[House Report 117-334]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2nd Session } { 117-334
======================================================================
WHISTLEBLOWER PROTECTION IMPROVEMENT ACT OF
2021
_______
May 17, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mrs. Carolyn B. Maloney of New York, from the Committee on Oversight
and Reform, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2988]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Reform, to whom was referred
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, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
CONTENTS
Summary and Purpose of Legislation............................... 7
Background and Need for Legislation.............................. 7
Section-by-Section Analysis...................................... 11
Legislative History.............................................. 15
Committee Consideration.......................................... 16
Roll Call Votes.................................................. 16
Explanation of Amendments........................................ 16
List of Related Committee Hearings............................... 16
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 16
Statement of General Performance Goals and Objectives............ 17
Application of Law to the Legislative Branch..................... 17
Duplication of Federal Programs.................................. 17
Disclosure of Directed Rule Makings.............................. 17
Federal Advisory Committee Act Statement......................... 17
Unfunded Mandates Reform Act Statement........................... 17
Earmark Identification........................................... 17
Committee Cost Estimate.......................................... 17
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 18
Changes in Existing Law Made by the Bill, as Reported............ 20
Correspondence...................................................
Minority Views................................................... 58
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
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)''.
Summary and Purpose of Legislation
The Whistleblower Protection Improvement Act of 2021, H.R.
2988, would create new federal whistleblower protections,
including strengthened protections against retaliatory
investigations and protections for disclosures to Congress;
expand and clarify existing protections, including protections
against the disclosure of a whistleblower's identity; establish
new procedures to ensure that employees receive timely relief
for their retaliation claims; and extend protections to
noncareer Senior Executive Service employees, Public Health
Service officers or applicants, and the Commissioned Officer
Corps of the National Oceanic and Atmospheric Administration
(NOAA).
Background and Need for Legislation
Federal whistleblowers are an integral part of our
constitutional system of checks and balances. However,
whistleblowers act at great personal risk and often face
retaliation. Being a whistleblower often means risking one's
career. The Government Accountability Office (GAO) recently
found that federal employees who filed whistleblower complaints
were terminated at a higher rate than other employees.\1\ Since
our country's founding, Congress has recognized the need to
provide statutory protections to these brave public servants--
America's first whistleblower protection law was enacted by the
Continental Congress in July 1778.\2\
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\1\Government Accountability Office, Whistleblowers: Office of
Special Counsel Should Require Information on the Probationary Status
of Whistleblowers (May 28, 2020) (GAO-20-436) (online at www.gao.gov/
assets/gao-20-436.pdf).
\2\Stephen M. Kohn, The Whistle-Blowers of 1777, New York Times
(June 12, 2011) (online at www.nytimes.com/2011/06/13/opinion/
13kohn.html).
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Federal whistleblowers provide critical information to
Congress and the executive branch on government corruption and
wrongdoing. Whistleblower disclosures have saved lives, exposed
corruption, and recovered untold amounts of taxpayer dollars.
For example, a former scientist at the Department of Health and
Human Services shared his concerns about the strategy for
addressing the coronavirus pandemic\3\ and federal and private
company whistleblowers provided information that helped the
Committee on Oversight and Reform obtain a $16.1 million refund
to the Department of Defense from a defense contractor that
overcharged the government for spare military aircraft
parts.\4\
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\3\ Committee on Oversight and Reform, Press Release: Select
Subcommittee Releases New Evidence of Trump Administration's Failure to
Address Supply Shortages (Mar. 31, 2021) (online at https://
oversight.house.gov/news/press-releases/select-subcommittee-releases-
new-evidence-of-trump-administration-s-failure-to).
\4\See Committee on Oversight and Reform, Press Release: TransDigm
to Refund $16.1 Million as a Result of Committee Investigation (May 24,
2019) (online at https://oversight.house.gov/news/press-releases/
transdigm-to-refund-161-million-to-dod-as-a-result-of-committee-
investigation).
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The Committee considered H.R. 2988 at a hearing on May 3,
2021 and heard testimony from multiple nonpartisan experts on
the need for additional whistleblower protections. Elizabeth
Hempowicz, Director of Public Policy at the Project on
Government Oversight, testified about the need to enact H.R.
2988:
I couldn't encourage Congress to pass it more. I
think it's critically necessary, and I think it really
does address some of the biggest loopholes and most
consequential loopholes in our whistleblower laws
today.\5\
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\5\Committee on Oversight and Reform, Hearing on Improving
Government Accountability and Transparency (May 3, 2021) (online at
https://oversight.house.gov/legislation/hearings/improving-government-
accountability-and-transparency).
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In a written statement for the hearing record, Thomas
Devine, Legal Director of the Government Accountability
Project, stated:
This legislation is desperately needed, because the
structures to defend the non-partisan, professional
merit system are dormant when needed most as our nation
prepares for unprecedented spending to meet
unprecedented challenges. . . .
The Whistleblower Protection Improvement Act directly
addresses the structural weaknesses that doomed
previous mandates in principle. When we need America's
federal whistleblowers most, it will upgrade their
protection from a mirage to global best practices
against workplace harassment.\6\
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\6\Government Accountability Project, Written Testimony of Thomas
Devine, Legal Director (May 3, 2021) (online at https://docs.house.gov/
meetings/GO/GO00/20210503/112523/HHRG-117-GO00-20210503-SD008.pdf).
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Measures enhancing whistleblower protections against
retaliation have received strong bipartisan support over the
years and have historically passed Congress with near
unanimity. For example, every Republican Member of the 114th
Congress joined a unanimous vote to increase penalties for
retaliation against whistleblowers.\7\ During the 116th
Congress, Rep. Mark Meadows advocated for enhanced
whistleblower rights on the House floor: ``Whistleblowers in
the Federal Government should be able to tell their supervisor
when something is going wrong. That is the truth, no matter
what.''\8\
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\7\H.R. 5790, 114th Cong. (2016).
\8\U.S. House of Representatives, Debate on H.R. 1064 (Feb. 1,
2019) (online at www.congress.gov/congressional-record/2019/02/11/
house-section/article/H1499-1).
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H.R. 2988 has also received bipartisan support. Rep. Nancy
Mace urged her Republican colleagues to support the bill:
When Americans alert the nation to waste, fraud, and
abuse by the federal government, they take immense
personal, professional, and emotional risks. Right now,
these brave citizens are vulnerable to vicious
campaigns of intimidation and retaliation which put
their ability to provide for their families in
jeopardy. Whistleblowers help root out corruption and
we must ensure they aren't victimized or silenced by
those who seek to abuse their power.\9\
---------------------------------------------------------------------------
\9\Representative Nancy Mace, Press Release: Rep. Mace Cosponsor
Bipartisan Whistleblower Protection Bill (May 4, 2021) (online at
https://mace.house.gov/media/press-releases/rep-macecosponsors-
bipartisan-whistleblower-protection-bill).
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A group of 267 organizations that represent diverse
viewpoints encouraged President Biden and congressional leaders
to improve whistleblower protections on April 1, 2021:
We urge your leadership now to expeditiously
implement what Congress intended when it passed the
WPEA [Whistleblower Protection Enhancement Act of
2012], and to expand best practice rights where needed
most--for the integrity of pandemic relief legislation
along with other public health work, for honest law
enforcement officers challenging police abuses of
power, and for all congressional witnesses.\10\
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\10\Government Accountability Project, Press Release: Government
Accountability Project and 266 Advocacy Organizations Call on President
Biden and Congress to Pass Stronger Whistleblower Protections (Apr. 1,
2020) (online at www.whistleblower.org/press-release/press-release-
government-accountability-project-and-264-advocacy-organizations-call-
on-president-biden-and-congress-to-pass-stronger-whistleblower-
protections/).
---------------------------------------------------------------------------
H.R. 2988 has also received support from the Make It Safe
Coalition, a bi-partisan, trans-ideological coalition of
individuals and 75 non-governmental organizations. The
coalition's steering committee comprises organizations spanning
the ideological spectrum, including the Government
Accountability Project, the National Taxpayers Union, the
Project on Government Oversight, the Taxpayer Protection
Alliance, and Whistleblowers of America.\11\
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\11\Letter from Steering Committee, Make It Safe Coalition, to
Chairwoman Carolyn B. Maloney, Committee on Oversight and Reform (May
3, 2021) (online at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/
MISC%20WPIA%20Support%20Letter.pdf).
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NEW AND EXPANDED WHISTLEBLOWER PROTECTIONS
H.R. 2988 would establish several new protections for
whistleblowers. Section 2(a) would prohibit investigations or
referrals to inspectors general in retaliation against
protected whistleblower activity. This change fills a critical
hole created by a 2020 Federal Circuit 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.\12\
---------------------------------------------------------------------------
\12\Sistek v. Department of Veterans Affairs, 955 F.3d 948 (Fed.
Cir. 2020).
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Section 2(c) would prohibit federal employees from publicly
disclosing the identity of an employee because of that
employee's whistleblowing activity. Public disclosure of a
whistleblower's identity can lead to threats against a
whistleblower's career, well-being, and even life. Attempts to
out whistleblowers also deter other potential whistleblowers
from coming forward.
Section 2(d) would amend the Lloyd-La Follette Act, 5
U.S.C. Sec. 7211, to make clear that no officer or employee of
the federal government--including the president or vice
president--may interfere with or retaliate against a federal
employee for sharing information with Congress. This subsection
also clarifies that federal officers and employees have the
right to petition Congress, provide information to Congress,
and respond to congressional requests for information.
The new protections in this bill will help prevent the
retaliation some whistleblowers have historically faced, such
as retaliation for cooperating with congressional requests for
documents and testimony.
In another example, Transportation Security Administration
officials moved employees to new duty stations because the
employees alerted Congress about their concerns with security
at the airports where they worked. These supervisors used
involuntary reassignments as a reprisal tactic to punish these
whistleblowers, forcing them to move their families hundreds of
miles away.\13\
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\13\ Minority Staff, Committee on Oversight and Reform, Urgent
Reforms Needed at TSA, 115th Cong. (Sept. 2018) (online at https://
oversight.house.gov/sites/democrats.oversight.house.gov/files/
documents/Democratic%20Staff%20Report%20on%20TSA%20Investigation.pdf).
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Section 3(d) would expand existing whistleblower
protections. It would strengthen whistleblower protections to
cover disclosures to an employee's supervisor or others in an
employee's supervisory chain of command, closing a loophole in
current law. One recent example of this ``chain-of-command''
retaliation was when a White House supervisor moved files
beyond the reach of an employee who reported concerns to her
supervisor, and to the Committee, about White House security
clearance practices in 2019.\14\
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\14\ White House Whistleblower Says She Felt Humiliated After
Retaliation from Boss, NBC News (Apr. 2, 2019) (online at
www.nbcnews.com/politics/white-house/white-house-
whistleblower-says-she-felt-humiliated-after-retaliation-boss-n990171).
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Section 3(f) of H.R. 2988 would extend existing
whistleblower protections to noncareer Senior Executive Service
employees, Public Health Service officers or applicants, and
the Commissioned Officer Corps of NOAA. On January 25, 2021,
Rep. Eddie Bernice Johnson, Chairwoman of the House Committee
on Science, Space, and Technology, wrote a letter to Chairwoman
Maloney emphasizing the importance of extending these
protections to the NOAA Corps to ensure that they have the same
protections as other NOAA employees.\15\
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\15\ Letter from Chairwoman Eddie Bernice Johnson, Committee on
Science, Space, and Technology, to Chairwoman Carolyn B. Maloney,
Committee on Oversight and Reform (Jan. 25, 2021) (online at https://
oversight.house.gov/sites/democrats.oversight.house.gov/files/
NOAA%20CORPS%20WPA%20Chair%20to%20Chair%20Letter_.pdf).
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PROCEDURAL IMPROVEMENTS
H.R. 2988 includes several procedural improvements to
ensure that whistleblowers have rights to effective process and
equitable relief.
Section 3(a) would enable the Office of Special Counsel to
refer disclosures of alleged misconduct by an officer or
employee of an Office of Inspector General (OIG) to the
Integrity Committee of the Council of the Inspectors General on
Integrity and Efficiency. This change would allow for a more
efficient process to ensure allegations involving OIGs are
promptly investigated by the Integrity Committee, the body that
Congress has tasked with investigating this kind of misconduct.
Section 3(c) would require timely consideration and appeals
of employees' requests for stays of personnel actions and would
establish a more permissive legal standard for such requests.
It also would expand employees' rights to challenge executive
branch nondisclosure agreements that limit the employees'
ability to share information with Congress, report violations
of law to an inspector general, or engage in any other
protected whistleblowing activity.
This subsection would empower an employee to file an action
directly with the appropriate United States district court if
the Merit Systems Protection Board (MSPB) fails to issue a
final order or decision within 180 days (or 240 days for
complex cases) of receiving the employee's request for
corrective action. MSPB lacked a quorum between January 2017
and March 2022.\16\ Vacancies at MSPB resulted in a historic
backlog of more than 770 whistleblower cases.\17\ This
provision, which is retroactive for a period of five years,
would provide a new avenue for relief for employees whose
claims have been stymied by MSPB's lack of a quorum.
---------------------------------------------------------------------------
\16\ Merit Systems Protection Board, Frequently Asked Questions
About the Lack of Board Quorum and Lack of Board Members (Mar. 4, 2022)
(online at www.mspb.gov/FAQs_Absence_of_Board_Quorum_March_4_2022.pdf).
