S.Amdt. 507

SA 507. 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 related to the implementation or use of covered funds;
(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. Except as provided under paragraph (3),
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) Extensions.--
(i) Voluntary extension agreed to between inspector general
and complainant.--If the inspector general is unable to
complete an investigation under this section 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.
(ii) Extension granted by inspector general.--If the
inspector general is unable to complete an investigation
under this section in time to submit a report within the 180-
day period specified under subparagraph (A), the inspector
general may extend the period for not more than 180 days
without agreeing with the person submitting the complaint to
such extension, provided that the Inspector General provides
a written explanation (subject to the authority to exclude
information under paragraph (5)(C)) for the decision, which
shall be provided to both the person submitting the complaint
and the non-Federal employer.
(iii) Semi-annual report on extensions.--The inspector
general shall include in semi-annual reports to Congress a
list of those investigations for which the inspector general
received an extension, including a copy of each written
explanation provided with respect to extensions under clause
(ii).
(3) Discretion not to investigate complaints.--
(A) In general.--The inspector general may decide not to
conduct or continue an investigation under this section upon
providing to the person submitting the complaint and the non-
Federal employer a written explanation (subject to the
authority to exclude information under paragraph (5)(C)) for
such decision.
(B) Assumption of rights to civil remedy.--Upon receipt of
an explanation of a decision not to conduct or continue an
investigation under subparagraph (A), the person submitting a
complaint shall immediately assume the right to a civil
remedy under subsection (c)(2) as if the 210-day period
specified under such subsection has already passed.
(C) Semi-annual report.--The inspector general shall
include in semi-annual reports to Congress a list of those
investigations the inspector general decided not to conduct
or continue under this paragraph, including copies of the
written explanations for such decisions not to investigate.
(4) 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) Opportunity for rebuttal.--The inspector general may
not find the occurrence of a reprisal with respect to a
reprisal that is affirmatively established under subparagraph
(A) if the non-Federal employer demonstrates by clear and
convincing evidence that the non-Federal employer would have
taken the action constituting the reprisal in the absence of
the disclosure.
(5) 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 non-Federal employer shall have
access to the complete investigative file of the Inspector
General in accordance with the Privacy Act.
(C) Exception.--The inspector general may exclude from
disclosure--
(i) information protected from disclosure by a provision of
law; and

[[Page S1760]]

(ii) any additional information the inspector general
determines disclosure of which would impede a continuing
investigation, provided that such information is disclosed
once such disclosure would no longer impede such
investigation.
(6) 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
in whole or in part 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.
(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 in whole or in part under paragraph (1), 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)(i), within 30
days after the expiration of the extension of time, or
decides under subsection (b)(3) not to investigate or to
discontinue an investigation, and there is no showing that
such delay or decision 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)(4)(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) Nonenforceability of Certain Provisions Waiving Rights
and Remedies or Requiring Arbitration of Disputes.--
(1) Waiver of rights and remedies.--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.--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.
(e) 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.
(f) 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) Relationship to state laws.--Nothing in this section
may be construed to preempt, preclude, or limit the
protections provided for public or private employees under
State whistleblower laws.
(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''--
(A) except as provided under subparagraph (B), means an
individual performing services on behalf of an employer; and
(B) does not include any Federal employee or member of the
uniformed services (as that term is defined in section
101(a)(5) of title 10, United States Code).
(4) Non-federal employer.--The term ``non-Federal
employer''--
(A) means any employer--
(i) with respect to covered funds--

(I) the contractor, subcontractor, grantee, or recipient,
as the case may be, if the contractor, grantee, or recipient
is an employer; and
(II) any professional membership organization,
certification or other professional body, any agent or
licensee of the Federal government, or any person acting
directly or indirectly in the interest of an employer
receiving covered funds; or

(ii) 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; and
(B) does not mean any department, agency, or other entity
of the Federal 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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