1.This Act may be cited as
the Whistleblower Empowerment,
Security, and Taxpayer Protection Act of 2006
.
2.Tampering with or
retaliating against a witness, victim, or an informant
(a)Tampering with
a witness, victim, or an informant
(1)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)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)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)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)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.
.
3.Enhancing independence
of Inspectors General
(a)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 officeThe 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)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.
4.Direct
submission of budget requests to congressSection 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.
.
5.Prohibition of
reprogramming
(a)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)Nothing in this section shall be construed as to waive
any condition on reprogramming of appropriated sums.
(c)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.
6.Creating
reporting channels for whistleblowersSection 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.
.
7.Special rule for
revocation of security clearance
(a)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)Any court hearings under this section may be conducted in
classified form, if necessary.
(c)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.
8.Creation of
whistleblower affairs directorates within offices of the Inspectors
GeneralSection 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.
.
9.Prohibited
personnel practicesSection
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.
.
10.Petition for
special prosecutors
(a)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)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)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.
11.Study of lists
of whistleblower retaliation and suppressions
(a)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)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.