110th Congress Rept. 110-42
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2007
_______
March 9, 2007.--Ordered to be printed
_______
Mr. Waxman, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 985]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom was
referred the bill (H.R. 985) to amend title 5, United States
Code, to clarify which disclosures of information are protected
from prohibited personnel practices; to require a statement in
nondisclosure policies, forms, and agreements to the effect
that such policies, forms, and agreements are consistent with
certain disclosure protections, and for other purposes, having
considered the same, reports favorably thereon with amendments
and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 3
Legislative History.............................................. 5
Section-By-Section............................................... 5
Explanation of Amendments........................................ 10
Committee Consideration.......................................... 10
Rollcall Votes................................................... 10
Application of Law to the Legislative Branch..................... 12
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 12
Statement of General Performance Goals and Objectives............ 12
Constitutional Authority Statement............................... 12
Federal Advisory Committee Act................................... 12
Unfunded Mandate Statement....................................... 12
Earmark Identification........................................... 12
Committee Estimate............................................... 12
Budget Authority and Congressional Budget Office Cost Estimate... 13
Changes in Existing Law Made by the Bill, as Reported............ 14
The amendments (stated in terms of the page and line numbers
of the introduced bill) are as follows:
Page 4, line 4, strike ``employee'' and insert ``employee or
applicant''.
Page 10, line 12, strike ``controversy;'' and insert
``controversy, and which action shall, at the request of either
party to such action, be tried by the court with a jury;''.
Page 10, after line 18, insert as a flush left sentence the
following:
An appeal from a final decision of a district court in
an action under this paragraph may, at the election of
the appellant, be taken to the Court of Appeals for the
Federal Circuit (which shall have jurisdiction of such
appeal), in lieu of the United States court of appeals
for the circuit embracing the district in which the
action was brought.
Page 11, line 20, strike ``Circuit.'' and insert ``Circuit,
except that in the case of a prohibited personnel practice
described in section 2302(b)(8) (other than a case that,
disregarding this paragraph, would otherwise be subject to
paragraph (2)), such term means the United States Court of
Appeals for the Federal Circuit and any United States court of
appeals having jurisdiction over appeals from any United States
district court which, under section 1221(k)(2), would be an
appropriate United States district court for purposes of such
prohibited personnel practice.''.
Page 11, after line 20, insert the following (and redesignate
the succeeding subsection accordingly):
(c) Compensatory Damages.--Section 1221(g)(1)(A)(ii)
of such title 5 is amended by striking all after
``travel expenses,'' and inserting ``any other
reasonable and foreseeable consequential damages, and
compensatory damages (including attorney's fees,
interest, reasonable expert witness fees, and
costs).''.
Page 14, line 22, strike all after ``travel expenses,''
through the period on line 24, and insert ``any other
reasonable and foreseeable consequential damages, and
compensatory damages (including attorney's fees, interest,
reasonable expert witness fees, and costs).''.
Page 16, line 21, strike ``controversy.'' and insert
``controversy, and which action shall, at the request of either
party to such action, be tried by the court with a jury.''.
Page 16, line 21, strike ``A petition'' and all that follows
through line 24, and insert the following: ``An appeal from a
final decision of a district court in an action under this
paragraph may, at the election of the appellant, be taken to
the Court of Appeals for the Federal Circuit (which shall have
jurisdiction of such appeal), in lieu of the United States
court of appeals for the circuit embracing the district in
which the action was brought.''.
Page 17, line 7, strike ``Circuit.'' and insert ``Circuit or
any United States court of appeals having jurisdiction over
appeals from any United States district court which, under
section 1221(k)(2), would be an appropriate United States
district court.''.
Page 17, lines 18 and 21, strike ``plaintiff'' and insert
``employee, former employee, or applicant''.
Page 17, lines 19 and 24, strike ``plaintiff's'' and insert
``employee's, former employee's, or applicant's''.
Page 19, line 7, strike ``employee'' and insert ``employee,
former employee, or applicant for employment''.
Page 23, beginning on line 11, strike ``controversy.'' and
insert ``controversy, and which action shall, at the request of
either party to such action, be tried by the court with a
jury.''.
Page 24, line 14, strike ``controversy.'' and insert
``controversy, and which action shall, at the request of either
party to such action, be tried by the court with a jury.''.
Purpose and Summary
H.R. 985, the Whistleblower Protection Enhancement Act, was
introduced February 12, 2007, by Reps. Henry A. Waxman, Todd
Platts, Chris Van Hollen, and Tom Davis. The legislation
clarifies and expands federal employee and contractor
whistleblower protection laws.
The bill extends whistleblower protections to federal
employees who work on national security issues; strengthens
whistleblower rights for federal contractors; ensures that
employees of the Transportation Security Agency (TSA), in
particular its baggage screeners, have whistleblower rights;
provides explicit protections for federal employees who report
instances where federal research is suppressed or distorted for
political reasons; overrides several court and administrative
decisions that undermined existing whistleblower protections;
and provides whistleblowers access to federal district courts
if the Merit Systems Protection Board (MSPB) or the Inspector
General (IG) does not take action on their claims within 180
days.
Background and Need for Legislation
A key component of government accountability is
whistleblower protection. Federal employees are on the inside.
They can see when taxpayer dollars are wasted and are often the
first to see the signals of corrupt or incompetent management.
Unfortunately, whistleblowers too often receive retaliation
rather than recognition for their courage. They need adequate
protections so they are not deterred from stepping forward to
blow the whistle.
There are many federal government workers who deserve
whistleblower protection, but perhaps none more than national
security officials. These are federal government employees who
have undergone extensive background investigations, obtained
security clearances, and handled classified information on a
routine basis. Our government has concluded that they can be
trusted to work on the most sensitive law enforcement and
intelligence projects, yet these officials receive no
protection when they come forward to identify abuses that are
undermining our national security efforts. The Committee has
documented numerous cases of retaliation against national
security officials seeking to expose wrongdoing. This bill
seeks to give these national security officials needed
whistleblower protections.
In addition, employees of federal contractors can also be
subject to retaliation. Under current law, contract employees
can protest company retaliation but have no remedy if the
agency refuses to act. This bill gives them an avenue to seek a
remedy in court.
