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S. 2390 (114th): Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016

The text of the bill below is as of Dec 10, 2015 (Introduced).


II

114th CONGRESS

1st Session

S. 2390

IN THE SENATE OF THE UNITED STATES

December 10, 2015

(for himself and Mr. Leahy) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To provide adequate protections for whistleblowers at the Federal Bureau of Investigation.

1.

Short title

This Act may be cited as the Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2015.

2.

FBI whistleblower protections

(a)

In general

Section 2303 of title 5, United States Code, is amended to read as follows:

2303.

Prohibited personnel practices in the Federal Bureau of Investigation

(a)

Definitions

In this section—

(1)

the term administrative law judge means an administrative law judge appointed by the Attorney General under section 3105 or used by the Attorney General under section 3344;

(2)

the term Inspector General means the Inspector General of the Department of Justice;

(3)

the term personnel action means any action described in section 2302(a)(2)(A) with respect to an employee in, or applicant for, a position in the Federal Bureau of Investigation (other than a position of a confidential, policy-determining, policymaking, or policy-advocating character);

(4)

the term prohibited personnel practice means a prohibited personnel practice described in subsection (b); and

(5)

the term protected disclosure means any disclosure of information by an employee in, or applicant for, a position in the Federal Bureau of Investigation—

(A)

made—

(i)

for 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)

to a Member of Congress;

(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—

(i)

shall issue a decision containing the findings of the Inspector General supporting the determination of the Inspector General; and

(ii)

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), the Inspector General shall request from an administrative law judge, and the administrative law judge, without further proceedings, shall issue, a preliminary order staying the personnel action.

(3)

Filing of objections

(A)

In general

Not later than 60 days after the Inspector General issues a decision under paragraph (2)(B)(i), either party may file objections to the decision and request a hearing on the record.

(B)

No effect on stay

The filing of objections under subparagraph (A) shall not affect the stay of a personnel action under a preliminary order issued under paragraph (2)(B)(ii).

(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 permanently staying the personnel action; and

(II)

upon motion by the employee, 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).

(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 (4)(C) and written decisions issued by the Attorney General under paragraph (5)(B) publicly available.

(B)

Rule of construction

Nothing in subparagraph (A) shall be construed to limit the authority of an administrative law judge or the Attorney General to limit the public disclosure of information under law or regulations.

(7)

Judicial review

Any determination by an administrative law judge or the Attorney General under this subsection shall be subject to judicial review under chapter 7. A petition for judicial review of such a determination shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.

(d)

Regulations

The Attorney General shall prescribe regulations to carry out subsection (c) that—

(1)

ensure that prohibited personnel practices shall not be taken against an employee in, or applicant for, a position in the Federal Bureau of Investigation; and

(2)

provide for the administration and enforcement of subsection (c) in a manner consistent with applicable provisions of sections 1214 and 1221 and in accordance with the procedures under subchapter II of chapter 5 and chapter 7.

(e)

Reporting

Not later than March 1 of each year, the Attorney General shall make publically 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 a reasonable basis 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)

Rule of construction

Nothing in this section shall be construed to 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.

.

(b)

GAO report

(1)

Definition

In this subsection, the term prohibited personnel practice means a prohibited personnel practice described in section 2303(b) of title 5, United States Code, as added by subsection (a).

(2)

Report

Not later than 4 years after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the effects of the amendment made by subsection (a), which shall include—

(A)

an evaluation of the timeliness of resolution of allegations of a prohibited personnel practice;

(B)

an analysis of the corrective action provided in instances of a prohibited personnel practice;

(C)

the number and type of disciplinary actions taken in instances of a prohibited personnel practice;

(D)

an evaluation of the communication by the Inspector General of the Department of Justice with an individual alleging a prohibited personnel practice regarding the investigation and resolution of the allegation;

(E)

an assessment of the mediation process of the Department of Justice; and

(F)

a discussion of how the use of administrative law judges and review under chapters 5 and 7 of title 5, United States Code, affected the process of investigating and resolving allegations of a prohibited personnel practice.