S.Amdt. 127

SA 127. Mrs. McCASKILL submitted an amendment intended to be proposed
to amendment SA 98 proposed by Mr. Inouye (for himself and Mr. Baucus)
to the bill H.R. 1, making supplemental appropriations for job
preservation and creation, infrastructure investment, energy efficiency
and science, assistance to the unemployed, and State and local fiscal
stabilization, for fiscal year ending September 30, 2009, and for other
purposes; which was ordered to lie on the table; as follows:

Strike section 1518 and insert the following:

SEC. 1518. PROTECTING STATE AND LOCAL GOVERNMENT AND
CONTRACTOR WHISTLEBLOWERS.

(a) Prohibition of Reprisals.--An employee of any non-
Federal employer receiving covered funds may not be
discharged, demoted, or otherwise discriminated against as a
reprisal for disclosing, including a disclosure made in the
ordinary course of an employee's duties, to the Board, an
inspector general, the Comptroller General, a member of
Congress, a State or Federal regulatory or law enforcement
agency, a person with supervisory authority over the employee
(or such other person working for the employer who has the
authority to investigate, discover, or terminate misconduct),
a court or grand jury, the head of a Federal agency, or their
representatives information that the employee reasonably
believes is evidence of--
(1) gross mismanagement of an agency contract or grant
relating to covered funds;
(2) a gross waste of covered funds;
(3) a substantial and specific danger to public health or
safety;
(4) an abuse of authority related to the implementation or
use of covered funds; or
(5) a violation of law, rule, or regulation related to an
agency contract (including the competition for or negotiation
of a contract) or grant, awarded or issued relating to
covered funds.
(b) Investigation of Complaints.--
(1) In general.--A person who believes that the person has
been subjected to a reprisal prohibited by subsection (a) may
submit a complaint regarding the reprisal to the appropriate
inspector general. Unless the inspector general determines
that the complaint is frivolous, does not relate to covered
funds, or another Federal or State judicial or administrative
proceeding has previously been invoked to resolve such
complaint, the inspector general shall investigate the
complaint and, upon completion of such investigation, submit
a report of the findings of the investigation to the person,
the person's employer, the head of the appropriate agency,
and the Board.
(2) Time limitations for actions.--
(A) In general.--Except as provided under subparagraph (B),
the inspector general shall, not later than 180 days after
receiving a complaint under paragraph (1)--
(i) make a determination that the complaint is frivolous,
does not relate to covered funds, or another Federal or State
judicial or administrative proceeding has previously been
invoked to resolve such complaint; or
(ii) submit a report under paragraph (1).
(B) Extension.--If the inspector general is unable to
complete an investigation in time to submit a report within
the 180-day period specified under subparagraph (A) and the
person submitting the complaint agrees to an extension of
time, the inspector general shall submit a report under
paragraph (1) within such additional period of time as shall
be agreed upon between the inspector general and the person
submitting the complaint.
(3) Burden of proof.--
(A) Disclosure as contributing factor in reprisal.--
(i) In general.--A person alleging a reprisal under this
section shall be deemed to have affirmatively established the
occurrence of the reprisal if the person demonstrates that a
disclosure described in subsection (a) was a contributing
factor in the reprisal.
(ii) Use of circumstantial evidence.--A disclosure may be
demonstrated as a contributing factor in a reprisal for
purposes of this paragraph by circumstantial evidence,
including--

(I) evidence that the official undertaking the reprisal
knew of the disclosure; or
(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.

(B) Presumption that reprisal warrants corrective action.--
Except as provided in subparagraph (C), if a reprisal is
affirmatively established under subparagraph (A), the
appropriate inspector general shall recommend in the report
under paragraph (1) that corrective action be taken under
subsection (c).
(C) Opportunity for rebuttal.--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 employer demonstrates by clear and
convincing evidence that the employer would have taken the
action constituting the reprisal in the absence of the
disclosure.
(4) Access to investigative file of inspector general.--
(A) In general.--The person alleging a reprisal under this
section shall have access to the complete investigation file
of the appropriate inspector general in accordance with
section 552a of title 5, United States Code (commonly
referred to as the ``Privacy Act''). The investigation of the
inspector general shall be deemed closed for purposes of
disclosure under such section when an employee files an
appeal to an agency head or a court of competent
jurisdiction.
(B) Civil action.--In the event the person alleging the
reprisal brings suit under subsection (c)(2)(a), the person
alleging the reprisal and the contractor shall have access to
the complete investigative file of the Inspector General in
accordance with the Privacy Act.
(5) Privacy of information.--An inspector general
investigating an alleged reprisal under this section may not
respond to any inquiry or disclose any information from or
about any person alleging such reprisal, except in accordance
with the provisions of section 552a of title 5, United States
Code, or as required by any other applicable Federal law.
(c) Remedy and Enforcement Authority.--
(1) Agency action.--Not later than 30 days after receiving
an inspector general report under subsection (b), the head of
the agency concerned shall determine whether there is
sufficient basis to conclude that the non-Federal employer
has subjected the complainant to a reprisal prohibited by
subsection (a) and shall either issue an order denying relief
or shall take 1 or more of the following actions:
(A) Order the employer to take affirmative action to abate
the reprisal.
(B) Order the employer to reinstate the person to the
position that the person held before the reprisal, together
with the compensation (including back pay), compensatory
damages, employment benefits, and other terms and conditions
of employment that would apply to the person in that position
if the reprisal had not been taken.

