[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2988 Reported in House (RH)]
<DOC>
Union Calendar No. 251
117th CONGRESS
2d Session
H. R. 2988
[Report No. 117-334]
To amend title 5, United States Code, to modify and enhance protections
for Federal Government whistleblowers, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 4, 2021
Mrs. Carolyn B. Maloney of New York (for herself, Mr. Connolly, Ms.
Speier, Ms. Mace, Ms. Johnson of Texas, and Miss Rice of New York)
introduced the following bill; which was referred to the Committee on
Oversight and Reform
May 17, 2022
Additional sponsors: Mr. Mfume, Mr. Lynch, Mr. Case, Ms. Norton, Mr.
Cooper, Mr. Krishnamoorthi, Mr. Khanna, Ms. Porter, Ms. Wasserman
Schultz, Mr. Welch, Mr. Quigley, Ms. Tlaib, Ms. Ocasio-Cortez, Mr.
Sarbanes, Mr. Raskin, Ms. Kelly of Illinois, Mrs. Lawrence, Mr.
DeSaulnier, Ms. Pressley, Mr. Johnson of Georgia, Mr. Danny K. Davis of
Illinois, Ms. Bush, Mr. Gomez, and Ms. Meng
May 17, 2022
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed
in italic]
[For text of introduced bill, see copy of bill as introduced on May 4,
2021]
_______________________________________________________________________
A BILL
To amend title 5, United States Code, to modify and enhance protections
for Federal Government whistleblowers, and for other purposes.
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 Protection Improvement
Act of 2021''.
SEC. 2. ADDITIONAL WHISTLEBLOWER PROTECTIONS.
(a) Investigations as Personnel Actions.--
(1) In general.--Section 2302(a)(2)(A) of title 5, United
States Code, is amended--
(A) in clause (xi), by striking ``and'' at the end;
(B) by redesignating clause (xii) as clause (xiii);
and
(C) by inserting after the clause (xi) the
following:
``(xii) for purposes of subsection (b)(8)--
``(I) the commencement, expansion, or
extension of an investigation, but not
including any investigation that is ministerial
or nondiscretionary (including a ministerial or
nondiscretionary investigation described in
section 1213) or any investigation that is
conducted by an Inspector General of an entity
of the Government of an employee not employed
by the office of that Inspector General; and
``(II) a referral to an Inspector General
of an entity of the Government, except for a
referral that is ministerial or
nondiscretionary; and''.
(2) Application.--The amendment made by paragraph (1) shall
apply to any investigation opened, or referral made, as
described under clause (xii) of section 2302(a)(2)(A) of title
5, United States Code, as added by such paragraph, on or after
the date of enactment of this Act.
(b) Right to Petition Congress.--
(1) In general.--Section 2302(b)(9) of title 5, United
States Code, is amended--
(A) in subparagraph (C), by striking ``or'' at the
end;
(B) in subparagraph (D), by adding ``or'' after the
semicolon at the end; and
(C) by adding at the end the following:
``(E) the exercise of any right protected under
section 7211;''.
(2) Application.--The amendment made by paragraph (1) shall
apply to the exercise of any right described in section
2302(b)(9)(E) of title 5, United States Code, as added by
paragraph (1), occurring on or after the date of enactment of
this Act.
(c) Prohibition on Disclosure of Whistleblower Identity.--
(1) In general.--Section 2302 of title 5, United States
Code, is amended by adding at the end the following:
``(g)(1) No employee of an agency may willfully communicate or
transmit to any individual who is not an officer or employee of the
Government the identity of, or personally identifiable information
about, any other employee because that other employee has made, or is
suspected to have made, a disclosure protected by subsection (b)(8),
unless--
``(A) the other employee provides express written consent
prior to the communication or transmission of their identity or
personally identifiable information;
``(B) the communication or transmission is made in
accordance with the provisions of section 552a;
``(C) the communication or transmission is made to a lawyer
for the sole purpose of providing legal advice to an employee
accused of whistleblower retaliation; or
``(D) the communication or transmission is required or
permitted by any other provision of law.
``(2) In this subsection, the term `officer or employee of the
Government' means--
``(A) the President;
``(B) a Member of Congress;
``(C) a member of the uniformed services;
``(D) an employee as that term is defined in section 2105,
including an employee of the United States Postal Service, the
Postal Regulatory Commission, or the Department of Veterans
Affairs (including any employee appointed pursuant to chapter
73 or 74 of title 38); and
``(E) any other officer or employee in any branch of the
Government of the United States.''.