TSA baggage screeners currently do not have whistleblower
rights. In Schott v. Department of Homeland Security, the MSPB
ruled on August 12, 2004, that the ``Board jurisdiction over
Screeners . . . is not found in the HSA [Homeland Security
Act].'' To remedy this situation, this bill extends to
screeners the same protections that all other Department of
Homeland Security employees enjoy. TSA workers could, with full
whistleblower protections of this bill, report violations of
law, mismanagement, waste, abuse of authority, or dangers to
public health and safety, including those regarding or relating
solely to homeland or national security.
The Committee has documented numerous examples of the
political manipulation of science in federal agencies,
including suppression of research or data that is perceived to
conflict with Administration policy; appointment of advisory
committee members on the basis of political affiliation or
views; and the dissemination of false or misleading scientific
information. While an employee may reasonably believe such
actions to constitute ``abuse of authority,'' already a
protected disclosure category, the Office of Special Counsel
(OSC) has consistently denied whistleblower protections to
employees attempting to draw attention to political
interference with science. This bill clarifies that ``abuse of
authority'' should be interpreted to include actions that
compromise the validity and integrity of federal science.
This bill also responds to decisions by the U.S. Court of
Appeals for the Federal Circuit and the MSPB limiting the scope
of disclosures covered under the federal whistleblower
protection statute. Specifically, it clarifies that ``any''
disclosure means ``without restriction as to time, place, form,
motive, context, or prior disclosure'' and includes formal or
informal communication. In addition, the bill provides that a
whistleblower could rebut the presumption that a federal
official performed his or her duties in accordance with the law
by providing substantial evidence to the contrary. Some prior
court decisions have required a higher standard, irrefutable
proof, to rebut this presumption. Furthermore, the bill
requires every nondisclosure policy, form, or agreement of the
government to contain the specific addendum set forth in the
legislation informing employees of their rights, and makes it a
prohibited personnel practice for any manager to implement or
enforce any nondisclosure policy, form, or agreement that does
not contain the specific statement mandated in the bill.
Too often, a whistleblower brings his or her case to the
OSC or the MSPB and the case lingers in limbo or a
determination occurs so long after the alleged prohibited
practice occurred that the fired employee has been without a
paycheck for years. This bill allows whistleblowers access to
federal district courts for a trial by jury if the MSPB (or the
IG for cases involving national security officials or
contractor whistleblowers) does not take action on their claims
within 180 days.
Finally, this bill permits the Federal Circuit or any other
circuit court to hear whistleblower cases, ending the Federal
Circuit's exclusive jurisdiction over whistleblower appeals. It
is the decisions of the Federal Circuit that have created the
need for many of the provisions of this bill. There is no
reason that whistleblower cases need one specialized court as
in patent law cases. To the contrary, whistleblower protection
law should benefit from consideration in all circuits. This
bill allows employees to have their cases heard in places were
they live and increases opportunities for those cases to be
heard eventually by the Supreme Court.
Legislative History
H.R. 985, legislation to strengthen the federal employee
whistleblower protection laws, was introduced on February 12,
2007, and referred to the Committee on Oversight and Government
Reform. Similar legislation, H.R. 1317 and section 8 of H.R.
5112, was introduced in the 109th Congress and unanimously
reported by the Committee. H.R. 985 builds on that legislation
as well on earlier versions introduced in the 106th, 107th, and
108th Congresses.
The Committee held a hearing on February 13, 2007, on H.R.
985. The witnesses were William G. Weaver, PhD, Associate
Professor, University of Texas at El Paso, representing the
National Security Whistleblower Coalition; Nick Schwellenbach,
Investigator, Project on Government Oversight; Tom Devine,
Legal Director, Government Accountability Project; and Mark
Zaid, Attorney at Law, Krieger and Zaid, PLLC. Chairman McPhie
of the MSPB and Stephen Kohn of the National Whistleblower
Center submitted testimony for the record.
The Committee held a markup to consider H.R. 985 on
February 15, 2007, and ordered the bill to be reported, as
amended, by a roll call vote of 280.
Section-By-Section
Section 1. Short title
This section provides that the short title of H.R. 985 is
the ``Whistleblower Protection Enhancement Act of 2007.''
Section 2. Clarification of disclosures covered
This section clarifies current law to state that it applies
to any disclosure, whether made as part of the duties of an
employee, former employee, or applicant (hereinafter
collectively referred to as ``employee''); concerns
consequences of policy or individual misconduct; is oral or
written; or is made to any audience inside or outside an
agency; and without restriction to time, form, motive, context,
or prior disclosure. These changes are intended as a response
to Federal Circuit decisions that have limited the scope of
disclosures permitted by law.
Section 3. Covered disclosures
This section defines ``disclosure'' to include both formal
and informal communications where the employee reasonably
believes that the disclosure evidences any violation of law,
rule, or regulation or gross mismanagement, waste, abuse of
authority, or specific danger to public health or safety.
However, a simple policy disagreement would not be considered a
disclosure. This change is intended as a response to Federal
Circuit decisions suggesting that only a formal communication
may qualify as a disclosure.
Section 4. Rebuttable presumption
This section codifies the reasonable belief test for all
whistleblower disclosures: ``whether a disinterested observer
with knowledge of the essential facts known to or readily
ascertainable by the employee, former employee or applicant
could reasonably conclude that the actions of the government
evidence such violations, mismanagement, waste, abuse, or
danger.'' In addition, this section provides that any
presumption that the public official whose misconduct has been
disclosed by the whistleblower acted in good faith may be
rebutted by ``substantial evidence'' rather than ``irrefragable
proof.'' The Federal Circuit had required the standard
``irrefragable proof'' in a previous decision.
Section 5. Nondisclosure policies, forms, and agreements
Subsection (a) states that implementation or enforcement of
any nondisclosure policy, form, or agreement is a prohibited
personnel practice.
Subsection (b) prohibits any agency from implementing or
enforcing any nondisclosure policy, form, or agreement, if the
policy, form, or agreement does not contain specified language
notifying the employee of his or her rights. Also, this
subsection prohibits investigation, other than any ministerial
or nondiscretionary fact-finding activities necessary for the
agency to perform its mission, of any employee because of any
activity protected under section 2302.
Section 6. Exclusion of agencies by the President
This section requires the removal of any agency or unit by
the President from whistleblower protection coverage be made
prior to any personnel action being taken against a
whistleblower at that agency.
