```

[Senate Report 114-261]
[From the U.S. Government Publishing Office]

                                                     Calendar No. 421

114th Congress          {                      }                Report
                                 SENATE
 2d Session             {                      }               114-261
======================================================================

 
 FEDERAL BUREAU OF INVESTIGATION WHISTLEBLOWER PROTECTION ENCHANCEMENT 
                              ACT OF 2016

                                _______
                                

                  May 25, 2016.--Ordered to be printed

                                _______
                                

          Mr. Grassley, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2390]

    The Committee on the Judiciary, to which was referred the 
bill (S. 2390), to provide adequate protections for 
whistleblowers at the Federal Bureau of Investigation, having 
considered the same, reports favorably thereon, with an 
amendment, and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Federal Bureau of Investigation 
     Whistleblower Protection Enhancement Act of 2016.................1
 II. History of the Bill and Committee Consideration..................6
III. Section-by-Section Summary of the Bill...........................7
 IV. Congressional Budget Office Cost Estimate.......................20
  V. Regulatory Impact Evaluation....................................20
 VI. Conclusion......................................................20
VII. Changes to Existing Law Made by the Bill, as Reported...........20

   I. Background and Purpose of the Federal Bureau of Investigation 
            Whistleblower Protection Enhancement Act of 2016

    The Federal Bureau of Investigation Whistleblower 
Protection Act of 2016 (``the Act'') will strengthen and 
enhance the rights and protections afforded to employees of the 
Federal Bureau of Investigation (FBI)\1\ so that they can more 
effectively help root out waste, fraud, and abuse. 
Whistleblowers play a critical role in keeping our government 
efficient and honest, yet they also risk retaliation from their 
employers, sometimes being demoted, reassigned, or fired as a 
result of their actions. The Civil Service Reform Act of 1978 
(CSRA) first established statutory protections for federal 
employees to encourage disclosure of government illegality, 
waste, fraud, and abuse.\2\ However, protections for FBI 
employees were codified in a separate statutory provision--5 
U.S.C. 2303--that left enforcement of protections largely to 
the President.\3\ Minimal legislative history exists explaining 
why the FBI was carved out of the whistleblower protection 
framework created in the CSRA, which is applicable to most 
federal employees, and covered instead under a separate, more 
limited, statutory framework in 5 U.S.C. 2303. Comments made by 
Members of Congress at the time suggest it was a compromise 
meant to recognize the sensitive nature of the agency but also 
to address the need to create channels within the FBI to raise 
whistleblower matters, given past improprieties.\4\ A framework 
for the handling, disclosure, investigation, and adjudication 
of FBI whistleblower reprisal complaints was not established 
until after the President delegated his authority to the 
Justice Department (DOJ) in 1997,\5\ and final regulations were 
promulgated by the Justice Department in 1999.\6\
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    \1\Consistent with the Act, the term ``employee'' also encompasses 
an applicant for a position in the FBI for most of the rights conveyed 
in the Act.
    \2\Civil Service Reform Act of 1978, Pub. L. No. 95-454, 
Sec. Sec. 101, 202, 92 Stat. 1111, 1113-8, 1121-31 (codified as amended 
at 5 U.S.C. Sec. Sec. 2301-2306, 1201-1222, respectively).
    \3\Id. Sec. 101, 92 Stat. at 1117 (codified at 5 U.S.C. Sec. 2303).
    \4\See, e.g., 124 Cong. Rec. S14300 (daily ed. Aug. 24, 1978) 
(statement of Sen. Percy) (stating ``the FBI is not held guiltless in 
some of its activities because of the charges that have been made . . . 
the public's erosion of confidence in the Federal Government must be 
arrested ''); 124 Cong. Rec. H9359 (daily ed. Sept. 11, 1978) 
(statement of Rep. Derwinski) (stating that ``[t]he rigorous and 
dangerous duties performed by the Bureau's employees do not lend 
themselves to same [sic] aspects of this legislation. The best argument 
for exclusion of the FBI is probably the exclusion in the bill of other 
national security agencies The FBI is a sensitive agency.''); 124 Cong. 
Rec. H9359-60 (daily ed. Sept. 11, 1978) (statement of Rep. Udall) 
(stating ``the public should have confidence that there are channels 
within the Government so that people can blow the whistle' on the FBI 
just as they can on other agencies.''); 124 Cong. Rec. H11822 (daily 
ed. Oct. 6, 1978) (statement of Rep. Schroeder) (``Special 
whistleblower protections are provided in the Federal Bureau of 
Investigations [sic], necessitated, in part, by the woeful history of 
this agency in terms of eliminating internal wrongdoing.'').
    \5\Delegation of Responsibilities Concerning FBI Employees Under 
the Civil Service Reform Act of 1978, Memorandum for the Attorney 
General, 62 Fed. Reg. 23,123 (Apr. 14, 1997).
    \6\Whistleblower Protection For Federal Bureau of Investigation 
Employees, 64 Fed. Reg. 58,782 (Nov. 1, 1999). Interim regulations were 
issued on November 10, 1998 and the Department solicited post-
promulgation comments, due January 11, 1999. Whistleblower Protection 
For Federal Bureau of Investigation Employees, 63 Fed. Reg. 62,937 
(Nov. 10, 1998).
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    Since the passage of the CSRA in 1978, Congress has amended 
and strengthened whistleblower protections for employees across 
the rest of the federal government, but has not made 
corresponding changes to provisions applicable to employees at 
the FBI.\7\ This has left protections for FBI whistleblowers 
inferior to those of other Executive Branch employees. Prior 
attempts to address these shortcomings were made in the 107th 
and 108th Congresses.\8\ A renewed examination of the 
protections provided to FBI whistleblowers and the procedures 
afforded to them by the Justice Department to protect those 
limited rights has revealed numerous deficiencies. At the 
request of Chairman Grassley, the Government Accountability 
Office (GAO) conducted a review of DOJ's process for handling 
FBI whistleblower reprisal complaints, which was issued in 
January 2015.\9\ In addition, the President directed the 
Attorney General to assess the efficacy of its regulations in 
deterring reprisal for protected disclosures and in ensuring 
appropriate enforcement, and to propose revisions to its 
regulations that would increase their effectiveness.\10\ Both 
evaluations confirmed that, unlike all other Executive Branch 
employees, including employees in the intelligence community 
under statutorily and presidentially created protections,\11\ 
FBI employees enjoy no legal protection for making reports of 
wrongdoing to supervisors or others in their chain of 
command.\12\ Instead, FBI employees may only seek redress for 
reprisal for reporting wrongdoing to a designated list of nine 
persons and entities, which includes the Department of 
Justice's Office of Professional Responsibility (DOJ-OPR), the 
Department's Office of Inspector General (DOJ-OIG), the FBI 
Office of Professional Responsibility (FBI-OPR), the FBI 
Inspection Division Internal Investigations Section, the 
Attorney General, the Deputy Attorney General, the Director of 
the FBI, the Deputy Director of the FBI, and to the highest 
ranking official in any FBI field office.\13\
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    \7\See Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 4, 
9, 103 Stat. 16, 33, 34-45; Whistleblower Protection Enhancement Act of 
2012, Pub. L. No. 112-199, 101-105, 112, 126 Stat. 1465, 1465-1468, 
1472; Presidential Policy Directive/PPD-19, Protecting Whistleblowers 
with Access to Classified Information (Oct. 10, 2012), available at 
https://www.whitehouse.gov/sites/default/files/image/ppd-19.pdf 
[hereinafter ``PPD-19'']; Intelligence Authorization Act for Fiscal 
Year 2014, Pub. L. No. 113-126, tit. VI, 128 Stat. 1390, 1414-1422; 
Intelligence Authorization Act for Fiscal Year 2015, Pub. L. No. 113-
293, 310, 128 Stat. 3990, 3999-4000 (2014).
    \8\S. 1974, 107th Cong. (2002); S. 1440, 108th Cong. (2003).
    \9\U.S. Gov't Accountability Office, GAO-15-112, Whistleblower 
Protection: Additional Actions Needed to Improve DOJ's Handling of FBI 
Retaliation Complaints (2015) [hereinafter ``GAO Report''].
    \10\PPD-19, supra note 7, at 5. DOJ issued its report in April 
2014. U.S. Dep't of Justice, Report on Regulations Protecting FBI 
Whistleblowers (2014) [hereinafter ``DOJ Report''].
    \11\5 U.S.C. Sec. 2302(b)(8); PPD-19, supra note 7, at 6-7.
    \12\GAO Report, supra note 9, at 6; DOJ Report, supra note 10, at 
4.
    \13\28 C.F.R. 27.1(a).
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    This structure has resulted in legitimate complaints of 
reprisal being dismissed because the underlying disclosure was 
initially made to the ``wrong'' person or entity. GAO reviewed 
54 complaints that DOJ had closed over a period of five 
calendar years where documentation was sufficient to determine 
why the case had closed.\14\ Of these complaints, forty-three 
percent (23 cases) had at least one claim dismissed because the 
complainant made his or her disclosure to an official or entity 
not designated in the regulations.\15\ In 17 of these 23 cases, 
GAO was able to determine, however, that a disclosure was made 
to someone in the employee's chain of command or 
management.\16\ The findings by GAO are consistent with those 
made by the Department in its own review of FBI whistleblower 
cases,\17\ and are unsurprising given the FBI's culture that 
requires a deep respect for the chain of command and FBI's own 
policy that encourages reporting of wrongdoing to 
supervisors.\18\
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    \14\GAO Report, supra note 9, at 14.
    \15\Id.
    \16\Id.
    \17\DOJ Report, supra note 10, at 7 (``OIG reviewed a total of 89 
cases . . . Of the 85 cases that were closed, OIG found that 69 were 
`non-cognizable.' In a significant portion of cases, the claim was 
found non-cognizable because it was not made to the proper individual 
or office under 28 C.F.R. Sec. 27.l(a).'').
