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
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART A--GENERAL PROVISIONS
* * * * * * *
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).
[(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.
* * * * * * *