(2) Application.--The amendment made by paragraph (1) shall
apply to any transmission or communication described in
subsection (g) of section 2302 of title 5, United States Code,
as added by paragraph (1), made on or after the date of
enactment of this Act.
(d) Right to Petition Congress.--
(1) In general.--Section 7211 of title 5, United States
Code, is amended to read as follows:
``Sec. 7211. Employees' right to petition or furnish information or
respond to Congress
``(a) In General.--Each officer or employee of the Federal
Government, individually or collectively, has a right to--
``(1) petition Congress or a Member of Congress;
``(2) furnish information, documents, or testimony to
either House of Congress, any Member of Congress, or any
committee or subcommittee of the Congress; or
``(3) respond to any request for information, documents, or
testimony from either House of Congress or any Committee or
subcommittee of Congress.
``(b) Prohibited Actions.--No officer or employee of the Federal
Government may interfere with or deny the right set forth in subsection
(a), including by--
``(1) prohibiting or preventing, or attempting or
threatening to prohibit or prevent, any other officer or
employee of the Federal Government from engaging in activity
protected in subsection (a); or
``(2) removing, suspending from duty without pay, demoting,
reducing in rank, seniority, status, pay, or performance or
efficiency rating, denying promotion to, relocating,
reassigning, transferring, disciplining, or discriminating in
regard to any employment right, entitlement, or benefit, or any
term or condition of employment of, any other officer or
employee of the Federal Government or attempting or threatening
to commit any of the foregoing actions protected in subsection
(a).
``(c) Application.--This section shall not be construed to
authorize disclosure of any information that is--
``(1) specifically prohibited from disclosure by any other
provision of Federal law; or
``(2) specifically required by Executive order to be kept
secret in the interest of national defense or the conduct of
foreign affairs, unless disclosure is otherwise authorized by
law.
``(d) Definition of Officer or Employee of the Federal
Government.--For purposes of this section, the term `officer or
employee of the Federal Government' includes--
``(1) the President;
``(2) a Member of Congress;
``(3) a member of the uniformed services;
``(4) an employee (as that term is defined in section
2105);
``(5) an employee of the United States Postal Service or
the Postal Regulatory Commission; and
``(6) an employee appointed under chapter 73 or 74 of title
38.''.
(2) Clerical amendment.--The table of sections for
subchapter II of chapter 72 of title 5, United States Code, is
amended by striking the item related to section 7211 and
inserting the following:
``7211. Employees' right to petition or furnish information or respond
to Congress.''.
SEC. 3. ENHANCEMENT OF WHISTLEBLOWER PROTECTIONS.
(a) Disclosures Relating to Officers or Employees of an Office of
Inspector General.--Section 1213(c) of title 5, United States Code, is
amended by adding at the end the following:
``(3) If the information transmitted under this subsection
disclosed a violation of law, rule, or regulation, or gross waste,
gross mismanagement, abuse of authority, or a substantial and specific
danger to public health or safety, by any officer or employee of an
Office of Inspector General, the Special Counsel may refer the matter
to the Council of the Inspectors General on Integrity and Efficiency,
which shall comply with the standards and procedures applicable to
investigations and reports under subsection (c).''.
(b) Retaliatory Referrals to Inspectors General.--Section 1214(d)
of title 5, United States Code, is amended by adding at the end the
following:
``(3) In any case in which the Special Counsel determines that a
referral to an Inspector General of an entity of the Federal Government
was in retaliation for a disclosure or protected activity described in
section 2302(b)(8) or in retaliation for exercising a right described
in section 2302(b)(9)(A)(i), the Special Counsel shall transmit that
finding in writing to the Inspector General within seven days of making
the finding. The Inspector General shall consider that finding and make
a determination on whether to initiate an investigation or continue an
investigation based on the referral that the Special Counsel found to
be retaliatory.''.
(c) Ensuring Timely Relief.--
(1) Individual right of action.--Section 1221 of title 5,
United States Code, is amended by striking ``section 2302(b)(8)
or section 2302(b)(9)(A)(i), (B), (C), or (D),'' each place it
appears and inserting ``section 2302(b)(8), section
2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13),
or section 2302(g),''.
