II
109th CONGRESS
2d Session
S. 2285
IN THE SENATE OF THE UNITED STATES
February 14, 2006
Mr. Lautenberg introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
A BILL
To improve the protection of witnesses, victims, and informants.
Short title
This Act may be cited as
the Whistleblower Empowerment,
Security, and Taxpayer Protection Act of 2006
.
Tampering with or retaliating against a witness, victim, or an informant
Tampering with a witness, victim, or an informant
In general
Section 1512 of title 18, United States Code, is amended—
by striking
or judge of the United States
each place that term appears and
inserting the following: , judge of the United States, Member of
Congress, authorized official of a Federal agency, or Inspector
General
;
in subsection (a)—
in
paragraph (1)(C), by inserting or any other violation of Federal
law
after commission of a Federal offense
; and
in
paragraph (2)(C), by inserting or any other violation of Federal
law
after commission of a Federal offense
;
in subsection
(b)(3), by inserting or any other violation of Federal law
after
commission of a Federal offense
;
in subsection
(c), by inserting , including an administrative investigation
after official proceeding
each place that term appears;
in subsection (d)—
in
paragraph (1), by inserting or supporting an administrative
investigation
after official proceeding
; and
in
paragraph (2), by inserting or any other violation of Federal
law
after commission of a Federal offense
; and
in subsection
(g)(2), by inserting after law enforcement officer
the
following: , Member of Congress, authorized official of a Federal
agency, or Inspector General
.
Technical amendments
Section 1512 of title 18, United States Code, is amended—
in subsection (b)(3)—
by
inserting a comma after of probation
; and
by
striking the second comma after supervised release
; and
in subsection (d)(2)—
by
inserting a comma after of probation
; and
by striking the
second comma after supervised release
.
Retaliating against a witness, victim, or an informant
In general
Section 1513 of title 18, United States Code, is amended—
by inserting
, Member of Congress, authorized official of a Federal agency, or
Inspector General
after law enforcement officer
each
place that term appears;
by inserting
or any other violation of Federal law
after commission of
a Federal offense
each place that term appears; and
in the first
subsection designated as subsection (e), by striking the commission or
possible commission of any Federal offense
and inserting the following:
the commission or possible commission of any Federal offense or any
other violation of Federal law
.
Technical amendments
Section 1513 of title 18, United States Code, is amended—
in subsection (a)(1)(B)—
by
inserting a comma after of probation
; and
by striking the
second comma after supervised release
;
in subsection (b)(2)—
by
inserting a comma after of probation
; and
by striking the
second comma after supervised release
; and
by redesignating the second subsection designated as subsection (e) as subsection (f).
Whistleblower protection
Section 2302 of title 5, United States Code, is amended by adding at the end the following:
An individual who is a victim of a prohibited personnel practice may bring a civil action against a covered entity in an appropriate district court of the United States and may recover damages.
An individual prevailing in any action under this subsection shall be entitled to equitable relief, reinstatement, compensation for special damages, litigation costs, expert witness fees, and reasonable attorney fees.
In the event that reinstatement of an individual prevailing in an action under this subsection is not practicable, the individual may be awarded damages for a denial of opportunity to continue accruing Federal pension benefits.
A civil action under this subsection shall be commenced not later than 2 years after the date on which the violation occurs.
Any prospective waiver of the right of any individual to file a civil action under this subsection shall be void and unenforceable.
An action filed under this subsection shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code.
An individual may elect to have a claim under this subsection adjudicated utilizing the procedures under section 1514A(b) of title 18, United States Code.
If the Government asserts that information sought by an individual in an action under this subsection is privileged because such information is a state secret or could lead to the revelation of state secrets, such individual may demand that the Government provide to the court, in classified form if necessary, a description of the information purported to be privileged.
The court may make arrangements for evidence pertaining to classified information or state secrets to be heard in closed session, with opposing counsel present.
A claim of state secrets privilege under subparagraph (A) shall be upheld only if the court determines that disclosure of the information to the court in closed session or to the public would result in substantial likelihood of the unauthorized disclosure of a bona fide state secret.
The Government shall not deny access to an individual bringing action under this subsection to any information that the individual previously actually lawfully accessed.
The Government shall provide an individual described in clause (i) with reasonable time to review such information at a secure facility geographically proximate to the court.
The Government shall not make a frivolous assertion that information is covered by the state secrets privilege under subparagraph (A).
In this subsection, the term covered entity means the employer of the person who engages in a prohibited personnel practice, if the act is performed within the scope of employment of such person.
.
Enhancing independence of Inspectors General
Removal for cause
The Inspector General Act of 1978 (5 U.S.C. App.) is amended—
in section 3(b) by—
inserting
(1)
after (b)
; and
adding at the end the following:
An Inspector General may be removed from office prior to the expiration of the term of that Inspector General only on 1 of the following grounds:
Permanent incapacity.
