69–006 

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 

2 

1Pub. L. No. 95–454, §§ 101, 202, 92 Stat. 1111, 1113–8, 1121–31 (codified as amended at 5 

U.S.C. §§ 2301–2306, 1201–122, respectively). 2 Id. 

3 5 U.S.C. §§ 2302–2303. 

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’’]. 

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. 

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. § 2303.3 According to the 

U.S. Government Accountability Office (GAO): 

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

Instead, 5 U.S.C. § 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 

3 

5 5 U.S.C. § 2303(a). 

6 5 U.S.C. § 2303. 

7 U.S. Dep’t of Justice, Department of Justice Report on Regulations Protecting FBI Whistleblowers, 3 (Apr. 2014) [hereinafter ‘‘DOJ Report’’]. 8 Id. 

9Pub. L. No. 101–12, 103 Stat. 16. 

10 Id. at §§ 1211–12, 103 Stat. 16, 19–21. 11 Id. at § 1213, 103 Stat. 16, 21. 12 Id. at § 1221, 103 Stat. 16, 29–31. 13Delegation 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). 14Whistleblower 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). 15Whistleblower Protection for Federal Bureau of Investigation Employees, 64 Fed. Reg. 

58,782 (Nov. 1, 1999) (codified at 28 C.F.R. pt. 27). 16Whistleblower Protection for Federal Bureau of Investigation Employees, 66 Fed. Reg. 

37,904 (July 20, 2001). 17Whistleblower Protection for Federal Bureau of Investigation Employees, 73 Fed. Reg. 1,495 

(Jan. 9, 2008). 

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

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

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

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. § 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. § 2303, covering FBI employees. 

In April 1997, President William Clinton delegated to Attorney 

General Janet Reno his responsibilities under 5 U.S.C. § 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

Under the procedures, an employee who believes he or she has 

been retaliated against for making a protected disclosure can subVerDate Sep 11 2014 05:42 Dec 01, 2016 Jkt 069006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR835.XXX HR835
4 

18 28 C.F.R. § 27.1. 19DOJ Report, supra note 7, at 5. 20 28 C.F.R. § 27.4(a). 21 28 C.F.R. § 27.4(c)(1). 22 Id. 23 28 C.F.R. § 27.5. 24 Id. 25 Id. 26DOJ Report, supra note 7, at 8–10. 27Whistleblower 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). 28Whistleblower 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). 

mit 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

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

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

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. 

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

5 

29GAO Report, supra note 4, at 16 fn. 36. 30GAO Report, supra note 4, at 20–22. 31Fed. Bureau of Investigation, Domestic Investigations and Operations Guide, October 15, 

2011. 32DOJ Report, supra note 7, at 7. 33 Id. 34 Id. at 8. 35GAO Report, supra note 4. 36 Id. at 13 fn. b. 37 Id. at 14. 38 Id. 39 Id. at 15–16. 

In 2008, FBI’s Internal Investigations Section was also added to 

the list as a result of FBI OPR being restructured.29

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. 

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. § 27.1(a).33

Some cases were closed for similar reasons by DOJ OPR.34

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

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 

6 

40The 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, § 602, 128 Stat. 1390, 1418, provided certain statutory protections 

for disclosures to supervisors. See 50 U.S.C. § 3341(j)(3)(A)(i). 41 Id. 42DOJ 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. 43GAO Report, supra note 4, at 17–18. 44 Id. at 20. 45 Id. at 41. 46 Id. at 13, 13 fn. 29. 47 Id. at 12. 48 Id. 

those in an intelligence community employee’s direct chain of command.40

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: 

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

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

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 

7 

49 Id. 50Pub. 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, § 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)). 51PPD–19, supra note 40, at 7. 

or more for a DOJ decision without information on when they 

might receive it.49

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. § 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 § 2303, applicable to FBI employees, did not include them.50

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

8 

52 5 U.S.C. § 2302(b)(13). 53See, e.g., Consolidated Appropriations Act of 2016, Pub. L. No. 114–113, Div. E, § 713. 

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. § 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. § 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

Although not previously codified in § 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

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. § 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 poVerDate Sep 11 2014 05:42 Dec 01, 2016 Jkt 069006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR835.XXX HR835
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54 5 U.S.C. § 1214(a)(3)(A)(ii). 55 28 C.F.R. § 27.4(c). 56 5 U.S.C. § 554. 57 28 C.F.R. § 27.4(e)(3). 58DOJ Report, supra note 7, at 20. 59 5 U.S.C. § 556(d). 60 5 U.S.C. §§ 556(c), 557(c). 61 5 U.S.C. § 7701. 

sition 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. § 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

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. § 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. 

10 

62Delegation 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). 

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. 

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. 

11 

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. 

12 

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. 

13 

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 

* * * * * * * 

14 

SUBPART A—GENERAL PROVISIONS 

* * * * * * * 

CHAPTER 23—MERIT SYSTEM PRINCIPLES 

* * * * * * * 

ø§ 2303. Prohibited personnel practices in the Federal Bureau of Investigation 

ø(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— 

ø(1) a violation of any law, rule, or regulation, or 

ø(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, policydetermining, policymaking, or policy-advocating character). 

ø(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. 

ø(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.¿ 

§ 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— 

15 

(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 subVerDate Sep 11 2014 05:42 Dec 01, 2016 Jkt 069006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6603 E:\HR\OC\HR835.XXX HR835
16 

section (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 secVerDate Sep 11 2014 05:42 Dec 01, 2016 Jkt 069006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6603 E:\HR\OC\HR835.XXX HR835
17 

tion 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. 

18 

(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 

19 

(2) alter or amend any law, regulation, or Executive order regarding the handling or disclosure of information, including 

classified information. 

* * * * * * * 

Æ