    \18\The FBI's October 15, 2011, Domestic Investigations and 
Operations Guide states: ``In general, the FBI requires employees to 
report known or suspected failures to adhere to the law, rules or 
regulations by themselves or other employees, to any supervisor in the 
employees' chain of command; any Division Compliance Officer; any 
Office of the General Counsel Attorney; any FBI-INSD personnel; any FBI 
Office of Integrity and Compliance staff; or any person designated to 
receive disclosures pursuant to the FBI Whistleblower Protection 
Regulation (28 Code of Federal Regulations 27.1), including the 
Department of Justice Inspector General,'' available at https://
vault.fbi.gov/
FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20 
%28DIOG%29.
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    The Committee is familiar with individual cases that were 
dismissed because FBI employees made disclosures of serious 
wrongdoing to the wrong person or entity, and has received 
testimony regarding such employees. Michael German, a decorated 
undercover special agent within the FBI, who successfully 
risked his life to infiltrate white supremacist and neo-Nazi 
hate groups across the United States, discovered that a portion 
of a meeting between two such groups had been illegally 
recorded by mistake. He testified that his supervisor refused 
to address the matter and told him to pretend it did not 
happen.\19\ Because he was aware that a failure to provide 
notice to his chain of command would cause problems, Mr. German 
called his supervisor to inform the supervisor that he intended 
to call the assistant special agent in charge (ASAC) in order 
to tell the ASAC that he, Mr. German, was going to call the 
Special Agent in Charge (SAC) to make a whistleblower 
report.\20\ The ASAC directed him to write the complaint in an 
email that the ASAC would forward to the SAC.\21\ The FBI would 
later argue that by transmitting his complaint through the 
ASAC, Mr. German had forfeited his right to be protected from 
the reprisals he ultimately faced for sending that email.\22\ 
Richard Kiper previously worked at the FBI Training Division in 
Quantico, where he made multiple disclosures regarding waste, 
fraud, and abuse to the highest ranking official in the 
Training Division, the Assistant Director. Following his 
disclosures, he was demoted two grades through a ``Loss-of-
Effectiveness'' order.\23\ Mr. Kiper testified that while the 
FBI conceded that he made his disclosures to the highest-
ranking official within the FBI Academy, the FBI argued that 
the disclosures were not made to the highest ranking official 
in any FBI office, and therefore not protected.\24\
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    \19\Whistleblower Retaliation at the FBI: Improving Protections and 
Oversight: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 
(2015) (statement of Michael German, Fellow, Liberty and National 
Security Program, Brennan Center for Justice at New York University 
School of Law).
    \20\Id.
    \21\Id.
    \22\Id.
    \23\Under FBI Policy, a ``Loss-of Effectiveness'' order is a 
management-directed reassignment of an FBI employee based on an 
employee's inability to satisfactorily perform his or her duties while 
remaining in his or her currently assigned position. Federal Bureau of 
Investigation, Policy Directive 0773D, Loss of Effectiveness Transfers 
(2015).
    \24\Whistleblower Retaliation at the FBI: Improving Protections and 
Oversight: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 
(2015) (statement of J. Richard Kiper, Special Agent, Federal Bureau of 
Investigation).
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    Evaluation of the existing statutory and regulatory 
protections for FBI whistleblowers also demonstrates that the 
investigation and adjudication process for these complaints 
lacks independence, transparency, and efficiency in key 
regards. All complaints are investigated and adjudicated 
completely within the Justice Department without any 
opportunity for independent review. Enforcement of 
whistleblower protections is statutorily required to be 
consistent with applicable provisions of sections 1214 and 1221 
of title 5 of the U.S. Code, which govern the Office of Special 
Counsel and Merit Systems Protection Board (where nearly all 
other federal employees' whistleblower retaliation claims are 
investigated and adjudicated), but the Department's regulatory 
processes have not provided commensurate protections. Offices 
within the Department involved in this process have missions 
that are wholly unrelated to FBI whistleblowers and have stated 
that competing priorities and resources contribute to 
delays.\25\ FBI whistleblowers lack access to case precedent 
because the Department has failed to publish decisions from 
prior cases, yet the FBI as a repeat litigant has access to all 
prior decisions. Moreover, resolution of cases has taken up to 
more than a decade. GAO reviewed all 62 complaints closed over 
a period of five calendar years (2009 through 2013) and found 
that the Department ruled in favor of the whistleblower in just 
three instances; these three cases lasted from just over eight 
years to 10.6 years.\26\
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    \25\GAO Report, supra note 9, at 23-24; see also Letter from 
Charles E. Grassley, Chairman, U.S. Senate Committee on the Judiciary, 
to Sally Quillian Yates, Deputy Attorney General, U.S. Dep't of Justice 
(Sep't 29, 2015) (citing the Department's statement to a whistleblower 
that ``given . . . the demands on [Deputy Attorney General Yates'] time 
are vast and quite unpredictable, it is not practical to require her to 
provide the parties with an estimated timeframe . . .'').
    \26\GAO Report, supra note 9, at 22.
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    The FBI Whistleblower Protection Act of 2016, S.2390, which 
has been endorsed by more than 25 organizations and numerous 
current and former whistleblowers, would address identified 
deficiencies in the substantive protections applicable to FBI 
whistleblowers and the procedures by which they may obtain 
redress by: (1) expanding the list of persons and entities to 
which FBI employees may make protected disclosures and the 
definition of a prohibited practice and (2) enhancing 
procedures for the investigation and adjudication of complaints 
of reprisal made by FBI whistleblowers. To ensure that FBI 
employees are protected from reprisal for reporting wrongdoing 
consistent with other law enforcement personnel, S.2390 
specifies persons and entities to which FBI employees may make 
protected disclosures. This list includes persons and entities 
already permitted to receive disclosures of wrongdoing pursuant 
to current law and regulation and it adds to the list 
supervisors within the employee's chain of command, who were 
already permitted to receive disclosures of wrongdoing under 
FBI's policy.\27\ The list includes the Office of Special 
Counsel, which is authorized to receive complaints from FBI 
employees under 5 U.S.C. Sec. 1213\28\ and reiterates that 
employees are protected as described by the Lloyd-La Follette 
Act, 5 U.S.C. 7211.\29\ The legislation ensures that an FBI 
employee who is retaliated against for making a protected 
disclosure to this specific list of individuals and entities 
may obtain a remedy for the retaliation suffered.
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    \27\See Domestic Investigations and Operations Guide, supra note 
17.
    \28\Under 5 U.S.C. Sec. 1213, the Office of Special Counsel may 
refer such disclosures to the head of the agency which the information 
concerns for investigation. 5 U.S.C. Sec. 1213(g).
    \29\In addition to the Lloyd-La Follette Act, under an annual 
appropriations provision, no funds are available to pay the salary of 
an FBI officer or employee who:
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        (1) prohibits or prevents, or attempts or threatens to 
      prohibit or prevent, any other officer or employee of the 
      Federal Government from having any direct oral or written 
      communication or contact with any Member, committee, or 
      subcommittee of the Congress in connection with any matter 
      pertaining to the employment of such other officer or 
      employee or pertaining to the department or agency of such 
      other officer or employee in any way, irrespective of 
      whether such communication or contact is at the initiative 
      of such other officer or employee or in response to the 
      request or inquiry of such Member, committee, or 
      subcommittee; or
        (2) removes, suspends from duty without pay, demotes, 
      reduces in rank, seniority, status, pay, or performance or 
      efficiency rating, denies promotion to, relocates, 
      reassigns, transfers, disciplines, or discriminates in 
      regard to any employment right, entitlement, or benefit, or 
      any term or condition of employment of, any other officer 
      or employee of the Federal Government, or attempts or 
      threatens to commit any of the foregoing actions with 
      respect to such other officer or employee, by reason of any 
      communication or contact of such other officer or employee 
      with any Member, committee, or subcommittee of the Congress 
      as described in paragraph (1).
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    Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, div. E, 
tit. VII, 713, 129 Stat. 2242, 2476 (2015).
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    With nearly 35,000 personnel and an enacted budget of 
almost $9 billion, the FBI is essential to combating serious 
and complex criminal activity, protecting the nation against 
terrorism and espionage, and serving all federal, state, and 
local law enforcement agencies with training, laboratory and 
fingerprint examinations, and centralized crime information. 
The FBI's vital role in these functions and the protection of 
our nation make it all the more critical that FBI employees are 
encouraged to report, without fear of reprisal, incidents that 
they reasonably believe constitute a violation of the 
Constitution, rule, law, or regulation, gross mismanagement, a 
gross waste of funds, an abuse of authority, or a substantial 
and specific danger to public health or safety. This will serve 
to create a more effective Bureau for the benefit of the 
American people.

          II. History of the Bill and Committee Consideration

                      A. INTRODUCTION OF THE BILL

    On December 10, 2015, Chairman Charles Grassley and Ranking 
Member Patrick Leahy introduced the Federal Bureau of 
Investigation Whistleblower Protection Enhancement Act of 2015. 
Senators McCaskill, Wyden, Johnson, Tillis, Kirk, Hatch, 
Markey, Baldwin, and Lee joined as cosponsors. The bill was 
referred to the Committee on the Judiciary.

                       B. COMMITTEE CONSIDERATION

    The Committee on the Judiciary held a hearing on March 4, 
2015 titled, ``Whistleblower Retaliation at the FBI: Improving 
Protections and Oversight.''\30\ The hearing considered the 
findings and recommendations for improving protections for FBI 
whistleblowers made by the Department of Justice and the 
Government Accountability Office in reports issued by each 
office respectively.\31\ Testimony was received from the first 
panel of witnesses: Stephen M. Kohn, Attorney Trustee, National 
Whistleblower Center; Michael German, Fellow, Liberty and 
National Security Program, Brennan Center for Justice at New 
York University School of Law; J. Richard Kiper, Special Agent, 
Federal Bureau of Investigation. A second panel also provided 
testimony: David C. Maurer, Director, Homeland Security and 
Justice Issues, Government Accountability Office; Kevin L. 
