[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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

               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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                        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/).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.

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  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]