Section 7. Disciplinary action
This section states that the MSPB can discipline an
employee if it finds that the protected activity was a
``primary motivating factor'' in the employee's action. Under
current MSPB case law, in order for the MSPB to discipline an
employee, the OSC has to demonstrate that an adverse personnel
action would not have occurred ``but for'' the whistleblower's
protected activity.
Section 8. GAO study on revocation of security clearances
Subsection (a) requires GAO to conduct a study of security
clearance revocations.
Subsection (b) requires that GAO report to the Committee
and the Committee on Homeland Security and Governmental Affairs
of the Senate within 270 days of the bill's enactment.
Section 9. Alternative recourse
Subsection (a) provides that an employee who seeks
corrective action (or on behalf of whom corrective action is
sought) from the MSPB with respect to a prohibited personnel
practice described in section 2302(b)(8) may bring an action in
federal district court for a trial by jury (1) if the MSPB does
not take final action on the claims within 180 days or (2)
within 90 days of final action by the MSPB. The employee could
file his or her action in the United States district court for
the district where the alleged prohibited personnel practice
occurred, the district in which employment records are
maintained and administered, or the district in which the
whistleblower resides. The district court is to apply the
standards and award the relief in the same manner as the MSPB.
The district court decision may be appealed to the U.S. court
of appeals having jurisdiction over appeals from the district
court in which the case was brought.
Subsection (b) allows a whistleblower to seek review of a
final order or decision of the MSPB in the Federal Circuit or
the circuit of appeals for the circuit where the alleged
prohibited personnel practice occurred, the circuit in which
the employment records are maintained and administered, or the
circuit in which the whistleblower resides.
Subsection (c) provides that the MSPB can award
compensatory damages including interest and expert witness
fees.
Subsection (d) prohibits an employee who has filed a case
in district court under subsection (a) from also appealing an
order or decision of the MSPB directly to a court of appeals.
Section 10. National security whistleblower rights
Subsection (a) provides that, in addition to rights he or
she may already have, an employee of a covered agency may not
be discharged or discriminated against, including by denying,
suspending, or revoking a security clearance or otherwise
restricting access to classified or sensitive information, as a
reprisal for disclosing covered information to an authorized
Member of Congress, authorized executive official, or the IG of
the covered agency. A disclosure means any disclosure, whether
that disclosure is made as part of an employee's, former
employee's, or applicant's duties, concerns consequences of
policy or individual misconduct, is oral or written, or is made
to any audience inside or outside an agency, without
restriction to time, form, motive, context, or prior
disclosure.
Subsection (b) provides that an employee, former employee,
or applicant who believes he or she has been the subject of a
reprisal prohibited by subsection (a) may submit a complaint to
the IG and the agency head. The IG will investigate the
complaint and report findings to the employee and the agency
head within 120 days.
Subsection (c) provides that within 180 days of filing of
the complaint, the agency head, taking into account the IG
report, will determine whether the employee has been subjected
to a reprisal prohibited by subsection (a) and will either
issue an order denying relief or implement corrective action to
return the employee, as nearly as possible, to his pre-reprisal
condition, including voiding any action denying, suspending, or
revoking a security clearance or other access to classified or
sensitive information, ordering back pay, benefits, medical
costs, and travel expenses and paying consequential damages and
compensatory damages including attorney's fees, interest,
reasonable expert fees, and costs. If the agency head issues an
order denying relief, he is required to issue a report to the
employee detailing the reasons for the denial.
The subsection further provides that where corrective
action by an agency head involves voiding a suspension or
revocation of a security clearance or other access to sensitive
or classified information, the agency head may re-initiate
procedures to suspend the clearance or restrict access only if
the new actions are based exclusively on national security
concerns and not related to the original reprisal. In this
case, the agency head is required to issue a report to the IG
and authorized members of Congress explaining how the actions
are based exclusively on national security concerns, provide
periodic updates on the actions, and respond promptly to
inquiries from authorized members of Congress on the procedure
status.
The subsection also provides that an employee may seek
corrective action, in federal district court for a trial by
jury, if (1) the agency head has not made a determination
within 180 days or (2) within 90 days of the order issuance.
The employee could file his or her action in the United States
district court for the district where the alleged prohibited
personnel practice occurred, for the district in which the
employment records are maintained and administered, or for the
district in which the whistleblower resides. The district court
decision may be appealed to the U.S. court of appeals having
jurisdiction over appeals from the district court in which the
case was brought.
In addition, the employee may, within 60 days, have any
order issued under this section reviewed by the Federal Circuit
or court of appeals for the circuit where the alleged
prohibited personnel practice occurred, the circuit in which
the employment records are maintained and administered, or the
circuit in which the whistleblower resides.
Also, this subsection contains limitations on the executive
agency's assertion of the so-called ``state secrets privilege''
in actions for damages or relief under this section.
Specifically, if the assertion of this privilege prevents the
employee from establishing an element in support of his or her
claim, the court will resolve the disputed issue of fact of law
in favor of the employee. When the privilege is asserted, the
agency head must issue a report to authorized Members of
Congress describing why it was asserted and why the court
cannot protect the classified information in order to hear the
issue.
Subsection (d) provides that an employee in a non-covered
agency should, for the purpose of disclosing covered classified
or sensitive information, be entitled to the same protections
as if the agency were a covered agency. The intention of this
section is to provide whistleblower rights to those individuals
whose job functions make them eligible for the protections of
this section even though their agencies are not specified such
as intelligence analysts and information sharing employees with
access to classified information within the Department of
Homeland Security's Office of Intelligence and Analysis or
Foreign Service Diplomatic Security Special Agents at the
Department of State.
Subsection (e) provides that nothing in this section is to
be construed to authorize discharge, demotion, or
discrimination against an employee for a disclosure other than
one protected by this section or to limit a right or remedy
otherwise available to the employee, former employee, or
applicant, including any rights or remedies available under the
Lloyd-La Follette Act.
Subsection (f) contains definitions.
The term ``covered information'' means information,
including classified or sensitive information, that an
employee, former employee, or applicant, reasonably believes
provides evidence of any violation of any law, rule, or
regulation, or gross mismanagement, or waste of funds, abuse of
authority, or substantial and specific danger to public health
or safety.
The term ``covered agencies'' means the Federal Bureau of
Investigation, the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-Intelligence
Agency, National Security Agency, the National Reconnaissance
Office and any other agency or element thereof involved in
foreign intelligence or counterintelligence activities as
determined by the President.
