Whistleblower Protection Improvement Act of 2021

IIB 117TH CONGRESS 2D SESSION H. R. 2988 IN THE SENATE OF THE UNITED STATES SEPTEMBER 19, 2022 Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs AN ACT To amend title 5, United States Code, to modify and enhance protections for Federal Government whistleblowers, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 2 HR 2988 RFS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Whistleblower Protec- 2 tion Improvement Act of 2021’’. 3 SEC. 2. ADDITIONAL WHISTLEBLOWER PROTECTIONS. 4 (a) INVESTIGATIONS AS PERSONNEL ACTIONS.— 5 (1) IN GENERAL.—Section 2302(a)(2)(A) of 6 title 5, United States Code, is amended— 7 (A) in clause (xi), by striking ‘‘and’’ at the 8 end; 9 (B) by redesignating clause (xii) as clause 10 (xiv); and 11 (C) by inserting after the clause (xi) the 12 following: 13 ‘‘(xii) for purposes of subsection (b)(8)— 14 ‘‘(I) the commencement, expansion, or 15 extension of an investigation, but not in- 16 cluding any investigation that is ministerial 17 or nondiscretionary (including a ministerial 18 or nondiscretionary investigation described 19 in section 1213) or any investigation that 20 is conducted by an Inspector General of an 21 entity of the Government of an employee 22 not employed by the office of that Inspec- 23 tor General; and 24 ‘‘(II) a referral to an Inspector Gen- 25 eral of an entity of the Government, except 26 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 3 HR 2988 RFS for a referral that is ministerial or nondis- 1 cretionary;’’. 2 (2) APPLICATION.—The amendment made by 3 paragraph (1) shall apply to any investigation 4 opened, or referral made, as described under clause 5 (xii) of section 2302(a)(2)(A) of title 5, United 6 States Code, as added by such paragraph, on or 7 after the date of enactment of this Act. 8 (3) SECURITY CLEARANCES.—Section 9 2302(a)(2)(A) of title 5, United States Code, as 10 amended by paragraph (1), is further amended by 11 inserting after clause (xii) the following: 12 ‘‘(xiii) a suspension, revocation, de- 13 nial, or other determination relating to a 14 security clearance or any other access de- 15 termination made by an agency; and’’. 16 (b) RIGHT TO PETITION CONGRESS.— 17 (1) IN GENERAL.—Section 2302(b)(9) of title 18 5, United States Code, is amended— 19 (A) in subparagraph (C), by striking ‘‘or’’ 20 at the end; 21 (B) in subparagraph (D), by adding ‘‘or’’ 22 after the semicolon at the end; and 23 (C) by adding at the end the following: 24 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 4 HR 2988 RFS ‘‘(E) the exercise of any right protected 1 under section 7211;’’. 2 (2) APPLICATION.—The amendment made by 3 paragraph (1) shall apply to the exercise of any 4 right described in section 2302(b)(9)(E) of title 5, 5 United States Code, as added by paragraph (1), oc- 6 curring on or after the date of enactment of this 7 Act. 8 (c) PROHIBITION ON DISCLOSURE OF WHISTLE- 9 BLOWER IDENTITY.— 10 (1) IN GENERAL.—Section 2302 of title 5, 11 United States Code, is amended by adding at the 12 end the following: 13 ‘‘(g)(1) No employee of an agency may willfully com- 14 municate or transmit to any individual who is not an offi- 15 cer or employee of the Government the identity of, or per- 16 sonally identifiable information about, any other employee 17 because that other employee has made, or is suspected to 18 have made, a disclosure protected by subsection (b)(8), 19 unless— 20 ‘‘(A) the other employee provides express writ- 21 ten consent prior to the communication or trans- 22 mission of their identity or personally identifiable in- 23 formation; 24 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 5 HR 2988 RFS ‘‘(B) the communication or transmission is 1 made in accordance with the provisions of section 2 552a; 3 ‘‘(C) the communication or transmission is 4 made to a lawyer for the sole purpose of providing 5 legal advice to an employee accused of whistleblower 6 retaliation; or 7 ‘‘(D) the communication or transmission is re- 8 quired or permitted by any other provision of law. 9 ‘‘(2) In this subsection, the term ‘officer or employee 10 of the Government’ means— 11 ‘‘(A) the President; 12 ‘‘(B) a Member of Congress; 13 ‘‘(C) a member of the uniformed services; 14 ‘‘(D) an employee as that term is defined in 15 section 2105, including an employee of the United 16 States Postal Service, the Postal Regulatory Com- 17 mission, or the Department of Veterans Affairs (in- 18 cluding any employee appointed pursuant to chapter 19 73 or 74 of title 38); and 20 ‘‘(E) any other officer or employee in any 21 branch of the Government of the United States.’’