[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4925 Introduced in House (IH)]







109th CONGRESS
  2d Session
                                H. R. 4925

                 To improve whistleblower protections.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 9, 2006

  Mr. Markey (for himself and Mrs. Maloney) introduced the following 
    bill; which was referred to the Committee on Education and the 
    Workforce, and in addition to the Committees on Armed Services, 
 Government Reform, and the Judiciary, for a period to be subsequently 
   determined by the Speaker, in each case for consideration of such 
 provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
                 To improve whistleblower protections.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Paul Revere 
Freedom to Warn Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Discrimination against whistleblowers prohibited.
Sec. 3. Enforcement action.
Sec. 4. Remedies.
Sec. 5. State secrets privilege.
Sec. 6. Criminal penalties.
Sec. 7. Rights retained by covered individual.
Sec. 8. Notification.
Sec. 9. Definitions.
Sec. 10. Effective date; applicability.

SEC. 2. DISCRIMINATION AGAINST WHISTLEBLOWERS PROHIBITED.

    It shall be unlawful for any person to discharge, demote, suspend, 
reprimand, investigate, or take or fail to take any other personnel 
action that in any manner discriminates against any covered individual, 
or in any other manner discriminate against any covered individual 
(including by a denial, suspension, or revocation of a security 
clearance or by any other security access determination, or by denial 
of award of a Federal contract or subcontract), or to threaten or 
recommend the discharge, demotion, suspension, reprimand, 
investigation, other personnel action (or rejection of such action) 
that in any manner discriminates against any covered individual, or 
other manner of discrimination if such action, discrimination, or 
recommendation is due, in whole or in part, to any lawful act done, 
perceived to have been done, or intended to be done by the covered 
individual--
            (1) to provide information, cause information to be 
        provided, or otherwise assist in an investigation or proceeding 
        regarding any conduct which the covered individual reasonably 
        believes constitutes evidence of a violation of any law, rule, 
        or regulation, a threat to national or homeland security, a 
        substantial and specific threat to public health or safety, or 
        fraud, abuse of authority, waste, or mismanagement of public 
        funds, if the information or assistance is provided to or the 
        investigation is conducted by--
                    (A) a Federal, State, or local regulatory or law 
                enforcement agency (including an office of Inspector 
                General under the Inspector General Act of 1978);
                    (B) any Member of Congress, any committee of 
                Congress, or the Government Accountability Office;
                    (C) any person with supervisory or managerial 
                authority over the covered individual (or any other 
                person who has the authority to investigate, discover, 
                or terminate misconduct); or
                    (D) a potential witness to or other person affected 
                by or aware of the conduct described in this section;
            (2) to file, cause to be filed, testify, participate in, or 
        otherwise assist in a proceeding or action filed or about to be 
        filed relating to an alleged violation of any law, rule, or 
        regulation; or
            (3) to refuse to violate or assist in the violation of any 
        law, rule, or regulation.

SEC. 3. ENFORCEMENT ACTION.

    (a) In General.--A covered individual who alleges discharge or 
other discrimination by any person in violation of section 2 may seek 
relief under section 4 by--
            (1) filing a complaint with the Secretary of Labor; or
            (2) if the Secretary has not issued a final decision within 
        180 days after the filing of the complaint and there is no 
        showing that such delay is due to the bad faith of the 
        claimant, bringing an action at law or equity for de novo 
        review by a jury in the appropriate district court of the 
        United States, which shall have jurisdiction over such an 
        action without regard to the amount in controversy.
    (b) Procedure.--
            (1) In general.--An action under subsection (a)(1) shall be 
        governed under the rules and procedures set forth in section 
        42121(b) of title 49, United States Code.
            (2) Exception.--Notification made under section 42121(b)(1) 
        of title 49, United States Code, shall be made--
                    (A) to the person named in the complaint; and
                    (B) to the person's employer or, in the case of a 
                Federal contractor or subcontractor, to the 
                instrumentality of the Government with which such 
                contractor or subcontractor has entered into, or 
                submitted an offer to enter into, a contract.
            (3) Burdens of proof.--An action brought under subsection 
        (a)(2) shall be governed by the legal burdens of proof set 
        forth in section 42121(b) of title 49, United States Code.
            (4) Statute of limitations.--An action under subsection (a) 
        shall be commenced not later than 6 years after the date on 
        which the alleged violation occurred.

SEC. 4. REMEDIES.

    (a) In General.--A covered individual prevailing in any action 
under section 3(a) shall be entitled to all relief appropriate to make 
the covered individual whole.
    (b) Damages.--Relief for any action under subsection (a) may 
include--
            (1) reinstatement with the same seniority status and 
        employment grade or pay level (or the equivalent) that the 
        covered individual would have had, but for the discrimination;
            (2) compensatory damages, including the amount of any back 
        pay, with interest;
            (3) compensation for any special damages sustained as a 
        result of the discrimination, including litigation costs, 
        expert witness fees, and reasonable attorneys fees; and
            (4) punitive damages in an amount not to exceed the greater 
        of 3 times the amount of any monetary damages awarded under 
        this Act (apart from this paragraph) or $5,000,000.