The term ``authorized Member of Congress'' means a member
of the House Permanent Select Committee on Intelligence, the
Senate Select Committee on Intelligence, the House Committee on
Oversight and Government Reform, the Senate Committee on
Homeland Security and Governmental Affairs and the committees
of the House or Senate that have oversight over the program
about which the information is disclosed. Members of Congress
often receive communications through their staff. A
communication to a staff member of an authorized Member should
be considered a communication with the authorized Member if the
staff has the appropriate clearances and the purpose of the
communication is to convey information to the authorized
Member.
The term ``authorized office of an executive agency'' is to
be defined by the Office of Personnel Management. However, this
definition will include the immediate supervisor of the
employee or former employee and each successive supervisor
(immediately above such immediate supervisor) in the chain of
authority as well as the head, general counsel, and ombudsman
of the agency.
The term ``authorized official of the Department of
Justice'' means any employee of the Department of Justice whose
duties include the investigation, enforcement, or prosecution
of any law or regulation.
Section 11. Enhancement of contractor employee whistleblower
protections
Subsection (a) requires that the head of a civilian
executive agency make a determination, within 180 days after
the submission of a complaint by a contractor employee, about
whether the contractor concerned has subjected the contractor
employee to a reprisal. The agency head will either issue an
order denying relief or take corrective action. If the head of
the executive agency fails to issue an order or take correction
action within 180 days, the contractor employee may bring an
action in district court to seek compensatory and other relief.
Subsection (b) applies the requirements of subsection (a)
to contractor employees under the Department of Defense and
National Aeronautics and Space Administration contracts.
Section 12. Prohibited personnel practices affecting employees of the
Transportation Security Administration
This section grants employees at TSA, including those
carrying out screener functions, the same whistleblower
protections as other federal employees. This section is
intended to be a response to the MSPB decision in Schott v.
Department of Homeland Security where the MSPB ruled TSA
screeners did not have whistleblower rights.
Section 13. Clarification of whistleblower rights relating to
scientific and other research
This section clarifies that the term ``abuse of authority''
includes political interference with science, such as actions
that compromise the validity or accuracy of federally funded
research or analysis and the dissemination of false or
misleading scientific, medical, or technical information. The
Committee is aware of OSC determinations denying whistleblower
protections to employees attempting to disclose political
interference with science. This change is intended to confirm
that these disclosures are to be protected.
Section 14. Effective date
This section provides that the provisions of H.R. 985 takes
effect 30 days after date of enactment of the Act.
Explanation of Amendments
The following amendments were adopted in Committee:
Mr. Van Hollen and Mr. Platts offered an amendment, passed
by voice vote, to allow a whistleblower to file an appeal of a
whistleblower case in the Federal Circuit or the court of
appeals for the circuit where the alleged prohibited personnel
practice occurred, where the employment records are maintained
and administered, or where the whistleblower resides. Mr. Issa
raised a point of order against this amendment claiming it was
not germane because it regarded issues in the jurisdiction of
the Committee on the Judiciary. After consulting the House
Parliamentarian, the Chair ruled against Mr. Issa's point of
order explaining that the entire bill deals with rights of
redress and appeal and the amendment does not amend title 18 of
the U.S. Code but only grants a right to appeal.
Mr. Braley offered an amendment, which passed by voice
vote, clarifying that the bill allows for jury trials at the
district court level.
Mr. Braley offered an amendment, which passed by voice
vote, clarifying what types of damages a whistleblower can
recover if the MSPB or a district court rules in his or her
favor. Under the original text, the words ``compensatory
damages'' were used in one section but not in another. The
Braley amendment clarifies that compensatory damages are
available to all federal employees and contractors. Further, it
details some of the items the MSPB or a district court could
award including interest and expert witness fees.
Committee Consideration
On Wednesday, February 14, 2007, the Committee ordered the
bill reported to the House by a recorded vote.
Rollcall Votes
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill provides enhanced transparency to the operations of
the executive branch. As such this bill does not relate to
employment or access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 985. Article I, Section 8, Clause 18 of the
Constitution of the United States grants the Congress the power
to enact this law.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement whether
the provisions of the reported bill include unfunded mandates.
In compliance with this requirement the Committee has received
a letter from the Congressional Budget Office included herein.
Earmark Identification
H.R. 1255 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 985. However, clause 3(d)(3)(B) of that rule provides that
this requirement does not apply when the Committee has included
in its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 985 from the Director of
Congressional Budget Office:
March 9, 2007.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 985, the
Whistleblower Protection Enhancement Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orszag.
Enclosure.
H.R. 985--Whistleblower Protection Enhancement Act of 2007
H.R. 985 would amend the Whistleblower Protection Act
(WPA), clarify current law, and give new protections to federal
employees and contractors who report abuse, fraud, and waste
involving government activities. The legislation also would
make several changes to the laws governing the Merit Systems
Protection Board (MSPB) and the Office of Special Counsel
(OSC). In addition, the legislation would require a study by
the Government Accountability Office (GAO) regarding the
revocation of security clearances.
CBO estimates that implementing H.R. 985 would cost $5
million a year and about $25 million over the 2008-2012 period,
assuming appropriation of the necessary amounts. Enacting the
legislation could affect direct spending, but we estimate any
amounts would not be significant in any year. Enacting the bill
would not affect revenues. H.R. 985 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would not affect the budgets
of state, local, or tribal governments.
Under current law, the OSC investigates complaints
regarding reprisals against federal employees that inform
authorities of fraud or other improprieties in the operation of
federal programs (such individuals are known as
whistleblowers). The OSC seeks corrective action for valid
complaints. If agencies fail to take corrective action, the OSC
or the employee can pursue a case through the MSPB for
resolution. Whistleblower cases may also be reviewed by the
U.S. Court of Appeals.
According to the MSPB and OSC, there generally are between
400 and 500 whistleblower cases per year. Major provisions of
H.R. 985 would expand the definition of protected
whistleblowing, and extend employee protections to federal
contractors, Transportation Security Administration passenger
and baggage screeners, and federal employees working on
scientific research or national security issues. The bill would
allow for access to jury trials for federal employees and
contractors in whistleblower cases, authorize the payment of
compensatory damages for employees involved in such cases, and
remove the exclusive jurisdiction of the U.S. Court of Appeals
over whistleblower appeals.
