[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2285 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 2285

    To improve the protection of witnesses, victims, and informants.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 14, 2006

Mr. Lautenberg introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
    To improve the protection of witnesses, victims, and informants.

    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 ``Whistleblower Empowerment, Security, 
and Taxpayer Protection Act of 2006''.

SEC. 2. TAMPERING WITH OR RETALIATING AGAINST A WITNESS, VICTIM, OR AN 
              INFORMANT.

    (a) Tampering With a Witness, Victim, or an Informant.--
            (1) In general.--Section 1512 of title 18, United States 
        Code, is amended--
                    (A) by striking ``or judge of the United States'' 
                each place that term appears and inserting the 
                following: ``, judge of the United States, Member of 
                Congress, authorized official of a Federal agency, or 
                Inspector General'';
                    (B) in subsection (a)--
                            (i) in paragraph (1)(C), by inserting ``or 
                        any other violation of Federal law'' after 
                        ``commission of a Federal offense''; and
                            (ii) in paragraph (2)(C), by inserting ``or 
                        any other violation of Federal law'' after 
                        ``commission of a Federal offense'';
                    (C) in subsection (b)(3), by inserting ``or any 
                other violation of Federal law'' after ``commission of 
                a Federal offense'';
                    (D) in subsection (c), by inserting ``, including 
                an administrative investigation'' after ``official 
                proceeding'' each place that term appears;
                    (E) in subsection (d)--
                            (i) in paragraph (1), by inserting ``or 
                        supporting an administrative investigation'' 
                        after ``official proceeding''; and
                            (ii) in paragraph (2), by inserting ``or 
                        any other violation of Federal law'' after 
                        ``commission of a Federal offense''; and
                    (F) in subsection (g)(2), by inserting after ``law 
                enforcement officer'' the following: ``, Member of 
                Congress, authorized official of a Federal agency, or 
                Inspector General''.
            (2) Technical amendments.--Section 1512 of title 18, United 
        States Code, is amended--
                    (A) in subsection (b)(3)--
                            (i) by inserting a comma after ``of 
                        probation''; and
                            (ii) by striking the second comma after 
                        ``supervised release''; and
                    (B) in subsection (d)(2)--
                            (i) by inserting a comma after ``of 
                        probation''; and
                            (ii) by striking the second comma after 
                        ``supervised release''.
    (b) Retaliating Against a Witness, Victim, or an Informant.--
            (1) In general.--Section 1513 of title 18, United States 
        Code, is amended--
                    (A) by inserting ``, Member of Congress, authorized 
                official of a Federal agency, or Inspector General'' 
                after ``law enforcement officer'' each place that term 
                appears;
                    (B) by inserting ``or any other violation of 
                Federal law'' after ``commission of a Federal offense'' 
                each place that term appears; and
                    (C) in the first subsection designated as 
                subsection (e), by striking ``the commission or 
                possible commission of any Federal offense'' and 
                inserting the following: ``the commission or possible 
                commission of any Federal offense or any other 
                violation of Federal law''.
            (2) Technical amendments.--Section 1513 of title 18, United 
        States Code, is amended--
                    (A) in subsection (a)(1)(B)--
                            (i) by inserting a comma after ``of 
                        probation''; and
                            (ii) by striking the second comma after 
                        ``supervised release'';
                    (B) in subsection (b)(2)--
                            (i) by inserting a comma after ``of 
                        probation''; and
                            (ii) by striking the second comma after 
                        ``supervised release''; and
                    (C) by redesignating the second subsection 
                designated as subsection (e) as subsection (f).
    (c) Whistleblower Protection.--Section 2302 of title 5, United 
States Code, is amended by adding at the end the following:
    ``(f)(1) An individual who is a victim of a prohibited personnel 
practice may bring a civil action against a covered entity in an 
appropriate district court of the United States and may recover 
damages.
    ``(2)(A) An individual prevailing in any action under this 
subsection shall be entitled to equitable relief, reinstatement, 
compensation for special damages, litigation costs, expert witness 
fees, and reasonable attorney fees.
    ``(B) In the event that reinstatement of an individual prevailing 
in an action under this subsection is not practicable, the individual 
may be awarded damages for a denial of opportunity to continue accruing 
Federal pension benefits.
    ``(3) A civil action under this subsection shall be commenced not 
later than 2 years after the date on which the violation occurs.
    ``(4) Any prospective waiver of the right of any individual to file 
a civil action under this subsection shall be void and unenforceable.
    ``(5) An action filed under this subsection shall be governed by 
the legal burdens of proof set forth in section 42121(b) of title 49, 
United States Code.
    ``(6) An individual may elect to have a claim under this subsection 
adjudicated utilizing the procedures under section 1514A(b) of title 
18, United States Code.
    ``(7)(A) If the Government asserts that information sought by an 
individual in an action under this subsection is privileged because 
such information is a state secret or could lead to the revelation of 
state secrets, such individual may demand that the Government provide 
to the court, in classified form if necessary, a description of the 
information purported to be privileged.
    ``(B) The court may make arrangements for evidence pertaining to 
classified information or state secrets to be heard in closed session, 
with opposing counsel present.
    ``(C) A claim of state secrets privilege under subparagraph (A) 
shall be upheld only if the court determines that disclosure of the 
information to the court in closed session or to the public would 
result in substantial likelihood of the unauthorized disclosure of a 
bona fide state secret.
    ``(D)(i) The Government shall not deny access to an individual 
bringing action under this subsection to any information that the 
individual previously actually lawfully accessed.
    ``(ii) The Government shall provide an individual described in 
clause (i) with reasonable time to review such information at a secure 
facility geographically proximate to the court.
    ``(E) The Government shall not make a frivolous assertion that 
information is covered by the state secrets privilege under 
subparagraph (A).
    ``(8) In this subsection, the term `covered entity' means the 
employer of the person who engages in a prohibited personnel practice, 
if the act is performed within the scope of employment of such 
person.''.

