensure [such a personnel action] that
prohibited personnel practices shall not be taken
against an employee [of the] in, or applicant for, a
position in the Federal Bureau of Investigation; [as a
reprisal for any disclosure of information described in
subsection (a) of this section.]
[(c) The President shall] (2) provide for the
administration and enforcement of [this section] subsection (c)
in a manner consistent with applicable provisions of sections
1214 and 1221 [of this title.] 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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