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Protecting Whistleblowers since 1977

Senate Judiciary Committee Unanimously Approves FBI Whistleblower Protections

Shanna Devine, April 14, 2016

On April 14th, the Senate Judiciary Committee unanimously passed the Federal Bureau of Investigation Whistleblower Protection Enhancement Act (FBI WPEA) of 2015 (S. 2390). Introduced by Chairman Chuck Grassley and Ranking Member Leahy, it would upgrade one of the least effective whistleblower policies in the U.S. Code and ensure that the nation’s top law enforcement agency is held accountable to the rule of law. The bill currently enjoys extensive bipartisan co-sponsorship from members of the Senate Whistleblower Protection Caucus.

In March, GAP and its coalition partners and whistleblowers sent a letter to the Senate Judiciary Committee applauding the proposed reforms. Specifically, S. 2390:

* Provides parity with the Whistleblower Protection Act (WPA) in many critical respects, including by:

  • protecting FBI employees who refuse to violate the law;
  • affording employees the right to seek due process remedies if the Office of Inspector General (OIG) has not issued a ruling within 120 days;
  • establishing identical burdens of proof for all fact-finding under the Act;
  • conferring the right to independent due process before an Administrative Law Judge;
  • fostering due process rights generally by requiring the publication of decisions on whistleblower complaints; and 
  • adopt the Administrative Procedures Act’s requirements for judicial review

* Expands coverage to all relevant witnesses, including applicants for employment or new positions;

* Closes loopholes that previously excluded protection for disclosures to supervisors, within the chain of command and to Congress;

* Grants authority for the Office of Inspector General to obtain temporary relief against retaliation through “stays” while an appeal proceeds;

* Establishes parity for protected activity with the WPA to cover the full scope of relevant misconduct, including illegality, gross waste, gross mismanagement, or a substantial and specific danger to public health or safety;

* Increases transparency into how the Act works in practice, through publication of its track record ranging from the number of cases filed and completed, to the whistleblowers’ won-loss record;

* Commissions independent review by the Government Accountability Office of the Act’s track record, to facilitate further improvements based on lessons learned;

* Clarifies that the publication of reprisal determinations should be consistent with the practices and procedures in place for the Merit Systems Protection Board (which posts decisions on its website) and consistent with FOIA;

*Establishes an 18-month the deadline for DOJ to promulgate implementing regulations;

*Adds new requirements for DOJ’s regulations:

  • DOJ must ensure that employees are informed of their rights and remedies and how to make disclosures of classified information (language from 5 USC 2302(c)); and
  • DOJ must provide for the protection of classified information and intelligence sources and methods (language from PPD-19)

*Adds a new rule of construction to make clear that nothing shall be construed to alter or amend any law, regulation, or Executive Order regarding the handling or disclosure of information, including classified information;

*Specifies additional details for GAO to examine in its review of the effect of this legislation; and

*Provides that complaints filed before the DOJ regulations become effective will be investigated and reviewed according to current rules, but that complaints where investigations are still pending when DOJ regulations become effective will be adjudicated under the new rules. Substantive changes will apply to complaints pending on the day the bill is enacted.

Through today’s unanimous vote in support of the FBI WPEA, the Senate Judiciary Committee sent an unwavering message that FBI employees deserve credible protections when they report government wrongdoing. Congress owes it to the nation’s leading law enforcement organization to pass S. 2390 without delay.