[Congressional Record Volume 168, Number 148 (Wednesday, September 14, 2022)]
[House]
[Pages H7825-H7833]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WHISTLEBLOWER PROTECTION IMPROVEMENT ACT OF 2021
General Leave
Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I ask unanimous
consent that all Members have 5 legislative days in which to revise and
extend their remarks and insert extraneous material on the bill before
us today.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from New York?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 1339 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 2988.
The Chair appoints the gentleman from Oregon (Mr. Blumenauer) to
preside over the Committee of the Whole.
{time} 1608
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 2988) to amend title 5, United States Code, to modify and enhance
protections for Federal Government whistleblowers, and for other
purposes, with Mr. Blumenauer in the chair.
The CHAIR. The House is in the Committee of the Whole House on the
state of the Union for the consideration of H.R. 2988, which the Clerk
will report by title.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read the
first time.
General debate shall be confined to the bill and shall not exceed 1
hour equally divided and controlled by the chair and ranking minority
member of the Committee on Oversight and Reform or their respective
designees.
The gentlewoman from New York (Mrs. Carolyn B. Maloney) and the
[[Page H7826]]
gentleman from Kentucky (Mr. Comer) each will control 30 minutes.
The Chair recognizes the gentlewoman from New York.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield myself such
time as I may consume.
I rise in strong support of H.R. 2988, the Whistleblower Protection
Improvement Act of 2021. In May 2021, I introduced the Whistleblower
Protection Improvement Act, along with Representative Nancy Mace,
ranking member of the Civil Rights and Civil Liberties Subcommittee.
Federal whistleblowers serve a critical role by shedding a light on
government corruption, waste, fraud, and abuse and wrongdoing, often
through reporting such actions to Congress. Their disclosures protect
taxpayers' dollars, improve Federal programs, and even save lives.
Unfortunately, the Oversight Committee has seen too many examples of
employers retaliating against whistleblowers. In one instance, the TSA,
the Transportation Security Administration, that provides security at
airports, moved an airport employee hundreds of miles away to a new
duty station when they revealed security flaws at the TSA at the
airports.
In another troubling example, a White House supervisor moved files
beyond the reach of a disabled employee after the employee disclosed
violations of security clearance procedures.
A GAO report earlier this year also revealed that employees at four
scientific research agencies did not report instances of political
interference in scientific decisionmaking out of fear of retaliation
and uncertainty of how to best voice their concerns.
As these examples make clear, whistleblowers often make disclosures
at great personal risk. That is why protections for whistleblowers have
long received bipartisan support in this Congress. I thank my
colleagues, including Representative Mace, for continuing that
tradition today.
The Whistleblower Protection Improvement Act would enact long-overdue
reforms to protect whistleblowers from retaliation to the greatest
extent possible, and to provide meaningful remedies if whistleblowers
still encounter retaliation.
The bill would prohibit agencies from launching retaliatory
investigations against employees who blow the whistle and would limit
the public disclosure of a whistleblower's identity.
The bill would also provide Federal whistleblowers with faster legal
recourse for retaliation claims and would allow them to have their
claims tried before a jury in a Federal District Court. Access to jury
trials has long been a priority of whistleblower advocates.
The last major reform to whistleblower protection was in 2012. I am
proud to continue this important bipartisan effort to protect
whistleblowers today.
The bill we are considering also clarifies that whistleblowers who
prevail are entitled to recover attorney's fees and to receive the
necessary relief to make them whole.
Finally, the bill would make clear that no Federal employee,
including the President or the Vice President of the U.S., may
interfere or retaliate against a whistleblower for disclosing
information to Congress.
The Whistleblower Protection Improvement Act has received public
support from more than 100 stakeholder organizations, including the
Government Accountability Project, the National Taxpayers Union, the
Project on Government Oversight, the Taxpayer Protection Alliance, and
Whistleblowers of America.
Mr. Chair, I include in the Record a letter of support from 100
different organizations.
July 14. 2022.
Hon. Nancy Pelosi,
Speaker, House of Representatives,
Washington, DC.
Dear Speaker Pelosi: During the last month, our nation has
been fixated on evidence about threats to our democracy
exposed in the January 6 Select Committee hearings. The
undersigned organizations commend your leadership creating
the January 6 Committee for exposing the truth. The
undersigned organizations now seek your leadership protecting
those who provide the evidence.
The Committee on Oversight and Reform has marked up HR
6762. the Whistleblower Protection Improvement Act (WPIA).
The legislation deserves floor time for a House vote so that
we can highlight its passage on July 30. 2022, National
Whistleblower Appreciation Day. The House has voted for this
reform in the Protect Our Democracy Act. but Senate action
requires standalone legislation.