(2) Stays.--Section 1221(c)(2) of title 5, United States
Code, is amended to read as follows:
``(2) Any stay requested under paragraph (1) shall be granted
within 10 calendar days (excluding Saturdays, Sundays, and legal
holidays) after the date the request is made, if the Board determines--
``(A) that there is a substantial likelihood that protected
activity was a contributing factor to the personnel action
involved; or
``(B) the Board otherwise determines that such a stay would
be appropriate.''.
(3) Appeal of stay.--Section 1221(c) of title 5, United
States Code, is amended by adding at the end the following:
``(4) If any stay requested under paragraph (1) is denied,
the employee, former employee, or applicant may, within 7 days
after receiving notice of the denial, file an appeal for
expedited review by the Board. The agency shall have 7 days
thereafter to respond. The Board shall provide a decision not
later than 21 days after receiving the appeal. During the
period of appeal, both parties may supplement the record with
information unavailable to them at the time the stay was first
requested.''.
(4) Access to district court; jury trials.--
(A) In general.--Section 1221(i) of title 5, United
States Code, is amended--
(i) by striking ``(i) Subsections'' and
inserting ``(i)(1) Subsections''; and
(ii) by adding at the end the following:
``(2)(A) If, in the case of an employee, former employee, or
applicant for employment who seeks corrective action from the Merit
Systems Protection Board based on an alleged prohibited personnel
practice described in section 2302(b)(8), section 2302(b)(9)(A)(i),
(B), (C), (D), or (E), section 2302(b)(13), or section 2302(g), no
final order or decision is issued by the Board within 180 days after
the date on which a request for such corrective action has been duly
submitted to the Board, such employee, former employee, or applicant
may, after providing written notice to the Special Counsel and the
Board and only within 20 days after providing such notice, bring an
action for review de novo before the appropriate United States district
court, and such action shall, at the request of either party to such
action, be tried before a jury. Upon filing of an action with the
appropriate United States district court, any proceedings before the
Board shall cease and the employee, former employee, or applicant for
employment waives any right to refile with the Board.
``(B) If the Board certifies (in writing) to the parties of a case
that the complexity of such case requires a longer period of review,
subparagraph (A) shall be applied by substituting `240 days' for `180
days'.
``(C) In any such action brought before a United States district
court under subparagraph (A), the court--
``(i) shall apply the standards set forth in subsection
(e); and
``(ii) may award any relief which the court considers
appropriate, including any relief described in subsection
(g).''.
(B) Application.--
(i) The amendments made by subparagraph (A)
shall apply to any corrective action duly
submitted to the Merit Systems Protection
Board, during the five-year period preceding
the date of enactment of this Act, by an
employee, former employee, or applicant for
employment based on an alleged prohibited
personnel practice described in section
2302(b)(8), 2302(b)(9)(A)(i), (B), (C), or (D),
or 2302(b)(13) of title 5, United States Code,
with respect to which no final order or
decision has been issued by the Board.
(ii) In the case of an individual described
in clause (i) whose duly submitted claim to the
Board was made not later than 180 days before
the date of enactment of this Act, such
individual may only bring an action before a
United States district court as described in
section 1221(i)(2) of title 5, United States
Code, (as added by subparagraph (A) if that
individual--
(I) provides written notice to the
Office of Special Counsel and the Merit
Systems Protection Board not later than
90 days after the date of enactment of
this Act; and
(II) brings such action not later
than 20 days after providing such
notice.
(d) Recipients of Whistleblower Disclosures.--Section 2302(b)(8)(B)
of title 5, United States Code, is amended by striking ``or to the
Inspector General of an agency or another employee designated by the
head of the agency to receive such disclosures'' and inserting ``the
Inspector General of an agency, a supervisor in the employee's direct
chain of command up to and including the head of the employing agency,
or to an employee designated by any of the aforementioned individuals
for the purpose of receiving such disclosures''.
(e) Attorney Fees.--
(1) In general.--Section 7703(a) of title 5, United States
Code, is amended by adding at the end the following:
``(3) If an employee, former employee, or applicant for
employment is the prevailing party under a proceeding brought
under this section, the employee, former employee, or applicant
for employment shall be entitled to attorney fees for all
representation carried out pursuant to this section. In such an
action for attorney fees, the agency responsible for taking the
personnel action shall be the respondent and shall be
responsible for paying the fees.''.