\17\ MSPB Confirms Backlog of 3118 Federal Employment Cases,
Whistleblower News Network (Jan. 29, 2021) (online at
www.whistleblowersblog.org/2021/01/articles/exclusives/wnn-exclusive-
mspb-confirms-backlog-of-3118-federal-employment-cases/).
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This subsection would also require that the case in
district court be tried before a jury upon request by either
party. Access to jury trials has been a longtime priority of
whistleblower advocates. In 2012, then-Ranking Member Elijah
Cummings said on passage of the Whistleblower Protection
Enhancement Act:
I know this bill represents a compromise based on the
political realities of today. But the fight is not
over. I will continue to fight for the protections that
are not in this bill and hope that my colleagues on
both sides of the aisle will join me in that fight. . .
. [W]e need to amend the law to allow whistleblowers
the ability to go to court and have their case heard by
a jury.\18\
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\18\ Committee on Oversight and Reform, Press Release: Cummings
Lauds House Passage of ``Whistleblower Protection Enhancement Act of
2012'' (Sept. 28, 2012) (online at https://oversight.house.gov/news/
press-releases/cummings-lauds-house-passage-of-whistleblower-
protection-enhancement-act-of-2012).
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Section 3(e) would make clear that an employee would also
be entitled to recover attorney fees if the employee prevails
in judicial review of a decision by MSPB, bringing the remedy
for this procedural right in line with other protections of
employee rights. Section 3(g) would also make clear that an
employee who prevails in an appeal to MSPB is entitled to the
relief necessary to make the employee whole, including
training, seniority, and promotions consistent with the
employee's record.
Section-by-Section Analysis
Sec. 1. Short title
The short title is the ``Whistleblower Protection
Improvement Act of 2021.''
Sec. 2. Additional whistleblower protections
Subsection (a)--Investigations as Personnel Actions
Paragraph (1) amends subsection (a) of section 2302 of
title 5, United States Code, to prohibit retaliatory
investigations against any covered employee who engages in
whistleblowing activity protected by 5 U.S.C. Sec. 2302(b)(8).
This prohibition covers the commencement, expansion, or
extension of any investigation, or a retaliatory referral to an
inspector general, but does not include investigations or
referrals that are ministerial or nondiscretionary.
Paragraph (2) applies the amendment made by paragraph (1)
to investigations opened or referrals made on or after the date
of enactment of the Act.
Subsection (b)--Right to Petition Congress
Paragraph (1) amends subsection (b) of section 2302 of
title 5, United States Code, to prohibit retaliation against
any covered employee for sharing information with Congress, as
protected by section 7211 of title 5, United States Code.
Paragraph (2) applies the amendment made by paragraph (1)
to conduct occurring on or after the date of enactment of the
Act.
Subsection (c)--Prohibition on Disclosure of Whistleblower
Identity
Paragraph (1) amends section 2302 of title 5, United States
Code, by adding a new subsection (g), which limits public
disclosure of the identity of an employee who engages in
whistleblowing activity protected by section 2302.
Specifically, the provision prohibits disclosure outside the
federal government of an employee's identity or personally
identifiable information, because of that individual's
protected whistleblower activity or suspicion that the
individual engaged in protected activity. Public disclosure of
the individual's identity or identifying information is allowed
only if: (1) the individual provides written consent; (2) the
disclosure is made pursuant to federal records requirements in
section 552a of title 5, United States Code; (3) the disclosure
is to a lawyer for the sole purpose of providing legal advice
for an employee accused of retaliation; or (4) if the
disclosure is otherwise required or expressly permitted by law.
Paragraph (2) applies the amendment made by paragraph (1)
to disclosures occurring on or after the date of enactment of
the Act.
Subsection (d)--Right to Petition Congress
Paragraph (1) amends section 7211 of title 5, United States
Code, to clarify that no officer or employee of the federal
government--including the president or vice president--may
interfere with or retaliate against a federal employee for
sharing information with Congress. The provision also clarifies
current law to expressly provide federal officers and employees
the right to petition Congress; furnish information, documents,
or testimony to Congress; and respond to any congressional
request for information, documents, or testimony.
Paragraph (2) makes a conforming technical change to the
table of sections for subchapter II of chapter 72 of title 5,
United States Code.
Sec. 3. Enhancement of whistleblower protections
Subsection (a)--Disclosures Relating to Officers or
Employees of an Office of Inspector General
Subsection (a) amends subsection (c) of section 1213 of
title 5, United States Code, to permit the Office of Special
Counsel to refer disclosures of misconduct by an officer or
employee of an Office of Inspector General to the Council of
the Inspectors General on Integrity and Efficiency.
Subsection (b)--Retaliatory Referrals to Inspectors General
Subsection (b) amends subsection (d) of section 1214 of
title 5, United States Code, to require that, if the Special
Counsel determines that a referral to an inspector general was
made in retaliation for protected whistleblowing activity, the
Special Counsel shall transmit that finding in writing to that
inspector general within seven days of making the finding, and
the inspector general shall consider that finding in
determining whether to initiate or continue the investigation
based on that retaliatory referral.
Subsection (c)--Ensuring Timely Referral
Paragraph (1) amends various subsections of section 1221 of
title 5, United States Code, to allow an employee to bring an
individual right of action to challenge an executive branch
nondisclosure agreement that limits the employee's ability to
share information with Congress, report violations of law to an
inspector general, or engage in any other protected
whistleblowing activity.
Paragraph (2) amends subsection (c) of section 1221 to
provide for timely consideration of an employee's request to
the Merit Systems Protection Board for a stay of a personnel
action and provides that the Board shall issue a stay if it
determines that there is a substantial likelihood that the
employee's protected activity was a contributing factor to the
personnel action, or if a stay is otherwise appropriate.
Paragraph (3) amends subsection (c) of section 1221 to
provide for prompt consideration of an employee's appeal of a
decision to deny a stay of a personnel action, requiring the
Merit Systems Protection Board to provide a decision on the
appeal within 21 days of receiving the appeal.
Paragraph (4) amends subsection (i) of section 1221 to
empower an employee to file an action directly with the
appropriate United States district court if the Merit Systems
Protection Board fails to issue a final order or decision
within 180 days (or 240 days for cases that the board certifies
in writing require a longer period due to complexity) of
receiving the employee's request for corrective action. These
amendments apply to any request submitted to the Board during
the five-year period preceding the date of enactment of the
Act.
Subsection (d)--Recipients of Whistleblower Disclosures
Subsection (d) amends subsection (b) of section 2302 of
title 5, United States Code, to clarify that an employee's
disclosures to a ``supervisor in the employee's direct chain of
command'' are protected disclosures for the purposes of federal
whistleblower protections, in addition to disclosures to the
Special Counsel, the inspector general, or other designated
entities.
Subsection (e)--Attorney Fees
Paragraph (1) amends subsection (a) of section 7703 of
title 5, United States Code, to clarify that an employee is
entitled to recover attorney fees if the employee prevails in
judicial review of a decision by the Merit Systems Protection
Board.
Paragraph (2) applies the amendment made by paragraph (1)
to any proceeding brought before the date of enactment of the
Act with respect to any action in which the applicable court
has not issued a final decision, in addition to proceedings
brought after the date of enactment.
Subsection (f)--Extending Whistleblower Protection Act to
Certain Employees
Paragraph (1) amends subsection (a) of section 2302 of
title 5, United States Code, to extend protections under the
Whistleblower Protection Act to all noncareer appointees in the
Senior Executive Service, to officers or applicants of the
Public Health Service, and to the commissioned officer corps of
the National Oceanic and Atmospheric Administration.
Paragraph (2) makes conforming technical changes to section
3071 of title 33, United States Code.
Paragraph (3) applies the amendments made by paragraphs (1)
and (2) to personnel actions taken after the date of enactment
of the Act.
Subsection (g)--Relief
Paragraph (1) amends subsection (b) of section 7701 of
title 5, United States Code, to clarify that when an employee
is the prevailing party in an appeal to the Merit Systems
Protection Board, the employee shall be granted relief
necessary to make the employee whole, including training,
seniority, and promotions consistent with the employee's
record.
Paragraph (2) applies the amendment made by paragraph (1)
to any appeal made before the date of enactment of the Act for
which the Board has not issued a final decision, in addition to
any appeal made after the date of enactment.
Sec. 4. Clarifying certain furloughs as adverse personnel actions
Subsection (a)--In General
Subsection (a) amends section 7512 of title 5, United
States Code, to specify that furloughs of 13 days or less
caused by a lapse in appropriations are not adverse actions for
the purposes of the procedures set forth in sections 7513,
7514, and 7515 of title 5, United States Code.
Subsection (b)--Application
Subsection (b) makes the amendment made by subsection (a)
applicable to furloughs on or after the date of enactment of
the Act.
Sec. 5. Codification of protections for disclosures of censorship
related to research, analysis, or technical information
Subsection (a)--In General
Subsection (a) amends section 2302 of title 5, United
States Code, to add a new subsection (h) to codify protections
previously enacted in Section 110 of the Whistleblower
Protection Enhancement Act of 2012, which prohibit retaliation
against a covered employee for disclosures the employee
reasonably believes show evidence of censorship of research,
analysis, or technical information.
Subsection (b)--Repeal
Subsection (b) repeals language from the Whistleblower
Protection Enhancement Act of 2012 made redundant by the
amendment made by subsection (a).
Sec. 6. Title 5 technical and conforming amendments
This section makes technical and conforming changes to
various sections of title 5, United States Code, to account for
changes made throughout the Act.
Legislative History
During the 117th Congress, on May 4, 2021, Representatives
Carolyn B. Maloney (D-NY), Chairwoman of the Committee; Nancy
Mace (R-SC); Eddie Bernice Johnson (D-TX), Chair of the
Committee on Science, Space, and Technology; Gerald E. Connolly
(D-VA), Chairman of the Subcommittee on Government Operations;
Jackie Speier (D-CA); and Kathleen M. Rice (D-NY) introduced
H.R. 2988, the Whistleblower Protection Improvement Act. H.R.
2988 was referred to the Committee on Oversight and Reform.
On May 3, 2021, the Committee held a hearing to consider
proposals in H.R. 2988. The Committee heard testimony from
James-Christian Blockwood, Executive Vice President of the
Partnership for Public Service; Elizabeth Hempowicz, Director
of Public Policy for the Project on Government Oversight; Rudy
Mehrbani, Senior Advisor of the Democracy Fund; and Zack Smith,
Legal Fellow of the Heritage Foundation.
On June 29, 2021, the Committee considered H.R. 2988 at a
business meeting with a quorum present. The Committee ordered
the bill reported favorably, as amended, by voice vote.
Also during the 117th Congress, on September 21, 2021,
Representative Adam Schiff introduced H.R. 5314, the Protecting
Our Democracy Act, with Chairwoman Maloney and several other
committee chairs and Members. Subtitle A of title VIII of H.R.
5314 is substantially the same text as the Whistleblower
Protection Improvement Act, as reported favorably by the
Committee in the 117th Congress. On December 9, 2021, H.R. 5314
was passed by the House of Representatives by a bipartisan vote
of 220-208.
During the 116th Congress, on August 4, 2020,
Representatives Carolyn B. Maloney (D-NY), Chairwoman of the
Committee; Gerald E. Connolly (D-VA), Chairman of the
Subcommittee on Government Operations; and Jackie Speier (D-CA)
introduced H.R. 7935, the Whistleblower Protection Improvement
Act, with substantially the same text as the version in the
117th Congress. H.R. 7935 was referred to the Committee on
Oversight and Reform.
On September 23, 2020, Representative Adam Schiff
introduced H.R. 8363, the Protecting Our Democracy Act, with
Chairwoman Maloney and several other committee chairs and
Members. Subtitle A of title VIII of H.R. 8363 is the same text
as the Whistleblower Protection Improvement Act as introduced
in the 116th Congress.
Also during the 116th Congress, on February 7, 2019,
Representative Katie Hill (D-CA) and Representative Mark
Meadows (R-NC), then-Ranking Member of the Subcommittee on
Government Operations, introduced H.R. 1064, a bill containing
substantially the same text as subsection (c) of section 3 of
the Whistleblower Protection Improvement Act, as introduced in
both the 116th and 117th Congresses. On February 11, 2019, H.R.
1064 was passed by the House of Representatives by voice vote.
Committee Consideration
On June 29, 2021, the Committee considered H.R. 2988 at a
business meeting. Chairwoman Maloney offered an amendment in
the nature of a substitute (ANS), and the Committee ordered the
bill as amended favorably reported by voice vote.
Roll Call Votes
There were no roll call votes during consideration of H.R.
2988.
Explanation of Amendments
Chairwoman Maloney offered an ANS that modified the bill
to: (1) clarify the definition of a retaliatory investigation
and retaliatory referral to an OIG; (2) add a causation
requirement to the prohibition on public disclosure of a
whistleblower's identity, prohibiting such disclosure because
of actual or suspected whistleblowing activity; (3) add a
requirement that, if the Special Counsel determines that a
referral to an OIG was in retaliation for protected
whistleblowing activity, the Special Counsel must communicate
that finding in writing to the relevant OIG within seven days;
(4) make the provision granting whistleblowers the right to a
jury trial retroactive for claims filed to MSPB for up to five
years prior to the date of enactment; and (5) provide other
technical and conforming changes. The ANS passed by voice vote.