The WPIA would be the fifth generation of pioneering
whistleblower rights first passed in 1978. These rights have
been excellent global pacesetters that Congress unanimously
has reaffirmed three time since 1978, the last in the
Whistleblower Protection Enhancement Act of 2012. The two
Achilles heels, however, have been loopholes and lack of
credible due process enforcement.
Those problems only have become worse since 2012. For
example, the administrative Merit Systems Protection Board
has a monopoly on enforcement. but its vulnerability to
political pressure blocked confirmations and led to an empty
Board with a 3,500 case back log. Lacking judicial
independence, its Administrative Judges who conduct hearings
rule against whistleblowers in over 95% of initial merits
decisions.
The WPIA addresses both the loopholes and due process gaps
by providing parity for federal civil service employee
whistleblower rights with those enacted by Congress 16 times
in each or 17 private sector whistleblower law enacted since
2002. To illustrate it would--
Permit jury trials if there is no timely administrative
decision. This would take the politics out of
whistleblowerjustice for federal employees the nation's only
major labor group denied a day in court to challenge
violation of their free speech rights despite making the
disclosures most significant for voters.
Permit lawsuits when retaliatory investigations are opened.
Investigations are a kneejerk first reaction to find any dirt
on whistleblowers that will distract from government fraud,
waste and abuse. As long as a probe is open, it has a broad
chilling effect even if later dropped. This key provision
would establish parity with all other whistleblower laws,
even the Military Whistleblower Protection Act.
Establish realistic legal burdens to obtain temporary
relief. Temporary relief is almost never available under
current law and is essential when cases commonly drag out
over five years. By that time, even winning may be too late
for those who have lost their homes, gone bankrupt frequently
lost their families and had their professional deputations
irrevocably ruined.
Close loopholes that erase the law's benefits. Currently,
Public Health Service (PHS) whistleblowers are excluded from
the Whistleblower Protection Act and limited to military
remedies, as are employees of the National Oceanic and
Atmospheric Agency (NOAA). However, these are the
professionals from whom we need the truth about public health
threats like the pandemic and environmental threats like
climate change. Loopholes in remedies mean that
whistleblowers still can ``lose by winning.'' The WPIA fills
these and similar gaps.
This legislation is a political opportunity supported by
86% of likely voters in a Marist Poll survey just before the
last election, and more than 265 organizations across the
issue and political spectrum have already expressed support
for its passage. It extends the same rights to federal
employees defending the public that Congress repeatedly has
provided to corporate employees defending the shareholders.
We need your leadership, so that those who defend the public
can defend themselves.
Sincerely,
20/20 Vision DC, Academics Stang Against Poverty,
Accountability Lab, Affiliation of Christian Engineers,
African Centre for Media & Information Literacy, Alliance to
Counter Crime Online, American Association for Justice,
American-Arab Anti-Discrimination Committee (ADC), Animals
Are Sentient Beings Inc, Arab American Institute, Bekker
Compliance Consulting Partners, LLC, Blueprint for Free
Speech, Broward for Progress, Center for Auto Safety, Center
for Progressive Reform, Center for Science in the Public
Interest (CSPI), Citizens for Responsibility and Ethics in
Washington (CREW) Citizens' Environmental Coalition, Clean
Elections Texas, Climate Science Legal Defense Fund.
Columbia Legal Services, Community Science Institute, Inc.,
Concerned Citizens for Nuclear Safety, Consumer Action, Cook
Inletkeeper, Corruption kills, Council for a Livable
World, Demand Progress, DemCast USA, Dr. Yolanda Whyte
Pediatrics, Equal Justice Society, Federally Employed
Women, Fight for the Future, Food & Water Watch, Forest
Service Employees for Environmental Ethics, Government
Accountability Project, Government Information Watch,
Harrington Investments, Inc., Human Environmental and
Leadership Prevalent Center (HELP Center), Indivisible
Santa Fe.
Information Trust, International Association of
Whistleblowers (IAW), International Fund for Animal Welfare,
Iowa Institute for Public Accountability, Jacobs Institute of
Women's Health, Law Enforcement Action Partnership (LEAP),
League of Conservation Voters, Liberty Shared, Mainers for
Accountable Leadership, Mehri & Skalet PLLC, Michiganders for
Fair & Transparent Elections, Muslim American Law Enforcement
Association, National Air Disaster Foundation, National
Coalition Against Censorship, National Employment Law
Project, National Organization for Women, National
Whistleblower Center, NETWORK Lobby for Catholic Social
Justice, No Violence.org, Open
[[Page H7827]]
MIC (Open Media and Information Companies Initiative).
Open The Government, Oregonizers, Pax Christi USA, People's
Parity Project, Project Censored and Media Freedom
Foundation, Project On Government Oversight (POGO), Protect
All Children's Environment, Protect Democracy, Public
Citizen, Public Employees for Environmental Responsibility
(PEER), Public Justice Center, Restore The Fourth, Robert F.