In 2007, the MSPB received an appropriation of $36 million,
and the OSC received $15 million. CBO expects that the bill's
changes in whistleblower laws would increase the workload of
the MSPB and OSC. Based on information from those agencies, we
estimate that implementing this bill would cost up to $3
million a year to cover additional staffing, travel, and
security clearance reviews.
When implementing corrective actions to settle an
employment dispute between the federal government and its
employees regarding prohibited personnel practices, federal
agencies are required to spend appropriated funds to pay for an
employee's attorney, back pay, and any associated travel and
medical costs. Under H.R. 985, federal employees and
contractors could also receive compensatory damages for
employment disputes.
CBO cannot estimate the cost of compensatory damage awards
in such cases because the amount awarded would depend on the
particular circumstances of each case and the frequency of
cases involving such damages. Recent settlement amounts under
the Whistleblower Protection Act have ranged from $20,000 to
$200,000. While it is uncertain how often compensatory damages
would be awarded in such cases, OSC and MSPB believe such
awards could more than double the cost of some settlements.
Hence, CBO expects that this provision would add a few million
dollars each year to the cost of agency settlements, which are
paid from individual agency appropriations.
In addition, the legislation would require the GAO to
prepare a study within nine months on security clearance
revocations since 1996. Based on the cost of similar reports,
CBO estimates that preparing the report would cost less than
$500,000 over the 2007-2008 period, assuming the availability
of appropriated funds.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
* * * * * * *
CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION
* * * * * * *
SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL
* * * * * * *
Sec. 1215. Disciplinary action
(a)(1) * * *
* * * * * * *
[(3) A final order of the Board may impose disciplinary
action consisting of removal, reduction in grade, debarment
from Federal employment for a period not to exceed 5 years,
suspension, reprimand, or an assessment of a civil penalty not
to exceed $1,000.]
(3)(A) A final order of the Board may impose--
(i) disciplinary action consisting of removal,
reduction in grade, debarment from Federal employment
for a period not to exceed 5 years, suspension, or
reprimand;
(ii) an assessment of a civil penalty not to exceed
$1,000; or
(iii) any combination of disciplinary actions
described under clause (i) and an assessment described
under clause (ii).
(B) In any case in which the Board finds that an employee has
committed a prohibited personnel practice under paragraph (8)
or (9) of section 2302(b), the Board shall impose disciplinary
action if the Board finds that the activity protected under
such paragraph (8) or (9) (as the case may be) was the primary
motivating factor, unless that employee demonstrates, by a
preponderance of the evidence, that the employee would have
taken, failed to take, or threatened to take or fail to take
the same personnel action, in the absence of such protected
activity.
* * * * * * *
SUBCHAPTER III--INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
Sec. 1221. Individual right of action in certain reprisal cases
(a) * * *
* * * * * * *
(g)(1)(A) If the Board orders corrective action under this
section, such corrective action may include--
(i) * * *
(ii) back pay and related benefits, medical costs
incurred, travel expenses, [and any other reasonable
and foreseeable consequential changes.] any other
reasonable and foreseeable consequential damages, and
compensatory damages (including attorney's fees,
interest, reasonable expert witness fees, and costs).
* * * * * * *
(h)(1) * * *
* * * * * * *
(3) Judicial review under this subsection shall not be
available with respect to any decision or order as to which the
employee, former employee, or applicant has filed a petition
for judicial review under subsection (k).
* * * * * * *
(k)(1) If, in the case of an employee, former employee, or
applicant for employment who seeks corrective action (or on
behalf of whom corrective action is sought) from the Merit
Systems Protection Board based on an alleged prohibited
personnel practice described in section 2302(b)(8), no final
order or decision is issued by the Board within 180 days after
the date on which a request for such corrective action has been
duly submitted (or, in the event that a final order or decision
is issued by the Board, whether within that 180-day period or
thereafter, then, within 90 days after such final order or
decision is issued, and so long as such employee, former
employee, or applicant has not filed a petition for judicial
review of such order or decision under subsection (h))--
(A) such employee, former employee, or applicant may,
after providing written notice to the Board, bring an
action at law or equity for de novo review in the
appropriate United States district court, which shall
have jurisdiction over such action without regard to
the amount incontroversy, and which action shall, at
the request of either party to such action, be tried by
the court with a jury; and
(B) in any such action, the court--
(i) shall apply the standards set forth in
subsection (e); and
(ii) may award any relief which the court
considers appropriate, including any relief
described in subsection (g).
An appeal from a final decision of a district court in an
action under this paragraph may, at the election of the
appellant, be taken to the Court of Appeals for the Federal
Circuit (which shall have jurisdiction of such appeal), in lieu
of the United States court of appeals for the circuit embracing
the district in which the action was brought.
(2) For purposes of this subsection, the term ``appropriate
United States district court'', as used with respect to an
alleged prohibited personnel practice, means the United States
district court for the district in which the prohibited
personnel practice is alleged to have been committed, the
judicial district in which the employment records relevant to
such practice are maintained and administered, or the judicial
district in which resides the employee, former employee, or
applicant for employment allegedly affected by such practice.
(3) This subsection applies with respect to any appeal,
petition, or other request for corrective action duly submitted
to the Board, whether pursuant to section 1214(b)(2), the
preceding provisions of this section, section 7513(d), or any
otherwise applicable provisions of law, rule, or regulation.
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart A--General Provisions
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
Sec.
2301. Merit system principles.
* * * * * * *
[2304. Responsibility of the Government Accountability Office.
[2305. Coordination with certain other provisions of law.]
2303a. National security whistleblower rights.
2304. Prohibited personnel practices affecting the Transportation
Security Administration.