Inefficiency.
Neglect of duty.
Malfeasance.
Conviction of a felony or conduct involving moral turpitude.
; and
in section 8G(e) by—
inserting
(1)
after (e)
; and
adding at the end the following:
An Inspector General may be removed from office prior to the expiration of the term of that Inspector General only on 1 of the following grounds:
Permanent incapacity.
Inefficiency.
Neglect of duty.
Malfeasance.
Conviction of a felony or conduct involving moral turpitude.
.
Establishment of terms of office
The Inspector General Act of 1978 (5 U.S.C. App.) is amended—
in section 3, by adding at the end the following:
The term of office of each Inspector General shall be 7 years. An individual may serve for more than 1 term in such office. Any individual appointed and confirmed to fill a vacancy in such position, occurring before the expiration of the term for which the predecessor of that individual was appointed, shall be appointed and confirmed for a full 7-year term.
An individual may continue to serve as an Inspector General beyond the expiration of the term for which the individual is appointed until a successor is appointed and confirmed, except that such individual may not continue to serve for more than 1 year after the date on which the term would otherwise expire under paragraph (1).
; and
in section 8G(c) by—
inserting
(1)
after (c)
; and
by adding at the end the following:
The term of office of each Inspector General shall be 7 years. An individual may serve for more than 1 term in such office. Any individual appointed to fill a vacancy in such position, occurring before the expiration of the term for which the predecessor of that individual was appointed, shall be appointed for a full 7-year term.
.
Application
The amendments made by this section shall apply to any Inspector General appointed before, on, or after the date of the enactment of this Act. The term of office of an Inspector General serving on such date of enactment is deemed to begin on such date of enactment.
Direct submission of budget requests to congress
Section 6 of the Inspector General Act of 1978 (5 U.S.C. App.) is amended by adding at the end the following:
For each fiscal year, an Inspector General may transmit an appropriation estimate and request to the Director of the Office of Management and Budget and to the appropriate committees or subcommittees of Congress, in addition to any appropriation estimate and request submitted to the head of the establishment concerned.
The President shall include in each budget of the United States Government submitted to the Congress—
a separate statement of the amount of appropriations requested by each Inspector General who has submitted an appropriation estimate under paragraph (1); and
a statement comparing each such appropriation estimate and request submitted by an Inspector General and the funds requested by the head of the establishment concerned.
.
Prohibition of reprogramming
In general
Notwithstanding any other provision of law, no funds appropriated for activities under the supervision of an Inspector General shall be reprogrammed, transferred, or otherwise expended for any other purpose without the written consent of that Inspector General, transmitted in advance to the Committee on Appropriations of the Senate and the Committee on Appropriations of the House of Representatives.
Conditions preserved
Nothing in this section shall be construed as to waive any condition on reprogramming of appropriated sums.
Specific repeal
The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.
Creating reporting channels for whistleblowers
Section 4(a) of the Inspector General Act of 1978 (5 U.S.C. App.) is amended—
in paragraph (4),
by striking and
after the semicolon at the end;
in paragraph (5), by striking the period and inserting a semicolon; and
by adding at the end the following:
to create and maintain a means of employees confidentially reporting alleged violations of rule, law, or regulation within the establishment that the Inspector General oversees in the form of a hotline which shall compile all allegations and refer them to appropriate offices for investigation; and
to compile for annual report to Congress, a statistical summary of all allegations, the violations they allege, their deviation from past trends, and the outcome of the preliminary inquiry or investigation into each allegation.
.
Special rule for revocation of security clearance
Cause of action
If any action is taken or failed to be taken regarding the security clearance of an individual in retaliation for any action protected under paragraph (8) or (9) of section 2302(b) of title 5, United States Code, the individual may bring an action against the United States in any district court of the United States for damages.
Classified form
Any court hearings under this section may be conducted in classified form, if necessary.
Intent
This section shall not be construed to diminish or enhance the authority of any court or other administrative body to order any action with respect to the security clearance of an individual bringing an action under this section.
Creation of whistleblower affairs directorates within offices of the Inspectors General
Section 7 of the Inspector General Act of 1978 is amended by adding at the end the following:
An Inspector General may create a whistleblower affairs directorate to act upon complaints filed under subsection (a).
Except as provided in paragraph (2), a directorate established under this subsection shall—
adopt paragraphs (8) and (9) of section 2302(b) of title 5, United States Code, as the source of investigative standards for reviewing complaints described in subparagraph (A); or
adopt a set of investigative standards.
An Inspector General whose jurisdiction includes national security personnel shall not be precluded from creating a whistleblower affairs directorate under this subsection to receive complaints filed pursuant to subsection (a), if the Inspector General adopts regulations by which security clearances and personnel actions may be investigated as pretexts to reprisal without disturbing personnel decisions based on those security clearances or personnel actions.
The head of an agency in which a directorate has been established under paragraphs (1) and (2), shall establish regulations administered by the personnel and readiness office of the agency, which provide for remedies recommended in substantiated findings of complaints filed under this section.
.
Prohibited personnel practices
Section 2302 of title 5, United States Code, is amended—
in subsection (a)(2)—
in subparagraph (A)—
by redesignating clauses (x) and (xi) as clauses (xi) and (xii), respectively;
by inserting after clause (ix) the following:
an investigation of an employee;
; and
in the flush
matter at the end, by striking subsection (b)(8)
and inserting
paragraph (8) or (9) of subsection (b)
;
in subparagraph
(B)(ii) by striking ; and
and inserting the
following:
, in which case the President shall submit a report to Congress, that may be classified if necessary—
detailing any position the President has excluded from the coverage of this section; and
including the reasons why the President determined that excluding a position from the coverage of this section is necessary and warranted by the conditions of good administration;
;
in subparagraph (C)—
in
clause (i), by striking subsection (b)(8)
and inserting
paragraph (8) or (9) of subsection (b)
;
in
clause (ii), by striking the Federal Bureau of Investigation,
;
and
in clause
(iii), by striking the period and inserting ; and
; and
by adding at the end the following:
intelligence
agency
means any agency described in subparagraph
(C)(ii).
;
in subsection (b), by striking paragraphs (8) and (9) and inserting the following:
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—
any disclosure or planned disclosure of information by an employee or applicant—
that the employee or applicant reasonably believes evidences—
a violation of any law, rule, or regulation;
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or
a substantial and specific threat to national security or homeland security; and
for which—
the disclosure is not specifically prohibited by law; and
the information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;
any disclosure or planned disclosure to the Special Counsel, 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 or applicant reasonably believes evidences—
a violation of any law, rule, or regulation;
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or
a substantial and specific threat to national security or homeland security; or
any failure to report a disclosure made under this paragraph;
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—
the exercise or planned exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;
testifying for or otherwise lawfully assisting, or planning to testify, or lawfully assist, any individual in the exercise of any right referred to in subparagraph (A);
cooperating with or disclosing information to, or planning to cooperate with or disclose information to, the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law;
a refusal to obey, or planning to refuse to obey, an order that would require the individual to violate a law; or
a failure to report an action under this paragraph;
; and
by adding at the end the following:
For the purposes of paragraphs (8) and (9) of subsection (b), positions at Federal contractors that are funded in whole or in part by appropriated funds shall be considered to be covered positions under subsection (a)(2)(B).
For purposes of this paragraph—
the term Federal contractor means any person that has entered into a contract with the Federal Government, or any person who has entered into a contract with such a person pursuant to the contract with the Federal Government; and
a position at a Federal contractor is funded in whole or in part by appropriated funds if the responsibilities of the position include engaging in any activity with respect to such contract, including providing services or manufacturing goods procured under the contract, or providing incidental or support services related to such a contract, including accounting, human resources, secretarial services, and any other incidental or support services.
For the purposes of paragraph (8)(A) and paragraph (9) of subsection (b), positions at agencies described in subsection (a)(2)(C)(ii) shall be considered to be covered positions under subsection (a)(2)(B).
Any person that violates this section shall be subject to a civil penalty of not to exceed $50,000.
.
Petition for special prosecutors
In general
An individual may petition the Attorney General for the appointment of a special prosecutor to handle a case in which the individual alleges being a victim of a prohibited personnel practice, as that term is defined in section 2302 of title 5, United States Code.
Appointment
Not later than 30 days after the date of the submission of a petition described in subsection (a), the Attorney General shall appoint a special prosecutor, who shall have independent jurisdiction, in any case where there is a conflict of interest or where there is a substantial likelihood of political interference.
Reporting
In any case in which the Attorney General receives a petition described in subsection (a), but does not appoint a special prosecutor, the Attorney General shall submit a report to Congress detailing the reasons for refusing to appoint a special prosecutor, including a specific response to any argument in the petition.
Study of lists of whistleblower retaliation and suppressions
In general
The Comptroller General shall develop rubrics, methods, and instruments to determine the costs of retaliation against or suppression of whistleblowers, including the costs associated with—
revocation and suspension of security clearances;
litigation;
judgments against the United States and indemnification of contractor liability;
diversions of resources to nonproductive tasks to perpetrate retaliation and suppress disclosure of fraud, waste, or abuse;
administrative leave; and
any other factors the Comptroller General determines are the result of retaliation against or suppression of whistleblowers.
Report to Congress
The Comptroller General shall submit to Congress a report, not less than once every 3 years, beginning with the fiscal year in which this Act is enacted, estimating the costs of retaliation against and suppression of whistleblowers.