SEC. 5. STATE SECRETS PRIVILEGE.

    If, in any action brought under section 3(a)(2), the Government 
asserts as a defense the privilege commonly referred to as the ``state 
secrets privilege'' and the assertion of such privilege prevents the 
plaintiff from establishing a prima facie case in support of the 
plaintiff's claim, the court shall enter judgment for the plaintiff and 
shall determine the relief to be granted.

SEC. 6. CRIMINAL PENALTIES.

    (a) In General.--Any person violating section 2 may be fined under 
title 18 of the United States Code, imprisoned not more than 10 years, 
or both.
    (b) Reporting Requirements.--The Department of Justice shall (based 
on such periodic reports and other information from the Department of 
Labor as the Department of Justice may require) submit to Congress an 
annual report on the enforcement of subsection (a). Each such report 
shall--
            (1) identify each case in which formal charges under 
        subsection (a) were brought;
            (2) describe the status or disposition of each such case; 
        and
            (3) in any actions under section 3(a)(2) in which the 
        covered individual was the prevailing party or the 
        substantially prevailing party, indicate whether or not any 
        formal charges under subsection (a) have been brought and, if 
        not, the reasons therefor.

SEC. 7. RIGHTS RETAINED BY COVERED INDIVIDUAL.

    Nothing in this Act shall be deemed to diminish the rights, 
privileges, or remedies of any covered individual under any Federal or 
State law, or under any collective bargaining agreement. The rights and 
remedies in this Act may not be waived by any agreement, policy, form, 
or condition of employment.

SEC. 8. NOTIFICATION.

    The provisions of this Act shall be prominently posted in any place 
of employment to which this Act applies.

SEC. 9. DEFINITIONS.

    For purposes of this Act--
            (1) the term ``covered individual'' means an employee or a 
        member of the uniformed services (as defined by section 2101(3) 
        of title 5, United States Code)--
                    (A) serving in or under--
                            (i) an Executive agency (as defined by 
                        section 105 of such title 5), a military 
                        department (as defined by section 103 of such 
                        title 5), or any other instrumentality of the 
                        Government (which, for purposes of this Act, 
                        includes the Department of Homeland Security, 
                        the Transportation Security Administration, and 
                        any other instrumentality of the Government, 
                        notwithstanding any special personnel 
                        authorities which might be available to such 
                        instrumentality under law);
                            (ii) a Federal contractor or subcontractor; 
                        or
                            (iii) the Federal National Mortgage 
                        Association, the Federal Home Loan Mortgage 
                        Corporation, and any other federally chartered 
                        entity; or
                    (B) employed by an employer within the meaning of 
                section 701(b) of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e(b));
            (2) the term ``employee'' means--
                    (A) with respect to an employer referred to in 
                paragraph (1)(A)(i), an employee as defined by section 
                2105 of title 5, United States Code; and
                    (B) with respect to an employer referred to in 
                paragraph (1)(A)(ii) or (1)(B), any officer, partner, 
                employee, or agent;
        such term, as defined by subparagraph (A), includes an 
        individual holding a position in an instrumentality of the 
        Government identified in the parenthetical matter under 
        paragraph (1)(A);
            (3) the term ``evidence'' means information that meets the 
        standard for admissibility under the Federal Rules of Evidence, 
        or is used as part of the record in support of a finding in an 
        investigative report or decision by a government office with 
        jurisdiction;
            (4) the term ``Federal contractor'' means a person who has 
        entered into, or responded to a request for proposals or 
        solicitation for bids to enter into, a contract with an 
        instrumentality of the Government;
            (5) the term ``lawful'' means not specifically prohibited 
        by law, except that, in the case of any information the 
        disclosure of which is specifically prohibited by Federal 
        statute or specifically required by Executive order to be kept 
        secret in the interest of national defense or the conduct of 
        foreign affairs, any disclosure of such information to any 
        Member of Congress, committee of Congress, or other recipient 
        authorized to receive such information, shall be deemed lawful;
            (6) the term ``law, rule, or regulation'' refers to a law 
        of the United States and any rule or regulation prescribed 
        under any such law;
            (7) the term ``person'' means a corporation, partnership, 
        State entity, business association of any kind, trust, joint-
        stock company, or individual;
            (8) the term ``reasonably believes'', with respect to 
        information provided by a covered individual, means only that a 
        disinterested observer with knowledge of the essential facts 
        known to and readily ascertained by the covered individual 
        could conclude that the information constitutes evidence of 
        conduct described under section 2(1); and
            (9) the term ``subcontractor'', with respect to a Federal 
        contractor, means any person, other than the Federal 
        contractor, who offers to furnish or furnishes any supplies, 
        materials, equipment, or services of any kind under a contract 
        with an instrumentality of the Government or a subcontract (at 
        any tier) entered into under such a contract.

SEC. 10. EFFECTIVE DATE; APPLICABILITY.

    (a) Effective Date.--This Act shall take effect 90 days after the 
date of the enactment of this Act.
    (b) Applicability.--This Act shall apply to--
            (1) any administrative or judicial proceeding pending on 
        the effective date of this Act; and
            (2) any administrative or judicial proceeding brought on or 
        after the effective date of this Act.
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