SEC. 3. ENHANCING INDEPENDENCE OF INSPECTORS GENERAL.

    (a) Removal for Cause.--The Inspector General Act of 1978 (5 U.S.C. 
App.) is amended--
            (1) in section 3(b) by--
                    (A) inserting ``(1)'' after ``(b)''; and
                    (B) adding at the end the following:
    ``(2) An Inspector General may be removed from office prior to the 
expiration of the term of that Inspector General only on 1 of the 
following grounds:
            ``(A) Permanent incapacity.
            ``(B) Inefficiency.
            ``(C) Neglect of duty.
            ``(D) Malfeasance.
            ``(E) Conviction of a felony or conduct involving moral 
        turpitude.''; and
            (2) in section 8G(e) by--
                    (A) inserting ``(1)'' after ``(e)''; and
                    (B) adding at the end the following:
    ``(2) An Inspector General may be removed from office prior to the 
expiration of the term of that Inspector General only on 1 of the 
following grounds:
            ``(A) Permanent incapacity.
            ``(B) Inefficiency.
            ``(C) Neglect of duty.
            ``(D) Malfeasance.
            ``(E) Conviction of a felony or conduct involving moral 
        turpitude.''.
    (b) Establishment of Terms of Office.--The Inspector General Act of 
1978 (5 U.S.C. App.) is amended--
            (1) in section 3, by adding at the end the following:
    ``(e)(1) The term of office of each Inspector General shall be 7 
years. An individual may serve for more than 1 term in such office. Any 
individual appointed and confirmed to fill a vacancy in such position, 
occurring before the expiration of the term for which the predecessor 
of that individual was appointed, shall be appointed and confirmed for 
a full 7-year term.
    ``(2) An individual may continue to serve as an Inspector General 
beyond the expiration of the term for which the individual is appointed 
until a successor is appointed and confirmed, except that such 
individual may not continue to serve for more than 1 year after the 
date on which the term would otherwise expire under paragraph (1).''; 
and
            (2) in section 8G(c) by--
                    (A) inserting ``(1)'' after ``(c)''; and
                    (B) by adding at the end the following:
    ``(2) The term of office of each Inspector General shall be 7 
years. An individual may serve for more than 1 term in such office. Any 
individual appointed to fill a vacancy in such position, occurring 
before the expiration of the term for which the predecessor of that 
individual was appointed, shall be appointed for a full 7-year term.''.
    (c) Application.--The amendments made by this section shall apply 
to any Inspector General appointed before, on, or after the date of the 
enactment of this Act. The term of office of an Inspector General 
serving on such date of enactment is deemed to begin on such date of 
enactment.

