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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7750 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. R. 7750
To amend section 2303 of title 5, United States Code, to require the
Inspector General of the Department of Justice to investigate
allegations of prohibited against employees of the Federal Bureau of
Investigation for whistleblowing, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 20, 2024
Mr. Langworthy (for himself, Mr. Jordan, Mr. Armstrong, Mr. Gooden of
Texas, Mr. Moore of Alabama, Ms. Tenney, Mr. Tiffany, and Mr. Van Drew)
introduced the following bill; which was referred to the Committee on
Oversight and Accountability
_______________________________________________________________________
A BILL
To amend section 2303 of title 5, United States Code, to require the
Inspector General of the Department of Justice to investigate
allegations of prohibited against employees of the Federal Bureau of
Investigation for whistleblowing, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Whistleblowers from
Retribution Act''.
SEC. 2. INSPECTOR GENERAL RESPONSIBLE FOR FBI WHISTLEBLOWER RETALIATION
INVESTIGATIONS.
(a) In General.--Section 2303 of title 5, United States Code, is
amended--
(1) in subsection (a)--
(A) in paragraph (1), by redesignating
subparagraphs (A) through (H) as clauses (i) through
(viii), respectively;
(B) in paragraph (2), by redesignating
subparagraphs (A) and (B) as clauses (i) and (ii),
respectively;
(C) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively;
(D) in the matter preceding subparagraph (A), as so
redesignated, by striking ``reprisal for'' and all that
follows and inserting the following: ``reprisal for--
``(1) a disclosure described in section 2302(b)(8)(A), if
such disclosure is not specifically prohibited by law and if
such information is not specifically required by Executive
order to be kept secret in the interest of national defense or
the conduct of foreign affairs; or
``(2) a disclosure of information--'';
(E) by striking ``clauses (i) through (x)'' and
inserting ``clauses (i) through (xii)''; and
(F) by inserting after ``of this title with respect
to'' the following: ``, or the initiation or extension
of an investigation into or denial, suspension, or
revocation of the security clearance of,'';
(2) in subsection (c)--
(A) by inserting ``subsections (d), (g), and (e)
and the'' before ``applicable provisions''; and
(B) by striking ``sections 1214 and'' and inserting
``section'';
(3) by redesignating subsection (d) as subsection (g); and
(4) by inserting after subsection (c) the following new
subsections:
``(d)(1) The Inspector General of the Department of Justice shall,
in accordance with subsection (e), receive and investigate each
allegation made by an employee or former employee of, or applicant for
a position in, the Federal Bureau of Investigation of a reprisal in
violation of subsection (a) and, where appropriate--
``(A) bring petitions for stays, and petitions for
corrective action, under subsection (e); and
``(B) file a complaint or make recommendations for
disciplinary action under subsection (f).
``(2) For the purposes of carrying out subsection (d), the
Inspector General of the Department of Justice shall have the same
authorities and responsibilities provided to, and be subject to the
same requirements as, the Special Counsel under subsections (b) through
(g) of section 1212 with respect to an investigation, review, or
inquiry conducted under section 1214 or 1215, except that the
requirement described in subsection (b)(6) of section 1212 shall not
apply with respect to the Inspector General.
``(e)(1)(A)(i) The Inspector General of the Department of Justice
shall receive each allegation described in subsection (d) and shall
investigate the allegation to the extent necessary to determine whether
there are reasonable grounds to believe that a reprisal in violation of
subsection (a) has occurred, exists, or is going to be taken.
``(ii) Within 15 days after the date of receiving
an allegation of a reprisal in violation of subsection
(a) under subparagraph (A), the Inspector General of
the Department of Justice shall provide written notice
to the person who made the allegation that--
``(I) the allegation has been received by
the Inspector General; and
``(II) shall include the name of a person
at the Office of Inspector General of the
Department of Justice who shall serve as a
contact with the person making the allegation.
``(iii) Unless an investigation is terminated under
subparagraph (B), the Inspector General of the
Department of Justice shall--
``(I) within 90 days after notice is
provided under clause (ii), notify the person
who made the allegation of the status of the
investigation and any action taken by the
Office of the Inspector General of the
Department of Justice since the filing of the
allegation;
``(II) notify such person of the status of
the investigation and any action taken by such
Office since the last notice, at least every 60
days after notice is given under subclause (I);
and
``(III) notify such person of the status of
the investigation and any action taken by the
Inspector General at such time as determined
appropriate by the Inspector General.
