Whistleblower Protection Improvement Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 7935 To amend title 5, United States Code, to modify and enhance protections for Federal Government whistleblowers, and for other purposes. IN THE HOUSE OF REPRESENTATIVES AUGUST 4, 2020 Mrs. CAROLYN B. MALONEY of New York (for herself, Mr. CONNOLLY, and Ms. SPEIER) introduced the following bill; which was referred to the Com- mittee on Oversight and Reform A BILL 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 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Whistleblower Protec- 4 tion Improvement Act of 2020’’. 5 SEC. 2. ADDITIONAL WHISTLEBLOWER PROTECTIONS. 6 (a) INVESTIGATIONS AS PERSONNEL ACTIONS.— 7 (1) IN GENERAL.—Section 2302(a)(2)(A) of 8 title 5, United States Code, is amended— 9 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 7935 IH (A) in clause (xi), by striking ‘‘and’’ at the 1 end; 2 (B) by redesignating clause (xii) as clause 3 (xiii); and 4 (C) by adding after the clause (xi) the fol- 5 lowing: 6 ‘‘(xii) the opening of any investigation 7 as a result of a disclosure protected by 8 subsection (b)(8) (but not including any 9 investigation that is ministerial or nondis- 10 cretionary); and’’. 11 (2) APPLICATION.—The amendment made by 12 paragraph (1) shall apply to any investigation 13 opened (as described under section 14 2302(a)(2)(A)(xii) of title 5, United States Code, as 15 added by such paragraph) on or after the date of en- 16 actment of this Act. 17 (b) RIGHT TO PETITION CONGRESS.— 18 (1) IN GENERAL.—Section 2302(b)(9) of title 19 5, United States Code, is amended— 20 (A) in subparagraph (C), by striking ‘‘or’’ 21 at the end; 22 (B) in subparagraph (D), by adding ‘‘or’’ 23 at the end after the semicolon; and 24 (C) by adding at the end the following: 25 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 7935 IH ‘‘(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 who has made, or is suspected to have made, a disclosure 18 protected by subsection (b)(8), unless— 19 ‘‘(A) the other employee provides express 20 written consent prior to the communication or 21 transmission; 22 ‘‘(B) the communication or transmission is 23 made in accordance with the provisions of sec- 24 tion 552a; 25 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 7935 IH ‘‘(C) the communication or transmission is 1 made to a lawyer for the sole purpose of pro- 2 viding legal advice to an employee accused of 3 whistleblower retaliation; or 4 ‘‘(D) the communication or transmission is 5 required or permitted by any other provision of 6 law. 7 ‘‘(2) In this subsection, the term ‘officer or employee 8 of the Government’ means— 9 ‘‘(A) the President; 10 ‘‘(B) a Member of Congress; 11 ‘‘(C) a member of the uniformed services; 12 ‘‘(D) an employee as that term is defined in 13 section 2105, including an employee of the United 14 States Postal Service, the Postal Regulatory Com- 15 mission, or the Department of Veterans Affairs (in- 16 cluding any employee appointed pursuant to chapter 17 73 or 74 of title 38); and 18 ‘‘(E) any other officer or employee in any 19 branch of the Government of the United States.’’. 20 (2) APPLICATION.—The amendment made by 21 paragraph (1) shall apply to any transmission or 22 communication described in subsection (g) of section 23 2302 of title 5, United States Code, as added by 24 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 7935 IH paragraph (1), made on or after the date of enact- 1 ment of this Act. 2 (d) RIGHT TO PETITION CONGRESS.— 3 (1) IN GENERAL.—Section 7211 of title 5, 4 United States Code, is amended to read as follows: 5 ‘‘§ 7211. Employees’ right to petition or furnish infor- 6 mation or respond to Congress 7 ‘‘(a) IN GENERAL.—Each officer or employee of the 8 Federal Government, individually or collectively, has a 9 right to— 10 ‘‘(1) petition Congress or a Member of Con- 11 gress; 12 ‘‘(2) furnish information, documents, or testi- 13 mony to either House of Congress, any Member of 14 Congress, or any committee or subcommittee of the 15 Congress; or 16 ‘‘(3) respond to any request for information, 17 documents, or testimony from either House of Con- 18 gress or any Committee or subcommittee of Con- 19 gress. 20 ‘‘(b) PROHIBITED ACTIONS.—No officer or employee 21 of the Federal Government may interfere with or deny the 22 right set forth in subsection (a), including by— 23 ‘‘(1) prohibiting or preventing, or attempting or 24 threatening to prohibit or prevent, any other officer 25 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 7935 IH or employee of the Federal Government from engag- 1 ing in activity protected in subsection (a); or 2 ‘‘(2) removing, suspending from duty without 3 pay, demoting, reducing in rank, seniority, status, 4 pay, or performance or efficiency rating, denying 5 promotion to, relocating, reassigning, transferring, 6 disciplining, or discriminating in regard to any em- 7 ployment right, entitlement, or benefit, or any term 8 or condition of employment of, any other officer or 9 employee of the Federal Government or attempting 10 or threatening to commit any of the foregoing ac- 11 tions protected in subsection (a). 12 ‘‘(c) APPLICATION.—This section shall not be con- 13 strued to authorize disclosure of any information that is— 14 ‘‘(1) specifically prohibited from disclosure by 15 any other provision of Federal law; or 16 ‘‘(2) specifically required by Executive order to 17 be kept secret in the interest of national defense or 18 the conduct of foreign affairs, unless disclosure is 19 otherwise authorized by law. 20 ‘‘(d) DEFINITION OF OFFICER OR EMPLOYEE OF 21 THE FEDERAL GOVERNMENT.