Perkins, Associate Deputy Director, Federal Bureau of 
Investigation; Michael E. Horowitz, Inspector General, 
Department of Justice.
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    \30\Whistleblower Retaliation at the FBI: Improving Protections and 
Oversight: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 
(2015).
    \31\DOJ Report, supra note 10; GAO Report, supra note 9.
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    On December 10, 2015, Senator Grassley introduced S.2390, 
the Federal Bureau of Investigation Whistleblower Protection 
Enhancement Act of 2015. Senator Leahy was an original 
cosponsor. The bill was referred to the Committee on the 
Judiciary.
    The Committee on the Judiciary considered S.2390 on April 
14, 2016. Senators Grassley and Leahy offered an amendment in 
the nature of a substitute. The amendment was accepted without 
objection by a voice vote.
    The Committee then voted to report the Federal Bureau of 
Investigation Whistleblower Protection Enhancement Act of 2016, 
with an amendment in the nature of a substitute, favorably to 
the Senate by voice vote.

              III. Section-by-Section Summary of the Bill

Section 1. Short title

    This section provides that the legislation may be cited as 
the ``Federal Bureau of Investigation Whistleblower Protection 
Enhancement Act of 2016.''

Section 2. FBI whistleblower protections

    This section amends section 2303 of title 5 to provide new 
definitions of a protected disclosure and a prohibited 
personnel practice and to improve procedures for the 
investigation and adjudication of FBI whistleblower reprisal 
complaints.

Definitions

    The Act amends section 2303(a) to define terms and phrases 
used in the Act, including ``administrative law judge,'' 
``Inspector General,'' ``personnel action,'' ``prohibited 
personnel practice,'' and ``protected disclosure.''
    The definition of a personnel action for purposes of this 
bill is made by cross reference to section 2302(a)(2)(A) of 
title 5 (which is the definition for personnel action as it 
applies to nearly all other federal employees). ``Personnel 
action'' was previously defined for the FBI by reference to 
section 2302(a)(2)(A), but only clauses (i) through (x). 
However, Congress amended section 2302 to include additional 
clauses (xi) and (xii) in 1994 and 2012.\32\ Corresponding 
amendments to section 2303 were not made. The Justice 
Department determined it had authority to include the 1994 
addition when it promulgated its regulations in 1999.\33\ 
However, since 2012, the Justice Department has not similarly 
included clause (xii) in its definition of a personnel action. 
The revised definition in this Act will ensure that the 
definition of a personnel action in section 2302 remains 
consistent with the definition in section 2303, thus bringing 
protections for FBI employees in line with those of other 
federal employees under the Whistleblower Protection 
Enhancement Act.
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    \32\Pub. L. No. 103-424, 5, 108 Stat. 4361, 4363 (1994) (adding a 
new clause (x) to read ``a decision to order psychiatric testing or 
examination,'' and moving the prior clause (x), which read ``any other 
significant change in duties, responsibilities, or working 
conditions,'' to clause (xi)); Pub. L. No. 112-199, Sec. 104, 126 Stat. 
at 1467 (adding a new clause (xi) to read, ``the implementation or 
enforcement of any nondisclosure policy, form, or agreement,'' and 
moving the clause regarding a significant change in duties to clause 
(xii)).
    \33\Whistleblower Protection For Federal Bureau of Investigation 
Employees, 64 Fed. Reg. at 58,784-0984 (``We believe that the Attorney 
General has authority under 5 U.S.C. [Sec. ]301 to expand the 
definition of ``personnel action'' for purposes of these 
regulations.'').
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    The Committee intends for a ``Loss-of-Effectiveness Order'' 
(LOE) to constitute a personnel action for purposes of section 
2302(a)(2), and thus, correspondingly, under section 2303. 
According to FBI policy, an LOE is a management-directed 
reassignment of an FBI employee based on the employee's 
inability to satisfactorily perform his or her duties while 
remaining in his or her currently assigned position.\34\ Such 
reassignments are clearly within the scope of a ``personnel 
action'' under section 2302 and should not be made for reasons 
of reprisal.
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    \34\Loss of Effectiveness Transfers, supra note 23.
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    The Act provides for an expanded definition of a protected 
disclosure. Prior statutory language limited protection to 
disclosures ``made by the employee to the Attorney General (or 
an employee designated by the Attorney General for such 
purpose).''\35\ The Department of Justice promulgated 
regulations limiting disclosures to nine designated persons and 
entities.\36\ The new definition of protected disclosure 
encompasses all persons and entities designated by the 
Department. It also adds supervisors in the employee's direct 
chain of command up to and including the head of the employing 
agency. This new language defining a protected disclosure as 
including an employee's supervisor is the same as is applicable 
to employees of the intelligence community as provided by the 
President in Presidential Policy Directive 19.\37\ In testimony 
and statements provided to the Judiciary Committee, FBI 
Director James Comey,\38\ Attorney General Loretta Lynch,\39\ 
and the Department of Justice Inspector General endorsed 
providing protections for employees who report wrongdoing to 
their supervisor.\40\ The GAO Report also explicitly 
recommended that such protections be considered by 
Congress.\41\ The definition of a protected disclosure also 
reiterates that employees may make disclosures as described by 
the Lloyd-La Follette Act, 5 U.S.C. Sec. 7211, and to the 
Office of Special Counsel, which is statutorily authorized to 
receive complaints from FBI employees under 5 U.S.C. Sec. 1213. 
In response to questions from Committee Chairman Grassley, the 
FBI has acknowledged the applicably of section 7211 to its 
employees.\42\
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    \35\5 U.S.C. Sec. 2303.
    \36\28 C.F.R. Sec. 27.1(a).
    \37\PPD-Sec. 19, supra note 7, at 7.
    \38\Chairman Grassley. First question, do you support legal 
protections for FBI employees who follow FBI's own policies and report 
wrongdoing to their supervisors? If not, why not?
    Director Comey. I do, very much. Oversight of the Federal Bureau of 
Investigation: Hearing Before the S. Comm. on the Judiciary, 114th 
Cong. (2015).
    \39\Chairman Grassley. * * * Do you support legal protections for 
FBI employees who report wrongdoings to their supervisor?
    Attorney General Lynch. Well, thank you, sir. I think certainly I 
do support the protection of whistleblowers in general. The situation 
that you raised I think is also one that we--all of us in law 
enforcement have an obligation to support and protect as well. * * * 
[W]e certainly support protecting those who report within their chain 
of command, and as you, yourself, noted within the intelligence 
community. Oversight of the Justice Department: Hearing Before the S. 
Comm. on the Judiciary, 114th Cong. (2016).
    \40\Whistleblower Retaliation at the FBI: Improving Protections and 
Oversight: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 
(2015) (statement of Michael E. Horowitz, Inspector Gen., Dep't of 
Justice) (``One particularly important proposed change recommended by 
that group, was expanding the definition of persons to whom a protected 
disclosure can be made, which the OIG endorses.'').
    \41\GAO Report, supra note 9, at 41 (``To ensure that the purposes 
of 5 U.S.C. Sec. 2303--which prohibits a personnel action taken against 
an FBI employee as a reprisal for a protected disclosure--are met, 
Congress may wish to consider whether FBI employees should have a means 
to obtain corrective action for retaliation for disclosures of 
wrongdoing made to supervisors and others in the employee's chain of 
command who are not already designated officials.'').
    \42\Chairman Grassley. [S]hould DOJ's regulations be amended to 
clearly protect the FBI employee disclosures to Congress, and if not, 
why not?
    Associate Deputy Director Perkins. I think it falls within the 
realm if someone's disclosing whistleblower type of role, and 
disclosure to Congress, certainly it's something that should be 
protected with. Whistleblower Retaliation at the FBI: Improving 
Protections and Oversight: Hearing Before the S. Comm. on the 
Judiciary, 114th Cong. (2015).
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      Although the whistleblower protection provisions set out at 
      5 U.S.C. Sec. 2303 and 28 C.F.R. Part 27 do not encompass 
      disclosures to Congress, a separate Federal law provides 
      that ``[t]he right of employees, individually or 
      collectively, to petition Congress or a Member of Congress, 
      or to furnish information to either House of Congress, or 
      to a committee or Member thereof, may not be interfered 
      with or denied.'' (5 U.S.C. Sec. 7211.)
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    Answers from FBI Associate Deputy Director Perkins to Questions for 
the Record from Chairman Grassley Arising from the March 4, 2015, 
Hearing Before the Senate Committee on the Judiciary Regarding 
``Whistleblower Retaliation at the FBI: Improving Protections and 
Oversight'' (Mar. 27, 2015), available at https://
www.judiciary.senate.gov/imo/media/doc/
Perkins%20Responses%20to%20Grassley.pdf
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    Most employees in the Executive Branch generally do not 
have a proscribed list of persons or entities to which they may 
make disclosures of protected information. Given the nature of 
the work conducted by the FBI, coupled with the carve-out under 
which its whistleblower protection authority has been 
functioning for some time, such a list of entities is 
appropriate to ensure the rights of employees are protected 
while addressing concerns the agency has expressed about 
protecting sensitive information.
    The definition of protected disclosure is not intended to 
alter or amend any statutory or Executive Branch protections 
for classified information. FBI employees who make protected 
disclosures containing such information must comply with rules 
regarding the proper handling and safeguarding of such 
information and ensure that recipients have proper 
authorization and facilities to receive such information 
securely.