``(iv) No later than 10 days before the Inspector
General of the Department of Justice terminates any
investigation of a prohibited personnel practice, the
Inspector General shall provide a written status report
to the person who made the allegation of the proposed
findings of fact and legal conclusions. The person may
submit written comments about the report to the
Inspector General. The Inspector General shall not be
required to provide a subsequent written status report
under this clause after the submission of such written
comments.
``(B)(i) Not later than 30 days after the Inspector General
of the Department of Justice terminates any investigation under
subparagraph (A), the Inspector General shall prepare and
transmit to any person on whose allegation the investigation
was initiated a written statement notifying the person of--
``(I) the termination of the investigation;
``(II) a summary of relevant facts
ascertained by the Inspector General, including
the facts that support, and the facts that do
not support, the allegations of such person;
``(III) the reasons for terminating the
investigation; and
``(IV) a response to any comments submitted
under subparagraph (A)(iv).
``(ii) A written statement under clause (i) may not be
admissible as evidence in any judicial or administrative
proceeding, without the consent of the person who received such
statement under such clause.
``(C) In addition to any authority granted under
subparagraph (A), the Inspector General may, in the absence of
an allegation, conduct an investigation for the purpose of
determining whether there are reasonable grounds to believe
that a reprisal in violation of subsection (a) has occurred,
exists, or is going to be taken.
``(D)(i) Notwithstanding any other provision of this
subsection, not later than 30 days after the date on which the
Inspector General of the Department of Justice receives an
allegation of a reprisal in violation of subsection (a) under
subparagraph (A), the Inspector General may terminate an
investigation of the allegation without further inquiry if the
Inspector General determines that--
``(I) the same allegation, based on the
same set of facts and circumstances, had
previously been--
``(aa)(AA) made by the individual;
and
``(BB) investigated by the
Inspector General; or
``(bb) filed by the individual with
the Merit Systems Protection Board;
``(II) the Inspector General does not have
jurisdiction to investigate the allegation; or
``(III) the individual knew or should have
known of the alleged reprisal in violation of
subsection (a) on or before the date that is 3
years before the date on which the Inspector
General received the allegation.
``(ii) Not later than 30 days after the date on which the
Inspector General of the Department of Justice terminates an
investigation under clause (i), the Inspector General shall
provide a written notification to the individual who submitted
the allegation of a reprisal in violation of subsection (a)
that states the basis of the Inspector General for terminating
the investigation.
``(2)(A)(i)(I) The Inspector General of the Department of Justice
may request any member of the Merit Systems Protection Board to order a
stay of any personnel action (as defined in subsection (a)) for 45 days
if the Inspector General determines that there are reasonable grounds
to believe that the personnel action was taken, or is going to be
taken, as a result of a reprisal in violation of subsection (a).
``(II) Any member of the Merit Systems Protection
Board requested by the Inspector General of the
Department of Justice to order a stay under subclause
(I) shall order such stay unless the member determines
that, under the facts and circumstances involved, such
a stay would not be appropriate.
``(III) Unless denied under subclause (II), any
stay under this clause shall be granted within 3
calendar days (excluding Saturdays, Sundays, and legal
holidays) after the date of the request for the stay by
the Inspector General of the Department of Justice.
``(ii)(I) The Merit Systems Protection Board may extend the
period of any stay granted under clause (i) for any period
which the Board considers appropriate.
``(II) If the Merit Systems Protection Board lacks
the number of members appointed under section 1201
required to constitute a quorum, any remaining member
of the Board may, upon request by the Inspector General
of the Department of Justice, extend the period of any
stay granted under clause (i).
``(iii) A stay may be terminated by the Merit Systems
Protection Board at any time, except that a stay may not be
terminated by the Board--
``(I) on its own motion or on the motion of an
agency, unless notice and opportunity for oral or
written comments are first provided to the Inspector
General of the Department of Justice and the individual
on whose behalf the stay was ordered; or
``(II) on motion of the Inspector General, unless
notice and opportunity for oral or written comments are
first provided to the individual on whose behalf the
stay was ordered.
``(iv) If the Merit Systems Protection Board grants a stay
under clause (i), the Attorney General shall give priority to a
request for a transfer submitted by the employee who is the
subject of the action.
``(B)(i)(I) Except as provided under subclause (II), no later than
240 days after the date of receiving an allegation of a reprisal in
violation of subsection (a) under subparagraph (A), the Inspector
General of the Department of Justice shall make a determination whether
there are reasonable grounds to believe that a reprisal in violation of
subsection (a) has occurred, exists, or is going to be taken.