Kennedy Human Rights, Rock the Vote, RootsAction.org, Rural
Coalition, Secure Elections Network, Shriver Center on
Poverty Law, Society of Professional Journalists, Strategies
For Justice, BWMP LLC.
Taxpayers Protection Alliance, The Center for International
Policy, The Coalition For Change Inc. (C4C), The Digital
Democracy Project, The Ecotopian Society, The Freedom BLOC,
The James Madison Project, The Revolving Door Project, The
Rutherford Institute, The Signals Network, The Vindman Group,
The Workers Circle, Transparency International--U.S. Office,
Truckers Justice Center, Tully Center for Free Speech,
Syracuse University.
Union of Concerned Scientists, Washington Coalition for
Open Government, Washington Lawyers' Committee for Civil
Rights and Urban Affairs, Washington Office on Latin America
(WOLA), WESPAC Foundation, Inc., Whistleblower Network News,
Whistleblowers of America, WhistleblowersUK, Wind of the
Spirit Immigrant Resource Center, Women's International
League for Peace and Freedom US, Women's Action for New
Directions (WAND), Workplace Fairness, X-Lab.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I strongly urge my
colleagues on both sides of the aisle to support this bill and to
support the heroes and heroines who disclose wrongdoing and corruption
in our government, leading to reforms to make our government stronger
and better able to serve the American people.
Mr. Chair, I reserve the balance of my time.
{time} 1615
Mr. COMER. Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, I will admit the Whistleblower Protection Improvement Act
has a great name because Congress cares about protecting
whistleblowers. As the ranking member of the Oversight Committee, I
appreciate and value whistleblowers' service and sacrifice to make
government better.
In fact, ensuring whistleblowers have protections against abuse or
retaliation is a bipartisan issue here in Congress. That probably
explains why there are already so many protections that whistleblowers
have access to in statutes, regulations, executive orders, and agency
policies. There is the Whistleblower Protection Act, the Intelligence
Community Whistleblower Protection Act, the Whistleblower Protection
Enhancement Act, the very catchy Notification and Federal Employee
Antidiscrimination and Retaliation Act.
Congress has consistently sought to protect people working in the
Federal Government who report waste, fraud, and abuse--and for good
reason. Whistleblowers are often the only means of knowing what is
happening in an agency, and that is especially important under the
Biden administration when the Democrats in Congress have refused to
conduct any meaningful or serious oversight.
But how many more whistleblower laws do we need with so many already
on the books?
Further, Republicans oppose this bill because it is a step too far. A
simple version of this bill would have just applied the existing
whistleblower protections to the few corners of the Federal Government
that aren't already covered by the law. However, H.R. 2988 goes much
further by making it nearly impossible--and only after a long,
expensive process--to address performance or employment issues in
anyone claiming to be a whistleblower, even if the person is not really
a whistleblower but just bad at his or her job.
In the real world, if you are undermining your boss, participating in
misconduct, or just lazy, your employer has options to hold you
accountable. In the Federal Government, if you claim you are a
whistleblower, you can be as terrible as you want and almost any
attempt to remove you from your station is characterized as
retaliation.
There is a difference between retaliation and plain repercussions,
but this bill would make them the same. It would prohibit opening an
investigation into someone who claims to be a whistleblower, even if
there is good reason to investigate the employee's conduct.
Under this bill, it would be nearly impossible to reveal the identity
of a whistleblower in order to evaluate the validity of his or her
claims.
In large part, this bill is just an excuse to further idolize the
people who pushed the sham impeachment against former President Trump.
The actions of President Trump were, of course, vindicated by the
Senate.
Entrenching Federal Government employees by enacting laws like H.R.
2988 is, in large part, why President Trump got elected in the first
place: to drain the swamp. Democrats may be wise to remember this
concern of the American people and stop working to further entrench the
executive branch bureaucracy.
Mr. Chair, I reserve the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield 2 minutes to
the gentleman from Virginia (Mr. Connolly), the distinguished chairman
of the Subcommittee on Government Operations.
Mr. CONNOLLY. Mr. Chair, I thank the distinguished chairwoman of our
committee for yielding time.
I hardly think President Donald Trump drained the swamp. He filled it
with alligators.
I rise today in support of H.R. 2988, the Whistleblower Protection
Improvement Act. I am committed to protecting, supporting, and
empowering our 2.1 million civil servants to use their acumen and
expertise to do what is right for the country.
As chairman of the Subcommittee on Government Operations, I am
intimately familiar with how whistleblowers and the inspector general
community protect our government's most valuable asset, the Federal
workforce.
The Whistleblower Protection Improvement Act would bolster
whistleblower protections, ensure due process and equitable relief, and
expand protections for more Federal employees. The bill clarifies that
no one may interfere with a Federal employee's right to provide
information to Congress, including the President of the United States.