List of Related Committee Hearings
In accordance with section 103(i) of H. Res. 6, the
Committee considered the proposals set forth in H.R. 2988 on
May 3, 2021, as part of a hearing to consider various
government accountability and transparency legislative
proposals.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee finds that expanded substantive
and procedural protections for federal whistleblowers are
necessary to protect civil servants who act with great personal
risk to uncover waste, fraud, abuse, and misconduct in the
government, such that the Committee recommends the adoption of
this bill (H.R. 2988) to ensure that whistleblowers can
continue serving a critical accountability function and be
protected from retaliation for exposing wrongdoing.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to amend title 5, United
States Code, to modify and enhance protections for federal
government whistleblowers, and for other purposes.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill amends title 5, United States Code, to modify and
enhance protections for federal government whistleblowers, and
for other purposes. As such, this bill does not relate to terms
and conditions of employment or access to public services or
accommodations.
Duplication of Federal Programs
In accordance with clause 3(c)(5) of rule XIII, no
provision of this bill establishes or reauthorizes a program of
the federal government known to be duplicative of another
federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rule Makings
This bill does not direct the completion of any specific
rule makings within the meaning of section 551 of title 5,
United States Code.
Federal Advisory Committee Act Statement
The legislation does not establish or authorize the
establishment of an advisory committee within the definition of
section 5(b) of the appendix to title 5, United States Code.
Unfunded Mandates Reform Act Statement
Pursuant to section 423 of the Congressional Budget Act of
1974, the Committee has included a letter received from the
Congressional Budget Office below.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
Committee Cost Estimate
Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 27, 2022.
Hon. Carolyn B. Maloney,
Chairwoman, Committee on Oversight and Reform,
House of Representatives, Washington, DC.
Dear Madam Chairwoman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2988, the
Whistleblower Protection Improvement Act of 2021.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
H.R. 2988 would create new protections for federal
employees who report fraud or other improprieties, expand and
clarify existing protections, and establish new procedures to
ensure that employees receive timely relief if their claims of
retaliation are affirmed. The bill also would extend
whistleblower protections to noncareer appointees in the Senior
Executive Service, Public Health Service officers or
applicants, and members of the National Oceanic and Atmospheric
Administration's commissioned officer corps.
Specifically, the bill would:
Prohibit federal employees from disclosing a
whistleblower's identity,
Grant whistleblowers the right to furnish
information to the Congress,
Permit whistleblowers to seek a review in
district court if a retaliation claim is not
adjudicated within 180 days,
Require federal agencies to pay attorneys'
fees for employees or former employees who prevail in
proceedings before the Merit Systems Protection Board
(MSPB), and
Establish protections for federal employees
who disclose censorship of research or technical
information.
The costs of the legislation, detailed in Table 1, fall
within budget function 800 (general government).
TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF H.R. 2988
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
-----------------------------------------------------------------------------------------------------
2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2022-2026 2022-2031
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increases in Direct Spendinga
Estimated Budget Authority........................ 0 1 1 1 1 1 1 1 1 1 4 9
Estimated Outlays................................. 0 1 1 1 1 1 1 1 1 1 4 9
Increases in Spending Subject to Appropriation
Estimated Authorization........................... 0 3 4 4 4 n.e. n.e. n.e. n.e. n.e. 15 n.e.
Estimated Outlays................................. 0 3 4 4 4 n.e. n.e. n.e. n.e. n.e. 15 n.e.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Components may not sum to totals because of rounding; n.e. = not estimated.
\a\Payments for successful whistleblower claims and related attorney fees would be paid from the Judgment Fund (a permanent indefinite appropriation).
Under the No Fear Act (Public Law 107-174), spending from the Judgment Fund would be reimbursed from discretionary funds appropriated to the federal
agency where the claim arose. Those reimbursements are not counted as reductions in direct spending because they are dependent on future
appropriations.
For this estimate, CBO assumes that the bill will be
enacted late in fiscal year 2022.
H.R. 2988 would allow some whistleblowers who prevail in an
action before the MSPB to be reimbursed for attorneys' fees.
Some awards could be significant and initially would be paid
from the Judgment Fund (a permanent, indefinite appropriation
used to pay claims against the government), which would be
reimbursed by the federal agency involved. Using a historical
analysis of whistleblower cases and information from the Office
of Special Counsel (OSC) and the MSPB, CBO estimates that
enacting H.R. 2988 would increase direct spending by $9 million
over the 2022-2031 period for payments to whistleblowers and
for attorneys' fees.
Over the 2015-2020 period, OSC received about 1,500 new
cases annually for investigation. Using information from OSC
and the MSPB, CBO expects that the bill would increase costs
for those agencies by $3 million annually (or about a 5 percent
increase in their costs) for investigation and administration.
Additionally, all federal agencies would incur some new costs
for training and employee education and some federal agencies
would be required to reimburse the Judgment Fund for successful
claims. Those reimbursements would generally be made one year
after an award was paid. In total, CBO estimates that
implementing H.R. 2988 would cost $15 million over the 2022-
2026 period; any spending would be subject to the availability
of appropriated funds.
The CBO staff contacts for this estimate are Matthew
Pickford and Sofia Guo. The estimate was reviewed by H. Samuel
Papenfuss, Deputy Director of Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
* * * * * * *
CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION
* * * * * * *
SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL
* * * * * * *
Sec. 1212. Powers and functions of the Office of Special Counsel
(a) The Office of Special Counsel shall--
(1) in accordance with section 1214(a) and other
applicable provisions of this subchapter, protect
employees, former employees, and applicants for
employment from prohibited personnel practices;
(2) receive and investigate allegations of prohibited
personnel practices, and, where appropriate--
(A) bring petitions for stays, and petitions
for corrective action, under section 1214; and
(B) file a complaint or make recommendations
for disciplinary action under section 1215;
(3) receive, review, and, where appropriate, forward
to the Attorney General or an agency head under section
1213, disclosures of violations of any law, rule, or
regulation, or gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and
specific danger to public health or safety;
(4) review rules and regulations issued by the
Director of the Office of Personnel Management in
carrying out functions under section 1103 and, where
the Special Counsel finds that any such rule or
regulation would, on its face or as implemented,
require the commission of a prohibited personnel
practice, file a written complaint with the Board; and
(5) investigate and, where appropriate, bring actions
concerning allegations of violations of other laws
within the jurisdiction of the Office of Special
Counsel (as referred to in section 1216).
(b)(1) The Special Counsel and any employee of the Office of
Special Counsel designated by the Special Counsel may
administer oaths, examine witnesses, take depositions, and
receive evidence.
(2) The Special Counsel may--
(A) issue subpoenas; and
(B) order the taking of depositions and order
responses to written interrogatories;
in the same manner as provided under section 1204.
(3)(A) In the case of contumacy or failure to obey a subpoena
issued under paragraph (2)(A), the Special Counsel may apply to
the Merit Systems Protection Board to enforce the subpoena in
court pursuant to section 1204(c).
(B) A subpoena under paragraph (2)(A) may, in the case of any
individual outside the territorial jurisdiction of any court of
the United States, be served in the manner referred to in
subsection (d) of section 1204, and the United States District
Court for the District of Columbia may, with respect to any
such individual, compel compliance in accordance with such
subsection.
(4) Witnesses (whether appearing voluntarily or under
subpoena) shall be paid the same fee and mileage allowances
which are paid subpoenaed witnesses in the courts of the United
States.
(5)(A) Except as provided in subparagraph (B), the Special
Counsel, in carrying out this subchapter, is authorized to--
(i) have timely access to all records, data, reports,
audits, reviews, documents, papers, recommendations, or
other material available to the applicable agency that
relate to an investigation, review, or inquiry
conducted under--
(I) section 1213, 1214, 1215, or 1216 of this
title; or
(II) section 4324(a) of title 38;
(ii) request from any agency the information or
assistance that may be necessary for the Special
Counsel to carry out the duties and responsibilities of
the Special Counsel under this subchapter; and
(iii) require, during an investigation, review, or
inquiry of an agency, the agency to provide to the
Special Counsel any record or other information that
relates to an investigation, review, or inquiry
conducted under--
(I) section 1213, 1214, 1215, or 1216 of this
title; or
(II) section 4324(a) of title 38.
(B)(i) The authorization of the Special Counsel under
subparagraph (A) shall not apply with respect to any entity
that is an element of the intelligence community, as defined in
section 3 of the National Security Act of 1947 (50 U.S.C.
3003), unless the Special Counsel is investigating, or
otherwise carrying out activities relating to the enforcement
of, an action under subchapter III of chapter 73.
(ii) An Inspector General may withhold from the Special
Counsel material described in subparagraph (A) if the Inspector
General determines that the material contains information
derived from, or pertaining to, intelligence activities.
(iii) The Attorney General or an Inspector General may
withhold from the Special Counsel material described in
subparagraph (A) if--
(I)(aa) disclosing the material could reasonably be
expected to interfere with a criminal investigation or
prosecution that is ongoing as of the date on which the
Special Counsel submits a request for the material; or
(bb) the material--
(AA) may not be disclosed pursuant to a court
order; or
(BB) has been filed under seal under section
3730 of title 31; and
(II) the Attorney General or the Inspector General,
as applicable, submits to the Special Counsel a written
report that describes--
(aa) the material being withheld; and
(bb) the reason that the material is being
withheld.
(C)(i) A claim of common law privilege by an agency, or an
officer or employee of an agency, shall not prevent the Special
Counsel from obtaining any material described in subparagraph
(A)(i) with respect to the agency.
(ii) The submission of material described in subparagraph
(A)(i) by an agency to the Special Counsel may not be deemed to
waive any assertion of privilege by the agency against a non-
Federal entity or against an individual in any other
proceeding.
(iii) With respect to any record or other information made
available to the Special Counsel by an agency under
subparagraph (A), the Special Counsel may only disclose the
record or information for a purpose that is in furtherance of
any authority provided to the Special Counsel under this
subchapter.
(6) The Special Counsel shall submit to the Committee on
Homeland Security and Governmental Affairs of the Senate, the
Committee on Oversight and Government Reform of the House of
Representatives, and each committee of Congress with
jurisdiction over the applicable agency a report regarding any
case of contumacy or failure to comply with a request submitted
by the Special Counsel under paragraph (5)(A).
(c)(1) Except as provided in paragraph (2), the Special
Counsel may as a matter of right intervene or otherwise
participate in any proceeding before the Merit Systems
Protection Board, except that the Special Counsel shall comply
with the rules of the Board.
(2) The Special Counsel may not intervene in an action
brought by an individual under section 1221, or in an appeal
brought by an individual under section 7701, without the
consent of such individual.
(d)(1) The Special Counsel may appoint the legal,
administrative, and support personnel necessary to perform the
functions of the Special Counsel.
(2) Any appointment made under this subsection shall be made
in accordance with the provisions of this title, except that
such appointment shall not be subject to the approval or
supervision of the Office of Personnel Management or the
Executive Office of the President (other than approval required
under section 3324 or subchapter VIII of chapter 33).
(e) The Special Counsel may prescribe such regulations as may
be necessary to perform the functions of the Special Counsel.
Such regulations shall be published in the Federal Register.
(f) The Special Counsel may not issue any advisory opinion
concerning any law, rule, or regulation (other than an advisory
opinion concerning chapter 15 or subchapter III of chapter 73).
(g)(1) The Special Counsel may not respond to any inquiry or
disclose any information from or about any person making an
allegation under section 1214(a), except in accordance with the
provisions of section 552a of title 5, United States Code, or
as required by any other applicable Federal law.
(2) Notwithstanding the exception under paragraph (1), the
Special Counsel may not respond to any inquiry concerning an
evaluation of the work performance, ability, aptitude, general
qualifications, character, loyalty, or suitability for any
personnel action of any person described in paragraph (1)--
(A) unless the consent of the individual as to whom
the information pertains is obtained in advance; or
(B) except upon request of an agency which requires
such information in order to make a determination
concerning an individual's having access to the
information unauthorized disclosure of which could be
expected to cause exceptionally grave damage to the
national security.
(h)(1) The Special Counsel is authorized to appear as amicus
curiae in any action brought in a court of the United States
related to section 2302(b)(8) [or (9)], (b)(9), (b)(13), or
(g), or as otherwise authorized by law. In any such action, the
Special Counsel is authorized to present the views of the
Special Counsel with respect to compliance with section
2302(b)(8) [or (9)], (b)(9), (b)(13), or (g) and the impact
court decisions would have on the enforcement of such
provisions of law.
(2) A court of the United States shall grant the application
of the Special Counsel to appear in any such action for the
purposes described under subsection (a).
(i) The Special Counsel shall enter into at least 1 agreement
with the Inspector General of an agency under which--
(1) the Inspector General shall--
(A) receive, review, and investigate
allegations of prohibited personnel practices
or wrongdoing filed by employees of the Office
of Special Counsel; and
(B) develop a method for an employee of the
Office of Special Counsel to communicate
directly with the Inspector General; and
(2) the Special Counsel--
(A) may not require an employee of the Office
of Special Counsel to seek authorization or
approval before directly contacting the
Inspector General in accordance with the
agreement; and
(B) may reimburse the Inspector General for
services provided under the agreement.