``(II) If the Inspector General of the Department of
Justice is unable to make the required determination within the
240-day period specified under subclause (I) and the person
submitting the allegation of a reprisal in violation of
subsection (a) agrees to an extension of time, the
determination shall be made within such additional period of
time as shall be agreed upon between the Inspector General and
the person submitting the allegation.
``(ii) If, in connection with any investigation, the Inspector
General of the Department of Justice determines that there are
reasonable grounds to believe that a reprisal in violation of
subsection (a) has occurred, exists, or is going to be taken which
requires corrective action, the Inspector General shall report the
determination together with any findings or recommendations to the
Merit Systems Protection Board, the Attorney General, and the Office of
Personnel Management, and may report such determination, findings and
recommendations to the President. The Inspector General may include in
the report recommendations for corrective action to be taken.
``(iii) If, after a reasonable period of time, but not later than
30 days after the Inspector General of the Department of Justice
submits the report under clause (ii), the Federal Bureau of
Investigation does not act to correct the reprisal in violation of
subsection (a), the Inspector General may petition the Merit Systems
Protection Board for corrective action.
``(iv) If the Inspector General of the Department of Justice finds,
in consultation with the individual subject to the reprisal in
violation of subsection (a), that the Federal Bureau of Investigation
has acted to correct the reprisal in violation of subsection (a), the
Inspector General shall file such finding with the Merit Systems
Protection Board, together with any written comments which the
individual may provide.
``(v) A determination by the Inspector General of the Department of
Justice under this subparagraph shall not be cited or referred to in
any proceeding under this subparagraph or any other administrative or
judicial proceeding for any purpose, without the consent of the person
submitting the allegation of a reprisal in violation of subsection (a).
``(C)(i) Whenever the Inspector General of the Department of
Justice petitions the Merit Systems Protection Board for corrective
action under this section, the Board shall provide an opportunity for--
``(I) oral or written comments by the Inspector
General, the Federal Bureau of Investigation, and the
Office of Personnel Management; and
``(II) written comments by any individual who
alleges to be the subject of the reprisal in violation
of subsection (a).
``(ii) The Merit Systems Protection Board shall make
available the oral and written comments described in clause
(i)(I) to any individual who alleges to be the subject of a
reprisal in violation of subsection (a) with respect to which
such comments were made.
``(D)(i) Subject to the provisions of clause (ii), the Merit
Systems Protection Board shall order such corrective action as the
Board considers appropriate if the Inspector General of the Department
of Justice has demonstrated that a disclosure described in subsection
(a) was a contributing factor in the personnel action (as defined in
such subsection) which was taken or is going to be taken against the
individual.
``(ii) Corrective action under clause (i) may not be ordered if,
after a finding that a disclosure described in subsection (a) 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.
``(3)(A) Judicial review of any final order or decision of the
Merit Systems Protection Board under this subsection may be obtained by
any employee, former employee, or applicant for employment adversely
affected by such order or decision.
``(B) A petition for review under this subsection shall be filed
with such court, and within such time, as provided for under section
7703(b).
``(4) If, in connection with any investigation under this section,
the Inspector General of the Department of Justice determines that
there is reasonable cause to believe that a criminal violation has
occurred, the Inspector General of the Department of Justice shall
report the determination to the Attorney General, and shall submit a
copy of the report to the Director of the Office of Personnel
Management and the Director of the Office of Management and Budget.
``(5) If, in connection with any investigation under this section,
the Inspector General of the Department of Justice determines that
there is reasonable cause to believe that any violation of any law,
rule, or regulation has occurred other than one referred to in
paragraph (2) or (4), the Inspector General shall report such violation
to the Attorney General. The Inspector General shall require, within 30
days after the receipt of the report by the Attorney General, a
certification by the Attorney General which states--
``(A) that the Attorney General has personally reviewed the
report; and
``(B) what action has been or is going to be taken, and
when the action will be completed.
``(6) During any investigation initiated under this section, no
disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity
without the approval of the Inspector General of the Department of
Justice.
``(7) If the Merit Systems Protection Board orders corrective
action under this subsection, such corrective action may include--
``(A) that the individual be placed, as nearly as possible,
in the position the individual would have been in had the
reprisal in violation of subsection (a) not occurred, including
with respect to the individual's security clearance and access
determination and the expungement of any record of an adverse
determination as a result of such reprisal in the current
investigation file (as such term is defined in section
3001(a)(5) of the Intelligence Reform and Terrorism Prevention
Act of 2004 (50 U.S.C. 3341(a)(5))) of the individual; and
``(B) reimbursement for attorney's fees, back pay and
related benefits, medical costs incurred, travel expenses, any
other reasonable and foreseeable consequential damages, and
compensatory damages (including interest, reasonable expert
witness fees, and costs).