2305. Responsibility of the Government Accountability Office.
2306. Coordination with certain other provisions of law.
* * * * * * *
Sec. 2302. Prohibited personnel practices
(a)(1) * * *
(2) For the purpose of this section--
(A) ``personnel action'' means--
(i) * * *
* * * * * * *
(x) a decision to order psychiatric testing
or examination; [and]
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and
[(xi)] (xii) any other significant change in
duties, responsibilities, or working
conditions;
* * * * * * *
(B) ``covered position'' means, with respect to any
personnel action, any position in the competitive
service, a career appointee position in the Senior
Executive Service, or a position in the excepted
service, but does not include any position which is,
prior to the personnel action--
(i) * * *
(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of good
administration; [and]
(C) ``agency'' means an Executive agency and the
Government Printing Office, but does not include--
(i) * * *
[(ii) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security
Agency, and, as determined by the President,
any Executive agency or unit thereof the
principal function of which is the conduct of
foreign intelligence or counterintelligence
activities; or]
(ii)(I) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, or the National Security
Agency; or
(II) as determined by the President, any
Executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
if the determination (as that determination
relates to a personnel action) is made before
that personnel action; or
(iii) the Government Accountability
Office[.]; and
(D) ``disclosure'' means a formal or informal
communication, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee or
applicant providing the disclosure reasonably believes
that the disclosure evidences--
(i) any violation of any law, rule, or
regulation; or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(1) * * *
* * * * * * *
(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 of information by an
employee or applicant [which the employee or
applicant reasonably believes evidences],
without restriction as to time, place, form,
motive, context, or prior disclosure made to
any person by an employee or applicant,
including a disclosure made in the ordinary
course of an employee's duties, that the
employee or applicant reasonably believes is
evidence of--
(i) [a violation] any violation of
any law, rule, or regulation, or
* * * * * * *
(B) any disclosure to the Special Counsel, or
to 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], without
restriction as to time, place, form, motive,
context, or prior disclosure made to any person
by an employee or applicant, including a
disclosure made in the ordinary course of an
employee's duties, of information that the
employee or applicant reasonably believes is
evidence of--
(i) [a violation] any violation
(other than a violation of this
section) of any law, rule, or
regulation, or
* * * * * * *
(11)(A) * * *
(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action
would violate a veterans' preference requirement; [or]
(12) implement or enforce any nondisclosure policy,
form, or agreement, if such policy, form, or agreement
does not contain the following statement: ``These
provisions are consistent with and do not supersede,
conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by
Executive Order No. 12958; section 7211 of title 5,
United States Code (governing disclosures to Congress);
section 1034 of title 10, United States Code (governing
disclosures to Congress by members of the military);
section 2302(b)(8) of title 5, United States Code
(governing disclosures of illegality, waste, fraud,
abuse, or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50
U.S.C. 421 and following) (governing disclosures that
could expose confidential Government agents); and the
statutes which protect against disclosures that could
compromise national security, including sections 641,
793, 794, 798, and 952 of title 18, United States Code,
and section 4(b) of the Subversive Activities Control
Act of 1950 (50 U.S.C. 783(b)). The definitions,
requirements, obligations, rights, sanctions, and
liabilities created by such Executive order and such
statutory provisions are incorporated into this
agreement and are controlling.'';
(13) conduct, or cause to be conducted, an
investigation, other than any ministerial or
nondiscretionary factfinding activities necessary for
the agency to perform its mission, of an employee or
applicant for employment because of any activity
protected under this section; or
[(12)] (14) take or fail to take any other personnel
action if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title.
This subsection shall not be construed to authorize the
withholding of information from the Congress or the taking of
any personnel action against an employee who discloses
information to the Congress. For purposes of paragraph (8), any
presumption relating to the performance of a duty by an
employee who has authority to take, direct others to take,
recommend, or approve any personnel action may be rebutted by
substantial evidence. For purposes of paragraph (8), a
determination as to whether an employee or applicant reasonably
believes that such employee or applicant has disclosed
information that evidences any violation of law, rule,
regulation, gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety shall be made by determining whether a
disinterested observer with knowledge of the essential facts
known to or readily ascertainable by the employee or applicant
could reasonably conclude that the actions of the Government
evidence such violations, mismanagement, waste, abuse, or
danger.
* * * * * * *
(f) As used in section 2302(b)(8), the term ``abuse of
authority'' includes--
(1) any action that compromises the validity or
accuracy of federally funded research or analysis; and
(2) the dissemination of false or misleading
scientific, medical, or technical information.
* * * * * * *
Sec. 2303a. National security whistleblower rights
(a) Prohibition of Reprisals.--
(1) In general.--In addition to any rights provided
in section 2303 of this title, title VII of Public Law
105-272, or any other provision of law, an employee,
former employee, or applicant for employment in a
covered agency may not be discharged, demoted, or
otherwise discriminated against (including by denying,
suspending, or revoking a security clearance, or by
otherwise restricting access to classified or sensitive
information) as a reprisal for making a disclosure
described in paragraph (2).
(2) Disclosures described.--A disclosure described in
this paragraph is any disclosure of covered information
which is made--
(A) by an employee, former employee, or
applicant for employment in a covered agency
(without restriction as to time, place, form,
motive, context, or prior disclosure made to
any person by an employee, former employee, or
applicant, including a disclosure made in the
course of an employee's duties); and
(B) to an authorized Member of Congress, an
authorized official of an Executive agency, an
authorized official of the Department of
Justice, or the Inspector General of the
covered agency in which such employee is
employed, such former employee was employed, or
such applicant seeks employment.
(b) Investigation of Complaints.--An employee, former
employee, or applicant for employment in a covered agency who
believes that such employee, former employee, or applicant has
been subjected to a reprisal prohibited by subsection (a) may
submit a complaint to the Inspector General and the head of the
covered agency. The Inspector General shall investigate the
complaint and, unless the Inspector General determines that the
complaint is frivolous, submit a report of the findings of the
investigation within 120 days to the employee, former employee,
or applicant and to the head of the covered agency.
(c) Remedy.--
(1) Within 180 days of the filing of the complaint,
the head of the covered agency shall, taking into
consideration the report of the Inspector General under
subsection (b) (if any), determine whether the
employee, former employee, or applicant has been
subjected to a reprisal prohibited by subsection (a),
and shall either issue an order denying relief or shall
implement corrective action to return the employee,
former employee, or applicant, as nearly as possible,
to the position he would have held had the reprisal not
occurred, including voiding any directive or order
denying, suspending, or revoking a security clearance
or otherwise restricting access to classified or
sensitive information that constituted a reprisal, as
well as providing back pay and related benefits,
medical costs incurred, travel expenses, any other
reasonable and foreseeable consequential damages, and
compensatory damages (including attorney's fees,
interest, reasonable expert witness fees, and costs).
If the head of the covered agency issues an order
denying relief, he shall issue a report to the
employee, former employee, or applicant detailing the
reasons for the denial.