During the Trump Presidency, we saw repeated and consistent efforts
to silence and retaliate against brave whistleblowers. In May, the
Department of Defense IG found that Trump loyalists retaliated against
Colonel Yevgeny Vindman, who bravely reported that President Trump had
an unlawful phone call with Ukrainian President Zelenskyy.
Even in the wake of a damning impeachment trial, and in full view of
the public, Mr. Trump felt emboldened to attack Active Duty
servicemembers who had the courage and common sense to expose that
extortion.
Federal employees must feel safe and supported when rooting out
waste, fraud, abuse, and corruption. We must celebrate expertise and
adherence to principles of law, transparency, and deliberation that
serve as the foundation of our democratic system. We must protect
public servants and defend the Federal merit system against partisan
interference.
I thank the chair of the Oversight Committee, Mrs. Maloney, for
sponsoring this bill and for always lifting up the subcommittee's work
on whistleblowers and inspectors general.
Mr. COMER. Mr. Chair, I reserve the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield 2 minutes to
the gentlewoman from the District of Columbia (Ms. Norton), the
distinguished chairwoman of the Committee on Transportation and
Infrastructure's Subcommittee on Highways and Transit.
Ms. NORTON. Mr. Chair, I thank my good friend, the chair of our
committee, for yielding time.
I come to speak in strong support of the Whistleblower Protection
Improvement Act, of which I am a cosponsor. I especially appreciate
this bill since, as a Member of Congress for the District of Columbia,
many Federal employees are my constituents.
Importantly, this bill would expand whistleblower protections and
ensure due process and enable relief for whistleblowers. We should
appreciate and celebrate our Federal employees, especially our
whistleblowers, and I am particularly pleased that this bill would
clarify that Federal employees cannot be retaliated against for sharing
information with Congress.
It is important that Congress have full information about the
operations
[[Page H7828]]
of our government, and this good-governance measure will help with that
goal.
I am grateful to Chairwoman Maloney for introducing this important
bill, and I am pleased to speak in support of it.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, there are no more
speakers, and I am prepared to close if my colleagues on the Republican
side are ready to close, as well.
Mr. Chair, I reserve the balance of my time.
Mr. COMER. Mr. Chair, whistleblowers in the Federal Government are
covered by some of the most comprehensive protections for employees in
the country.
Whistleblowers serve a valuable role in our government, especially in
an administration like the Biden administration, which is subject to
almost no oversight by Congress.
But giving this bill a great title, Whistleblower Protection
Improvement Act, does not and should not provide cover for the actual
requirements and consequences of this bill. Bill titles don't govern
our government, but the substance within them does.
The Whistleblower Protection Improvement Act is a step too far and
would help further entrench Federal Government employees in their jobs.
Mr. Chair, I oppose H.R. 2988, and I urge my colleagues to do the
same.
Mr. Chair, I yield back the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield myself the
balance of my time.
Mr. Chair, this bill does not prohibit agencies from investigating
actual misconduct. It merely prohibits launching an investigation as
retaliation for blowing the whistle.
When an agency becomes aware of a disclosure of waste, fraud, and
abuse, the concern of the agency should be addressing those issues
rather than retaliating against the employee who discloses the
problems.
This change fills a critical role created by the 2020 appeals court
decision that held that current whistleblower laws only prohibit a
retaliatory investigation if the investigation ultimately resulted in a
significant change in the employee's working conditions. This decision
ignored the effect that a retaliatory investigation has on a
whistleblower when an investigation is going on. So, I disagree with
the gentleman's statement, and I am now prepared to close.
Mr. Chair, I want to stress the urgency and importance of this
legislation and talk about how important it is to protect our
whistleblowers.
They play a critical role in exposing wrongdoing within the
government, sometimes at great personal risk. They need to be able to
alert agency leaders and Congress without fear of retaliation.
Passing H.R. 2988 would help give whistleblowers the protection they
deserve. The key reforms in the bill would prohibit agencies from
launching retaliatory investigations and extend whistleblowers the
right to a jury trial, which they have long sought, and permit
whistleblowers to receive attorney fees if they win their lawsuits.
This bill establishes new protections for whistleblowers who have a
crucial role in shedding light on government corruption and wrongdoing.
This bill is also strongly supported by well over 100 stakeholder
organizations. Just today, the National Taxpayers Union announced its
inclusion of this bill as one of its ``No Brainers'' list for bills
that Congress should pass. Only a few bills receive this kind of
recognition. This is landmark legislation, both for freedom of speech
and for government accountability.
I thank my colleagues on both sides of the aisle who have cosponsored
this important legislation and spoken in support of it. Mr. Chair, I
strongly urge my colleagues to vote in favor of this bill.
Mr. Chair, I yield back the balance of my time.