``(8) Any corrective action ordered under this subsection to
correct a reprisal in violation of subsection (a) 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 that formed the basis of the
corrective action.
``(9) The Inspector General of the Department of Justice may
petition the Merit Systems Protection Board to order corrective action,
including fees, costs, or damages reasonably incurred by an employee
due to an investigation of the employee by an agency, if the
investigation by an agency was commenced, expanded, or extended in
retaliation for a disclosure described in subsection (a), without
regard to whether a personnel action (as defined in such subsection),
is taken.
``(f)(1) If the Inspector General of the Department of Justice
determines that disciplinary action should be taken against any
employee for having committed a reprisal in violation of subsection (a)
or knowingly and willfully refused or failed to comply with an order of
the Merit Systems Protection Board with respect to such a violation,
the Inspector General shall prepare a written complaint against the
employee containing the determination of the Inspector General,
together with a statement of supporting facts, and present the
complaint and statement to the employee and the Board, in accordance
with this subsection.
``(2) Any employee against whom the Inspector General of the
Department of Justice presents a complaint to the Merit Systems
Protection Board under paragraph (1) is entitled to--
``(A) a reasonable time to answer orally and in writing,
and to furnish affidavits and other documentary evidence in
support of the answer;
``(B) be represented by an attorney or other
representative;
``(C) a hearing before the Board or an administrative law
judge appointed under section 3105 and designated by the Board;
``(D) have a transcript kept of any hearing under
subparagraph (C); and
``(E) a written decision and reasons therefor at the
earliest practicable date, including a copy of any final order
imposing disciplinary action.
``(3)(A) A final order of the Merit Systems Protection Board
pursuant a case brought under paragraph (1) may impose--
``(i) disciplinary action consisting of removal,
reduction in grade, debarment from Federal employment
for a period not to exceed 5 years, suspension, or
reprimand;
``(ii) an assessment of a civil penalty not to
exceed $10,000; or
``(iii) any combination of disciplinary actions
described under clause (i) and an assessment described
under clause (ii).
``(B) In any case brought under paragraph (1) in which the
Merit Systems Protection Board finds that an employee has
committed a reprisal in violation of subsection (a), the Board
may impose disciplinary action if the Board finds that the
disclosure described in subsection (a) was a significant
motivating factor, even if other factors also motivated the
decision, for the decision of the employee to take, fail to
take, or threaten to take or fail to take a personnel action
(as defined in subsection (a)), unless that employee
demonstrates, by a preponderance of the evidence, that the
employee would have taken, failed to take, or threatened to
take or fail to take the same personnel action, in the absence
of such protected activity.
``(4) There may be no administrative appeal from an order of the
Merit Systems Protection Board. An employee subject to a final order
imposing disciplinary action under this subsection may obtain judicial
review of the order by filing a petition therefor with such court, and
within such time, as provided for under section 7703(b).
``(g)(1) Not later than one year after the date of the enactment of
this subsection, and annually thereafter, the Inspector General of the
Department of Justice shall submit to the Committees on the Judiciary
of the House of Representatives and the Senate, the Committee on
Oversight and Reform of the House of Representatives, and the Committee
on Homeland Security and Governmental Affairs of the Senate a report on
the investigations conducted by the Inspector General under this
section during the one-year period preceding such report.
``(2) Each report required by paragraph (1) shall include, for the
period covered by such report--
``(A) the number of completed investigations conducted by
the Inspector General of the Department of Justice under this
section;
``(B) the duration of each such investigation;
``(C) the number of reprisals in violation of subsection
(a) found pursuant to such investigations;
``(D) the number of employees of the Federal Bureau of
Investigation who made such a reprisal;
``(E) the number of such reprisals with respect to which
the Inspector General, under this section, petitioned to the
Merit Systems Protection Board for corrective action or
presented a complaint to the Board;
``(F) how long the Merit Systems Protection Board took to
make a final decision or issue a final order with respect to
each such petition or complaint;
``(G) the disciplinary actions and penalties imposed on
employees described in subparagraph (D) by the Board under
subsection (f); and
``(H) the number of allegations of reprisals in violation
of subsection (a) for which the Attorney General did not
correct the reprisal, as determined by the Inspector General
determined under subsection (e).''.
(b) Regulations.--Not later than 90 days after the date of the
enactment of this Act, the Attorney General shall revise such
regulations as are necessary to implement the amendments made by this
Act.
(c) Effective Date.--The amendments made by subsection (a) shall
take effect on the date that is 90 days after the date of the enactment
of this Act.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Oversight and Accountability.
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