(2) Application.--In addition to any proceeding brought by
an employee, former employee, or applicant for employment on or
after the date of enactment of this Act to a Federal court
under section 7703 of title 5, United States Code, the
amendment made by paragraph (1) shall apply to any proceeding
brought by an employee, former employee, or applicant for
employment under such section before the date of enactment of
this Act with respect to which the applicable Federal court has
not issued a final decision.
(f) Extending Whistleblower Protection Act to Certain Employees.--
(1) In general.--Section 2302(a)(2)(A) of title 5, United
States Code, is amended in the matter following clause (xiii)--
(A) by inserting ``subsection (b)(9)(A)(i), (B),
(C), (D), or (E), subsection (b)(13), or subsection
(g),'' after ``subsection (b)(8),''; and
(B) by inserting after ``title 31'' the following:
``, a commissioned officer or applicant for employment
in the Public Health Service, an officer or applicant
for employment in the commissioned officer corps of the
National Oceanic and Atmospheric Administration, and a
noncareer appointee in the Senior Executive Service''.
(2) Conforming amendments.--Section 261 of the National
Oceanic and Atmospheric Administration Commissioned Officer
Corps Act of 2002 (33 U.S.C. 3071) is amended--
(A) in subsection (a)--
(i) by striking paragraph (8); and
(ii) by redesignating paragraphs (9)
through (26) as paragraphs (8) through (25),
respectively; and
(B) in subsection (b), by striking the second
sentence.
(3) Application.--
(A) In general.--With respect to an officer or
applicant for employment in the commissioned officer
corps of the National Oceanic and Atmospheric
Administration, the amendments made by paragraphs (1)
and (2) shall apply to any personnel action taken
against such officer or applicant on or after the date
of enactment of the National Oceanic and Atmospheric
Administration Commissioned Officer Corps Amendments
Act of 2020 (Public Law 116-259) for making any
disclosure protected under section 2302(8) of title 5,
United States Code.
(B) Exception.--Subparagraph (A) shall not apply to
any personnel action with respect to which a complaint
has been filed pursuant to section 1034 of title 10,
United States Code, and a final decision has been
rendered regarding such complaint.
(g) Relief.--
(1) In general.--Section 7701(b)(2)(A) of title 5, United
States Code, is amended by striking ``upon the making of the
decision'' and inserting ``upon making of the decision,
necessary to make the employee whole as if there had been no
prohibited personnel practice, including training, seniority
and promotions consistent with the employee's prior record''.
(2) Application.--In addition to any appeal made on or
after the date of enactment of this Act to the Merit Systems
Protection Board under section 7701 of title 5, United States
Code, the amendment made by paragraph (1) shall apply to any
appeal made under such section before the date of enactment of
this Act with respect to which the Board has not issued a final
decision.
SEC. 4. CLASSIFYING CERTAIN FURLOUGHS AS ADVERSE PERSONNEL ACTIONS.
(a) In General.--Section 7512 of title 5, United States Code, is
amended--
(1) in paragraph (4), by striking ``and'' at the end; and
(2) by striking paragraph (5) and inserting the following:
``(5) a furlough of more than 14 days but less than 30
days; and
``(6) a furlough of 13 days or less that is not due to a
lapse in appropriations;''.
(b) Application.--The amendment made by subsection (a) shall apply
to any furlough covered by such section 7512(5) or (6) (as amended by
such subsection) occurring on or after the date of enactment of this
Act.
SEC. 5. CODIFICATION OF PROTECTIONS FOR DISCLOSURES OF CENSORSHIP
RELATED TO RESEARCH, ANALYSIS, OR TECHNICAL INFORMATION.
(a) In General.--Section 2302 of title 5, United States Code, as
amended by section 2(c)(1), is further amended by adding at the end the
following:
``(h)(1) In this subsection--
``(A) the term `applicant' means an applicant for a covered
position;
``(B) the term `censorship related to research, analysis,
or technical information' means any effort to distort,
misrepresent, or suppress research, analysis, or technical
information; and
``(C) the term `employee' means an employee in a covered
position in an agency.