Sec. 1213. Provisions relating to disclosures of violations of law,
gross mismanagement, and certain other matters
(a) This section applies with respect to--
(1) any disclosure of information by an employee,
former employee, or applicant for employment which the
employee, former employee, or applicant reasonably
believes evidences--
(A) a violation of any law, rule, or
regulation; or
(B) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety;
if such disclosure is not specifically prohibited by
law and if such information is not specifically
required by Executive order to be kept secret in the
interest of national defense or the conduct of foreign
affairs; and
(2) any disclosure by an employee, former employee,
or applicant for employment to the Special Counsel or
to the Inspector General of an agency or another
employee designated by the head of the agency to
receive such disclosures of information which the
employee, former employee, or applicant reasonably
believes evidences--
(A) a violation of any law, rule, or
regulation; or
(B) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Whenever the Special Counsel receives information of a
type described in subsection (a) of this section, the Special
Counsel shall review such information and, within 45 days after
receiving the information, determine whether there is a
substantial likelihood that the information discloses a
violation of any law, rule, or regulation, or gross
mismanagement, gross waste of funds, abuse of authority, or
substantial and specific danger to public health and safety.
(c)(1) Subject to paragraph (2), if the Special Counsel makes
a positive determination under subsection (b) of this section,
the Special Counsel shall promptly transmit the information
with respect to which the determination was made to the
appropriate agency head and require that the agency head--
(A) conduct an investigation with respect to the
information and any related matters transmitted by the
Special Counsel to the agency head; and
(B) submit a written report setting forth the
findings of the agency head within 60 days after the
date on which the information is transmitted to the
agency head or within any longer period of time agreed
to in writing by the Special Counsel.
(2) The Special Counsel may require an agency head to conduct
an investigation and submit a written report under paragraph
(1) only if the information was transmitted to the Special
Counsel by--
(A) an employee, former employee, or applicant for
employment in the agency which the information
concerns; or
(B) an employee who obtained the information in
connection with the performance of the employee's
duties and responsibilities.
(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).
(d) Any report required under subsection (c) shall be
reviewed and signed by the head of the agency and shall
include--
(1) a summary of the information with respect to
which the investigation was initiated;
(2) a description of the conduct of the
investigation;
(3) a summary of any evidence obtained from the
investigation;
(4) a listing of any violation or apparent violation
of any law, rule, or regulation; and
(5) a description of any action taken or planned as a
result of the investigation, such as--
(A) changes in agency rules, regulations, or
practices;
(B) the restoration of any aggrieved
employee;
(C) disciplinary action against any employee;
and
(D) referral to the Attorney General of any
evidence of a criminal violation.
(e)(1) Any report required under subsection (c) or paragraph
(5) of this subsection shall be submitted to the Special
Counsel, and the Special Counsel shall transmit a copy to the
complainant, except as provided under subsection (f) of this
section. The complainant may submit comments to the Special
Counsel on the agency report within 15 days of having received
a copy of the report.
(2) Upon receipt of any report that the head of an agency is
required to submit under subsection (c), the Special Counsel
shall review the report and determine whether--
(A) the findings of the head of the agency appear
reasonable; and
(B) if the Special Counsel requires the head of the
agency to submit a supplemental report under paragraph
(5), the reports submitted by the head of the agency
collectively contain the information required under
subsection (d).
(3) The Special Counsel shall transmit any report submitted
to the Special Counsel by the head of an agency under
subsection (c) or paragraph (5) of this subsection, any
comments provided by the complainant pursuant to subsection
(e)(1), and any appropriate comments or recommendations by the
Special Counsel to the President and the congressional
committees with jurisdiction over the agency which the
disclosure involves.
(4) Whenever the Special Counsel does not receive the report
of the agency within the time prescribed in subsection (c)(2)
of this section, the Special Counsel shall transmit a copy of
the information which was transmitted to the agency head to the
President and the congressional committees with jurisdiction
over the agency which the disclosure involves together with a
statement noting the failure of the head of the agency to file
the required report.
(5) If, after conducting a review of a report under paragraph
(2), the Special Counsel concludes that the Special Counsel
requires additional information or documentation to determine
whether the report submitted by the head of an agency is
reasonable and sufficient, the Special Counsel may request that
the head of the agency submit a supplemental report--
(A) containing the additional information or
documentation identified by the Special Counsel; and
(B) that the head of the agency shall submit to the
Special Counsel within a period of time specified by
the Special Counsel.
(f) In any case in which evidence of a criminal violation
obtained by an agency in an investigation under subsection (c)
of this section is referred to the Attorney General--
(1) the report shall not be transmitted to the
complainant; and
(2) the agency shall notify the Office of Personnel
Management and the Office of Management and Budget of
the referral.
(g)(1) If the Special Counsel receives information of a type
described in subsection (a) from an individual other than an
individual described in subparagraph (A) or (B) of subsection
(c)(2), the Special Counsel may transmit the information to the
head of the agency which the information concerns. The head of
such agency shall, within a reasonable time after the
information is transmitted, inform the Special Counsel in
writing of what action has been or is being taken and when such
action shall be completed. The Special Counsel shall inform the
individual of the report of the agency head.
(2) If the Special Counsel receives information of a type
described in subsection (a) from an individual described in
subparagraph (A) or (B) of subsection (c)(2), but does not make
a positive determination under subsection (b), the Special
Counsel may transmit the information to the head of the agency
which the information concerns, except that the information may
not be transmitted to the head of the agency without the
consent of the individual. The head of such agency shall,
within a reasonable time after the information is transmitted,
inform the Special Counsel in writing of what action has been
or is being taken and when such action will be completed. The
Special Counsel shall inform the individual of the report of
the agency head.
(3) If the Special Counsel does not transmit the information
to the head of the agency under paragraph (2), the Special
Counsel shall inform the individual of--
(A) the reasons why the disclosure may not be further
acted on under this chapter; and
(B) other offices available for receiving
disclosures, should the individual wish to pursue the
matter further.
(h) The identity of any individual who makes a disclosure
described in subsection (a) may not be disclosed by the Special
Counsel without such individual's consent unless the Special
Counsel determines that the disclosure of the individual's
identity is necessary because of an imminent danger to public
health or safety or imminent violation of any criminal law.
(i) Except as specifically authorized under this section, the
provisions of this section shall not be considered to authorize
disclosure of any information by any agency or any person which
is--
(1) specifically prohibited from disclosure by any
other provision of law; or
(2) specifically required by Executive order to be
kept secret in the interest of national defense or the
conduct of foreign affairs.
(j) With respect to any disclosure of information described
in subsection (a) which involves foreign intelligence or
counterintelligence information, if the disclosure is
specifically prohibited by law or by Executive order, the
Special Counsel shall transmit such information to the National
Security Advisor, the Permanent Select Committee on
Intelligence of the House of Representatives, and the Select
Committee on Intelligence of the Senate.
Sec. 1214. Investigation of prohibited personnel practices; corrective
action
(a)(1)(A) The Special Counsel shall receive any allegation of
a prohibited personnel practice and shall investigate the
allegation to the extent necessary to determine whether there
are reasonable grounds to believe that a prohibited personnel
practice has occurred, exists, or is to be taken.
(B) Within 15 days after the date of receiving an allegation
of a prohibited personnel practice under paragraph (1), the
Special Counsel shall provide written notice to the person who
made the allegation that--
(i) the allegation has been received by the Special
Counsel; and
(ii) shall include the name of a person at the Office
of Special Counsel who shall serve as a contact with
the person making the allegation.
(C) Unless an investigation is terminated under paragraph
(2), the Special Counsel shall--
(i) within 90 days after notice is provided under
subparagraph (B), notify the person who made the
allegation of the status of the investigation and any
action taken by the Office of the Special Counsel since
the filing of the allegation;
(ii) notify such person of the status of the
investigation and any action taken by the Office of the
Special Counsel since the last notice, at least every
60 days after notice is given under clause (i); and
(iii) notify such person of the status of the
investigation and any action taken by the Special
Counsel at such time as determined appropriate by the
Special Counsel.
(D) No later than 10 days before the Special Counsel
terminates any investigation of a prohibited personnel
practice, the Special Counsel shall provide a written status
report to the person who made the allegation of the proposed
findings of fact and legal conclusions. The person may submit
written comments about the report to the Special Counsel. The
Special Counsel shall not be required to provide a subsequent
written status report under this subparagraph after the
submission of such written comments.
(2)(A) If the Special Counsel terminates any investigation
under paragraph (1), the Special Counsel shall prepare and
transmit to any person on whose allegation the investigation
was initiated a written statement notifying the person of--
(i) the termination of the investigation;
(ii) a summary of relevant facts ascertained by the
Special Counsel, including the facts that support, and
the facts that do not support, the allegations of such
person;
(iii) the reasons for terminating the investigation;
and
(iv) a response to any comments submitted under
paragraph (1)(D).
(B) A written statement under subparagraph (A) may not be
admissible as evidence in any judicial or administrative
proceeding, without the consent of the person who received such
statement under subparagraph (A).
(3) Except in a case in which an employee, former employee,
or applicant for employment has the right to appeal directly to
the Merit Systems Protection Board under any law, rule, or
regulation, any such employee, former employee, or applicant
shall seek corrective action from the Special Counsel before
seeking corrective action from the Board. An employee, former
employee, or applicant for employment may seek corrective
action from the Board under section 1221, if such employee,
former employee, or applicant seeks corrective action for a
prohibited personnel practice described in [section 2302(b)(8)
or section 2302(b)(9)(A)(i), (B), (C), or (D)] section
2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or (E),
section 2302(b)(13), or section 2302(g) from the Special
Counsel and--
(A)(i) the Special Counsel notifies such employee,
former employee, or applicant that an investigation
concerning such employee, former employee, or applicant
has been terminated; and
(ii) no more than 60 days have elapsed since
notification was provided to such employee, former
employee, or applicant for employment that such
investigation was terminated; or
(B) 120 days after seeking corrective action from the
Special Counsel, such employee, former employee, or
applicant has not been notified by the Special Counsel
that the Special Counsel shall seek corrective action
on behalf of such employee, former employee, or
applicant.
(4) If an employee, former employee, or applicant seeks a
corrective action from the Board under section 1221, pursuant
to the provisions of paragraph (3)(B), the Special Counsel may
continue to seek corrective action personal to such employee,
former employee, or applicant only with the consent of such
employee, former employee, or applicant.
(5) In addition to any authority granted under paragraph (1),
the Special Counsel may, in the absence of an allegation,
conduct an investigation for the purpose of determining whether
there are reasonable grounds to believe that a prohibited
personnel practice (or a pattern of prohibited personnel
practices) has occurred, exists, or is to be taken.
(6)(A) Notwithstanding any other provision of this section,
not later than 30 days after the date on which the Special
Counsel receives an allegation of a prohibited personnel
practice under paragraph (1), the Special Counsel may terminate
an investigation of the allegation without further inquiry if
the Special Counsel determines that--
(i) the same allegation, based on the same set of
facts and circumstances, had previously been--
(I)(aa) made by the individual; and
(bb) investigated by the Special Counsel; or
(II) filed by the individual with the Merit
Systems Protection Board;
(ii) the Special Counsel does not have jurisdiction
to investigate the allegation; or
(iii) the individual knew or should have known of the
alleged prohibited personnel practice on or before the
date that is 3 years before the date on which the
Special Counsel received the allegation.
(B) Not later than 30 days after the date on which the
Special Counsel terminates an investigation under subparagraph
(A), the Special Counsel shall provide a written notification
to the individual who submitted the allegation of a prohibited
personnel practice that states the basis of the Special Counsel
for terminating the investigation.
(b)(1)(A)(i) The Special Counsel may request any member of
the Merit Systems Protection Board to order a stay of any
personnel action for 45 days if the Special Counsel determines
that there are reasonable grounds to believe that the personnel
action was taken, or is to be taken, as a result of a
prohibited personnel practice.
(ii) Any member of the Board requested by the Special Counsel
to order a stay under clause (i) shall order such stay unless
the member determines that, under the facts and circumstances
involved, such a stay would not be appropriate.
(iii) Unless denied under clause (ii), any stay under this
subparagraph shall be granted within 3 calendar days (excluding
Saturdays, Sundays, and legal holidays) after the date of the
request for the stay by the Special Counsel.
(B)(i) The Board may extend the period of any stay granted
under subparagraph (A) for any period which the Board considers
appropriate.
(ii) If the Board lacks the number of members appointed under
section 1201 required to constitute a quorum, any remaining
member of the Board may, upon request by the Special Counsel,
extend the period of any stay granted under subparagraph (A).
(C) The Board shall allow any agency which is the subject of
a stay to comment to the Board on any extension of stay
proposed under subparagraph (B).
(D) A stay may be terminated by the Board at any time, except
that a stay may not be terminated by the Board--
(i) on its own motion or on the motion of an agency,
unless notice and opportunity for oral or written
comments are first provided to the Special Counsel and
the individual on whose behalf the stay was ordered; or
(ii) on motion of the Special Counsel, unless notice
and opportunity for oral or written comments are first
provided to the individual on whose behalf the stay was
ordered.
(E) If the Board grants a stay under subparagraph (A), the
head of the agency employing the employee who is the subject of
the action shall give priority to a request for a transfer
submitted by the employee.