Prohibited Practices

    The revised definition of a prohibited personnel practice 
continues to protect employees who make disclosures that they 
reasonably believe evidence wrongdoing under the same standard 
as 5 U.S.C. Sec. 2303, with modifications made to conform to 
current language applicable to other federal employees, as most 
recently amended by the Whistleblower Protection Enhancement 
Act of 2012.\43\ In 1989, the Whistleblower Protection Act 
amended section 2302 to protect ``gross mismanagement,'' as 
opposed to ``mismanagement.''\44\ A corresponding change was 
not made to section 2303. The new definition of prohibited 
personnel practice accounts for this change and other 
amendments made to section 2302(b)(8).
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    \43\5 U.S.C. Sec. 2302(b)(8).
    \44\Pub. L. No. 101-0912, Sec. 104, 103 Stat. at 32.
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    The new definition of prohibited personnel practice 
additionally prohibits retaliation against FBI employees 
because of the exercise of any appeal, complaint, or grievance 
right related to a protected disclosure or as otherwise granted 
by law, rule, or regulation; testifying or lawfully assisting 
any individual in the exercise of such rights; cooperating with 
or disclosing information to the Department of Justice Office 
of Inspector General, which has the authority to conduct 
reviews of the operations of the FBI, or to the Office of 
Special Counsel, which has authority to require the head of an 
agency to conduct an investigation of a violation of any law, 
rule, or regulation, or gross mismanagement, gross waste of 
funds, abuse of authority, or substantial and specific danger 
to public health and safety and submit a written report to the 
Office of Special Counsel; or refusing to obey an order that 
would require the individual to violate a law. These 
protections are equivalent to those granted to other employees 
in the Executive Branch under 5 U.S.C. Sec. 2303(b)(9).
    The Act prohibits the FBI from implementing or enforcing 
any nondisclosure policy, form, or agreement that does not 
contain the statement described in 5 U.S.C. Sec. 2302(b)(13). 
That statement reads as follows:

        These provisions are consistent with and do not 
        supersede, conflict with, or otherwise alter the 
        employee obligations, rights, or liabilities created by 
        existing statute or Executive order relating to (1) 
        classified information, (2) communications to Congress, 
        (3) the reporting to an Inspector General of a 
        violation of any law, rule, or regulation, or 
        mismanagement, a gross waste of funds, an abuse of 
        authority, or a substantial and specific danger to 
        public health or safety, or (4) any other whistleblower 
        protection. The definitions, requirements, obligations, 
        rights, sanctions, and liabilities created by 
        controlling Executive orders and statutory provisions 
        are incorporated into this agreement and are 
        controlling.\45\
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    \45\5 U.S.C. Sec. 2302(b)(13).
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    Such a requirement has been applicable to the FBI via a 
provision in its annual appropriations act.\46\ Thus, it is not 
a new requirement but one that already exists in statute and is 
made permanent by this Act.
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    \46\See, e.g., Consolidated Appropriations Act, 2016, Pub. L. No. 
114-113, div. E, tit. VII, 744 (2015); Consolidated and Further 
Continuing Appropriations Act, 2015, Pub. L. No. 113-235, div. E, tit. 
VII,1A747, 128 Stat. 2129, 2392 (2014).
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Procedures

    The Department's current process for investigating and 
adjudicating FBI whistleblower reprisal complaints is contained 
in 28 C.F.R. part 27. Those procedures are required to be 
consistent with applicable provisions of 5 U.S.C. 
Sec. Sec. 1214, 1221.\47\ As further detailed below, the 
procedures provided for by the Act maintain consistency with 
these sections, but also specify requirements intended to 
address deficiencies in DOJ's process, including where DOJ's 
regulations had failed to ensure protections commensurate with 
sections 1214 and 1221.
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    \47\5 U.S.C. Sec. 2303(b); Delegation of Responsibilities 
Concerning FBI Employees Under the Civil Service Reform Act of 1978, 
Memorandum for the Attorney General, 62 Fed. Reg. 23,123 (Apr. 14, 
1997).
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            Filing of a complaint
    The Act provides for new and enhanced procedures for the 
investigation and adjudication of allegations of FBI 
whistleblower reprisal. FBI employees or applicants may seek 
review of a personnel action alleged to have been taken in 
retaliation for a protected activity by submitting a complaint 
to the Department of Justice Office of Inspector General. Any 
other office that receives such an allegation is expected to 
forward such complaint to the Office of Inspector General. The 
Committee intends for the Office of Inspector General to 
continue its current practice of reviewing complaints from 
other sources, notably the FBI Inspection Division.\48\
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    \48\See GAO Report, supra note 9, at 9 n.17.
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            Investigation
    Under the Act, the Office of Inspector General is the sole 
entity responsible for investigating whistleblower reprisal 
complaints. This investigatory responsibility is similarly 
granted to inspectors general for intelligence community 
agencies under Presidential Policy Directive 19.\49\ Justice 
Department regulations had additionally authorized DOJ-OPR to 
conduct such reviews.\50\ That office is not appropriately 
suited for such duties given that its primary responsibility is 
to investigate allegations of misconduct involving Department 
attorneys that relate to the exercise of their authority to 
investigate, litigate, or provide legal advice.\51\ Moreover, 
DOJ-OPR does not have the same independence protections as 
those provided to the Office of Inspector General.\52\
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    \49\PPD-Sec. 19, supra note 7, at 2.
    \50\28 C.F.R. Sec. 27.3.
    \51\28 C.F.R. Sec. 0.39a.
    \52\Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat. 
1102, as amended (5 U.S.C. app. Sec. Sec. 1-13).
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    The Office of Inspector General continues to be required to 
investigate complaints consistent with the procedures and 
requirements for the Office of Special Counsel as described in 
5 U.S.C. Sec. 1214.\53\ Accordingly, timeframes and reporting 
requirements applicable to the Office of Special Counsel are 
also applicable to the Office of Inspector General. For 
example, the Office of Inspector General must notify the 
complainant that it has received the complaint and provide the 
name of a contact person within the office within 15 days of 
receiving the complaint.\54\ It also includes the authority to 
request a stay from an Administrative Law Judge (ALJ) of any 
personnel action for 45 days, subject to extension, if the 
Inspector General determines that there are reasonable grounds 
to believe that the personnel action was taken, or is to be 
taken, as a result of a prohibited personnel practice.\55\
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    \53\To the extent that requirements applicable to the Office of 
Special Counsel are subsequently amended, such amended requirements 
shall be applicable to the Office of Inspector General.
    \54\5 U.S.C. Sec. 1214(a)(1)(B).
    \55\U.S.C. Sec. 1214(b)(1).
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    The Inspector General is required by the Act to issue a 
decision containing the findings supporting his or her 
determination. The Committee expects the Office of Inspector 
General to continue its practices instituted in response to 
GAO's report. This includes providing complainants with the 
opportunity to comment on the Office of Inspector General's 
decision to terminate a complaint without initiating an 
investigation and providing more specificity to complainants 
about the reasons a complaint does not meet jurisdictional 
requirements.\56\ Prior to GAO's review, the Office of 
Inspector General generally did not send a proposed termination 
report to complainants when the office declined to investigate 
their cases, and although the Office of Inspector General did 
generally send a final termination report to these 
complainants, it did not always include the reasons for its 
decision in the report.\57\ GAO found that providing this 
information helps ensure that complainants have the information 
they need to make decisions about their complaints and the 
Office of Inspector General recognized the benefits of 
providing such information.\58\
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    \56\GAO report, supra note 9, at 39-40; Whistleblower Retaliation 
at the FBI: Improving Protections and Oversight: Hearing Before the S. 
Comm. on the Judiciary, 114th Cong. (2015) (statement of Michael E. 
Horowitz, Inspector Gen., Dep't of Justice) (``We also modified our 
procedures with respect to decisions not to initiate an investigation. 
In the past we closed such complaints in a brief declination letter. In 
the interest of enhancing transparency and giving whistleblowers the 
fullest possible opportunity to provide relevant information, our 
declination letters now identified deficiencies in complaints and 
provide complainants an opportunity to submit additional information 
prior to the declaration becoming final.'').
    \57\GAO Report, supra note 9, at 36-37.
    \58\Id. at 39.
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            Preliminary relief
    The Act provides for automatic preliminary relief at the 
conclusion of the Office of Inspector General's investigation 
if the Inspector General determines that reasonable grounds 
exist to believe that a personnel action occurred, exists, or 
is to be taken, in violation of subsection (b) of section 2303. 
The legislation specifies that once the Inspector General has 
made his or her determination, the Inspector General is 
required to request from an ALJ an order of preliminary relief 
from the identified retaliatory personnel action consistent 
with the Inspector General's determination. The ALJ must then 
issue an order providing for this relief without further 
proceedings. The intent of this provision is to provide relief 
as a matter of course to a complainant once the Office of 
Inspector General has concluded its investigation and found 
that reasonable grounds exist to believe that reprisal has 
occurred.
    While authority to stay a personnel action has existed 
under DOJ's FBI whistleblower regulations, as described 
above,\59\ it has rarely been exercised within the Department. 
In comparison, stays of personnel actions are more frequently 
used by the Office of Special Counsel. The Committee believes 
that preliminary relief is appropriate and fair once an 
Inspector General has concluded that reasonable grounds exist 
to believe that reprisal has occurred.\60\ Such a practice 
encourages settlement and gives effect to the investigative 
findings of the Office of Inspector General.\61\ The Inspector 
General and ALJs are also encouraged to use stays earlier in 
the proceedings as provided for in sections 1214 and 1221 and 
as currently authorized under Justice Department 
regulations.\62\
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    \59\28 C.F.R. Sec. 27.4 (``Conducting Office may request the 
Director to order a stay of any personnel action for 45 calendar days 
if it determines that there are reasonable grounds to believe that a 
reprisal has been or is to be taken.'').