The Acting CHAIR. All time for general debate has expired.
Pursuant to the rule, the bill shall be considered for amendment
under the 5-minute rule.
The amendment in the nature of a substitute recommended by the
Committee on Oversight and Reform printed in the bill, modified by the
amendment printed in part B of House Report 117-464, shall be
considered as adopted. The bill, as amended, shall be considered as an
original bill for purpose of further amendment under the 5-minute rule
and shall be considered as read.
The text of the committee amendment in the nature of a substitute is
as follows:
H.R. 2988
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
[[Page H7829]]
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, and an officer or applicant for
employment in the commissioned officer corps of the National
Oceanic and Atmospheric Administration.
(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
[[Page H7830]]
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)''.
The Acting CHAIR. No further amendment to the bill, as amended, shall
be in order except those printed in part C of House Report 117-464 and
amendments en bloc described in section 4 of House Resolution 1339.
Each such further amendment may be offered only in the order printed
in the report, by a Member designated in the report, shall be
considered as read, shall be debatable for the time specified in the
report equally divided and controlled by the proponent and an opponent,
shall not be subject to amendment, and shall not be subject to a demand
for division of the question.
It shall be in order at any time for the chair of the Committee on
Oversight and Reform or her designee to offer amendments en bloc
consisting of amendments printed in part C of the report not earlier
disposed of. Amendments en bloc shall be considered as read, shall be
debatable for 20 minutes equally divided and controlled by the chair
and ranking minority member of the committee or their designees, shall
not be subject to amendment, and shall not be subject to demand for
division of the question.
Amendments En Bloc Offered by Mrs. Carolyn B. Maloney of New York
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, pursuant to House
Resolution 1339, I offer amendments en bloc.
The Acting CHAIR. The Clerk will designate the amendments en bloc.
Amendments en bloc consisting of amendment Nos. 1, 2, 3, and 4,
printed in part C of House Report 117-464, offered by Mrs. Carolyn B.
Maloney of New York:
amendment no. 1 offered by mr. auchincloss of massachusetts
At the end of section 3(c)(4), insert the following:
(C) GAO report.--Not later than 4 years after the date of
enactment of this Act, the Comptroller General shall--
(i) conduct a study on actions brought before Federal court
pursuant to paragraph (2) of section 1221(i) of title 5,
United States Code (as added by subparagraph (A) of this
paragraph) that, at the minimum, examines the timeliness of
Merit Systems Protection Board whistleblower complaint
rulings, the rates of individuals opting for a district court
trial under such paragraph, and recommendations for the Board
to make improvements to its whistleblower claim review
process; and
(ii) submit a report on such study to Congress and publish
such report on the Government Accountability Office's public
website.
amendment no. 2 offered by ms. jackson lee of texas
Add at the end the following:
SEC. 7. INSPECTOR GENERAL WHISTLEBLOWER INFORMATION
COLLECTION SYSTEMS.
(a) In General.--Not later than 90 days after the date of
enactment of this Act, the Inspector General of each Federal
agency and each designated Federal entity (as those terms are
defined in sections 12(5) and 8G, respectively, of the
Inspector General Act of 1978) shall establish and thereafter
maintain a mechanism for the inspector general to receive
anonymous whistleblower information (including fraud, waste,
and abuse).
(b) Requirements.--
(1) Anonymity.--Any whistleblower mechanism established
under subsection (a) by an
[[Page H7831]]
inspector general shall maintain total anonymity for any
individual who submits information through such mechanism.
(2) Acceptable systems.--In order to maintain anonymity,
any such mechanism may not include the use of any computer or
telephone systems in collecting such information, but may
include the use of the United States mail, physical
receptacles for receiving information, or any other system
that can assure anonymity.
(3) Rule of construction.--Nothing in this section shall be
construed to limit or otherwise prohibit an inspector general
from using computer or telephone systems when carrying out
any other program, project, or activity not authorized by
this section.
amendment no. 3 offered by ms. porter of california
Insert the following at the end of section 3:
(h) IG Semiannual Reports.--Section 5(a)(20) of the
Inspector General Act of 1978 (5 U.S.C. App.) is amended--
(1) in subparagraph (A), by striking ``and'' at the end;
(2) in subparagraph (B), by striking the semicolon at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(C) the number of instances in which the Office did not
make a determination regarding whether there were reasonable
grounds to believe that a prohibited personnel practice had
occurred, existed, or was to be taken within 240 days after
receiving a whistleblower retaliation complaint;''.
amendment no. 4 offered by ms. spanberger of virginia
Page 3, line 13, strike ``(xiii)'' and insert ``(xiv)''.
Page 4, line 6, strike ``and''.
