S.Amdt. 5312

1. Adds SEC. 834. IMPROVEMENT OF WHISTLEBLOWER PROTECTIONS FOR CONTRACTOR EMPLOYEES OF THE DEPARTMENT OF DEFENSE at the end of subtitle D of title VIII

   Adds a section

   In S. 3001 · Placed on Calendar Senate

   (c) Contractor Defined.--In this section, the term "contractor" has the meaning given that term in section 2409(e)(4) of title 10, United States Code.

   Inserted: SEC. 834. IMPROVEMENT OF WHISTLEBLOWER PROTECTIONS FOR CONTRACTOR EMPLOYEES OF THE DEPARTMENT OF DEFENSE.

   Inserted: (a) Disclosure of Investigation Files.--Paragraph (1) of subsection (b) of section 2409 of title 10, United States Code, is amended--

   Inserted: (1) by inserting "(A)" after "(1)"; and

   Inserted: (2) by adding at the end the following new subparagraph:

   Inserted: "(B) The file and any records of the investigation of a complaint under this paragraph shall be subject to disclosure in accordance with the provisions of section 552a of title 5.".

   Inserted: (b) Evidence Substantiating Occurrence of Reprisal.--Subsection (b) of such section is further amended by adding at the end the following new paragraph:

   Inserted: "(3)(A) A person alleging a reprisal under this section shall affirmatively establish the occurrence of the reprisal if the person demonstrates that a disclosure described in subsection (a) was a contributing factor in the reprisal. A disclosure may be demonstrated as a contributing factor for purposes of this paragraph by circumstantial evidence, including evidence as follows:

   Inserted: "(i) Evidence that the official undertaking the reprisal knew of the disclosure.

   Inserted: "(ii) Evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the disclosure was a contributing factor in the reprisal.

   Inserted: "(B) Except as provided in subparagraph (C), if a reprisal is affirmatively established under subparagraph (A), the Inspector General shall recommend in the report under paragraph (1) that corrective action be taken under subsection (c).

   Inserted: "(C) The Inspector General may not recommend corrective action under subparagraph (B) with respect to a reprisal that is affirmatively established under subparagraph (A) if the contractor demonstrates by clear and convincing evidence that the contractor would have taken the action constituting the reprisal in the absence of the disclosure.".

   Inserted: (c) Burden of Proof in Actions Following Lack of Relief.--Paragraph (2) of subsection (c) of such section is amended--

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   Inserted: (1) by inserting "(A)" after "(2)"; and

   Inserted: (2) by adding at the end the following new subparagraph:

   Inserted: "(B) In any action under subparagraph (A), the establishment of the occurrence of a reprisal shall be governed by the provisions of subsection (b)(3)(A), including the burden of proof in that subsection, subject to the establishment by the contractor that the action alleged to constitute the reprisal did not constitute a reprisal in accordance with the provisions of subsection (b)(3)(C), including the burden of proof in that subsection.".

   Inserted: (d) Clarification of Recourse to Judicial Review.--Paragraph (5) of subsection (c) of such section is amended by striking "Any person" and inserting "Except in the case of a complainant who brings an action under paragraph (2), any person".

   Original wording

   At the end of subtitle D of title VIII, add the following:

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As printed