(2)(A)(i) Except as provided under clause (ii), no later than
240 days after the date of receiving an allegation of a
prohibited personnel practice under paragraph (1), the Special
Counsel shall make a determination whether there are reasonable
grounds to believe that a prohibited personnel practice has
occurred, exists, or is to be taken.
(ii) If the Special Counsel is unable to make the required
determination within the 240-day period specified under clause
(i) and the person submitting the allegation of a prohibited
personnel practice agrees to an extension of time, the
determination shall be made within such additional period of
time as shall be agreed upon between the Special Counsel and
the person submitting the allegation.
(B) If, in connection with any investigation, the Special
Counsel determines that there are reasonable grounds to believe
that a prohibited personnel practice has occurred, exists, or
is to be taken which requires corrective action, the Special
Counsel shall report the determination together with any
findings or recommendations to the Board, the agency involved
and to the Office of Personnel Management, and may report such
determination, findings and recommendations to the President.
The Special Counsel may include in the report recommendations
for corrective action to be taken.
(C) If, after a reasonable period of time, the agency does
not act to correct the prohibited personnel practice, the
Special Counsel may petition the Board for corrective action.
(D) If the Special Counsel finds, in consultation with the
individual subject to the prohibited personnel practice, that
the agency has acted to correct the prohibited personnel
practice, the Special Counsel shall file such finding with the
Board, together with any written comments which the individual
may provide.
(E) A determination by the Special Counsel under this
paragraph shall not be cited or referred to in any proceeding
under this paragraph or any other administrative or judicial
proceeding for any purpose, without the consent of the person
submitting the allegation of a prohibited personnel practice.
(3) Whenever the Special Counsel petitions the Board for
corrective action, the Board shall provide an opportunity for--
(A) oral or written comments by the Special Counsel,
the agency involved, and the Office of Personnel
Management; and
(B) written comments by any individual who alleges to
be the subject of the prohibited personnel practice.
(4)(A) The Board shall order such corrective action as the
Board considers appropriate, if the Board determines that the
Special Counsel has demonstrated that a prohibited personnel
practice, other than one described in [section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D)] section 2302(b)(8),
section 2302(b)(9)(A)(i), (B), (C), (D), or (E), section
2302(b)(13), or section 2302(g), has occurred, exists, or is to
be taken.
(B)(i) Subject to the provisions of clause (ii), in any case
involving an alleged prohibited personnel practice as described
under [section 2302(b)(8) or section 2302(b)(9)(A)(i), (B),
(C), or (D)] section 2302(b)(8), section 2302(b)(9)(A)(i), (B),
(C), (D), or (E), section 2302(b)(13), or section 2302(g), the
Board shall order such corrective action as the Board considers
appropriate if the Special Counsel has demonstrated that a
disclosure or protected activity described under [section
2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D)]
section 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or
(E), section 2302(b)(13), or section 2302(g) was a contributing
factor in the personnel action which was taken or is to be
taken against the individual.
(ii) Corrective action under clause (i) may not be ordered
if, after a finding that a protected disclosure was a
contributing factor, the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel
action in the absence of such disclosure.
(c)(1) Judicial review of any final order or decision of the
Board under this section may be obtained by any employee,
former employee, or applicant for employment adversely affected
by such order or decision.
(2) A petition for review under this subsection shall be
filed with such court, and within such time, as provided for
under section 7703(b).
(d)(1) If, in connection with any investigation under this
subchapter, the Special Counsel determines that there is
reasonable cause to believe that a criminal violation has
occurred, the Special Counsel shall report the determination to
the Attorney General and to the head of the agency involved,
and shall submit a copy of the report to the Director of the
Office of Personnel Management and the Director of the Office
of Management and Budget.
(2) In any case in which the Special Counsel determines that
there are reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to be taken, the
Special Counsel shall proceed with any investigation or
proceeding unless--
(A) the alleged violation has been reported to the
Attorney General; and
(B) the Attorney General is pursuing an
investigation, in which case the Special Counsel, after
consultation with the Attorney General, has discretion
as to whether to proceed.
(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.
(e) If, in connection with any investigation under this
subchapter, the Special Counsel determines that there is
reasonable cause to believe that any violation of any law,
rule, or regulation has occurred other than one referred to in
subsection (b) or (d), the Special Counsel shall report such
violation to the head of the agency involved. The Special
Counsel shall require, within 30 days after the receipt of the
report by the agency, a certification by the head of the agency
which states--
(1) that the head of the agency has personally
reviewed the report; and
(2) what action has been or is to be taken, and when
the action will be completed.
(f) During any investigation initiated under this subchapter,
no disciplinary action shall be taken against any employee for
any alleged prohibited activity under investigation or for any
related activity without the approval of the Special Counsel.
(g) If the Board orders corrective action under this section,
such corrective action may include--
(1) that the individual be placed, as nearly as
possible, in the position the individual would have
been in had the prohibited personnel practice not
occurred; and
(2) reimbursement for attorney's fees, back pay and
related benefits, medical costs incurred, travel
expenses, any other reasonable and foreseeable
consequential damages, and compensatory damages
(including interest, reasonable expert witness fees,
and costs).
(h) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.
(i) The Special Counsel may petition the Board to order
corrective action, including fees, costs, or damages reasonably
incurred by an employee due to an investigation of the employee
by an agency, if the investigation by an agency was commenced,
expanded, or extended in retaliation for a disclosure or
protected activity described in [section 2302(b)(8) or
subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9)]
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),
without regard to whether a personnel action, as defined in
section 2302(a)(2)(A), is taken.
Sec. 1215. Disciplinary action
(a)(1) Except as provided in subsection (b), if the Special
Counsel determines that disciplinary action should be taken
against any employee for having--
(A) committed a prohibited personnel practice,
(B) violated the provisions of any law, rule, or
regulation, or engaged in any other conduct within the
jurisdiction of the Special Counsel as described in
section 1216, or
(C) knowingly and willfully refused or failed to
comply with an order of the Merit Systems Protection
Board,
the Special Counsel shall prepare a written complaint against
the employee containing the Special Counsel's determination,
together with a statement of supporting facts, and present the
complaint and statement to the employee and the Board, in
accordance with this subsection.
(2) Any employee against whom a complaint has been presented
to the Merit Systems Protection Board under paragraph (1) is
entitled to--
(A) a reasonable time to answer orally and in
writing, and to furnish affidavits and other
documentary evidence in support of the answer;
(B) be represented by an attorney or other
representative;
(C) a hearing before the Board or an administrative
law judge appointed under section 3105 and designated
by the Board;
(D) have a transcript kept of any hearing under
subparagraph (C); and
(E) a written decision and reasons therefor at the
earliest practicable date, including a copy of any
final order imposing disciplinary action.
(3)(A) A final order of the Board may impose--
(i) disciplinary action consisting of removal,
reduction in grade, debarment from Federal employment
for a period not to exceed 5 years, suspension, or
reprimand;
(ii) an assessment of a civil penalty not to exceed
$1,000; or
(iii) any combination of disciplinary actions
described under clause (i) and an assessment described
under clause (ii).
(B) In any case brought under paragraph (1) in which the
Board finds that an employee has committed a prohibited
personnel practice under [section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D)] section 2302(b)(8), section
2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13),
or section 2302(g), the Board may impose disciplinary action if
the Board finds that the activity protected under [section
2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D)] section
2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or (E),
section 2302(b)(13), or section 2302(g) was a significant
motivating factor, even if other factors also motivated the
decision, for the employee's decision to take, fail to take, or
threaten to take or fail to take a personnel action, unless
that employee demonstrates, by a preponderance of the evidence,
that the employee would have taken, failed to take, or
threatened to take or fail to take the same personnel action,
in the absence of such protected activity.
(4) There may be no administrative appeal from an order of
the Board. An employee subject to a final order imposing
disciplinary action under this subsection may obtain judicial
review of the order by filing a petition therefor with such
court, and within such time, as provided for under section
7703(b).
(5) In the case of any State or local officer or employee
under chapter 15, the Board shall consider the case in
accordance with the provisions of such chapter.
(b) In the case of an employee in a confidential, policy-
making, policy-determining, or policy-advocating position
appointed by the President, by and with the advice and consent
of the Senate (other than an individual in the Foreign Service
of the United States), the complaint and statement referred to
in subsection (a)(1), together with any response of the
employee, shall be presented to the President for appropriate
action in lieu of being presented under subsection (a).
(c)(1) In the case of members of the uniformed services and
individuals employed by any person under contract with an
agency to provide goods or services, the Special Counsel may
transmit recommendations for disciplinary or other appropriate
action (including the evidence on which such recommendations
are based) to the head of the agency concerned.
(2) In any case in which the Special Counsel transmits
recommendations to an agency head under paragraph (1), the
agency head shall, within 60 days after receiving such
recommendations, transmit a report to the Special Counsel on
each recommendation and the action taken, or proposed to be
taken, with respect to each such recommendation.
* * * * * * *
SUBCHAPTER III--INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
Sec. 1221. Individual right of action in certain reprisal cases
(a) Subject to the provisions of subsection (b) of this
section and subsection 1214(a)(3), an employee, former
employee, or applicant for employment may, with respect to any
personnel action taken, or proposed to be taken, against such
employee, former employee, or applicant for employment, as a
result of a prohibited personnel practice described in [section
2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D),]
section 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or
(E), section 2302(b)(13), or section 2302(g), seek corrective
action from the Merit Systems Protection Board.
(b) This section may not be construed to prohibit any
employee, former employee, or applicant for employment from
seeking corrective action from the Merit Systems Protection
Board before seeking corrective action from the Special
Counsel, if such employee, former employee, or applicant for
employment has the right to appeal directly to the Board under
any law, rule, or regulation.
(c)(1) Any employee, former employee, or applicant for
employment seeking corrective action under subsection (a) may
request that the Board order a stay of the personnel action
involved.
[(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 that such a stay would be appropriate.]
(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)(A) The Board shall allow any agency which would be
subject to a stay under this subsection to comment to the Board
on such stay request.
(B) Except as provided in subparagraph (C), a stay granted
under this subsection shall remain in effect for such period as
the Board determines to be appropriate.
(C) The Board may modify or dissolve a stay under this
subsection at any time, if the Board determines that such a
modification or dissolution is appropriate.
(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.
(d)(1) At the request of an employee, former employee, or
applicant for employment seeking corrective action under
subsection (a), the Board shall issue a subpoena for the
attendance and testimony of any person or the production of
documentary or other evidence from any person if the Board
finds that the testimony or production requested is not unduly
burdensome and appears reasonably calculated to lead to the
discovery of admissible evidence.
(2) A subpoena under this subsection may be issued, and shall
be enforced, in the same manner as applies in the case of
subpoenas under section 1204.
(e)(1) Subject to the provisions of paragraph (2), in any
case involving an alleged prohibited personnel practice as
described under [section 2302(b)(8) or section
2302(b)(9)(A)(i), (B), (C), or (D),] section 2302(b)(8),
section 2302(b)(9)(A)(i), (B), (C), (D), or (E), section
2302(b)(13), or section 2302(g), the Board shall order such
corrective action as the Board considers appropriate if the
employee, former employee, or applicant for employment has
demonstrated that a disclosure or protected activity described
under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C),
or (D) was a contributing factor in the personnel action which
was taken or is to be taken against such employee, former
employee, or applicant. The employee may demonstrate that the
disclosure or protected activity was a contributing factor in
the personnel action through circumstantial evidence, such as
evidence that--
(A) the official taking the personnel action knew of
the disclosure or protected activity; and
(B) the personnel action occurred within a period of
time such that a reasonable person could conclude that
the disclosure or protected activity was a contributing
factor in the personnel action.
(2) Corrective action under paragraph (1) may not be ordered
if, after a finding that a protected disclosure was a
contributing factor, the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel
action in the absence of such disclosure.
(f)(1) A final order or decision shall be rendered by the
Board as soon as practicable after the commencement of any
proceeding under this section.
(2) A decision to terminate an investigation under subchapter
II may not be considered in any action or other proceeding
under this section.
(3) If, based on evidence presented to it under this section,
the Merit Systems Protection Board determines that there is
reason to believe that a current employee may have committed a
prohibited personnel practice, the Board shall refer the matter
to the Special Counsel to investigate and take appropriate
action under section 1215.
(g)(1)(A) If the Board orders corrective action under this
section, such corrective action may include--
(i) that the individual be placed, as nearly as
possible, in the position the individual would have
been in had the prohibited personnel practice not
occurred; and
(ii) back pay and related benefits, medical costs
incurred, travel expenses, any other reasonable and
foreseeable consequential damages, and compensatory
damages (including interest, reasonable expert witness
fees, and costs).
(B) Corrective action shall include attorney's fees and costs
as provided for under paragraphs (2) and (3).
(2) If an employee, former employee, or applicant for
employment is the prevailing party before the Merit Systems
Protection Board, and the decision is based on a finding of a
prohibited personnel practice, the agency involved shall be
liable to the employee, former employee, or applicant for
reasonable attorney's fees and any other reasonable costs
incurred.
(3) If an employee, former emloyee, or applicant for
employment is the prevailing party in an appeal from the Merit
Systems Protection Board, the agency involved shall be liable
to the employee, former employee, or applicant for reasonable
attorney's fees and any other reasonable costs incurred,
regardless of the basis of the decision.
(4) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.