    \60\In addition to the Office of Special Counsel's practice of 
requesting stays of a personnel action, interim relief exists in other 
whistleblower contexts. See, e.g., 49 U.S.C. Sec. 31105 (requiring a 
preliminary order for relief where the Department of Labor determines 
after investigation that it is reasonable to believe a violation 
occurred).
    \61\Under the current regulatory process, the investigations of the 
Office of Inspector General are rendered meaningless even where, at the 
end of the independent fact-finding, the Inspector General has made a 
determination that there is a reasonable basis to conclude that 
reprisal has occurred. This issue was detailed in testimony provided at 
the Committee hearing on FBI whistleblowers:
    Chairman Grassley. Okay. And then a follow-up, should the 
department have to defer to your independent investigative findings and 
if not, what's the point in having your office do an independent 
review?
    Inspector General Horowitz. I've asked that question on a number of 
occasions .  .  . Whistleblower Retaliation at the FBI: Improving 
Protections and Oversight: Hearing Before the S. Comm. on the 
Judiciary, 114th Cong. (2015).
    \62\28 C.F.R. Sec. 27.4(b), (d).
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    In the rare instance in which a personnel action has 
already been effectuated and the FBI makes a particularized 
showing that good cause exists not to return the employee to 
the position that the employee would have held had the 
personnel action not been taken, the ALJ is provided with 
authority to, instead, return the employee, as nearly as 
practicable and reasonable, to such position. This provision is 
intended to address the concern that, in rare instances, it may 
not be appropriate to return the employee to the exact same 
position. For example, the ALJ could determine that the 
employee could be assigned to an equivalent investigation with 
equivalent responsibilities and duties as preliminary relief. 
The Committee emphasizes that such an accommodation should not 
be the normal course and expects the FBI to make this request 
infrequently.
            Filing of Objections; Review by Administrative Law Judge; 
                    Review by Attorney General
    The Act provides for either party to file objections to the 
decision of the Inspector General within 60 days, which is the 
amount of time currently provided for under 5 U.S.C. Sec. 1214 
and DOJ's regulations.\63\ Under the Act, ALJs are responsible 
for reviewing decisions of the Office of Inspector General, 
should either party file objections. The filing of objections 
does not affect an order of preliminary relief issued under 
section 2303(c)(2)(C). If no objections are filed, the ALJ is 
required to provide for an order of permanent relief from the 
personnel action consistent with the preliminary order. The ALJ 
may issue an order for further corrective action as described 
under section 1221(g), such as attorney fees and compensatory 
damages, after an opportunity for a hearing.
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    \63\28 C.F.R. Sec. 27.4(c).
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    If objections to the decision of the Inspector General are 
filed by either party, the Act provides for the ALJ to review 
the decision on the record after opportunity for an agency 
hearing. Accordingly, the formal adjudication procedures of the 
Administrative Procedure Act (APA) apply to these 
adjudications.\64\ Under DOJ's current FBI whistleblower 
regulations, hearings are discretionary by the Office of 
Attorney Recruitment and Management\65\ (OARM) and have 
generally not been held. Consistent with the APA, the bill 
provides that the ALJ must issue a written decision explaining 
the grounds for his or her determination. The provisions of the 
APA provide for, among other things, the ALJ to regulate the 
course of the hearing, issue subpoenas, rule on offers of proof 
and receive relevant evidence, take depositions or have 
depositions taken, hold settlement conferences, rule on 
procedural requests, and make findings of fact and conclusions 
of law.\66\ ALJ decisions must be supported by reliable and 
substantial evidence.\67\ ALJ positions are designed to promote 
independent decision making and various requirements are aimed 
to ensure that ALJs are autonomous and operate free from agency 
influence.\68\ An agency must appoint ALJs as are necessary for 
proceedings required to be conducted under sections 556 and 557 
of title 5, but may use ALJs from and with the consent of other 
agencies when the agency is occasionally or temporarily 
insufficiently staffed with ALJs.\69\ The Department should 
consider borrowing ALJs from the Department of Labor, 
Occupational Safety & Health Administration, which has 
authority to protect workers from retaliation under twenty-two 
federal laws and whose ALJs are experienced in the adjudication 
of whistleblower cases.
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    \64\5 U.S.C. Sec. 554.
    \65\28 C.F.R. Sec. 27.4(e)(3).
    \66\5 U.S.C. Sec. Sec. 556(c), 557(c).
    \67\5 U.S.C. Sec. 556(d).
    \68\See 5 U.S.C. 554(d), 5 C.F.R. Sec. Sec. 930.201(f)(3), 
930.206(a).
    \69\5 U.S.C. Sec. Sec. 3105, 3344.
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    The ALJ may order corrective action as provided for in 
section 1221(g). Under the Justice Department's current 
regulatory framework, corrective action may be awarded 
consistent with section 1221. However, after section 1221 was 
amended in 2012,\70\ the Department did not amend its 
regulations to ensure such corrective action was available to 
FBI whistleblowers.\71\ The Department committed to do so in 
April 2014, but, to date, has not.\72\ Moreover, the Department 
has remained silent on whether it will amend its regulations 
consistent with section 1221(g)(4), as amended in 2012, which 
provides for corrective action to ``include fees, costs, or 
damages reasonably incurred due to an agency investigation of 
the employee, if such investigation was commenced, expanded, or 
extended in retaliation for the disclosure or protected 
activity that formed the basis of the corrective action.''\73\ 
All forms of corrective action under 1221(g) have been 
available to FBI whistleblowers by operation of the amendments 
to section 1221 since 2012, despite DOJ's failure to timely 
update its regulations. All forms of corrective action provided 
for under section 1221 may be awarded, as appropriate, by an 
ALJ and must be accounted for in the Department's regulations 
following the enactment of this Act.
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    \70\Pub. L. No. 112-199, Sec. 104, 126 Stat. 1465, 1468-69 
(inserting ``any other any other reasonable and foreseeable 
consequential damages, and compensatory damages (including interest, 
reasonable expert witness fees, and costs)'' and providing that 
corrective action ``may include may include fees, costs, or damages 
reasonably incurred due to an agency investigation of the employee, if 
such investigation was commenced, expanded, or extended in retaliation 
for the disclosure or protected activity that formed the basis of the 
corrective action'').
    \71\See 28 C.F.R. 27.4(f).
    \72\DOJ Report, supra note 10, at 12.
    \73\5 U.S.C. Sec. 1221(g)(4); see also 5 U.S.C. Sec. 1214(h).
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    Unless appealed to the Attorney General, the decision of 
the ALJ is final. While the Attorney General does not owe 
deference to the ALJ's decision under the APA,\74\ the 
Committee anticipates that the Attorney General will recognize 
the investigative and adjudicative record before him or her and 
not unduly delay resolution of these cases, particularly where, 
as here, an independent fact-finder has produced a decision 
supported by reliable and substantial evidence. Moreover, the 
Attorney General may consider delegating his or her authority 
to review such decisions to an independent entity. For example, 
the Secretary of Labor, who has the authority to administer the 
whistleblower provisions of twenty-two statutes, has generally 
delegated her responsibility to issue final agency decisions to 
the Administrative Review Board.\75\
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    \74\5 U.S.C. Sec. 557(b).
    \75\Delegation of Authority and Assignment of Responsibility to the 
Administrative Review Board, 75 Fed. Reg. 3924 (Jan. 25, 2010); see 
also U.S. Dep't of Labor, Information for Whistleblowers, ARB/OALJ, 
available at http://www.dol.gov/appeals/whistleblowers.htm; U.S. Gov't 
Accountability Office, GAO-09-106, Whistleblower Protection Program: 
Better Data and Improved Oversight Would Help Ensure Program Quality 
and Consistency 20, 55-56 (2009).
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    Consistent with law applicable to the Merit Systems 
Protection Board, this legislation requires the Attorney 
General to establish and announce publicly the date by which 
the Attorney General intends to complete his or her review of 
the matter.\76\ If a delay is expected to be more than 30 days, 
the Attorney General is required to publicly announce a new 
date by which the review is intended to be completed. The 
requirement for the Attorney General to report the date on 
which the decision shall be completed and provide updates 
should it not be met is also consistent with a recommendation 
made by GAO to the Department to provide parties with an 
estimated timeframe for returning each decision and, if the 
timeframe shifts, communicating a revised estimate to the 
parties.\77\ DOJ concurred with this recommendation, but it is 
unclear if the Department is fulfilling this obligation. For 
example, in one instance, the Office of the Deputy Attorney 
General (ODAG) informed the Committee that the Deputy Attorney 
General would not provide an estimated timeframe for completing 
her review of a particular whistleblower's complaint.\78\ At 
the time of the letter, the complaint at issue had been pending 
with the Deputy Attorney General for almost one year and the 
whistleblower had not been provided an estimated timeframe as 
to its completion. Given this, the legislation makes such 
requirements mandatory, as they are for the Merit Systems 
Protection Board. The Committee expects that such reviews will 
be completed expeditiously without sacrificing the quality or 
thoroughness of the review process.
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    \76\5 U.S.C. Sec. 7701.
    \77\GAO Report, supra note 9, at 42 (``OARM and ODAG should provide 
parties with an estimated time frame for returning each decision, 
including whether the complaint meets threshold regulatory 
requirements, merits, and appeals. If the time frame shifts, OARM and 
ODAG should timely communicate a revised estimate to the parties.'').
    \78\Letter from Peter J. Kadzik, Assistant Attorney General, U.S. 
Dep't of Justice, to Charles E. Grassley, Chairmen, U.S. Senate 
Committee on the Judiciary (Oct. 13, 2015). The Department stated that 
an estimated timeframe will not be provided to the whistleblower until 
staff assigned to the matter complete their review and provide their 
recommendation to the Office of the Deputy Attorney General. Id. This 
effectively negates the intent of GAO's recommendation, which is to 
enhance accountability to complainants and provide additional assurance 
about DOJ management's commitment to improve efficiency. See GAO 
Report, supra note 9, at 27.