. 22 (2) APPLICATION.—The amendment made by 23 paragraph (1) shall apply to any transmission or 24 communication described in subsection (g) of section 25 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 6 HR 2988 RFS 2302 of title 5, United States Code, as added by 1 paragraph (1), made on or after the date of enact- 2 ment of this Act. 3 (d) RIGHT TO PETITION CONGRESS.— 4 (1) IN GENERAL.—Section 7211 of title 5, 5 United States Code, is amended to read as follows: 6 ‘‘§ 7211. Employees’ right to petition or furnish infor- 7 mation or respond to Congress 8 ‘‘(a) IN GENERAL.—Each officer or employee of the 9 Federal Government, individually or collectively, has a 10 right to— 11 ‘‘(1) petition Congress or a Member of Con- 12 gress; 13 ‘‘(2) furnish information, documents, or testi- 14 mony to either House of Congress, any Member of 15 Congress, or any committee or subcommittee of the 16 Congress; or 17 ‘‘(3) respond to any request for information, 18 documents, or testimony from either House of Con- 19 gress or any Committee or subcommittee of Con- 20 gress. 21 ‘‘(b) PROHIBITED ACTIONS.—No officer or employee 22 of the Federal Government may interfere with or deny the 23 right set forth in subsection (a), including by— 24 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 7 HR 2988 RFS ‘‘(1) prohibiting or preventing, or attempting or 1 threatening to prohibit or prevent, any other officer 2 or employee of the Federal Government from engag- 3 ing in activity protected in subsection (a); or 4 ‘‘(2) removing, suspending from duty without 5 pay, demoting, reducing in rank, seniority, status, 6 pay, or performance or efficiency rating, denying 7 promotion to, relocating, reassigning, transferring, 8 disciplining, or discriminating in regard to any em- 9 ployment right, entitlement, or benefit, or any term 10 or condition of employment of, any other officer or 11 employee of the Federal Government or attempting 12 or threatening to commit any of the foregoing ac- 13 tions protected in subsection (a). 14 ‘‘(c) APPLICATION.—This section shall not be con- 15 strued to authorize disclosure of any information that is— 16 ‘‘(1) specifically prohibited from disclosure by 17 any other provision of Federal law; or 18 ‘‘(2) specifically required by Executive order to 19 be kept secret in the interest of national defense or 20 the conduct of foreign affairs, unless disclosure is 21 otherwise authorized by law. 22 ‘‘(d) DEFINITION OF OFFICER OR EMPLOYEE OF 23 THE FEDERAL GOVERNMENT.—For purposes of this sec- 24 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 8 HR 2988 RFS tion, the term ‘officer or employee of the Federal Govern- 1 ment’ includes— 2 ‘‘(1) the President; 3 ‘‘(2) a Member of Congress; 4 ‘‘(3) a member of the uniformed services; 5 ‘‘(4) an employee (as that term is defined in 6 section 2105); 7 ‘‘(5) an employee of the United States Postal 8 Service or the Postal Regulatory Commission; and 9 ‘‘(6) an employee appointed under chapter 73 10 or 74 of title 38.’’. 11 (2) CLERICAL AMENDMENT.—The table of sec- 12 tions for subchapter II of chapter 72 of title 5, 13 United States Code, is amended by striking the item 14 related to section 7211 and inserting the following: 15 ‘‘7211. Employees’ right to petition or furnish information or respond to Con- gress.’’. SEC. 3. ENHANCEMENT OF WHISTLEBLOWER PROTEC- 16 TIONS. 17 (a) DISCLOSURES RELATING TO OFFICERS OR EM- 18 PLOYEES OF AN OFFICE OF INSPECTOR GENERAL.—Sec- 19 tion 1213(c) of title 5, United States Code, is amended 20 by adding at the end the following: 21 ‘‘(3) If the information transmitted under this sub- 22 section disclosed a violation of law, rule, or regulation, or 23 gross waste, gross mismanagement, abuse of authority, or 24 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 9 HR 2988 RFS a substantial and specific danger to public health or safe- 1 ty, by any officer or employee of an Office of Inspector 2 General, the Special Counsel may refer the matter to the 3 Council of the Inspectors General on Integrity and Effi- 4 ciency, which shall comply with the standards and proce- 5 dures applicable to investigations and reports under sub- 6 section (c).’’. 7 (b) RETALIATORY REFERRALS TO INSPECTORS GEN- 8 ERAL.