(h)(1) An employee, former employee, or applicant for
employment adversely affected or aggrieved by a final order or
decision of the Board under this section may obtain judicial
review of the order or decision.
(2) A petition for review under this subsection shall be
filed with such court, and within such time, as provided for
under section 7703(b).
[(i) Subsections] (i) (1) Subsections (a) through (h) shall
apply in any proceeding brought under section 7513(d) if, or to
the extent that, a prohibited personnel practice as defined in
section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or
(D) is alleged.
(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).
(j) In determining the appealability of any case involving an
allegation made by an individual under the provisions of this
chapter, neither the status of an individual under any
retirement system established under a Federal statute nor any
election made by such individual under any such system may be
taken into account.
(k) If the Board grants a stay under subsection (c) and the
employee who is the subject of the action is in probationary
status, the head of the agency employing the employee shall
give priority to a request for a transfer submitted by the
employee.
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART A--GENERAL PROVISIONS
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
* * * * * * *
Sec. 2302. Prohibited personnel practices
(a)(1) For the purpose of this title, ``prohibited personnel
practice'' means any action described in subsection (b) or (g).
(2) For the purpose of this section--
(A) ``personnel action'' means--
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this
title or other disciplinary or corrective
action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter
43 of this title or under title 38;
(ix) a decision concerning pay, benefits, or
awards, or concerning education or training if
the education or training may reasonably be
expected to lead to an appointment, promotion,
performance evaluation, or other action
described in this subparagraph;
(x) a decision to order psychiatric testing
or examination;
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; [and]
(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
[(xii)] (xiii) any other significant change
in duties, responsibilities, or working
conditions;
with respect to an employee in, or applicant for, a covered
position in an agency, and in the case of an alleged prohibited
personnel practice described in subsection (b)(8), subsection
(b)(9)(A)(i), (B), (C), (D), or (E), subsection (b)(13), or
subsection (g), an employee or applicant for employment in a
Government corporation as defined in section 9101 of title 31,
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;
(B) ``covered position'' means, with respect to any
personnel action, any position in the competitive
service, a career appointee position in the Senior
Executive Service, or a position in the excepted
service, but does not include any position which is,
prior to the personnel action--
(i) excepted from the competitive service
because of its confidential, policy-
determining, policy-making, or policy-
advocating character; or
(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of good
administration;
(C) ``agency'' means an Executive agency and the
Government Publishing Office, but does not include--
(i) a Government corporation, except in the
case of an alleged prohibited personnel
practice described under [subsection (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D)]
section 2302(b)(8), section 2302(b)(9)(A)(i),
(B), (C), (D), or (E), section 2302(b)(13), or
section 2302(g);
(ii)(I) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security
Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance
Office; and
(II) as determined by the President, any
executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
provided that the determination be made prior
to a personnel action; or
(iii) the Government Accountability Office;
and
(D) ``disclosure'' means a formal or informal
communication or transmission, but does not include a
communication concerning policy decisions that lawfully
exercise discretionary authority unless the employee or
applicant providing the disclosure reasonably believes
that the disclosure evidences--
(i) any violation of any law, rule, or
regulation; or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(1) discriminate for or against any employee or
applicant for employment--
(A) on the basis of race, color, religion,
sex, or national origin, as prohibited under
section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under
sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited under
section 6(d) of the Fair Labor Standards Act of
1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition,
as prohibited under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or
political affiliation, as prohibited under any
law, rule, or regulation;
(2) solicit or consider any recommendation or
statement, oral or written, with respect to any
individual who requests or is under consideration for
any personnel action unless such recommendation or
statement is based on the personal knowledge or records
of the person furnishing it and consists of--
(A) an evaluation of the work performance,
ability, aptitude, or general qualifications of
such individual; or
(B) an evaluation of the character, loyalty,
or suitability of such individual;
(3) coerce the political activity of any person
(including the providing of any political contribution
or service), or take any action against any employee or
applicant for employment as a reprisal for the refusal
of any person to engage in such political activity;
(4) deceive or willfully obstruct any person with
respect to such person's right to compete for
employment;
(5) influence any person to withdraw from competition
for any position for the purpose of improving or
injuring the prospects of any other person for
employment;
(6) grant any preference or advantage not authorized
by law, rule, or regulation to any employee or
applicant for employment (including defining the scope
or manner of competition or the requirements for any
position) for the purpose of improving or injuring the
prospects of any particular person for employment;
(7) appoint, employ, promote, advance, or advocate
for appointment, employment, promotion, or advancement,
in or to a civilian position any individual who is a
relative (as defined in section 3110(a)(3) of this
title) of such employee if such position is in the
agency in which such employee is serving as a public
official (as defined in section 3110(a)(2) of this
title) or over which such employee exercises
jurisdiction or control as such an official;
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences--
(i) any violation of any law, rule,
or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety,
if such disclosure is not specifically
prohibited by law and if such information is
not specifically required by Executive order to
be kept secret in the interest of national
defense or the conduct of foreign affairs;
(B) any disclosure to the Special Counsel,
[or to the Inspector General of an agency or
another employee designated by the head of the
agency to receive such disclosures] 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, of information
which the employee or applicant reasonably
believes evidences--
(i) any violation (other than a
violation of this section) of any law,
rule, or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; or
(C) any disclosure to Congress (including any
committee of Congress) by any employee of an
agency or applicant for employment at an agency
of information described in subparagraph (B)
that is--
(i) not classified; or
(ii) if classified--
(I) has been classified by
the head of an agency that is
not an element of the
intelligence community (as
defined by section 3 of the
National Security Act of 1947
(50 U.S.C. 3003)); and
(II) does not reveal
intelligence sources and
methods.
(9) take or fail to take, or threaten to take or fail
to take, any personnel action against any employee or
applicant for employment because of--
(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation--
(i) with regard to remedying a
violation of paragraph (8); or
(ii) other than with regard to
remedying a violation of paragraph (8);
(B) testifying for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in subparagraph (A)(i) or
(ii);
(C) cooperating with or disclosing
information to the Inspector General (or any
other component responsible for internal
investigation or review) of an agency, or the
Special Counsel, in accordance with applicable
provisions of law; [or]
(D) refusing to obey an order that would
require the individual to violate a law, rule,
or regulation; or
(E) the exercise of any right protected under
section 7211;
(10) discriminate for or against any employee or
applicant for employment on the basis of conduct which
does not adversely affect the performance of the
employee or applicant or the performance of others;
except that nothing in this paragraph shall prohibit an
agency from taking into account in determining
suitability or fitness any conviction of the employee
or applicant for any crime under the laws of any State,
of the District of Columbia, or of the United States;
(11)(A) knowingly take, recommend, or approve any
personnel action if the taking of such action would
violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action
would violate a veterans' preference requirement;
(12) take or fail to take any other personnel action
if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title;
(13) implement or enforce any nondisclosure policy,
form, or agreement, if such policy, form, or
agreement--
(A) does not contain the following statement:
``These provisions are consistent with and do
not supersede, conflict with, or otherwise
alter the employee obligations, rights, or
liabilities created by existing statute or
Executive order relating to (1) classified
information, (2) communications to Congress,
(3) the reporting to an Inspector General or
the Office of Special Counsel of a violation of
any law, rule, or regulation, or mismanagement,
a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public
health or safety, or (4) any other
whistleblower protection. The definitions,
requirements, obligations, rights, sanctions,
and liabilities created by controlling
Executive orders and statutory provisions are
incorporated into this agreement and are
controlling.''; orI13(B) prohibits or restricts
an employee or applicant for employment from
disclosing to Congress, the Special Counsel,
the Inspector General of an agency, or any
other agency component responsible for internal
investigation or review any information that
relates to any violation of any law, rule, or
regulation, or mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety,
or any other whistleblower protection; or
(14) access the medical record of another employee or
an applicant for employment as a part of, or otherwise
in furtherance of, any conduct described in paragraphs
(1) through (13).
This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses information
to Congress. For purposes of paragraph (8), (i) any presumption
relating to the performance of a duty by an employee whose
conduct is the subject of a disclosure as defined under
subsection (a)(2)(D) may be rebutted by substantial evidence,
and (ii) a determination as to whether an employee or applicant
reasonably believes that such employee or applicant has
disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger to
public health or safety shall be made by determining whether a
disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee or applicant
could reasonably conclude that the actions of the Government
evidence such violations, mismanagement, waste, abuse, or
danger.
(c)(1) In this subsection--
(A) the term ``new employee'' means an individual--
(i) appointed to a position as an employee on
or after the date of enactment of this
subsection; and
(ii) who has not previously served as an
employee; and
(B) the term ``whistleblower protections'' means the
protections against and remedies for a prohibited
personnel practice described in [paragraph (8) or
subparagraph (A)(i), (B), (C), or (D) of paragraph (9)
of subsection (b)] paragraph (8), subparagraph (A)(i),
(B), (C), or (D) of paragraph (9), or paragraph (13) of
subsection (b) or subsection (g).
(2) The head of each agency shall be responsible for--
(A) preventing prohibited personnel practices;
(B) complying with and enforcing applicable civil
service laws, rules, and regulations and other aspects
of personnel management; and
(C) ensuring, in consultation with the Special
Counsel and the Inspector General of the agency, that
employees of the agency are informed of the rights and
remedies available to the employees under this chapter
and chapter 12, including--
(i) information with respect to whistleblower
protections available to new employees during a
probationary period;
(ii) the role of the Office of Special
Counsel and the Merit Systems Protection Board
with respect to whistleblower protections; and
(iii) the means by which, with respect to
information that is otherwise required by law
or Executive order to be kept classified in the
interest of national defense or the conduct of
foreign affairs, an employee may make a lawful
disclosure of the information to--
(I) the Special Counsel;
(II) the Inspector General of an
agency;
(III) Congress (including any
committee of Congress with respect to
information that is not classified or,
if classified, has been classified by
the head of an agency that is not an
element of the intelligence community
and does not reveal intelligence
sources and methods); or
(IV) another employee of the agency
who is designated to receive such a
disclosure.
(3) The head of each agency shall ensure that the information
described in paragraph (2) is provided to each new employee of
the agency not later than 180 days after the date on which the
new employee is appointed.
(4) The head of each agency shall make available information
regarding whistleblower protections applicable to employees of
the agency on the public website of the agency and on any
online portal that is made available only to employees of the
agency, if such portal exists.
(5) Any employee to whom the head of an agency delegates
authority for any aspect of personnel management shall, within
the limits of the scope of the delegation, be responsible for
the activities described in paragraph (2).
(d) This section shall not be construed to extinguish or
lessen any effort to achieve equal employment opportunity
through affirmative action or any right or remedy available to
any employee or applicant for employment in the civil service
under--
(1) section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16), prohibiting discrimination on the
basis of race, color, religion, sex, or national
origin;
(2) sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a),
prohibiting discrimination on the basis of age;
(3) under section 6(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(d)), prohibiting
discrimination on the basis of sex;
(4) section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), prohibiting discrimination on the basis of
handicapping condition; or
(5) the provisions of any law, rule, or regulation
prohibiting discrimination on the basis of marital
status or political affiliation.
(e)(1) For the purpose of this section, the term ``veterans'
preference requirement'' means any of the following provisions
of law:
(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312,
3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351,
3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with
respect to a preference eligible referred to in section
7511(a)(1)(B)) subchapter II of chapter 75 and section
7701.
(B) Sections 943(c)(2) and 1784(c) of title 10.
(C) Section 1308(b) of the Alaska National Interest
Lands Conservation Act.
(D) Section 301(c) of the Foreign Service Act of
1980.
(E) Sections 106(f), 7281(e), and 7802(5) of title
38.
(F) Section 1005(a) of title 39.
(G) Any other provision of law that the Director of
the Office of Personnel Management designates in
regulations as being a veterans' preference requirement
for the purposes of this subsection.
(H) Any regulation prescribed under subsection (b) or
(c) of section 1302 and any other regulation that
implements a provision of law referred to in any of the
preceding subparagraphs.
(2) Notwithstanding any other provision of this title, no
authority to order corrective action shall be available in
connection with a prohibited personnel practice described in
subsection (b)(11). Nothing in this paragraph shall be
considered to affect any authority under section 1215 (relating
to disciplinary action).
(f)(1) A disclosure shall not be excluded from subsection
(b)(8) because--
(A) the disclosure was made to a supervisor or to a
person who participated in an activity that the
employee or applicant reasonably believed to be covered
by subsection (b)(8)(A)(i) and (ii);
(B) the disclosure revealed information that had been
previously disclosed;
(C) of the employee's or applicant's motive for
making the disclosure;
(D) the disclosure was not made in writing;
(E) the disclosure was made while the employee was
off duty;
(F) the disclosure was made before the date on which
the individual was appointed or applied for appointment
to a position; or
(G) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
(2) If a disclosure is made during the normal course of
duties of an employee, the principal job function of whom is to
regularly investigate and disclose wrongdoing (referred to in
this paragraph as the ``disclosing employee''), the disclosure
shall not be excluded from subsection (b)(8) if the disclosing
employee demonstrates that an employee who has the authority to
take, direct other individuals to take, recommend, or approve
any personnel action with respect to the disclosing employee
took, failed to take, or threatened to take or fail to take a
personnel action with respect to the disclosing employee in
reprisal for the disclosure made by the disclosing employee.
(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.