(2)(A) If the head of the covered agency, in the
process of implementing corrective action under
paragraph (1), voids a directive or order denying,
suspending, or revoking a security clearance or
otherwise restricting access to classified or sensitive
information that constituted a reprisal, the head of
the covered agency may re-initiate procedures to issue
a directive or order denying, suspending, or revoking a
security clearance or otherwise restricting access to
classified or sensitive information only if those re-
initiated procedures are based exclusively on national
security concerns and are unrelated to the actions
constituting the original reprisal.
(B) In any case in which the head of a covered agency
re-initiates procedures under subparagraph (A), the
head of the covered agency shall issue an unclassified
report to its Inspector General and to authorized
Members of Congress (with a classified annex, if
necessary), detailing the circumstances of the agency's
re-initiated procedures and describing the manner in
which those procedures are based exclusively on
national security concerns and are unrelated to the
actions constituting the original reprisal. The head of
the covered agency shall also provide periodic updates
to the Inspector General and authorized Members of
Congress detailing any significant actions taken as a
result of those procedures, and shall respond promptly
to inquiries from authorized Members of Congress
regarding the status of those procedures.
(3) If the head of the covered agency has not made a
determination under paragraph (1) within 180 days of
the filing of the complaint (or he has issued an order
denying relief, in whole or in part, whether within
that 180-day period or thereafter, then, within 90 days
after such order is issued), the employee, former
employee, or applicant for employment may bring an
action at law or equity for de novo review to seek any
corrective action described in paragraph (1) in the
appropriate United States district court (as defined by
section 1221(k)(2)), which shall have jurisdiction over
such action without regard to the amount in
controversy, and which action shall, at the request of
either party to such action, be tried by the court with
a jury. An appeal from a final decision of a district
court in an action under this paragraph may, at the
election of the appellant, be taken to the Court of
Appeals for the Federal Circuit (which shall have
jurisdiction of such appeal), in lieu of the United
States court of appeals for the circuit embracing the
district in which the action was brought.
(4) An employee, former employee, or applicant
adversely affected or aggrieved by an order issued
under paragraph (1), or who seeks review of any
corrective action determined under paragraph (1), may
obtain judicial review of such order or determination
in the United States Court of Appeals for the Federal
Circuit or any United States court of appeals having
jurisdiction over appeals from any United States
district court which, under section 1221(k)(2), would
be an appropriate United States district court. No
petition seeking such review may be filed more than 60
days after issuance of the order or the determination
to implement corrective action by the head of the
agency. Review shall conform to chapter 7.
(5)(A) If, in any action for damages or relief under
paragraph (3) or (4), an Executive agency moves to
withhold information from discovery based on a claim
that disclosure would be inimical to national security
by asserting the privilege commonly referred to as the
``state secrets privilege'', and if the assertion of
such privilege prevents the employee, former employee,
or applicant from establishing an element in support of
the employee's, former employee's, or applicant's
claim, the court shall resolve the disputed issue of
fact or law in favor of the employee, former employee,
or applicant, provided that an Inspector General
investigation under subsection (b) has resulted in
substantial confirmation of that element, or those
elements, of the employee's, former employee's, or
applicant's claim.
(B) In any case in which an Executive agency asserts
the privilege commonly referred to as the ``state
secrets privilege'', whether or not an Inspector
General has conducted an investigation under subsection
(b), the head of that agency shall, at the same time it
asserts the privilege, issue a report to authorized
Members of Congress, accompanied by a classified annex
if necessary, describing the reasons for the assertion,
explaining why the court hearing the matter does not
have the ability to maintain the protection of
classified information related to the assertion,
detailing the steps the agency has taken to arrive at a
mutually agreeable settlement with the employee, former
employee, or applicant for employment, setting forth
the date on which the classified information at issue
will be declassified, and providing all relevant
information about the underlying substantive matter.
(d) Applicability to Non-Covered Agencies.--An employee,
former employee, or applicant for employment in an Executive
agency (or element or unit thereof) that is not a covered
agency shall, for purposes of any disclosure of covered
information (as described in subsection (a)(2)) which consists
in whole or in part of classified or sensitive information, be
entitled to the same protections, rights, and remedies under
this section as if that Executive agency (or element or unit
thereof) were a covered agency.
(e) Construction.--Nothing in this section may be construed--
(1) to authorize the discharge of, demotion of, or
discrimination against an employee, former employee, or
applicant for employment for a disclosure other than a
disclosure protected by subsection (a) or (d) of this
section or to modify or derogate from a right or remedy
otherwise available to an employee, former employee, or
applicant for employment; or
(2) to preempt, modify, limit, or derogate any rights
or remedies available to an employee, former employee,
or applicant for employment under any other provision
of law, rule, or regulation (including the Lloyd-La
Follette Act).
No court or administrative agency may require the exhaustion of
any right or remedy under this section as a condition for
pursuing any other right or remedy otherwise available to an
employee, former employee, or applicant under any other
provision of law, rule, or regulation (as referred to in
paragraph (2)).
(f) Definitions.--For purposes of this section--
(1) the term ``covered information'', as used with
respect to an employee, former employee, or applicant
for employment, means any information (including
classified or sensitive information) which the
employee, former employee, or applicant reasonably
believes evidences--
(A) any violation of any law, rule, or
regulation; or
(B) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety;
(2) the term ``covered agency'' means--
(A) the Federal Bureau of Investigation, the
Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security
Agency, and the National Reconnaissance Office;
and
(B) any other Executive agency, or element or
unit thereof, determined by the President under
section 2302(a)(2)(C)(ii)(II) to have as its
principal function the conduct of foreign
intelligence or counterintelligence activities;
(3) the term ``authorized Member of Congress'' means
a member of the House Permanent Select Committee on
Intelligence, the Senate Select Committee on
Intelligence, the House Committee on Oversight and
Government Reform, the Senate Committee on Homeland
Security and Governmental Affairs, and the committees
of the House of Representatives or the Senate that have
oversight over the program about which the covered
information is disclosed;
(4) the term ``authorized official of an Executive
agency'' shall have such meaning as the Office of
Personnel Management shall by regulation prescribe,
except that such term shall, with respect to any
employee, former employee, or applicant for employment
in an agency, include--
(A) the immediate supervisor of the employee
or former employee and each successive
supervisor (immediately above such immediate
supervisor) within the employee's or former
employee's chain of authority (as determined
under such regulations); and
(B) the head, general counsel, and ombudsman
of such agency; and
(5) the term ``authorized official of the Department
of Justice'' means any employee of the Department of
Justice, the duties of whose position include the
investigation, enforcement, or prosecution of any law,
rule, or regulation.
