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Whistleblower Law Blog

Senate Judiciary Leadership Seeks to Enhance Protection for FBI Whistleblowers

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Last year, we wrote about a report from the U.S. Attorney General that reviewed protections provided to whistleblowers employed by the FBI. At the time, that report recommended, among other fixes, the following: (1) awarding compensatory damages to whistleblowers who suffered retaliation; (2) expanding the list of persons to whom protected disclosures could be made; and (3) equalizing whistleblowers’ access to witnesses within the agency. When the Attorney General released the report, then-Ranking Member of the Senator Judiciary Committee Chuck Grassley and Oregon Senator Ron Wyden expressed optimism that the report was a step in the right direction. More recently, Chairman Grassley and Ranking Member Patrick Leahy of the Senate Judiciary Committee introduced the Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2015.

Chairman Grassley stated that the new bill, introduced in December 2015, “expands outlets for protected disclosures and improves processes to halt reprisal.” Senator Leahy echoed Grassley’s statements, saying the bill would “help to ensure that FBI employees are able to blow the whistle on waste, fraud, or abuse at the FBI and not face personal repercussions when they do.”

The bill would provide a fix for FBI employees who, like members of the Intelligence Community, are exempted from the Whistleblower Protection Act that covers most federal employees. Under this proposed law, an FBI whistleblower could make a disclosure to the Office of the Inspector General at the FBI. The law would empower the IG at the FBI to stay any adverse personnel action taken against an employee if the IG finds reasonable grounds exist to believe that the adverse action was retaliation for a protected disclosure. The new proposed law also provides that an Administrative Law Judge will adjudicate any hearing, as opposed to the current system which allows for adjudication internally at the Department of Justice. Further, this proposed law allows for the U.S. Court of Appeals for the Federal Circuit to review any ALJ decision.

While passage of this bill is uncertain, its introduction is nonetheless important because it signals a desire among some members of Congress to enhance protections for whistleblowers in the United States government who currently have little or no protection, such as those in the FBI. In January, we discussed a number of other bills that would enhance protections for those currently unprotected. The Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2015, if enacted, would significantly close the gap in protection that exists for FBI employees. Ultimately, passage of the bill will encourage those with knowledge of wrongdoing or illegal activity at the FBI to come forward and disclose it.

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