(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.
* * * * * * *
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
* * * * * * *
CHAPTER 72--ANTIDISCRIMINATION; RIGHT TO PETITION CONGRESS
SUBCHAPTER I--ANTIDISCRIMINATION IN EMPLOYMENT
Sec.
7201. Antidiscrimination policy; minority recruitment program.
* * * * * * *
SUBCHAPTER II--EMPLOYEES' RIGHT TO PETITION CONGRESS
[7211. Employees' right to petition Congress]
7211. Employees' right to petition or furnish information or respond to
Congress.
* * * * * * *
SUBCHAPTER II--EMPLOYEES' RIGHT TO PETITION CONGRESS
[Sec. 7211. Employees' right to petition Congress
[The right of employees, individually or collectively, to
petition Congress or a Member of Congress, or to furnish
information to either House of Congress, or to a committee or
Member thereof, may not be interfered with or denied.]
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.
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
* * * * * * *
SUBCHAPTER II--REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN
GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
* * * * * * *
Sec. 7512. Actions covered
This subchapter applies to--
(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; [and]
[(5) a furlough of 30 days or less;]
(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;
but does not apply to--
(A) a suspension or removal under section 7532 of
this title,
(B) a reduction-in-force action under section 3502 of
this title,
(C) the reduction in grade of a supervisor or manager
who has not completed the probationary period under
section 3321(a)(2) of this title if such reduction is
to the grade held immediately before becoming such a
supervisor or manager,
(D) a reduction in grade or removal under section
4303 of this title,
(E) an action initiated under section 1215 or 7521 of
this title, or
(F) a suitability action taken by the Office under
regulations prescribed by the Office, subject to the
rules prescribed by the President under this title for
the administration of the competitive service.
* * * * * * *
Sec. 7515. Discipline of supervisors based on retaliation against
whistleblowers
(a) Definitions.--In this section--
(1) the term ``agency''--
(A) has the meaning given the term in section
2302(a)(2)(C), without regard to whether any
other provision of this chapter is applicable
to the entity; and
(B) does not include any entity that is an
element of the intelligence community, as
defined in section 3 of the National Security
Act of 1947 (50 U.S.C. 3003);
(2) the term ``prohibited personnel action'' means
taking or failing to take an action in violation of
[paragraph (8), (9), or (14) of section 2302(b)]
paragraph (8), (9), (13), or (14) of section 2302(b) or
section 2302(g) against an employee of an agency; and
(3) the term ``supervisor'' means an employee who
would be a supervisor, as defined in section 7103(a),
if the entity employing the employee was an agency.
(b) Proposed Disciplinary Actions.--
(1) In general.--Subject to section 1214(f), if the
head of the agency in which a supervisor is employed,
an administrative law judge, the Merit Systems
Protection Board, the Special Counsel, a judge of the
United States, or the Inspector General of the agency
in which a supervisor is employed has determined that
the supervisor committed a prohibited personnel action,
the head of the agency in which the supervisor is
employed, consistent with the procedures required under
paragraph (2)--
(A) for the first prohibited personnel action
committed by the supervisor--
(i) shall propose suspending the
supervisor for a period that is not
less than 3 days; and
(ii) may propose an additional action
determined appropriate by the head of
the agency, including a reduction in
grade or pay; and
(B) for the second prohibited personnel
action committed by the supervisor, shall
propose removing the supervisor.
(2) Procedures.--
(A) Notice.--A supervisor against whom an
action is proposed to be taken under paragraph
(1) is entitled to written notice that--
(i) states the specific reasons for
the proposed action; and
(ii) informs the supervisor about the
right of the supervisor to review the
material that is relied on to support
the reasons given in the notice for the
proposed action.
(B) Answer and evidence.--
(i) In general.--A supervisor who
receives notice under subparagraph (A)
may, not later than 14 days after the
date on which the supervisor receives
the notice, submit an answer and
furnish evidence in support of that
answer.
(ii) No evidence furnished;
insufficient evidence furnished.--If,
after the end of the 14-day period
described in clause (i), a supervisor
does not furnish any evidence as
described in that clause, or if the
head of the agency in which the
supervisor is employed determines that
the evidence furnished by the
supervisor is insufficient, the head of
the agency shall carry out the action
proposed under subparagraph (A) or (B)
of paragraph (1), as applicable.
(C) Scope of procedures.--An action carried
out under this section--
(i) except as provided in clause
(ii), shall be subject to the same
requirements and procedures, including
those with respect to an appeal, as an
action under section 7503, 7513, or
7543; and
(ii) shall not be subject to--
(I) paragraphs (1) and (2) of
section 7503(b);
(II) paragraphs (1) and (2)
of subsection (b) and
subsection (c) of section 7513;
and
(III) paragraphs (1) and (2)
of subsection (b) and
subsection (c) of section 7543.
(3) Non-delegation.--If the head of an agency is
responsible for determining whether a supervisor has
committed a prohibited personnel action for purposes of
paragraph (1), the head of the agency may not delegate
that responsibility.
* * * * * * *
CHAPTER 77--APPEALS
* * * * * * *
Sec. 7701. Appellate procedures
(a) An employee, or applicant for employment, may submit an
appeal to the Merit Systems Protection Board from any action
which is appealable to the Board under any law, rule, or
regulation. An appellant shall have the right--
(1) to a hearing for which a transcript will be kept;
and
(2) to be represented by an attorney or other
representative.
Appeals shall be processed in accordance with regulations
prescribed by the Board.
(b)(1) The Board may hear any case appealed to it or may
refer the case to an administrative law judge appointed under
section 3105 of this title or other employee of the Board
designated by the Board to hear such cases, except that in any
case involving a removal from the service, the case shall be
heard by the Board, an employee experienced in hearing appeals,
or an administrative law judge. The Board, administrative law
judge, or other employee (as the case may be) shall make a
decision after receipt of the written representations of the
parties to the appeal and after opportunity for a hearing under
subsection (a)(1) of this section. A copy of the decision shall
be furnished to each party to the appeal and to the Office of
Personnel Management.
(2)(A) If an employee or applicant for employment is the
prevailing party in an appeal under this subsection, the
employee or applicant shall be granted the relief provided in
the decision effective [upon the making of the decision] 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, and remaining in effect pending the
outcome of any petition for review under subsection (e),
unless--
(i) the deciding official determines that the
granting of such relief is not appropriate; or
(ii)(I) the relief granted in the decision provides
that such employee or applicant shall return or be
present at the place of employment during the period
pending the outcome of any petition for review under
subsection (e); and
(II) the employing agency, subject to the provisions
of subparagraph (B), determines that the return or
presence of such employee or applicant is unduly
disruptive to the work environment.
(B) If an agency makes a determination under subparagraph
(A)(ii)(II) that prevents the return or presence of an employee
at the place of employment, such employee shall receive pay,
compensation, and all other benefits as terms and conditions of
employment during the period pending the outcome of any
petition for review under subsection (e).
(C) Nothing in the provisions of this paragraph may be
construed to require any award of back pay or attorney fees be
paid before the decision is final.
(3) With respect to an appeal from an adverse action covered
by subchapter V of chapter 75, authority to mitigate the
personnel action involved shall be available, subject to the
same standards as would apply in an appeal involving an action
covered by subchapter II of chapter 75 with respect to which
mitigation authority under this section exists.
(c)(1) Subject to paragraph (2) of this subsection, the
decision of the agency shall be sustained under subsection (b)
only if the agency's decision--
(A) in the case of an action based on unacceptable
performance described in section 4303, is supported by
substantial evidence; or
(B) in any other case, is supported by a
preponderance of the evidence.
(2) Notwithstanding paragraph (1), the agency's decision may
not be sustained under subsection (b) of this section if the
employee or applicant for employment--
(A) shows harmful error in the application of the
agency's procedures in arriving at such decision;
(B) shows that the decision was based on any
prohibited personnel practice described in section
2302(b) or section 2302(g) of this title; or
(C) shows that the decision was not in accordance
with law.
(d)(1) In any case in which--
(A) the interpretation or application of any civil
service law, rule, or regulation, under the
jurisdiction of the Office of Personnel Management is
at issue in any proceeding under this section; and
(B) the Director of the Office of Personnel
Management is of the opinion that an erroneous decision
would have a substantial impact on any civil service
law, rule, or regulation under the jurisdiction of the
Office;
the Director may as a matter of right intervene or otherwise
participate in that proceeding before the Board. If the
Director exercises his right to participate in a proceeding
before the Board, he shall do so as early in the proceeding as
practicable. Nothing in this title shall be construed to permit
the Office to interfere with the independent decisionmaking of
the Merit Systems Protection Board.
(2) The Board shall promptly notify the Director whenever the
interpretation of any civil service law, rule, or regulation
under the jurisdiction of the Office is at issue in any
proceeding under this section.
(e)(1) Except as provided in section 7702 of this title, any
decision under subsection (b) of this section shall be final
unless--
(A) a party to the appeal or the Director petitions
the Board for review within 30 days after the receipt
of the decision; or
(B) the Board reopens and reconsiders a case on its
own motion.
The Board, for good cause shown, may extend the 30-day period
referred to in subparagraph (A) of this paragraph. One member
of the Board may grant a petition or otherwise direct that a
decision be reviewed by the full Board. The preceding sentence
shall not apply if, by law, a decision of an administrative law
judge is required to be acted upon by the Board.
(2) The Director may petition the Board for a review under
paragraph (1) of this subsection only if the Director is of the
opinion that the decision is erroneous and will have a
substantial impact on any civil service law, rule, or
regulation under the jurisdiction of the Office.
(f) The Board, or an administrative law judge or other
employee of the Board designated to hear a case, may--
(1) consolidate appeals filed by two or more
appellants, or
(2) join two or more appeals filed by the same
appellant and hear and decide them concurrently,
if the deciding official or officials hearing the cases are of
the opinion that the action could result in the appeals' being
processed more expeditiously and would not adversely affect any
party.
(g)(1) Except as provided in paragraph (2) of this
subsection, the Board, or an administrative law judge or other
employee of the Board designated to hear a case, may require
payment by the agency involved of reasonable attorney fees
incurred by an employee or applicant for employment if the
employee or applicant is the prevailing party and the Board,
administrative law judge, or other employee (as the case may
be) determines that payment by the agency is warranted in the
interest of justice, including any case in which a prohibited
personnel practice was engaged in by the agency or any case in
which the agency's action was clearly without merit.
(2) If an employee or applicant for employment is the
prevailing party and the decision is based on a finding of
discrimination prohibited under section 2302(b)(1) of this
title, the payment of attorney fees shall be in accordance with
the standards prescribed under section 706(k) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
(h) The Board may, by regulation, provide for one or more
alternative methods for settling matters subject to the
appellate jurisdiction of the Board which shall be applicable
at the election of an applicant for employment or of an
employee who is not in a unit for which a labor organization is
accorded exclusive recognition, and shall be in lieu of other
procedures provided for under this section. A decision under
such a method shall be final, unless the Board reopens and
reconsiders a case at the request of the Office of Personnel
Management under subsection (e) of this section.
(i)(1) Upon the submission of any appeal to the Board under
this section, the Board, through reference to such categories
of cases, or other means, as it determines appropriate, shall
establish and announce publicly the date by which it intends to
complete action on the matter. Such date shall assure
expeditious consideration of the appeal, consistent with the
interests of fairness and other priorities of the Board. If the
Board fails to complete action on the appeal by the announced
date, and the expected delay will exceed 30 days, the Board
shall publicly announce the new date by which it intends to
complete action on the appeal.
(2) Not later than March 1 of each year, the Board shall
submit to the Congress a report describing the number of
appeals submitted to it during the preceding fiscal year, the
number of appeals on which it completed action during that
year, and the number of instances during that year in which it
failed to conclude a proceeding by the date originally
announced, together with an explanation of the reasons
therefor.
(3) The Board shall by rule indicate any other category of
significant Board action which the Board determines should be
subject to the provisions of this subsection.
(4) It shall be the duty of the Board, an administrative law
judge, or employee designated by the Board to hear any
proceeding under this section to expedite to the extent
practicable that proceeding.
(j) In determining the appealability under this section of
any case involving a removal from the service (other than the
removal of a reemployed annuitant), neither an individual's
status under any retirement system established by or under
Federal statute nor any election made by such individual under
any such system may be taken into account.
(k) The Board may prescribe regulations to carry out the
purpose of this section.
* * * * * * *
Sec. 7703. Judicial review of decisions of the Merit Systems Protection
Board
(a)(1) Any employee or applicant for employment adversely
affected or aggrieved by a final order or decision of the Merit
Systems Protection Board may obtain judicial review of the
order or decision.
(2) The Board shall be named respondent in any proceeding
brought pursuant to this subsection, unless the employee or
applicant for employment seeks review of a final order or
decision on the merits on the underlying personnel action or on
a request for attorney fees, in which case the agency
responsible for taking the personnel action shall be the
respondent.
(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.
(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2) of this subsection, a petition to review a final
order or final decision of the Board shall be filed in the
United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review shall be filed within 60 days after the Board issues
notice of the final order or decision of the Board.
(B) A petition to review a final order or final decision of
the Board that raises no challenge to the Board's disposition
of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in [section
2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D)] section
2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or (E),
section 2302(b)(13), or section 2302(g) shall be filed in the
United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction. Notwithstanding any
other provision of law, any petition for review shall be filed
within 60 days after the Board issues notice of the final order
or decision of the Board.