Sec. 2304. Prohibited personnel practices affecting the Transportation
Security Administration
(a) In General.--Notwithstanding any other provision of law,
any individual holding or applying for a position within the
Transportation Security Administration shall be covered by--
(1) the provisions of section 2302(b)(1), (8), and
(9);
(2) any provision of law implementing section
2302(b)(1), (8), or (9) by providing any right or
remedy available to an employee or applicant for
employment in the civil service; and
(3) any rule or regulation prescribed under any
provision of law referred to in paragraph (1) or (2).
(b) Rule of Construction.--Nothing in this section shall be
construed to affect any rights, apart from those described in
subsection (a), to which an individual described in subsection
(a) might otherwise be entitled under law.
(c) Effective Date.--This section shall take effect as of the
date of the enactment of this section.
Sec. [2304.] 2305. Responsibility of the Government Accountability
Office
If requested by either House of the Congress (or any
committee thereof), or if considered necessary by the
Comptroller General, the Government Accountability Office shall
conduct audits and reviews to assure compliance with the laws,
rules, and regulations governing employment in the executive
branch and in the competitive service and to assess the
effectiveness and soundness of Federal personnel management.
Sec. [2305.] 2306. Coordination with certain other provisions of law
No provision of this chapter, or action taken under this
chapter, shall be construed to impair the authorities and
responsibilities set forth in section 102 of the National
Security Act of 1947 (61 Stat. 495; 50 U.S.C. 403), the Central
Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a
and following), the Act entitled ``An Act to provide certain
administrative authorities for the National Security Agency,
and for other purposes'', approved May 29, 1959 (73 Stat. 63;
50 U.S.C. 402 note), and the Act entitled ``An Act to amend the
Internal Security Act of 1950'', approved March 26, 1964 (78
Stat. 168; 50 U.S.C. 831-835).
* * * * * * *
Subpart F--Labor-Management and Employee Relations
* * * * * * *
CHAPTER 77--APPEALS
* * * * * * *
Sec. 7703. Judicial review of decisions of the Merit Systems Protection
Board
(a) * * *
* * * * * * *
(b)(1) Except as provided in paragraph (2) of this
subsection, a petition to review a final order or final
decision of the Board shall be filed in [the United States
Court of Appeals for the Federal Circuit] the appropriate
United States court of appeals. Notwithstanding any other
provision of law, any petition for review must be filed within
60 days after the date the petitioner received notice of the
final order or decision of the Board.
* * * * * * *
(3) For purposes of the first sentence of paragraph (1), the
term ``appropriate United States court of appeals'' means the
United States Court of Appeals for the Federal Circuit, except
that in the case of a prohibited personnel practice described
in section 2302(b)(8) (other than a case that, disregarding
this paragraph, would otherwise be subject to paragraph (2)),
such term means the United States Court of Appeals for the
Federal Circuit and any United States court of appeals having
jurisdiction over appeals from any United States district court
which, under section 1221(k)(2), would be an appropriate United
States district court for purposes of such prohibited personnel
practice.
(c) In any case filed in the United States Court of Appeals
for the Federal Circuit, the court shall review the record and
hold unlawful and set aside any agency action, findings, or
conclusions found to be--
(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(2) obtained without procedures required by law,
rule, or regulation having been followed; or
(3) unsupported by substantial evidence;
except that in the case of discrimination brought under any
section referred to in subsection (b)(2) of this section, the
employee or applicant shall have the right to have the facts
subject to trial de novo by the reviewing [court.] court, and
in the case of a prohibited personnel practice described in
section 2302(b)(8) brought under any provision of law, rule, or
regulation described in section 1221(k)(3), the employee or
applicant shall have the right to de novo review in accordance
with section 1221(k).
* * * * * * *
----------
FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949
* * * * * * *
TITLE III--PROCUREMENT PROCEDURE
* * * * * * *
SEC. 315. CONTRACTOR EMPLOYEES: PROTECTION FROM REPRISAL FOR DISCLOSURE
OF CERTAIN INFORMATION.
(a) * * *
* * * * * * *
(c) Remedy and Enforcement Authority.--(1) [If the head of an
executive agency determines that a contractor has subjected a
person to a reprisal prohibited by subsection (a), the head of
the executive agency may take one or more of the following
actions:] Not later than 180 days after submission of a
complaint under subsection (b), the head of the executive
agency concerned shall determine whether the contractor
concerned has subjected the complainant to a reprisal
prohibited by subsection (a) and shall either issue an order
denying relief or shall take one or more of the following
actions:
(A) * * *
* * * * * * *
(3) If the head of an executive agency has not issued an
order within 180 days after the submission of a complaint under
subsection (b) 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 his administrative remedies with
respect to the complaint, and the complainant may bring an
action at law or equity for de novo review 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, and which action shall, at the request
of either party to such action, be tried by the court with a
jury.
[(3)] (4) 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.
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TITLE 10, UNITED STATES CODE
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Subtitle A--General Military Law
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PART IV--SERVICE, SUPPLY, AND PROCUREMENT
* * * * * * *
CHAPTER 141--MISCELLANEOUS PROCUREMENT PROVISIONS
* * * * * * *
Sec. 2409. Contractor employees: protection from reprisal for
disclosure of certain information
(a) * * *
* * * * * * *
(c) Remedy and Enforcement Authority.--(1) [If the head of
the agency determines that a contractor has subjected a person
to a reprisal prohibited by subsection (a), the head of the
agency may take one or more of the following actions:] Not
later than 180 days after submission of a complaint under
subsection (b), the head of the agency concerned shall
determine whether the contractor concerned has subjected the
complainant to a reprisal prohibited by subsection (a) and
shall either issue an order denying relief or shall take one or
more of the following actions:
(A) * * *
* * * * * * *
(3) If the head of an agency has not issued an order within
180 days after the submission of a complaint under subsection
(b) 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 his administrative remedies with respect to the
complaint, and the complainant may bring an action at law or
equity for de novo review 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, and which action shall, at the request of
either party to such action, be tried by the court with a jury.
[(3)] (4) 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.
* * * * * * *
