109th CONGRESS
2d Session
S. 2285
To improve the protection of witnesses, victims, and informants.
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.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Whistleblower Empowerment, Security, and Taxpayer
Protection Act of 2006'.
SEC. 2. TAMPERING WITH OR RETALIATING AGAINST A WITNESS, VICTIM, OR AN
INFORMANT.
(a) Tampering With a Witness, Victim, or an Informant-
(1) IN GENERAL- Section 1512 of title 18, United States Code, is amended--
(A) 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';
(i) in paragraph (1)(C), by inserting `or any other violation of Federal
law' after `commission of a Federal offense'; and
(ii) in paragraph (2)(C), by inserting `or any other violation of
Federal law' after `commission of a Federal offense';
(C) in subsection (b)(3), by inserting `or any other violation of Federal
law' after `commission of a Federal offense';
(D) in subsection (c), by inserting `, including an administrative investigation'
after `official proceeding' each place that term appears;
(i) in paragraph (1), by inserting `or supporting an administrative
investigation' after `official proceeding'; and
(ii) in paragraph (2), by inserting `or any other violation of Federal
law' after `commission of a Federal offense'; and
(F) in subsection (g)(2), by inserting after `law enforcement officer'
the following: `, Member of Congress, authorized official of a Federal
agency, or Inspector General'.
(2) TECHNICAL AMENDMENTS- Section 1512 of title 18, United States Code,
is amended--
(A) in subsection (b)(3)--
(i) by inserting a comma after `of probation'; and
(ii) by striking the second comma after `supervised release'; and
(B) in subsection (d)(2)--
(i) by inserting a comma after `of probation'; and
(ii) by striking the second comma after `supervised release'.
(b) Retaliating Against a Witness, Victim, or an Informant-
(1) IN GENERAL- Section 1513 of title 18, United States Code, is amended--
(A) by inserting `, Member of Congress, authorized official of a Federal
agency, or Inspector General' after `law enforcement officer' each place
that term appears;
(B) by inserting `or any other violation of Federal law' after `commission
of a Federal offense' each place that term appears; and
(C) 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'.
(2) TECHNICAL AMENDMENTS- Section 1513 of title 18, United States Code,
is amended--
(A) in subsection (a)(1)(B)--
(i) by inserting a comma after `of probation'; and
(ii) by striking the second comma after `supervised release';
(B) in subsection (b)(2)--
(i) by inserting a comma after `of probation'; and
(ii) by striking the second comma after `supervised release'; and
(C) by redesignating the second subsection designated as subsection
(e) as subsection (f).
(c) Whistleblower Protection- Section 2302 of title 5, United States Code,
is amended by adding at the end the following:
`(f)(1) 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.
`(2)(A) 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.
`(B) 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.
`(3) A civil action under this subsection shall be commenced not later than
2 years after the date on which the violation occurs.
`(4) Any prospective waiver of the right of any individual to file a civil
action under this subsection shall be void and unenforceable.
`(5) 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.
`(6) 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.
`(7)(A) 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.
`(B) The court may make arrangements for evidence pertaining to classified
information or state secrets to be heard in closed session, with opposing
counsel present.
`(C) 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.
`(D)(i) The Government shall not deny access to an individual bringing action
under this subsection to any information that the individual previously
actually lawfully accessed.
`(ii) 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.
`(E) The Government shall not make a frivolous assertion that information
is covered by the state secrets privilege under subparagraph (A).
`(8) 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.'.
SEC. 3. ENHANCING INDEPENDENCE OF INSPECTORS GENERAL.
(a) Removal for Cause- The Inspector General Act of 1978 (5 U.S.C. App.)
is amended--
(A) inserting `(1)' after `(b)'; and
(B) adding at the end the following:
`(2) 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:
`(A) Permanent incapacity.
`(E) Conviction of a felony or conduct involving moral turpitude.'; and
(2) in section 8G(e) by--
(A) inserting `(1)' after `(e)'; and
(B) adding at the end the following:
`(2) 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:
`(A) Permanent incapacity.
`(E) Conviction of a felony or conduct involving moral turpitude.'.
(b) Establishment of Terms of Office- The Inspector General Act of 1978
(5 U.S.C. App.) is amended--
(1) in section 3, by adding at the end the following:
`(e)(1) 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.
`(2) 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
(2) in section 8G(c) by--
(A) inserting `(1)' after `(c)'; and
(B) by adding at the end the following:
`(2) 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.'.