SEC. 4. DIRECT SUBMISSION OF BUDGET REQUESTS TO CONGRESS.

    Section 6 of the Inspector General Act of 1978 (5 U.S.C. App.) is 
amended by adding at the end the following:
    ``(e)(1) For each fiscal year, an Inspector General may transmit an 
appropriation estimate and request to the Director of the Office of 
Management and Budget and to the appropriate committees or 
subcommittees of Congress, in addition to any appropriation estimate 
and request submitted to the head of the establishment concerned.
    ``(2) The President shall include in each budget of the United 
States Government submitted to the Congress--
            ``(A) a separate statement of the amount of appropriations 
        requested by each Inspector General who has submitted an 
        appropriation estimate under paragraph (1); and
            ``(B) a statement comparing each such appropriation 
        estimate and request submitted by an Inspector General and the 
        funds requested by the head of the establishment concerned.''.

SEC. 5. PROHIBITION OF REPROGRAMMING.

    (a) In General.--Notwithstanding any other provision of law, no 
funds appropriated for activities under the supervision of an Inspector 
General shall be reprogrammed, transferred, or otherwise expended for 
any other purpose without the written consent of that Inspector 
General, transmitted in advance to the Committee on Appropriations of 
the Senate and the Committee on Appropriations of the House of 
Representatives.
    (b) Conditions Preserved.--Nothing in this section shall be 
construed as to waive any condition on reprogramming of appropriated 
sums.
    (c) Specific Repeal.--The provisions of this section shall not be 
superseded, except by a provision of law enacted after the date of the 
enactment of this Act which specifically repeals, modifies, or 
supersedes the provisions of this section.

SEC. 6. CREATING REPORTING CHANNELS FOR WHISTLEBLOWERS.

    Section 4(a) of the Inspector General Act of 1978 (5 U.S.C. App.) 
is amended--
            (1) in paragraph (4), by striking ``and'' after the 
        semicolon at the end;
            (2) in paragraph (5), by striking the period and inserting 
        a semicolon; and
            (3) by adding at the end the following:
            ``(6) to create and maintain a means of employees 
        confidentially reporting alleged violations of rule, law, or 
        regulation within the establishment that the Inspector General 
        oversees in the form of a hotline which shall compile all 
        allegations and refer them to appropriate offices for 
        investigation; and
            ``(7) to compile for annual report to Congress, a 
        statistical summary of all allegations, the violations they 
        allege, their deviation from past trends, and the outcome of 
        the preliminary inquiry or investigation into each 
        allegation.''.

SEC. 7. SPECIAL RULE FOR REVOCATION OF SECURITY CLEARANCE.

    (a) Cause of Action.--If any action is taken or failed to be taken 
regarding the security clearance of an individual in retaliation for 
any action protected under paragraph (8) or (9) of section 2302(b) of 
title 5, United States Code, the individual may bring an action against 
the United States in any district court of the United States for 
damages.
    (b) Classified Form.--Any court hearings under this section may be 
conducted in classified form, if necessary.
    (c) Intent.--This section shall not be construed to diminish or 
enhance the authority of any court or other administrative body to 
order any action with respect to the security clearance of an 
individual bringing an action under this section.

SEC. 8. CREATION OF WHISTLEBLOWER AFFAIRS DIRECTORATES WITHIN OFFICES 
              OF THE INSPECTORS GENERAL.