``(2)(A) Any disclosure of information by an employee or applicant
for employment that the employee or applicant reasonably believes is
evidence of censorship related to research, analysis, or technical
information--
``(i) shall come within the protections of subsection
(b)(8)(A) if--
``(I) the employee or applicant reasonably believes
that the censorship related to research, analysis, or
technical information is or will cause--
``(aa) any violation of law, rule, or
regulation; or
``(bb) gross mismanagement, a gross waste
of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety; and
``(II) such disclosure is not specifically
prohibited by law or such information is not
specifically required by Executive order to be kept
classified in the interest of national defense or the
conduct of foreign affairs; and
``(ii) shall come within the protections of subsection
(b)(8)(B) if--
``(I) the employee or applicant reasonably believes
that the censorship related to research, analysis, or
technical information is or will cause--
``(aa) any violation of law, rule, or
regulation; or
``(bb) gross mismanagement, a gross waste
of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety; and
``(II) the disclosure is made to the Special
Counsel, or to the Inspector General of an agency or
another person designated by the head of the agency to
receive such disclosures, consistent with the
protection of sources and methods.
``(3) A disclosure shall not be excluded from paragraph (2) for any
reason described under subsection (f)(1) or (2).
``(4) Nothing in this subsection shall be construed to imply any
limitation on the protections of employees and applicants afforded by
any other provision of law, including protections with respect to any
disclosure of information believed to be evidence of censorship related
to research, analysis, or technical information.''.
(b) Repeal.--
(1) In general.--Section 110 of the Whistleblower
Protection Enhancement Act of 2012 (Public Law 112-199) is
hereby repealed.
(2) Rule of construction.--Nothing in this section shall be
construed to limit or otherwise affect any action under such
section 110 commenced before the date of enactment of this Act
or any protections afforded by such section with respect to
such action.
SEC. 6. TITLE 5 TECHNICAL AND CONFORMING AMENDMENTS.
Title 5, United States Code, is amended--
(1) in section 1212(h), by striking ``or (9)'' each place
it appears and inserting ``, (b)(9), (b)(13), or (g)'';
(2) in section 1214--
(A) in subsections (a) and (b), by striking
``section 2302(b)(8) or section 2302(b)(9)(A)(i), (B),
(C), or (D)'' each place it appears and inserting
``section 2302(b)(8), section 2302(b)(9)(A)(i), (B),
(C), (D), or (E), section 2302(b)(13), or section
2302(g)''; and
(B) in subsection (i), by striking ``section
2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of
section 2302(b)(9)'' and inserting ``section
2302(b)(8), subparagraph (A)(i), (B), (C), (D), or (E)
of section 2302(b)(9), section 2302(b)(13), or section
2302(g)'';
(3) in section 1215(a)(3)(B), by striking ``section
2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D)'' each place
it appears and inserting ``section 2302(b)(8), section
2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13),
or section 2302(g)'';
(4) in section 2302--
(A) in subsection (a)--
(i) in paragraph (1), by inserting ``or
(g)'' after ``subsection (b)''; and
(ii) in paragraph (2)(C)(i), by striking
``subsection (b)(8) or section
2302(b)(9)(A)(i), (B), (C), or (D)'' and
inserting ``section 2302(b)(8), section
2302(b)(9)(A)(i), (B), (C), (D), or (E),
section 2302(b)(13), or section 2302(g)''; and
(B) in subsection (c)(1)(B), by striking
``paragraph (8) or subparagraph (A)(i), (B), (C), or
(D) of paragraph (9) of subsection (b)'' and inserting
``paragraph (8), subparagraph (A)(i), (B), (C), or (D)
of paragraph (9), or paragraph (13) of subsection (b)
or subsection (g)'';
(5) in section 7515(a)(2), by striking ``paragraph (8),
(9), or (14) of section 2302(b)'' and inserting ``paragraph
(8), (9), (13), or (14) of section 2302(b) or section
2302(g)'';
(6) in section 7701(c)(2)(B), by inserting ``or section
2302(g)'' after ``section 2302(b)''; and
(7) in section 7703(b)(1)(B), by striking ``section
2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D)'' and
inserting ``section 2302(b)(8), section 2302(b)(9)(A)(i), (B),
(C), (D), or (E), section 2302(b)(13), or section 2302(g)''.
Union Calendar No. 251
117th CONGRESS
2d Session
H. R. 2988
[Report No. 117-334]
_______________________________________________________________________
A BILL
To amend title 5, United States Code, to modify and enhance protections
for Federal Government whistleblowers, and for other purposes.
_______________________________________________________________________
May 17, 2022
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed