II
115th CONGRESS
1st Session
S. 2002
IN THE SENATE OF THE UNITED STATES
October 24, 2017
Mrs. McCaskill introduced the following bill; which was read twice and referred to the Select Committee on Intelligence
A BILL
To amend the National Security Act of 1947 to provide whistleblower protections for employees of contractors of elements of the intelligence community, and for other purposes.
Short title
This Act may be cited as the Ensuring Protections for Intelligence Community Contractor Whistleblowers Act of 2017
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Whistleblower protections for contractors and grantees of the intelligence community
In general
Title XI of the National Security Act of 1947 (50 U.S.C. 3231 et seq.) is amended by adding at the end the following:
Whistleblower protections for contractors and grantees of the intelligence community
Definitions
In this section:
Agency
The term agency means an executive department or independent establishment (as such terms are defined in sections 101 and 104 of title 5, United States Code) that contains an intelligence community element, except for the Federal Bureau of Investigation.
Applicant
The term applicant means an individual who is applying to be an employee of a contractor, subcontractor, grantee or subgrantee.
Contract
The term contract means a contract, including a personal services contract, awarded by the head of an agency.
Contractor
The term contractor means an entity awarded a contract.
Covered intelligence community element
The term covered intelligence community element means 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.
Employee
The term employee means an individual who is an officer or an employee of a contractor, subcontractor, grantee, or subgrantee.
Former employee
The term former employee means an individual who previously worked as an employee for a contractor, subcontractor, grantee, or subgrantee.
Grant
The term grant means a grant awarded by the head of an agency.
Grantee
The term grantee means an entity that is awarded a grant.
Inspector General
Except as otherwise specifically provided, the term Inspector General means the Inspector General of the Intelligence Community appointed under section 103H or an Inspector General appointed under the Inspector General Act of 1978 (5 U.S.C. App.) or section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517).
Protected disclosure
The term protected disclosure means—
any lawful disclosure of information to an individual listed under subsection (b)(2) by an employee that the employee believes evidences—
a violation of any Federal law, rule, or regulation; or
gross mismanagement, including of a contract or grant, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and
if the actions do not result in the employee unlawfully disclosing information specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, any lawful disclosure in conjunction with—
the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;
testimony for or otherwise lawfully assisting any individual in the exercise of any right referred to in clause (i); or
cooperation with or disclosing information to the Inspector General of an agency, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General.
Personal services contractor
The term personal services contractor means an individual awarded a contract with an agency.
Subcontractor
The term subcontractor means an entity that reaches an agreement with a contractor to fulfill any element of a contract.
Subgrantee
The term subgrantee means an entity that reaches an agreement with a grantee to fulfill any element of a grant.
Prohibition of reprisals
In general
An employee, applicant, former employee, or personal services contractor carrying out a contract, subcontract, grant, or subgrant for an agency that contains a covered intelligence community element may not be discharged, demoted, or otherwise discriminated against because the employee, applicant, former employee, or personal service contractor was perceived as making or about to make—
a protected disclosure; or
any lawful disclosure that complies with—
subsections (a)(1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.);
subparagraphs (A), (D), or (H) of section 17(d)(5) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517(d)(5)); or
subparagraphs (A), (D), or (I) of section 103H(k)(5).
Individuals described
The individuals described in this paragraph are as follows:
An Inspector General.
An authorized official of the Department of Justice or other Federal law enforcement agency.
A corporate management official or other individual who has the authority to investigate, discover, or address misconduct.
The Director of National Intelligence.
The head of the agency containing the covered intelligence community element that awarded the contract or grant.
Investigation of complaints
Submission of complaint
An employee, applicant, former employee, or personal services contractor who believes that he or she has been subjected to a reprisal prohibited by subsection (b) may submit a complaint of such reprisal—
to the Inspector General of the agency that awarded the contract or grant;
in the case of a complaint—
regarding a covered intelligence community element in the Department of Defense, to the Inspector General of the Department of Defense; or
submitted by an employee, applicant, former employee, or personal services contractor who is a National Intelligence Program funded billet of a covered intelligence community element in the Department of Defense, to—
the Inspector General of the Department of Defense; and
the head of the agency containing the covered intelligence community element that awarded the contract or grant; or
the Investigator General of the Intelligence Community; or
to the Inspector General of the Intelligence Community.
Determinations
In general
Except as provided under subparagraph (B), the Inspector General who receives a complaint referred to in paragraph (1) shall—
make a determination that the complaint—
is frivolous;
fails to allege a violation of the prohibition in subsection (b); or
has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant; or
shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the employee, applicant, former employee, or personal services contractor who submitted the complaint, and the contractor, subcontractor, grantee, or subgrantee concerned, and the head of the agency that awarded the contract or grant not later than 180 days after receiving the complaint.
Extension of time
If the Inspector General is unable to complete an investigation in time to submit a determination within the 180-day period specified in subparagraph (A)(ii) and the employee, applicant, former employee, or personal services contractor who submitted the complaint agrees to an extension of time, the Inspector General shall submit a report under subparagraph (A)(ii) within such additional period of time, up to 180 days, as shall be agreed upon between the Inspector General and the individual submitting the complaint.
Burdens of proof
Consistent with Executive orders protecting information specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, the legal burdens of proof specified in section 1221(e) of title 5, United States Code, shall, to the greatest extent possible, be controlling for the purposes of any investigation conducted by an Inspector General, or a decision by the head of an agency to determine whether a reprisal prohibited by subsection (b) has occurred.
Submission to Congress
In general
If the employee, applicant, former employee, or personal services contractor wishes to submit to Congress their complaint submitted under paragraph (1) or if such a complaint is an urgent concern, the Inspector General who receives the complaint shall, within 7 calendar days of receipt of the complaint, forward such transmittal to the congressional intelligence committees, together with any comments the Inspector General considers appropriate.
Submission by the employee
If the Inspector General does not forward the complaint as required by subparagraph (A), the employee, applicant, former employee, or personal services contractor (subject to subparagraph (C)) may submit the complaint to Congress by contacting either or both of the congressional intelligence committees directly.
Conditions
The employee, applicant, former employee, or personal services contractor may contact the congressional intelligence committees directly as described in subparagraph (B) only if the employee, applicant, former employee, or personal services contractor—
before making such a contact, furnishes to the head of the agency involved, through an Inspector General, a statement of the complaint and notice of the intent to contact the intelligence committees directly; and
obtains and follows from the head of the agency involved, through the Inspector General, direction on how to contact the congressional intelligence committees in accordance with appropriate security practices.
Official capacity
A member or employee of one of the congressional intelligence committees who receives a complaint under this paragraph does so in that member or employee's official capacity as a member or employee of that committee.
Urgent concern defined
In this paragraph, the term urgent concern
has the meaning given that term in section 8H of the Inspector General Act of 1978 (5 U.S.C. App).
Remedy and enforcement authority
In general
Not later than 30 days after receiving an Inspector General report pursuant to subsection (c)(2)(A)(ii), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the employee, applicant, former employee, or personal services contractor submitting the complaint was subject to a reprisal prohibited by subsection (b) and shall—
issue an order denying relief; or
order the agency concerned and the contractor, subcontractor, grantee, or subgrantee—
to take affirmative action to abate the reprisal;
to reinstate the employee, applicant, former employee, or personal services contractor to the position that the employee, applicant, former employee, or personal services contractor held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the employee, applicant, former employee, or personal services contractor in that position if the reprisal had not been taken; or
to pay the employee, applicant, former employee, or personal services contractor 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 employee, applicant, former employee, or personal services contractor for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency.
Notification
The head of each agency containing a covered intelligence community element shall—
inform each contractor, subcontractor, grantee, and subgrantee of such agency, in writing, of the remedies provided by this section; and
ensure that each contractor, subcontractor, grantee, and subgrantee of such agency inform their employees and personal services contractors, in writing, of the remedies provided under this section.
No private cause of action
Nothing in this section shall be construed to permit, authorize, or require a private cause of action to challenge the merits of a determination by an Inspector General under this section.
Prohibition on waiver
The remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.
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Table of contents amendment
The table of contents in the first section of the National Security Act of 1947 is amended by adding at the end the following:
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