[[Page S1448]]

(C) Order the employer to pay the complainant an amount
equal to the aggregate amount of all costs and expenses
(including attorneys' fees and expert witnesses' fees) that
were reasonably incurred by the complainant for, or in
connection with, bringing the complaint regarding the
reprisal, as determined by the head of the agency or a court
of competent jurisdiction.
(2) Civil action.--
(A) In general.--If the head of an agency issues an order
denying relief under paragraph (1) or has not issued an order
within 210 days after the submission of a complaint under
subsection (b), or in the case of an extension of time under
subsection (b)(2)(B), not later than 30 days after the
expiration of the extension of time, and there is no showing
that such delay is due to the bad faith of the complainant,
the complainant shall be deemed to have exhausted all
administrative remedies with respect to the complaint, and
the complainant may bring a de novo action at law or equity
against the employer to seek compensatory damages and other
relief available under this section in the appropriate
district court of the United States, which shall have
jurisdiction over such an action without regard to the amount
in controversy. Such an action shall, at the request of
either party to the action, be tried by the court with a
jury.
(B) Burdens of proof.--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 with respect to burden of proof, and the
establishment that an action alleged to constitute a reprisal
did not constitute a reprisal shall be subject to the burden
of proof specified in subsection (b)(3)(C).
(3) Judicial enforcement of order.--Whenever a person fails
to comply with an order issued under paragraph (1), the head
of the agency shall file an action for enforcement of such
order in the United States district court for a district in
which the reprisal was found to have occurred. In any action
brought under this paragraph, the court may grant appropriate
relief, including injunctive relief, compensatory and
exemplary damages, and attorneys fees and costs.
(4) Judicial review.--Any person adversely affected or
aggrieved by an order issued under paragraph (1) may obtain
review of the order's conformance with this subsection, and
any regulations issued to carry out this section, in the
United States court of appeals for a circuit in which the
reprisal is alleged in the order to have occurred. No
petition seeking such review may be filed more than 60 days
after issuance of the order by the head of the agency. Review
shall conform to chapter 7 of title 5, United States Code.
(d) Rules of Construction.--
(1) No implied authority to retaliate for non-protected
disclosures.--Nothing in this section may be construed to
authorize the discharge of, demotion of, or discrimination
against an employee for a disclosure other than a disclosure
protected by subsection (a) or to modify or derogate from a
right or remedy otherwise available to the employee.
(2) Waiver of sovereign immunity as condition for receipt
of funds.--State and local governments, as a condition for
receipt of covered funds, may not raise sovereign immunity as
an affirmative defense to an action under this section.
(e) Nonenforceability of Certain Provisions Waiving Rights
and Remedies or Requiring Arbitration of Disputes.--
(1) Waiver of rights and remedies.--Notwithstanding any
other provision of law and except as provided under paragraph
(3), the rights and remedies provided for in this section may
not be waived by any agreement, policy, form, or condition of
employment, including by any predispute arbitration
agreement.
(2) Predispute arbitration agreements.--Notwithstanding any
other provision of law and except as provided under paragraph
(3), no predispute arbitration agreement shall be valid or
enforceable if it requires arbitration of a dispute arising
under this section.
(3) Exception for collective bargaining agreements.--
Notwithstanding paragraphs (1) and (2), an arbitration
provision in a collective bargaining agreement shall be
enforceable as to disputes arising under the collective
bargaining agreement.
(f) Requirement to Post Notice of Rights and Remedies.--Any
employer receiving covered funds shall post notice of the
rights and remedies provided under this section.
(g) Definitions.--In this Act:
(1) Abuse of authority.--The term ``abuse of authority''
means an arbitrary and capricious exercise of authority by a
contracting official or employee that adversely affects the
rights of any person, or that results in personal gain or
advantage to the official or employee or to preferred other
persons.
(2) Covered funds.--The term ``covered funds'' means any
contract, grant, or other payment received by any non-Federal
employer if--
(A) the Federal Government provides any portion of the
money or property that is provided, requested, or demanded;
and
(B) at least some of the funds are appropriated or
otherwise made available by this Act.
(3) Employee.--The term ``employee'' means an individual
performing services on behalf of an employer.
(4) Non-federal employer.--The term ``non-Federal
employer'' means any employer--
(A) with respect to any contract, grant, or direct payment
issued by the Federal Government--
(i) the contractor, subcontractor, grantee, or recipient,
as the case may be, if the contractor, grantee, or recipient
is an employer;
(ii) any professional membership organization,
certification or other professional body, any agency or
licensee of the Federal government, or any person acting
directly or indirectly in the interest of an employer
receiving Federal funds; or
(B) with respect to covered funds received by a State or
local government, the State or local government receiving the
funds and any contractor or subcontractor of the State or
local government.
(5) State or local government.--The term ``State or local
government'' means--
(A) the government of each of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam,
American Samoa, the Virgin Islands, the Northern Mariana Is
Lands, or any other territory or possession of the United
States; or
(B) the government of any political subdivision of a
government listed in subparagraph (A).
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