Page 4, after line 12, insert the following
(3) Security clearances.--Section 2302(a)(2)(A) of title 5,
United States Code, as amended by paragraph (1), is further
amended by inserting after clause (xii) the following:
``(xiii) a suspension, revocation, denial, or other
determination relating to a security clearance or any other
access determination made by an agency; and''.
Page 15, line 25, strike ``(xiii)'' and insert ``(xiv)''.
The Acting CHAIR. Pursuant to House Resolution 1339, the gentlewoman
from New York (Mrs. Carolyn B. Maloney) and the gentleman from Kentucky
(Mr. Comer) each will control 10 minutes.
The Chair recognizes the gentlewoman from New York.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I rise to offer
amendments en bloc.
The amendment offered by Congresswoman Katie Porter would require
inspectors general to report in their semiannual reports the number of
times their office was not able to resolve a whistleblower retaliation
complaint within 8 months of receiving that complaint. This requirement
ensures that inspectors general are promptly investigating
whistleblower retaliation complaints.
The next amendment, offered by Congressman Jake Auchincloss, would
require the Government Accountability Office to examine and report on
whistleblower protection actions, including the timeliness with which
the Merit Systems Protection Board issues rulings on whistleblower
complaints, how often individuals choose a jury trial, and
recommendations to improve the claim review process.
{time} 1630
This requirement evaluates whether the whistleblower review process
is effective and identifies areas for improvement.
The amendment offered by Congresswoman Sheila Jackson Lee would
require inspectors general to maintain a mechanism to receive anonymous
whistleblower reports. In certain instances, this offers the protection
and comfort a whistleblower needs to report government abuses and
corruption.
The next amendment, offered by Congresswoman Abigail Spanberger,
would enable whistleblowers, outside the intelligence community, to
appeal adverse security clearance actions to the Merit Systems
Protection Board.
Mr. Chair, I urge my colleagues to adopt this commonsense package of
amendments, and I reserve the balance of my time.
Mr. COMER. Mr. Chair, I rise to oppose the amendments en bloc. I rise
in opposition to the en bloc package of amendments offered by
Chairwoman Maloney.
This package contains an amendment offered by Representative
Auchincloss, which would require the Government Accountability Office
to conduct a study of whistleblower complaints ruled on by the Merit
Systems Protection Board and make recommendations about the
whistleblower review process.
The problem with this amendment is that the MSPB's Office of General
Counsel already performs the oversight functions for the MSPB under the
Inspector General Act of 1978. This office is capable of doing the work
the amendment would task to the GAO.
Reviewing the MSPB determinations and monitoring the Federal courts
is not a smart use of the GAO's limited resources. The GAO needs to
remain focused on pending statutorily mandated work.
I also oppose the amendment offered by Representative Jackson Lee,
which is trying to help inspectors general offices receive anonymous
whistleblower information, but it actually makes it far more difficult.
This amendment won't allow IG offices to use any telephone or
computer systems to receive the anonymous whistleblower information.
Instead, they will have to rely on receiving such sensitive information
by mail, which is obviously problematic, including complicating an IG's
ability to evaluate the validity and authenticity of these tips and
complaints.
I also oppose the amendment offered by Representative Porter, which
attempts to create another unnecessary reporting requirement for the
inspectors general to report to Congress on the timeliness of resolving
whistleblower retaliation complaints.
The problem is that IG offices are already required to include this
information in their semiannual report to Congress, provided every 6
months. This includes information on what, if any, consequences have
been imposed to hold the official who engaged in retaliation
accountable. This amendment's duplicative reporting requirement only
wastes more time that an IG should be spending on investigating waste,
fraud, and abuse.
Finally, I oppose the amendment offered by Representative Spanberger,
which would prohibit the suspension, revocation, denial, or other
determination relating to a security clearance of a whistleblower. This
complete prohibition could put national security at risk.
For example, an employee working to undermine a national security
policy or program could claim that he or she is a whistleblower and
continue to have access to sensitive information, even while the agency
evaluated the merits of the whistleblower's accusation.
There are approved procedures for whistleblowing in the intelligence
community, but this amendment would prohibit revoking a security
clearance, even if the so-called whistleblower ignores those
procedures. This is an unacceptable risk to our Nation. Those holding
security clearances have assumed a special level of public trust, and
with that comes special expectations.
Mr. Chair, I oppose these amendments, and I reserve the balance of my
time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield 2 minutes to
the gentlewoman from Texas (Ms. Jackson Lee), the distinguished
chairwoman of the Committee on the Judiciary Subcommittee on Crime,
Terrorism and Homeland Security.
Ms. JACKSON LEE. Mr. Chair, I thank the distinguished gentlewoman for
her work as chairwoman of the Committee on Oversight and Reform. Again,
I give her my deepest appreciation for the enormous legacy of
leadership that she has given to issues of empowerment, civil rights,
civil liberties, and the rights of women. I thank Chairwoman Maloney.