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Publication of determinations

    Under the Act, decisions issued by an ALJ and the Attorney 
General must be made publicly available consistent with the 
requirements under the Freedom of Information Act, and the 
Department must also proactively publish these decisions as 
does the Merit Systems Protection Board.\79\ Unfortunately, the 
Justice Department has never made available to FBI 
whistleblowers litigating reprisal cases the precedent of the 
Office of Attorney Recruitment and Management or the Deputy 
Attorney General. This puts litigants at an extreme 
disadvantage when trying to assert their rights in a contested 
proceeding. In April 2014, the Department committed to 
examining the feasibility of making these decisions available, 
but has yet to publish a decision.\80\ Language in this 
provision was revised in the managers' amendment in 
consultation with Senator Flake to make clear that decisions 
are to be published consistent with the practices of the Merit 
Systems Protection Board, which currently makes such decisions 
available for public review and copying in the Board's 
Headquarters' Library and on the Board's website.\81\
---------------------------------------------------------------------------
    \79\5 U.S.C. Sec. 552(a)(2)(A) (requiring that final opinions in 
the adjudication of cases be made available for inspection and 
copying); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153-54 
(1975) (observing that the proactive disclosure provision ``represents 
a strong congressional aversion to `secret [agency] law,' . . . and 
represents an affirmative congressional purpose to require disclosure 
of documents which have `the force and effect of law''' (quoting H.R. 
Rep. No. 89-1497, at 7 (1966)); Attorney General Holder's FOIA 
Guidelines, available at http://www.justice.gov/sites/default/files/ag/
legacy/2009/06/24/foia-memo-march2009.pdf (``[A]gencies should readily 
and systematically post information online in advance of any public 
request.'').
    \80\DOJ Report, supra note 10, at 18.
    \81\5 C.F.R. Sec. 1204.2(d).
---------------------------------------------------------------------------
    Language in the Act makes clear that the publication of 
decisions is subject to limitations on the disclosure of 
information as provided for in law or regulation. In the rare 
cases in which, for example, Privacy Act or classified 
information must be redacted or otherwise withheld, the ALJ and 
Attorney General retain the authority to do so. The Attorney 
General may further provide for such a process in regulations 
required to be issued under section 2303(d), as amended by this 
Act.

Judicial review

    The Act provides for judicial review in a federal circuit 
court of appeals as provided under chapter 7 of title 5. This 
is consistent with whistleblower cases under the Whistleblower 
Protection Enhancement Act on appeal from the Merit Systems 
Protection Board.\82\ Judicial review is intended to improve 
the process by ensuring that a truly independent avenue of 
appeal completely outside the Justice Department is available. 
Its necessity has been demonstrated by the lengthy delays and 
lack of transparency in the Justice Department's current 
regulatory process for hearing these cases internally. In 
promulgating the FBI whistleblower regulations in 1999, the 
Department stated that section 2302 did not provide for 
judicial review, even though the President was directed to 
provide for enforcement consistent with section 1214 and 1221, 
which do provide for judicial review of whistleblower 
claims.\83\ The Department has maintained this position.\84\ 
Regardless of the Department's view, the legislation 
unequivocally provides for judicial review of FBI whistleblower 
cases. Courts may set aside decisions that are, among other 
things, arbitrary and capricious, unsupported by substantial 
evidence, or without observance of procedure required by 
law.\85\
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    \82\5 U.S.C. Sec. 7701.
    \83\Whistleblower Protection For Federal Bureau of Investigation 
Employees, 64 Fed. Reg. at 58,785-86.
    \84\DOJ Report, supra note 10, at 19.
    \85\5 U.S.C. Sec. 706.
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    The FBI already is required to defend against whistleblower 
reprisal allegations in federal court for its veteran's 
preference eligible employees, who constitute between 15 and 20 
percent of the Bureau.\86\ Under precedent of the Federal 
Circuit Court of Appeals, preference eligible employees may 
raise whistleblower reprisal as a defense to an adverse 
personnel action before the Merit Systems Protection Board and 
before a federal court of appeals.\87\ The court explicitly 
considered and rejected the Department's assertions that 
allowing whistleblower reprisal claims by employees within the 
intelligence community raises serious security concerns.\88\ 
Federal courts are competent to hear and decide cases involving 
even sensitive and classified matters, in the rare instances 
such information is relevant. GAO has specifically found that 
intelligence agencies have experience preparing case files in 
adverse action and equal employment opportunity cases and can 
convert classified materials into unclassified publicly 
available documents where necessary, through declassification 
and redaction.\89\ Moreover, they have experience dealing with 
judges and attorneys who have security clearances in appeals to 
the Equal Employment Opportunity Commission and in court 
cases.\90\ GAO also found that very few adverse action cases 
involve sensitive information in any event.\91\ In particular, 
in its review of FBI whistleblower reprisal cases that had 
closed over a period of five calendar years, according to GAO 
officials, GAO did not identify any adjudicative case files 
containing classified information.
---------------------------------------------------------------------------
    \86\Information on number of individuals who work at the FBI who 
have been identified as veterans and individuals who claimed their 
eligibility for veteran preference obtained from the Office of 
Personnel Management, Enterprise Human Resources Integration--
Statistical Data Mart, current as of September 2015.
    \87\Parkinson v. U.S Dep't of Justice, 815 F.3d 757 (Fed. Cir. 
2016).
    \88\Id. at 771-773.
    \89\U.S. Gov't Accountability Office, GAO/NSIAD-96-6, Intelligence 
Agencies: Personnel Practices at CIA, NSA, and DIA Compared With Those 
of Other Agencies 5-6 (1996). GAO reviewed all available adverse action 
case files at the National Security Agency and Defense Intelligence 
Agency for a two-year period (40 cases), and all available case files 
at the Merit Systems Protection Board for these agencies and the 
Central Intelligence Agency for a five-year period (14 cases). Id. at 
14-15. GAO reviewed selected court cases files relating to claims of 
equal employment opportunity discrimination. Id. at 15.
    \90\Id. at 6.
    \91\Id. at 5.
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Regulations

    The Justice Department is required to issue regulations to 
provide for the enforcement of this Act, as it was when the 
original section 2303 was enacted. The legislation requires the 
Justice Department to provide regulations to:
          (1) Ensure that a prohibited personnel practice is 
        not taken against an employee or applicant for 
        employment with the FBI.
          (2) Provide for the administration and enforcement of 
        the Act in a manner consistent with sections 1214 and 
        1221, which govern the Office of Special Counsel and 
        Merit Systems Protection Board, as well as the 
        Administrative Procedure Act. The Justice Department 
        was previously required to provide for regulations 
        consistent with sections 1214 and 1221. In addition to 
        other provisions described in those sections, the 
        burdens of proof governing these cases as derived from 
        those sections shall continue to apply. In particular, 
        the whistleblower has the burden of showing, by a 
        preponderance of the evidence, that the protected 
        activity was a contributing factor in the personnel 
        action that was taken or is to be taken against him or 
        her. Corrective action may not be ordered if, after a 
        finding that a protected disclosure was a contributing 
        factor, the agency demonstrates by clear and convincing 
        evidence that it would have taken the same personnel 
        action in the absence of such disclosure.\92\
---------------------------------------------------------------------------
    \92\5 U.S.C. Sec. 1221(e).
---------------------------------------------------------------------------
          (3) Ensure that FBI employees are informed of the 
        rights and remedies available to employees under this 
        section, including how to make a lawful disclosure of 
        information that is specifically required by law or 
        Executive Order to be kept classified in the interest 
        of national defense or the conduct of foreign affairs. 
        These same obligations already attach to the head of 
        each agency under the Whistleblower Protection 
        Enhancement Act.\93\ This Act is not intended to 
        authorize the disclosure of information in a manner 
        that is unauthorized under law, regulation, or 
        Executive Order and it is imperative that FBI employees 
        know how to make disclosures appropriately.
---------------------------------------------------------------------------
    \93\5 U.S.C. Sec. 2302(c).
---------------------------------------------------------------------------
          (4) Provide for the protection of classified 
        information and intelligence sources and methods. The 
        Justice Department is required to ensure that the 
        process provided for under this section adequately 
        protects the handling and transmission of classified 
        information. The current case processing directive of 
        the Office of Attorney Recruitment and Management 
        states that ``parties shall not file any classified 
        information with [the Office of Attorney Recruitment 
        and Management]. In the event such information becomes 
        relevant to the proceedings before [the Office of 
        Attorney Recruitment and Management], appropriate 
        arrangements for the protection, transmission, and 
        handling of such materials must be in compliance with 
        FBI and other applicable requirements regarding 
        classified materials.''\94\ Classified information is 
        rarely relevant to a reprisal action, but, in the event 
        that it is, it is critical that the Justice Department 
        transparently provide for procedures to accommodate 
        such information to give confidence to FBI 
        whistleblowers and other stakeholders that such 
        information is adequately protected.\95\ The language 
        establishing this obligation is the same that applies 
        to agencies in the intelligence community under 
        Presidential Policy Directive 19.\96\
---------------------------------------------------------------------------
    \94\Office of Attorney Recruitment and Management Procedures for 
FBI Whistleblower Reprisal Claims Brought Pursuant to 28 C.F.R. Part 27 
(eff. Jan. 4, 2016), at 5, available at https://www.justice.gov/oarm/
file/809851/download; see also Office of Attorney Recruitment and 
Management Procedures for FBI Whistleblower Reprisal Claims Brought 
Pursuant to 28 C.F.R. Part 27 (eff. Oct. 14, 2011), at 5.