    Section 7 of the Inspector General Act of 1978 is amended by adding 
at the end the following:
    ``(d)(1)(A) An Inspector General may create a whistleblower affairs 
directorate to act upon complaints filed under subsection (a).
    ``(B) Except as provided in paragraph (2), a directorate 
established under this subsection shall--
            ``(i) adopt paragraphs (8) and (9) of section 2302(b) of 
        title 5, United States Code, as the source of investigative 
        standards for reviewing complaints described in subparagraph 
        (A); or
            ``(ii) adopt a set of investigative standards.
    ``(2) An Inspector General whose jurisdiction includes national 
security personnel shall not be precluded from creating a whistleblower 
affairs directorate under this subsection to receive complaints filed 
pursuant to subsection (a), if the Inspector General adopts regulations 
by which security clearances and personnel actions may be investigated 
as pretexts to reprisal without disturbing personnel decisions based on 
those security clearances or personnel actions.
    ``(3) The head of an agency in which a directorate has been 
established under paragraphs (1) and (2), shall establish regulations 
administered by the personnel and readiness office of the agency, which 
provide for remedies recommended in substantiated findings of 
complaints filed under this section.''.

SEC. 9. PROHIBITED PERSONNEL PRACTICES.

    Section 2302 of title 5, United States Code, is amended--
            (1) in subsection (a)(2)--
                    (A) in subparagraph (A)--
                            (i) by redesignating clauses (x) and (xi) 
                        as clauses (xi) and (xii), respectively;
                            (ii) by inserting after clause (ix) the 
                        following:
                            ``(x) an investigation of an employee;''; 
                        and
                            (iii) in the flush matter at the end, by 
                        striking `` subsection (b)(8)'' and inserting 
                        ``paragraph (8) or (9) of subsection (b)'';
                    (B) in subparagraph (B)(ii) by striking ``; and'' 
                and inserting the following: ``, in which case the 
                President shall submit a report to Congress, that may 
                be classified if necessary--
                                    ``(I) detailing any position the 
                                President has excluded from the 
                                coverage of this section; and
                                    ``(II) including the reasons why 
                                the President determined that excluding 
                                a position from the coverage of this 
                                section is necessary and warranted by 
                                the conditions of good 
                                administration;'';
                    (C) in subparagraph (C)--
                            (i) in clause (i), by striking `` 
                        subsection (b)(8)'' and inserting ``paragraph 
                        (8) or (9) of subsection (b)'';
                            (ii) in clause (ii), by striking ``the 
                        Federal Bureau of Investigation,''; and
                            (iii) in clause (iii), by striking the 
                        period and inserting ``; and''; and
                    (D) by adding at the end the following:
                    ``(D) `intelligence agency' means any agency 
                described in subparagraph (C)(ii).'';
            (2) in subsection (b), by striking paragraphs (8) and (9) 
        and inserting the following:
            ``(8) take or fail to take, or threaten to take or fail to 
        take, a personnel action with respect to any employee or 
        applicant for employment because of--
                    ``(A) any disclosure or planned disclosure of 
                information by an employee or applicant--
                            ``(i) that the employee or applicant 
                        reasonably believes evidences--
                                    ``(I) a violation of any law, rule, 
                                or regulation;
                                    ``(II) gross mismanagement, a gross 
                                waste of funds, an abuse of authority, 
                                or a substantial and specific danger to 
                                public health or safety; or
                                    ``(III) a substantial and specific 
                                threat to national security or homeland 
                                security; and
                            ``(ii) for which--
                                    ``(I) the disclosure is not 
                                specifically prohibited by law; and
                                    ``(II) the information is not 
                                specifically required by Executive 
                                order to be kept secret in the interest 
                                of national defense or the conduct of 
                                foreign affairs;
                    ``(B) any disclosure or planned disclosure to the 
                Special Counsel, the Inspector General of an agency, or 
                another employee designated by the head of the agency 
                to receive such disclosures, of information which the 
                employee or applicant reasonably believes evidences--
                            ``(i) a violation of any law, rule, or 
                        regulation;
                            ``(ii) gross mismanagement, a gross waste 
                        of funds, an abuse of authority, or a 
                        substantial and specific danger to public 
                        health or safety; or
                            ``(iii) a substantial and specific threat 
                        to national security or homeland security; or
                    ``(C) any failure to report a disclosure made under 
                this paragraph;
            ``(9) take or fail to take, or threaten to take or fail to 
        take, any personnel action against any employee or applicant 
        for employment because of--
                    ``(A) the exercise or planned exercise of any 
                appeal, complaint, or grievance right granted by any 
                law, rule, or regulation;
                    ``(B) testifying for or otherwise lawfully 
                assisting, or planning to testify, or lawfully assist, 
                any individual in the exercise of any right referred to 
                in subparagraph (A);
                    ``(C) cooperating with or disclosing information 
                to, or planning to cooperate with or disclose 
                information to, the Inspector General of an agency, or 
                the Special Counsel, in accordance with applicable 
                provisions of law;
                    ``(D) a refusal to obey, or planning to refuse to 
                obey, an order that would require the individual to 
                violate a law; or
                    ``(E) a failure to report an action under this 
                paragraph;''; and
            (3) by adding at the end the following:
    ``(g)(1)(A) For the purposes of paragraphs (8) and (9) of 
subsection (b), positions at Federal contractors that are funded in 
whole or in part by appropriated funds shall be considered to be 
covered positions under subsection (a)(2)(B).
    ``(B) For purposes of this paragraph--
            ``(i) the term `Federal contractor' means any person that 
        has entered into a contract with the Federal Government, or any 
        person who has entered into a contract with such a person 
        pursuant to the contract with the Federal Government; and
            ``(ii) a position at a Federal contractor is funded in 
        whole or in part by appropriated funds if the responsibilities 
        of the position include engaging in any activity with respect 
        to such contract, including providing services or manufacturing 
        goods procured under the contract, or providing incidental or 
        support services related to such a contract, including 
        accounting, human resources, secretarial services, and any 
        other incidental or support services.
    ``(2) For the purposes of paragraph (8)(A) and paragraph (9) of 
subsection (b), positions at agencies described in subsection 
(a)(2)(C)(ii) shall be considered to be covered positions under 
subsection (a)(2)(B).
    ``(h) Any person that violates this section shall be subject to a 
civil penalty of not to exceed $50,000.''.