I rise today to support the underlying bill, H.R. 2988, and address
my amendment, of which I am very grateful has been included in the en
bloc.
It does make a difference. Whistleblowers can help change governments
for the best. They are part of the constitutional infrastructure of
ensuring due process and the rights of the vulnerable.
My amendment reinforces the spirit of confidentiality by providing
another way to communicate whistleblower information to an OIG that
poses less risk of confidentiality being lost or being breached while
not affecting existing mechanisms, especially in some cases when there
is a concern about the threat of retaliation. A potential whistleblower
might be unwilling to provide information for fear of consequences if
their identity is disclosed.
[[Page H7832]]
I am very glad to say that the Government Accountability Project is
supporting my amendment. They wrote in their letter of support for my
amendment: ``This is solid, commonsense legislation to restore what
works if we let it. For many whistleblowers, the decisive factor
whether they bear witness or remain silent observers is whether they
will remain anonymous.''
``It will increase the flow of evidence and prevent retaliation.''
Mr. Chair, I include in the Record the Government Accountability
Project letter dated September 13, 2022.
Government Accountability Project,
Washington, DC, September 13, 2022.
Hon. Sheila Jackson Lee,
House of Representatives,
Washington, DC.
Dear Representative Lee: This letter is to express support
and appreciation for your amendment to the Whistleblower
Protection Improvement Act that would upgrade the safety of
channels for anonymous whistleblowing disclosures to Offices
of Inspector General. The amendment would require OIG's to
restore traditional, effective channels to share evidence
that had been canceled for more convenient but unreliable
high tech options such as the internet or telephones. In
addition to those channels, agencies would have to restore
services such as secure drop boxes and accept anonymous
disclosures by mail.
This is solid, common-sense legislation to restore what
works if we let it. For many whistleblowers, the decisive
factor whether they bear witness or remain silent observers
is whether they will remain anonymous. Unfortunately, many
understandably do not trust OIG confidentiality safeguards,
because OIG's routinely breach them with impunity. While
nearly all lG's have anonymous hotlines or phone channels,
those engaging in surveillance often are one step ahead with
tactics that expose the witness. This is an instance where
the old-fashioned way is the safest. But at too many agencies
it no longer is available, as risky high-tech options now
monopolize the disclosure channel.
The bottom line is that sometimes tried and true approaches
can work best, even if less convenient. Your amendment would
apply that truth where it counts most--shielding the identify
of endangered whistleblowers. It will increase the flow of
evidence and prevent retaliation.
Appreciatively,
Tom Devine,
Legal Director.
Ms. JACKSON LEE. Mr. Chair, I ask my colleagues to support the en
bloc, the underlying legislation, and the Jackson Lee amendment.
Mr. Chair, I rise in strong support of H.R. 2988, the Whistleblower
Protection Improvement Act, and thank you for bringing this important
legislation to the floor today.
I applaud the Committee on Oversight and Reform for this timely and
purposeful bill. By strengthening whistleblower protections, H.R. 2988
would enhance the capabilities of the Offices of Inspector General at
each government agency to improve government accountability and
transparency.
Whistleblowers are uniquely positioned to know of actions that
derogate from laws, regulations, stated government objectives, and the
best interests of the American people.
As a matter of public policy, potential whistleblowers should be
encouraged to come forth with information that improves our
government's operations, efficiency, and effectiveness.
To incentivize such noble conduct, whistleblowers must be assured of
protection and insulated from retaliation for the accountability they
facilitate when an OIG pursues their leads.
Indeed, being a whistleblower is an act of patriotism--helping our
government serve Americans more responsibly--and those who provide this
service should be honored, not vilified.
I would also like to thank the Rules Committee for making my
amendment in order, and the Committee on Oversight and Reform for
including it in the En Bloc amendment.
My amendment adds a key mechanism to amplify the operational impact
of the bill, and it is supported by the Government Accountability
Project.
H.R. 2988 addresses very important aspects of the handling of
whistleblower complaints, whistleblower rights against any retaliatory
action, and vital protections to avoid disclosures of identity,
breaches of confidentiality, and retaliation.
My amendment reinforces the spirit of confidentiality by providing
another way to communicate whistleblower information to an OIG that
poses less risk of confidentiality being breached, while not affecting
existing mechanisms.
In some cases--especially when there is concern about a threat of
retaliation--a potential whistleblower might be unwilling to provide
information for fear of consequences if their identity is disclosed.
To encourage whistleblowers to share information in these situations,
my amendment directs the Office of Inspector General in each agency to
establish a mechanism to receive whistleblower information that is
completely anonymous and assured of remaining anonymous.
By being able to submit information in a way that anonymity is
assured, some potential whistleblowers who might otherwise not be
willing to share information with the OIG may be willing to do so.