    \95\The Merit Systems Protection Board provides for a process to 
address sensitive and classified information its Judges' Handbook. For 
example, when classified material is relevant to a case, a hearing 
officer with the appropriate level of security clearance will be 
assigned, and the Handbook describes the authority of administrative 
judges to seals parts of the record and sanitize initial decisions. 
U.S. Merit Systems Protection Board, Judges' Handbook (2007), at 74, 
76-77.
    \96\PPD-19, supra note 7, at 2.
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Reporting

    Annual reporting requirements currently exist for the 
Justice Department pursuant to Presidential delegation.\97\ 
This Act codifies such requirements with minor amendments--such 
as how many cases were resolved through the Justice 
Department's new mediation program--and provides for public 
availability. The Justice Department has previously stated that 
it had no objection to making such reports public.\98\
---------------------------------------------------------------------------
    \97\Delegation of Responsibilities Concerning FBI Employees Under 
the Civil Service Reform Act of 1978, Memorandum for the Attorney 
General, 62 Fed. Reg. 23,123 (Apr. 14, 1997).
    \98\DOJ report, supra note 10, at 19.
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Rules of construction

    The rules of construction under this Act are intended to 
make clear that certain types of laws and regulations are 
unaffected by the new provisions. The preexisting jurisdiction 
of any office to conduct an investigation or determine whether 
a prohibited personnel practice has been or will be taken is 
not affected by this Act. Similar language is contained in 
DOJ's FBI whistleblower regulations\99\ and in Office of 
Special Counsel authorizing language.\100\
---------------------------------------------------------------------------
    \99\28 C.F.R. Sec. 27.3.
    \100\5 U.S.C. Sec. 1214(a)(5).
---------------------------------------------------------------------------
    The second rule of construction provided by this 
legislation is intended to ensure that rules, including 
penalties for violations thereof, governing the appropriate 
safeguarding of information, including classified information, 
are adhered to by all parties involved in disclosing, 
receiving, handling, investigating, and adjudicating FBI 
whistleblower disclosures or reprisal complaints as provided 
for in this Act. Nothing in this Act abrogates or amends any 
law, regulation, or Executive Order regarding the handling or 
disclosure of information, including classified information. A 
provision was included in the mangers' amendment to this 
effect. Whistleblowers who make lawful disclosures of sensitive 
information must ensure that the persons or entities to whom 
they make such disclosures are entitled to receive them. 
Employees who fail to do so may be subject to penalties. It is 
equally important that adverse personnel actions are not taken 
against employees under the guise of information protection 
when such personnel actions are, in reality, because of a 
protected disclosure.

GAO Report

    This section requires GAO to issue a report, not later than 
four years after the enactment of this Act, to evaluate the 
amendments made by this Act. GAO issued a report in 2014 that 
thoroughly assessed the Justice Department's FBI whistleblower 
regulations.\101\ Instead of waiting almost 30 years to assess 
the state of protections for FBI whistleblowers, as occurred 
before, this statutorily required report will provide the 
Congress with information needed much more quickly to assess 
the program in a reasonable time frame and make any adjustments 
as needed. The review of the process of investigating and 
adjudicating FBI whistleblower reprisal complaints is to 
include, among other things, the recently established mediation 
program. The Committee is pleased that the Department has 
initiated a program that is aimed at producing settlements and 
reducing the costs of these disputes, especially in light of 
GAO's finding that corrective action may take more than a 
decade.\102\
---------------------------------------------------------------------------
    \101\GAO Report, supra note 9.
    \102\Id. at 22.
---------------------------------------------------------------------------
    GAO is also directed to report on the number and type of 
disciplinary actions taken in instances of a prohibited 
personnel practice. Discipline of employees who retaliate 
against others for their lawful protected activity must be 
effectuated by the Bureau, as punishment of these employees 
sends the critical message to FBI employees that such behavior 
will not be tolerated.
    GAO's evaluation of the FBI whistleblower program is 
intended to provide for best practices and lessons learned not 
only for the regime under the unique statutory carve-out for 
FBI whistleblowers, but also the whistleblower protection 
regimes affecting whistleblowers in the Executive Branch and in 
the intelligence community.

Effective Date; Implementation

    This section provides that the Act is effective upon 
enactment and applies to pending complaints at the Justice 
Department, subject to specified exceptions. This general 
effective provision means that substantive changes made to the 
definition of a protected disclosure are effective immediately 
such that FBI employees will be protected for making a 
disclosure of wrongdoing to a supervisor in his or her chain of 
command, among other changes. Such substantive requirements 
similarly apply to cases currently pending in the investigative 
or adjudicative stage within the Justice Department, meaning 
that such cases may not be dismissed solely because the FBI 
employee or applicant made a disclosure of information to a 
person or entity that is now, but was not previously, included 
in DOJ's FBI whistleblower regulations.
    Department of Justice regulations are necessary to 
implement the new procedures established by this Act. The 
legislation provides ample time--18 months--for the Department 
to issue such regulations and the Committee expects that such 
regulations will be adopted no later than that time. Prior to 
the adoption of such regulations, FBI whistleblower protection 
cases will continue to be investigated and adjudicated as 
provided for in DOJ's current regulations, although, as 
detailed above, the amendments made to section 2303(a) and (b) 
will be effective. At the time that DOJ's regulations are 
issued, reprisal complaints that are pending in the review 
stage (i.e., at OARM or ODAG) will continue to be adjudicated 
under DOJ's preexisting regulatory procedures. Cases that are 
pending in the investigative stage will conclude the 
investigation under DOJ's prior FBI whistleblower regulations, 
and then transition to the new statutory and regulatory 
procedures for the adjudication stage. As such, in the case of 
an appeal, these cases will be heard by an ALJ and subject to 
review in federal court.

             IV. Congressional Budget Office Cost Estimate

    The cost estimate provided by the Congressional Budget 
Office pursuant to section 402 of the Congressional Budget Act 
of 1974 was not available for inclusion in this report. The 
estimate will be printed in either a supplemental report or the 
Congressional Record when it is available.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 2390. In order to 
carry out this Act, the Attorney General is required to issue 
amended regulations that, among other things, ensure that 
prohibited personnel practices shall not be taken against an 
employee in, or an applicant for, a position in the FBI and 
that provide for the administration and enforcement of this 
Act. These regulations merely establish procedures under which 
FBI employees or applicants for employment with the FBI may 
make certain protected disclosures of information and establish 
procedures under which allegations of reprisal against such 
individuals will be investigated and adjudicated.

                             VI. Conclusion

    The Federal Bureau of Investigation Whistleblower 
Protection Act of 2016, S. 2390, addresses serious deficiencies 
in both the substance of protections and process for remedying 
the violations thereof for whistleblowers at the FBI. The 
reforms instituted as a result of this Act will help ensure 
that FBI employees are protected from reprisal when they take 
action to help root out waste, fraud, and abuse in our 
Government.

       VII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 2390, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                           UNITED STATES CODE

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *

CHAPTER 23--MERIT SYSTEM PRINCIPLES

           *       *       *       *       *       *       *

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

    [(a) Any employee of the Federal Bureau of Investigation 
who has authority to take, direct others to take, recommend, or 
approve any personnel action, shall not, with respect to such 
authority, take or fail to take a personnel action with respect 
to any employee of the Bureau as a reprisal for a disclosure of 
information by the employee to the Attorney General (or an 
employee designated by the Attorney General for such purpose) 
which the employee or applicant reasonably believes evidences--
          [(1) a violation of any law, rule, or regulation, or
          [(2) mismanagement, a gross waste of funds, an abuse 
        of authority, or a substantial and specific danger to 
        public health or safety.
    [For the purpose of this subsection, ``personnel action'' 
means any action described in clauses (i) through (x) of 
section 2302(a)(2)(A) of this title with respect to an employee 
in, or applicant for, a position in the Bureau (other than a 
position of a confidential, policy-determining, policymaking, 
or policy-advocating character).]
    (a) Definitions.--In this section--
          (1) the term `administrative law judge' means an 
        administrative law judge appointed by the Attorney 
        General under section 3105 or used by the Attorney 
        General under section 3344;
          (2) the term `Inspector General' means the Inspector 
        General of the Department of Justice;
          (3) the term `personnel action' means any action 
        described in section 2302(a)(2)(A) with respect to an 
        employee in, or applicant for, a position in the 
        Federal Bureau of Investigation (other than a position 
        of a confidential, policy-determining, policymaking, or 
        policy-advocating character);
          (4) the term `prohibited personnel practice' means a 
        prohibited personnel practice described in subsection 
        (b); and
          (5) the term `protected disclosure' means any 
        disclosure of information by an employee in, or 
        applicant for, a position in the Federal Bureau of 
        Investigation--
                  (A) made--
                          (i) in the case of an employee, to a 
                        supervisor in the direct chain of 
                        command of the employee, up to and 
                        including the head of the employing 
                        agency;
                          (ii) to the Inspector General;
                          (iii) to the Office of Professional 
                        Responsibility of the Department of 
                        Justice;
                          (iv) to the Office of Professional 
                        Responsibility of the Federal Bureau of 
                        Investigation;
                          (v) to the Inspection Division of the 
                        Federal Bureau of Investigation;
                          (vi) as described in section 7211;
                          (vii) to the Office of Special 
                        Counsel; or
                          (viii) to an employee designated by 
                        any officer, employee, office, or 
                        division described in clauses (i) 
                        through (vii) for the purpose of 
                        receiving such disclosures; and
                  (B) which the employee or applicant 
                reasonably believes evidences--
                          (i) any violation of any law, rule, 
                        or regulation; or
                          (ii) gross mismanagement, a gross 
                        waste of funds, an abuse of authority, 
                        or a substantial and specific danger to 
                        public health or safety.