—Section 1214(d) of title 5, United States Code, 9 is amended by adding at the end the following: 10 ‘‘(3) In any case in which the Special Counsel deter- 11 mines that a referral to an Inspector General of an entity 12 of the Federal Government was in retaliation for a disclo- 13 sure or protected activity described in section 2302(b)(8) 14 or in retaliation for exercising a right described in section 15 2302(b)(9)(A)(i), the Special Counsel shall transmit that 16 finding in writing to the Inspector General within seven 17 days of making the finding. The Inspector General shall 18 consider that finding and make a determination on wheth- 19 er to initiate an investigation or continue an investigation 20 based on the referral that the Special Counsel found to 21 be retaliatory.’’. 22 (c) ENSURING TIMELY RELIEF.— 23 (1) INDIVIDUAL RIGHT OF ACTION.—Section 24 1221 of title 5, United States Code, is amended by 25 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 10 HR 2988 RFS striking ‘‘section 2302(b)(8) or section 1 2302(b)(9)(A)(i), (B), (C), or (D),’’ each place it ap- 2 pears and inserting ‘‘section 2302(b)(8), section 3 2302(b)(9)(A)(i), (B), (C), (D), or (E), section 4 2302(b)(13), or section 2302(g),’’. 5 (2) STAYS.—Section 1221(c)(2) of title 5, 6 United States Code, is amended to read as follows: 7 ‘‘(2) Any stay requested under paragraph (1) shall 8 be granted within 10 calendar days (excluding Saturdays, 9 Sundays, and legal holidays) after the date the request 10 is made, if the Board determines— 11 ‘‘(A) that there is a substantial likelihood that 12 protected activity was a contributing factor to the 13 personnel action involved; or 14 ‘‘(B) the Board otherwise determines that such 15 a stay would be appropriate.’’. 16 (3) APPEAL OF STAY.—Section 1221(c) of title 17 5, United States Code, is amended by adding at the 18 end the following: 19 ‘‘(4) If any stay requested under paragraph (1) 20 is denied, the employee, former employee, or appli- 21 cant may, within 7 days after receiving notice of the 22 denial, file an appeal for expedited review by the 23 Board. The agency shall have 7 days thereafter to 24 respond. The Board shall provide a decision not 25 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 11 HR 2988 RFS later than 21 days after receiving the appeal. During 1 the period of appeal, both parties may supplement 2 the record with information unavailable to them at 3 the time the stay was first requested.’’. 4 (4) ACCESS TO DISTRICT COURT; JURY 5 TRIALS.— 6 (A) IN GENERAL.—Section 1221(i) of title 7 5, United States Code, is amended— 8 (i) by striking ‘‘(i) Subsections’’ and 9 inserting ‘‘(i)(1) Subsections’’; and 10 (ii) by adding at the end the fol- 11 lowing: 12 ‘‘(2)(A) If, in the case of an employee, former em- 13 ployee, or applicant for employment who seeks corrective 14 action from the Merit Systems Protection Board based on 15 an alleged prohibited personnel practice described in sec- 16 tion 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), 17 or (E), section 2302(b)(13), or section 2302(g), no final 18 order or decision is issued by the Board within 180 days 19 after the date on which a request for such corrective action 20 has been duly submitted to the Board, such employee, 21 former employee, or applicant may, after providing written 22 notice to the Special Counsel and the Board and only with- 23 in 20 days after providing such notice, bring an action 24 for review de novo before the appropriate United States 25 VerDate Sep 11 2014 23:07 Sep 19, 2022 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2988.RFS H2988 pbinns on DSKJLVW7X2PROD with $$_JOB 12 HR 2988 RFS district court, and such action shall, at the request of ei- 1 ther party to such action, be tried before a jury. Upon 2 filing of an action with the appropriate United States dis- 3 trict court, any proceedings before the Board shall cease 4 and the employee, former employee, or applicant for em- 5 ployment waives any right to refile with the Board. 6 ‘‘(B) If the Board certifies (in writing) to the parties 7 of a case that the complexity of such case requires a longer 8 period of review, subparagraph (A) shall be applied by 9 substituting ‘240 days’ for ‘180 days’. 10 ‘‘(C) In any such action brought before a United 11 States district court under subparagraph (A), the court— 12 ‘‘(i) shall apply the standards set forth in sub- 13 section (e); and 14 ‘‘(ii) may award any relief which the court con- 15 siders appropriate, including any relief described in 16 subsection (g).’’. 17 (B) APPLICATION.— 18 (i) The amendments made by sub- 19 paragraph (A) shall apply to any corrective 20 action duly submitted to the Merit Systems 21 [Text truncated for display. Full text available on Congress.gov.]