As the Government Accountability Project wrote in their letter of
support for my amendment, ``This is solid, common-sense legislation to
restore what works if we let it. For many whistleblowers, the decisive
factor whether they bear witness or remain silent observers is whether
they will remain anonymous. . . . It will increase the flow of evidence
and prevent retaliation.''
The anonymous method could be by sending a letter through the mail,
dropping a paper note into a receptacle, or some other mechanism
devised by the OIGs that cannot be traced back to the whistleblower.
These approaches assure anonymity, unlike submission through a
website or phone call, which could be traced back to the person
submitting the information.
By submitting facts with full anonymity, a whistleblower does not run
the risk of their identity being disclosed either accidentally, by
court order, or by other means.
Ideally, an OIG may prefer to know the identity of the person
providing insights so they can contact them for more details.
Yet, since some people with vital information may refuse to submit it
due to the risk of exposure, the public interest in receiving useful
insights from an anonymous source outweighs an OIG's interest in
contacting them.
With the information that it receives, the OIG could pursue facts and
elevate its investigation through other channels.
My amendment would create a channel for this to occur.
Mr. COMER. Mr. Chair, I reserve the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield 2 minutes to
the gentleman from Massachusetts (Mr. Auchincloss), the vice chair of
the Committee on Transportation and Infrastructure Subcommittee on
Coast Guard and Maritime Transportation.
Mr. AUCHINCLOSS. Mr. Chair, I rise today in support of my amendment
to the Whistleblower Protection Improvement Act.
Historically, there has been a double standard between Federal and
corporate whistleblowers seeking reprieve for retaliatory actions taken
against them. While corporate whistleblowers can have their day in
court, Federal whistleblowers' cases fall only under the jurisdiction
of the Merit Systems Protection Board. The Whistleblower Protection
Improvement Act would remedy this by allowing certain Federal
whistleblowers to file their claims in district court.
My amendment would ensure that we continue to make evidence-based
improvements to the Federal whistleblower case review process by
requiring the GAO to study the outcomes of this bill. Specifically, my
amendment calls on the GAO to report on the timeliness of MSPB rulings
and the rates of Federal whistleblowers opting for district court
trials. It requires the GAO to offer recommendations for the MSPB to
make improvements to its review process so that Federal whistleblowers
who put their jobs, careers, and reputations on the line to call out
wrongdoing are given the respect of a timely review.
This bill is critical to improving protections for Federal
whistleblowers and enhancing accountability across the Federal
Government. My amendment would ensure that we collect the evidence
necessary to continue to make improvements.
Mr. Chair, I urge my colleagues to support the amendments en bloc.
Mr. COMER. Mr. Chair, I reserve the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I am prepared to
close, and I reserve the balance of my time.
Mr. COMER. Mr. Chair, I yield myself the balance of my time for
closing.
Let me conclude by saying this: We have countless rules on the books
pertaining to whistleblower protection. We have good whistleblower
rules. I can assure my friends on the other side of the aisle, we have
plenty of whistleblowers coming forward now with issues, and they are
going to be protected. The rules on the books will protect those
whistleblowers.
What my friends on the other side of the aisle are trying to do, I
fear, is create a situation where any poor-performing employee who is
receiving
[[Page H7833]]
poor reviews from their agency can claim to be a whistleblower, and
therefore, they will be on the Federal payroll for the rest of their
career. Then they can retire and draw a pension for the rest of their
life.
This is unacceptable in the private sector. We care about
whistleblowers. We welcome whistleblowers to come to the House
Committee on Oversight and Reform to speak to the Republican minority
members. They are and they will be protected because we have good
whistleblower laws on the books.
These proposed amendments make our good whistleblower laws worse, and
we need to oppose them.
Mr. Chair, I yield back the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield myself the
balance of my time.
The underlying bill is both landmark legislation for freedom of
speech and for government accountability. I strongly urge my colleagues
to vote in favor of this landmark legislation, and I yield back the
balance of my time.
Mr. Chair, I move that the committee now rise.
The CHAIR. Will the gentlewoman withdraw her motion?
Mrs. CAROLYN B. MALONEY of New York. I withdraw my motion.
The CHAIR. The motion is withdrawn.
The question is on the amendments en bloc offered by the gentlewoman
from New York (Mrs. Carolyn B. Maloney).
The question was taken; and the Chair announced that the noes
appeared to have it.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I demand a recorded
vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendments en bloc offered by the gentlewoman from New York will be
postponed.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I move that the
Committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Veasey) having assumed the chair, Mr. Blumenauer, Chair of the
Committee of the Whole House on the state of the Union, reported that
that Committee, having had under consideration the bill (H.R. 2988) to
amend title 5, United States Code, to modify and enhance protections
for Federal Government whistleblowers, and for other purposes, had come
to no resolution thereon.
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