SEC. 10. PETITION FOR SPECIAL PROSECUTORS.

    (a) In General.--An individual may petition the Attorney General 
for the appointment of a special prosecutor to handle a case in which 
the individual alleges being a victim of a prohibited personnel 
practice, as that term is defined in section 2302 of title 5, United 
States Code.
    (b) Appointment.--Not later than 30 days after the date of the 
submission of a petition described in subsection (a), the Attorney 
General shall appoint a special prosecutor, who shall have independent 
jurisdiction, in any case where there is a conflict of interest or 
where there is a substantial likelihood of political interference.
    (c) Reporting.--In any case in which the Attorney General receives 
a petition described in subsection (a), but does not appoint a special 
prosecutor, the Attorney General shall submit a report to Congress 
detailing the reasons for refusing to appoint a special prosecutor, 
including a specific response to any argument in the petition.

SEC. 11. STUDY OF LISTS OF WHISTLEBLOWER RETALIATION AND SUPPRESSIONS.

    (a) In General.--The Comptroller General shall develop rubrics, 
methods, and instruments to determine the costs of retaliation against 
or suppression of whistleblowers, including the costs associated with--
            (1) revocation and suspension of security clearances;
            (2) litigation;
            (3) judgments against the United States and indemnification 
        of contractor liability;
            (4) diversions of resources to nonproductive tasks to 
        perpetrate retaliation and suppress disclosure of fraud, waste, 
        or abuse;
            (5) administrative leave; and
            (6) any other factors the Comptroller General determines 
        are the result of retaliation against or suppression of 
        whistleblowers.
    (b) Report to Congress.--The Comptroller General shall submit to 
Congress a report, not less than once every 3 years, beginning with the 
fiscal year in which this Act is enacted, estimating the costs of 
retaliation against and suppression of whistleblowers.
                                 <all>