(2) Cases of discrimination subject to the provisions of
section 7702 of this title shall be filed under section 717(c)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)),
section 15(c) of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor
Standards Act of 1938, as amended (29 U.S.C. 216(b)), as
applicable. Notwithstanding any other provision of law, any
such case filed under any such section must be filed within 30
days after the date the individual filing the case received
notice of the judicially reviewable action under such section
7702.
(c) In any case filed in the United States Court of Appeals
for the Federal Circuit, the court shall review the record and
hold unlawful and set aside any agency action, findings, or
conclusions found to be--
(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(2) obtained without procedures required by law,
rule, or regulation having been followed; or
(3) unsupported by substantial evidence;
except that in the case of discrimination brought under any
section referred to in subsection (b)(2) of this section, the
employee or applicant shall have the right to have the facts
subject to trial de novo by the reviewing court.
(d)(1) Except as provided under paragraph (2), this paragraph
shall apply to any review obtained by the Director of the
Office of Personnel Management. The Director may obtain review
of any final order or decision of the Board by filing, within
60 days after the Board issues notice of the final order or
decision of the Board, a petition for judicial review in the
United States Court of Appeals for the Federal Circuit if the
Director determines, in the discretion of the Director, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the Board's
decision will have a substantial impact on a civil service law,
rule, regulation, or policy directive. If the Director did not
intervene in a matter before the Board, the Director may not
petition for review of a Board decision under this section
unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.
In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the
right to appear in the proceeding before the Court of Appeals.
The granting of the petition for judicial review shall be at
the discretion of the Court of Appeals.
(2) This paragraph shall apply to any review obtained by the
Director of the Office of Personnel Management that raises no
challenge to the Board's disposition of allegations of a
prohibited personnel practice described in section 2302(b)
other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D). The Director may obtain
review of any final order or decision of the Board by filing,
within 60 days after the Board issues notice of the final order
or decision of the Board, a petition for judicial review in the
United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction if the Director
determines, in the discretion of the Director, that the Board
erred in interpreting a civil service law, rule, or regulation
affecting personnel management and that the Board's decision
will have a substantial impact on a civil service law, rule,
regulation, or policy directive. If the Director did not
intervene in a matter before the Board, the Director may not
petition for review of a Board decision under this section
unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.
In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the
right to appear in the proceeding before the court of appeals.
The granting of the petition for judicial review shall be at
the discretion of the court of appeals.
* * * * * * *
----------
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION COMMISSIONED OFFICER
CORPS ACT OF 2002
* * * * * * *
TITLE II--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION COMMISSIONED
OFFICER CORPS
* * * * * * *
Subtitle E--Rights and Benefits
SEC. 261. APPLICABILITY OF CERTAIN PROVISIONS OF TITLE 10, UNITED
STATES CODE.
(a) Provisions Made Applicable to the Corps.--The rules of
law that apply to the Armed Forces under the following
provisions of title 10, United States Code, as those provisions
are in effect from time to time, apply also to the commissioned
officer corps of the Administration:
(1) Chapter 40, relating to leave.
(2) Section 533(b), relating to constructive service.
(3) Section 716, relating to transfers between the
armed forces and to and from National Oceanic and
Atmospheric Administration.
(4) Section 771, relating to unauthorized wearing of
uniforms.
(5) Section 774, relating to wearing religious
apparel while in uniform.
(6) Section 982, relating to service on State and
local juries.
(7) Section 1031, relating to administration of
oaths.
[(8) Section 1034, relating to protected
communications and prohibition of retaliatory personnel
actions.]
[(9)] (8) Section 1035, relating to deposits of
savings.
[(10)] (9) Section 1036, relating to transportation
and travel allowances for escorts for dependents of
members.
[(11)] (10) Section 1052, relating to reimbursement
for adoption expenses.
[(12)] (11) Section 1074n, relating to annual mental
health assessments.
[(13)] (12) Section 1090a, relating to referrals for
mental health evaluations.
[(14)] (13) Chapter 58, relating to the Benefits and
Services for members being separated or recently
separated.
[(15)] (14) Section 1174a, relating to special
separation benefits (except that benefits under
subsection (b)(2)(B) of such section are subject to the
availability of appropriations for such purpose and are
provided at the discretion of the Secretary of
Commerce).
[(16)] (15) Chapter 61, relating to retirement or
separation for physical disability.
[(17)] (16) Chapter 69, relating to retired grade,
except sections 1370, 1375, and 1376.
[(18)] (17) Chapter 71, relating to computation of
retired pay.
[(19)] (18) Chapter 73, relating to annuities based
on retired or retainer pay.
[(20)] (19) Subchapter II of chapter 75, relating to
death benefits.
[(21)] (20) Subchapter I of chapter 88, relating to
Military Family Programs, applicable on an as-available
and fully reimbursable basis.
[(22)] (21) Section 2005, relating to advanced
education assistance, active duty agreements, and
reimbursement requirements.
[(23)] (22) Section 2634, relating to transportation
of motor vehicles for members on permanent change of
station.
[(24)] (23) Sections 2731 and 2735, relating to
property loss incident to service.
[(25)] (24) Section 2771, relating to final
settlement of accounts of deceased members.
[(26)] (25) Such other provisions of subtitle A of
that title as may be adopted for applicability to the
commissioned officer corps of the National Oceanic and
Atmospheric Administration by any other provision of
law.
(b) References.--The authority vested by title 10, United
States Code, in the ``military departments'', ``the Secretary
concerned'', or ``the Secretary of Defense'' with respect to
the provisions of law referred to in subsection (a) shall be
exercised, with respect to the commissioned officer corps of
the Administration, by the Secretary of Commerce or the
Secretary's designee. [For purposes of paragraph (8) of
subsection (a), the term ``Inspector General'' in section 1034
of such title 10 shall mean the Inspector General of the
Department of Commerce.]
(c) Regulations Regarding Protected Communications and
Prohibition of Retaliatory Personnel Actions.--The Secretary
may prescribe regulations to carry out the application of
section 1034 of title 10, United States Code, to the
commissioned officer corps of the Administration, including by
prescribing such administrative procedures for investigation
and appeal within the commissioned officer corps as the
Secretary considers appropriate.
* * * * * * *
----------
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012
* * * * * * *
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
* * * * * * *
[SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR
TECHNICAL INFORMATION.
[(a) Definitions.--In this subsection--
[(1) the term ``agency'' has the meaning given under
section 2302(a)(2)(C) of title 5, United States Code;
[(2) the term ``applicant'' means an applicant for a
covered position;
[(3) the term ``censorship related to research,
analysis, or technical information'' means any effort
to distort, misrepresent, or suppress research,
analysis, or technical information;
[(4) the term ``covered position'' has the meaning
given under section 2302(a)(2)(B) of title 5, United
States Code;
[(5) the term ``employee'' means an employee in a
covered position in an agency; and
[(6) the term ``disclosure'' has the meaning given
under section 2302(a)(2)(D) of title 5, United States
Code.
[(b) Protected Disclosure.--
[(1) In general.--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--
[(A) shall come within the protections of
section 2302(b)(8)(A) of title 5, United States
Code, if--
[(i) the employee or applicant
reasonably believes that the censorship
related to research, analysis, or
technical information is or will
cause--
[(I) any violation of law,
rule, or regulation; or
[(II) 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
[(B) shall come within the protections of
section 2302(b)(8)(B) of title 5, United States
Code, if--
[(i) the employee or applicant
reasonably believes that the censorship
related to research, analysis, or
technical information is or will
cause--
[(I) any violation of law,
rule, or regulation; or
[(II) 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.
[(2) Disclosures not excluded.--A disclosure shall
not be excluded from paragraph (1) for any reason
described under section 2302(f)(1) or (2) of title 5,
United States Code.
[(3) Rule of construction.--Nothing in this section
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.]
* * * * * * *
MINORITY VIEWS
Republicans oppose H.R. 2988, the Whistleblower Protection
Improvement Act (WPIA), because the bill severely restrains the
executive branch from managing bad-acting employees who claim
whistleblower status to protect their positions. The WPIA's
stated intent is to bolster recourses and remedies for
whistleblowers beyond the protections they already have.
Whistleblowers serve an important role in the federal
government by reporting instances of waste, fraud, or abuse.
They have no shortage of protections for their actions, as
evidenced by the already existing Whistleblower Protection Act
(Pub. L. 101-12), Intelligence Community Whistleblower
Protection Act of 1998 (Pub. L. 105-272), Notification and
Federal Employee Antidiscrimination and Retaliation Act of 2002
(Pub. L. 107-174), Whistleblower Protection Enhancement Act
(Pub. L. 112-199), Executive Order 13526 (75 FR 705),
Presidential Policy Directive 19, and many others. The need to
protect whistleblowers is one of the most bipartisan points of
agreement in Congress (and Congress has rarely failed to pass
legislation to highlight that).
There are creditable portions of the WPIA that Republicans
do not oppose, such as the expansion of whistleblower
protections to Senior Executive Service employees, Public
Health Service officials, and the Commissioned Officer Corps of
the National Oceanic and Atmospheric Administration. However,
there is much in the bill that goes too far.
For example, Section 2(a) would chill reporting to
inspectors general and would create an almost impervious legal
veil around whistleblowers--regardless of the merit of their
claims--that presumes all whistleblowers act in good faith.
Some do not. And bad actors who should face disciplinary
actions because of their actions should not be able to so
easily cast themselves as whistleblowers, avail themselves of
whistleblower protections, and entrench themselves in the
federal government that they undermine or inhibit.
There exists a difference that becomes lost in the WPIA
between ``retaliation'' against legitimate whistleblowers and
consequences, including disciplinary action or termination, in
response to unacceptable actions taken by a government
employee. The proponents of the WPIA reference the Government
Accountability Office's report that indicates a higher rate of
termination for whistleblowers than other employees.\1\ But the
same report indicates the data ``do not represent proof of a
causal relationship between filing [of a whistleblower
complaint] and terminations.''\2\ Further, the estimates on
termination rates ``do not consider the timing or merit of
terminations, or other factors potentially associated with
terminations.'' It is possible the increased rate of
termination for whistleblowers is being distorted by employees
who determined their termination to be imminent and then sought
protection from establishing themselves as whistleblowers (and
were nonetheless terminated).
---------------------------------------------------------------------------
\1\Government Accountability Office, Whistleblowers: Office of
Special Counsel Should Require Information on the Probationary Status
of Whistleblowers, GAO-20-436 (May 28, 2020).
\2\Id. at 3.
---------------------------------------------------------------------------
Section 2(c)'s protection of employees' identities in all
situations is not good policy: there are legitimate times in
which a whistleblower is not entitled to total anonymity. Those
who would impugn the actions of a president or an executive
branch employee should be required to be identified in a court
or other setting when appropriate to gather information. The
alternative is to rely on hearsay evidence that undermines
judicial processes and infringes upon privileges encapsulated
by the Sixth Amendment's right to confront a witness.
The Majority's mention of a hole created by a 2020 Federal
Circuit Court decision is an allusion to Sistek v. Department
of Veterans Affairs,\3\ which involved the Administrative
Investigation Board (AIB) finding an Obama-era VA employee (Mr.
Sistek) had ``fail[ed] to act and/or investigate allegations of
a hostile work environment.''\4\ A subsequent AIB report found
``Mr. Sistek had failed to properly report information and
allegations regarding an inappropriate sexual relationship
between a director and director's subordinate staff
member.''\5\ Mr. Sistek was issued a letter of reprimand
pursuant to the AIB recommendation.\6\ Mr. Sistek argued to the
Merit Systems Protection Board (MSPB) that the AIB
investigation was in retaliation for his whistleblowing
activity relating to the use of certain VA funds.\7\ MSPB
denied Mr. Sistek corrective action on the matter.
---------------------------------------------------------------------------
\3\955 F.3d 948 (Fed. Cir. 2020).
\4\Id.
\5\Id.
\6\Id.
\7\Id.
---------------------------------------------------------------------------
The Federal Circuit's decision affirmed MSPB's decision
that the investigation into Mr. Sistek was merited and, also,
not a prohibited personnel action protected by whistleblower
laws.\8\ The Majority appears to disagree with the holding and
would have found Mr. Sistek was above reproach or investigation
because he became a whistleblower. The case underscores the
negative outcome that would come from allowing problematic
employees easy protections just by becoming whistleblowers.
Becoming a whistleblower should not shield an employee from
him/herself facing scrutiny for their inappropriate actions;
the WPIA would enshrine just that.
---------------------------------------------------------------------------
\8\Id.
---------------------------------------------------------------------------
At best, the WPIA is another whistleblower protection bill
in search of a problem. At worst, it is a means for Democrats
to talk about President Trump to distract from the failings of
President Biden. Though proponents of this bill may believe it
is politically difficult to vote against any bill with the
words ``whistleblower'' and ``protection'' in the name, it is
not the name of a bill that carries the force of law, but the
words within it. The federal courts have identified rightly
that not all actions taken against whistleblowers are
retaliation. Common sense would affirm that. While legitimate,
good-faith whistleblowers should be protected against reprisal
from their superiors, in so doing they do not become immune
from oversight themselves.
James Comer,
Ranking Member, Committee on
Oversight and Reform.
[all]