(c) 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.
SEC. 4. 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:
`(e)(1) 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.
`(2) The President shall include in each budget of the United States Government
submitted to the Congress--
`(A) a separate statement of the amount of appropriations requested by
each Inspector General who has submitted an appropriation estimate under
paragraph (1); and
`(B) 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.'.
SEC. 5. PROHIBITION OF REPROGRAMMING.
(a) 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.
(b) Conditions Preserved- Nothing in this section shall be construed as
to waive any condition on reprogramming of appropriated sums.
(c) 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.
SEC. 6. CREATING REPORTING CHANNELS FOR WHISTLEBLOWERS.
Section 4(a) of the Inspector General Act of 1978 (5 U.S.C. App.) is amended--
(1) in paragraph (4), by striking `and' after the semicolon at the end;
(2) in paragraph (5), by striking the period and inserting a semicolon;
and
(3) by adding at the end the following:
`(6) 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
`(7) 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.'.
SEC. 7. SPECIAL RULE FOR REVOCATION OF SECURITY CLEARANCE.
(a) 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.
(b) Classified Form- Any court hearings under this section may be conducted
in classified form, if necessary.
(c) 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.
SEC. 8. 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:
`(d)(1)(A) An Inspector General may create a whistleblower affairs directorate
to act upon complaints filed under subsection (a).
`(B) Except as provided in paragraph (2), a directorate established under
this subsection shall--
`(i) 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
`(ii) adopt a set of investigative standards.
`(2) 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.
`(3) 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.'.
SEC. 9. PROHIBITED PERSONNEL PRACTICES.
Section 2302 of title 5, United States Code, is amended--
(1) in subsection (a)(2)--
(A) in subparagraph (A)--
(i) by redesignating clauses (x) and (xi) as clauses (xi) and (xii),
respectively;
(ii) by inserting after clause (ix) the following:
`(x) an investigation of an employee;'; and
(iii) in the flush matter at the end, by striking ` subsection (b)(8)'
and inserting `paragraph (8) or (9) of subsection (b)';
(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--
`(I) detailing any position the President has excluded from the
coverage of this section; and
`(II) 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;';
(C) in subparagraph (C)--
(i) in clause (i), by striking ` subsection (b)(8)' and inserting
`paragraph (8) or (9) of subsection (b)';
(ii) in clause (ii), by striking `the Federal Bureau of Investigation,';
and
(iii) in clause (iii), by striking the period and inserting `; and';
and
(D) by adding at the end the following:
`(D) `intelligence agency' means any agency described in subparagraph
(C)(ii).';
(2) in subsection (b), by striking paragraphs (8) and (9) and inserting
the following:
`(8) 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--
`(A) any disclosure or planned disclosure of information by an employee
or applicant--
`(i) that the employee or applicant reasonably believes evidences--
`(I) a violation of any law, rule, or regulation;
`(II) gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety;
or
`(III) a substantial and specific threat to national security or
homeland security; and
`(I) the disclosure is not specifically prohibited by law; and
`(II) 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;
`(B) 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--
`(i) a violation of any law, rule, or regulation;
`(ii) gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety; or
`(iii) a substantial and specific threat to national security or homeland
security; or
`(C) any failure to report a disclosure made under this paragraph;
`(9) 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--
`(A) the exercise or planned exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation;
`(B) 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);
`(C) 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;
`(D) a refusal to obey, or planning to refuse to obey, an order that
would require the individual to violate a law; or
`(E) a failure to report an action under this paragraph;'; and
(3) by adding at the end the following:
`(g)(1)(A) 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).
`(B) For purposes of this paragraph--
`(i) 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
`(ii) 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.
`(2) 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).
`(h) Any person that violates this section shall be subject to a civil penalty
of not to exceed $50,000.'.
SEC. 10. PETITION FOR SPECIAL PROSECUTORS.
(a) 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.
(b) 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.
(c) 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.
SEC. 11. STUDY OF LISTS OF WHISTLEBLOWER RETALIATION AND SUPPRESSIONS.
(a) 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--
(1) revocation and suspension of security clearances;
(3) judgments against the United States and indemnification of contractor
liability;
(4) diversions of resources to nonproductive tasks to perpetrate retaliation
and suppress disclosure of fraud, waste, or abuse;
(5) administrative leave; and
(6) any other factors the Comptroller General determines are the result
of retaliation against or suppression of whistleblowers.
(b) 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.
END