    (b) Prohibited Practices.--Any employee of the Federal 
Bureau of Investigation or another component of the Department 
of Justice who has authority to take, direct others to take, 
recommend, or approve any personnel action, shall not, with 
respect to such authority--
          (1) take or fail to take, or threaten to take or fail 
        to take, a personnel action with respect to an employee 
        in, or applicant for, a position in the Federal Bureau 
        of Investigation because of a protected disclosure;
          (2) take or fail to take, or threaten to take or fail 
        to take, any personnel action against an employee in, 
        or applicant for, a position in the Federal Bureau of 
        Investigation because of--
                  (A) the exercise of any appeal, complaint, or 
                grievance right granted by any law, rule, or 
                regulation--
                          (i) with regard to remedying a 
                        violation of paragraph (1); or
                          (ii) other than with regard to 
                        remedying a violation of paragraph (1);
                  (B) testifying for or otherwise lawfully 
                assisting any individual in the exercise of any 
                right referred to in clause (i) or (ii) of 
                subparagraph (A);
                  (C) cooperating with or disclosing 
                information to the Inspector General of an 
                agency, or the Special Counsel, in accordance 
                with applicable provisions of law; or
                  (D) refusing to obey an order that would 
                require the individual to violate a law; or
          (3) implement or enforce any nondisclosure policy, 
        form, or agreement, if such policy, form, or agreement 
        does not contain the statement described in section 
        2302(b)(13).
    (c) Procedures.--
          (1) Filing of a Complaint.--An employee in, or 
        applicant for, a position in the Federal Bureau of 
        Investigation may seek review of a personnel action 
        alleged to be in violation of subsection (b) by filing 
        a complaint with the Office of the Inspector General.
          (2) Investigation.--
                  (A) In General.--The Inspector General shall 
                investigate any complaint alleging a personnel 
                action in violation of subsection (b), 
                consistent with the procedures and requirements 
                described in section 1214.
                  (B) Determination.--The Inspector General 
                shall issue a decision containing the findings 
                of the Inspector General supporting the 
                determination of the Inspector General.
                  (C) Preliminary Relief.--
                          (i) In General.--If the Inspector 
                        General determines under subparagraph 
                        (B) that reasonable grounds exist to 
                        believe that a personnel action 
                        occurred, exists, or is to be taken, in 
                        violation of subsection (b)--
                                  (I) the Inspector General 
                                shall request from an 
                                administrative law judge a 
                                preliminary order providing 
                                relief from the personnel 
                                action; and
                                  (II) except as provided in 
                                clause (ii), the administrative 
                                law judge, without further 
                                proceedings, shall issue such 
                                an order.
                          (ii) Good Cause.--Upon motion by the 
                        Government, after notice and an 
                        opportunity to be heard, and if the 
                        administrative law judge determines 
                        that there is a particularized showing 
                        of good cause that an order should not 
                        be issued returning an employee to the 
                        position the employee would have held 
                        had the personnel action not been 
                        taken, the administrative law judge 
                        shall issue an order directing that the 
                        employee be returned, as nearly as 
                        practicable and reasonable, to such 
                        position.
          (3) Filing of Objections.--
                  (A) In General.--Not later than 60 days after 
                the Inspector General issues a decision under 
                paragraph (2)(B), either party may file 
                objections to the decision and request a 
                hearing on the record.
                  (B) No Effect on Preliminary Relief.--The 
                filing of objections under subparagraph (A) 
                shall not affect an order issued under clause 
                (i) or (ii) of paragraph (2)(C).
                  (C) No Objections Filed.--If no party has 
                filed objections as of the date that is 61 days 
                after the date the Inspector General issues a 
                decision--
                          (i) the decision is final and not 
                        subject to further review; and
                          (ii) if the Inspector General had 
                        determined that reasonable grounds 
                        exist to believe that a personnel 
                        action occurred, exists, or is to be 
                        taken, in violation of subsection (b)--
                                  (I) an administrative law 
                                judge, without further 
                                proceedings, shall issue an 
                                order providing permanent 
                                relief from the personnel 
                                action; and
                                  (II) upon motion by the 
                                employee or applicant, and 
                                after an opportunity for a 
                                hearing, an administrative law 
                                judge may issue an order that 
                                provides for corrective action 
                                as described under section 
                                1221(g), which shall be 
                                accompanied by a written 
                                decision explaining the grounds 
                                for the order.
          (4) Review by Administrative Law Judge.--
                  (A) In General.--If objections are filed 
                under paragraph (3)(A), an administrative law 
                judge shall review the decision by the 
                Inspector General on the record after 
                opportunity for agency hearing.
                  (B) Corrective Action.--An administrative law 
                judge may issue an order providing for 
                corrective action as described under section 
                1221(g).
                  (C) Determination.--An administrative law 
                judge shall issue a written decision explaining 
                the grounds for the determination by the 
                administrative law judge under this paragraph.
                  (D) Effect of Determination.--The 
                determination by an administrative law judge 
                under this paragraph shall become the decision 
                of the Department of Justice without further 
                proceedings, unless there is an appeal to, or 
                review on motion of, the Attorney General 
                within such time as the Attorney General shall 
                by rule establish.
          (5) Review by Attorney General.--
                  (A) Timeframe.--
                          (i) In General.--Upon an appeal to, 
                        or review on motion of, the Attorney 
                        General under paragraph (4)(D), the 
                        Attorney General, through reference to 
                        such categories of cases, or other 
                        means, as the Attorney General 
                        determines appropriate, shall establish 
                        and announce publicly the date by which 
                        the Attorney General intends to 
                        complete action on the matter, which 
                        shall ensure expeditious consideration 
                        of the appeal or review, consistent 
                        with the interests of fairness and 
                        other priorities of the Attorney 
                        General.
                          (ii) Failure to Meet Deadline.--If 
                        the Attorney General fails to complete 
                        action on an appeal or review by the 
                        announced date, and the expected delay 
                        will exceed 30 days, the Attorney 
                        General shall publicly announce the new 
                        date by which the Attorney General 
                        intends to complete action on the 
                        appeal or review.
                  (B) Determination.--The Attorney General 
                shall issue a written decision explaining the 
                grounds for the determination by the Attorney 
                General in an appeal or review under paragraph 
                (4)(D).
          (6) Publication of Determinations.--
                  (A) Public Availability.--Except as provided 
                in subparagraph (B), the Attorney General shall 
                make written decisions issued by administrative 
                law judges under paragraph (3)(C) or (4)(C) and 
                written decisions issued by the Attorney 
                General under paragraph (5)(B) publicly 
                available in a manner that is--
                          (i) to the maximum extent 
                        practicable, consistent with the manner 
                        in which the Merit Systems Protection 
                        Board makes decisions of the Board 
                        available to the public; and
                          (ii) in accordance with section 552.
                  (B) Rule of Construction.--Nothing in 
                subparagraph (A) shall be construed to limit 
                the authority of an administrative law judge or 
                the Attorney General to limit the public 
                disclosure of information under law or 
                regulations.
          (7) Judicial Review.--Any determination by an 
        administrative law judge or the Attorney General under 
        this subsection shall be subject to judicial review 
        under chapter 7. A petition for judicial review of such 
        a determination shall be filed in the United States 
        Court of Appeals for the Federal Circuit or any court 
        of appeals of competent jurisdiction.
    [(b) The] (d) Regulations.--Not later than 18 months after 
the date of enactment of the Federal Bureau of Investigation 
Whistleblower Protection Enhancement Act of 2016, the Attorney 
General shall prescribe regulations to carry out subsection (c) 
that--
          (1) [to] ensure [such a personnel action] that 
        prohibited personnel practices shall not be taken 
        against an employee [of the] in, or applicant for, a 
        position in the Federal Bureau of Investigation; [as a 
        reprisal for any disclosure of information described in 
        subsection (a) of this section.]
    [(c) The President shall] (2) provide for the 
administration and enforcement of [this section] subsection (c) 
in a manner consistent with applicable provisions of sections 
1214 and 1221 [of this title.] and in accordance with the 
procedures under subchapter II of chapter 5 and chapter 7;
          (3) ensure that employees of the Federal Bureau of 
        Investigation are informed of the rights and remedies 
        available to the employees under this section, 
        including how to make a lawful disclosure of 
        information that is specifically required by law or 
        Executive Order to be kept classified in the interest 
        of national defense or the conduct of foreign affairs; 
        and
          (4) provide for the protection of classified 
        information and intelligence sources and methods.
    (e) Reporting.--Not later than March 1 of each year, the 
Attorney General shall make publicly available a report 
containing--
          (1) the number and nature of allegations of a 
        prohibited personnel practice received during the 
        previous year;
          (2) the disposition of each allegation of a 
        prohibited personnel practice resolved during the 
        previous year;
          (3) the number of unresolved allegations of a 
        prohibited personnel practice pending as of the end of 
        the previous year and, for each such unresolved 
        allegation, how long the allegation had been pending as 
        of the end of the previous year;
          (4) the number of disciplinary investigations and 
        actions taken with respect to each allegation of a 
        prohibited personnel practice during the previous year;
          (5) the number of instances during the previous year 
        in which the Inspector General found reasonable grounds 
        existed to believe that a prohibited personnel practice 
        had occurred that were appealed by the Federal Bureau 
        of Investigation; and
          (6) the number of allegations of a prohibited 
        personnel practice resolved through settlement, 
        including the number that were resolved as a result of 
        mediation.
    (f) Rules of Construction.--Nothing in this section shall 
be construed to--
          (1) limit the jurisdiction of any office under any 
        other provision of law to conduct an investigation to 
        determine whether a prohibited personnel practice has 
        been or will be taken; or
          (2) alter or amend any law, regulation, or Executive 
        Order regarding the handling or disclosure of 
        information, including classified information.''.

           *       *       *       *       *       *       *

                                  [all]
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