—For purposes of this sec- 22 tion, the term ‘officer or employee of the Federal Govern- 23 ment’ includes— 24 ‘‘(1) the President; 25 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 7935 IH ‘‘(2) a Member of Congress; 1 ‘‘(3) a member of the uniformed services; 2 ‘‘(4) an employee (as that term is defined in 3 section 2105); 4 ‘‘(5) an employee of the United States Postal 5 Service or the Postal Regulatory Commission; and 6 ‘‘(6) an employee appointed under chapter 73 7 or 74 of title 38.’’. 8 (2) CLERICAL AMENDMENT.—The table of sec- 9 tions for subchapter II of chapter 72 of title 5, 10 United States Code, is amended by striking the item 11 related to section 7211 and inserting the following: 12 ‘‘7211. Employees’ right to petition or furnish information or respond to Con- gress.’’. SEC. 3. ENHANCEMENT OF WHISTLEBLOWER PROTEC- 13 TIONS. 14 (a) DISCLOSURES RELATING TO OFFICERS OR EM- 15 PLOYEES OF AN OFFICE OF INSPECTOR GENERAL.—Sec- 16 tion 1213(c) of title 5, United States Code, is amended 17 by adding at the end the following: 18 ‘‘(3) If the information transmitted under this 19 subsection disclosed a violation of law, rule, or regu- 20 lation, or gross waste, gross mismanagement, abuse 21 of authority, or a substantial and specific danger to 22 public health or safety, by any officer or employee 23 of an Office of Inspector General, the Special Coun- 24 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 7935 IH sel may refer the matter to the Committee of Inspec- 1 tors General for Integrity and Efficiency, which shall 2 comply with the standards and procedures applicable 3 to investigations and reports under subsection (c).’’. 4 (b) INDIVIDUAL RIGHT OF ACTION.— 5 (1) NONDISCLOSURE AGREEMENTS; DISCLO- 6 SURE OF IDENTITY.—Section 1221 of title 5, United 7 States Code, is amended by striking ‘‘section 8 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or 9 (D),’’ in each instance and inserting ‘‘section 10 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), 11 or (E), section 2302(b)(13), or section 2302(g),’’. 12 (2) STAYS.—Section 1221(c)(2) of title 5, 13 United States Code, is amended to read as follows: 14 ‘‘(2) Any stay requested under paragraph (1) 15 shall be granted within 10 calendar days (excluding 16 Saturdays, Sundays, and legal holidays) after the 17 date the request is made, if the Board determines 18 that such a stay would be appropriate. If the stay 19 request is denied, the employee, former employee, or 20 applicant may, within 7 days after receiving notice 21 of the denial, file an appeal for expedited review by 22 the Board. The agency shall have 7 days thereafter 23 to respond. The Board shall provide a decision not 24 later than 21 days after receiving the appeal. During 25 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 7935 IH the period of appeal, both parties may supplement 1 the record with information unavailable to them at 2 the time the stay was first requested.’’. 3 (3) ACCESS TO DISTRICT COURT; JURY 4 TRIALS.—Section 1221(i) of title 5, United States 5 Code, is amended— 6 (A) by striking ‘‘(i) Subsections’’ and in- 7 serting ‘‘(i)(1) Subsections’’; and 8 (B) by adding at the end the following: 9 ‘‘(2)(A) If, in the case of an employee, former em- 10 ployee, or applicant for employment who seeks corrective 11 action from the Merit Systems Protection Board based on 12 an alleged prohibited personnel practice described in sec- 13 tion 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), 14 or (E), section 2302(b)(13), or section 2302(g), no final 15 order or decision is issued by the Board within 180 days 16 after the date on which a request for such corrective action 17 has been duly submitted to the Board, such employee, 18 former employee, or applicant may, after providing written 19 notice to the Special Counsel and the Board and only with- 20 in 20 days after providing such notice, bring an action 21 for review de novo before the appropriate United States 22 district court, and such action shall, at the request of ei- 23 ther party to such action, be tried before a jury. Upon 24 filing of an action with the appropriate United States dis- 25 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 7935 IH trict court, any proceedings before the Board shall cease 1 and the employee, former employee, or applicant for em- 2 ployment waives any right to refile with the Board. 3 ‘‘(B) If the Board certifies (in writing) to the parties 4 of a case that the complexity of such case requires a longer 5 period of review, subparagraph (A) shall be applied by 6 substituting ‘240 days’ for ‘180 days’. 7 ‘‘(C) In any such action brought before a United 8 States district court under subparagraph (A), the court— 9 ‘‘(i) shall apply the standards set forth in sub- 10 section (e); and 11 ‘‘(ii) may award any relief which the court con- 12 siders appropriate, including any relief described in 13 subsection (g).’’. 14 (c) RECIPIENTS OF WHISTLEBLOWER DISCLO- 15 SURES.—Section 2302(b)(8)(B) of title 5, United States 16 Code, is amended by striking ‘‘or to the Inspector General 17 of an agency or another employee designated by the head 18 of the agency to receive such disclosures’’ and inserting 19 ‘‘the Inspector General of an agency, a supervisor in the 20 employee’s direct chain of command up to and including 21 the head of the employing agency, or to an employee des- 22 ignated by any of the aforementioned individuals for the 23 purpose of receiving such disclosures’’. 24 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 7935 IH (d) ATTORNEY FEES.—Section 7703(a) of title 5, 1 United States Code, is amended by adding at the end the 2 following: 3 ‘‘(3) If an employee, former employee, or appli- 4 cant for employment is the prevailing party under 5 an appeal under this section, the employee, former 6 employee, or applicant for employment shall be enti- 7 tled to attorney fees for all representation carried 8 out pursuant to this section. In such an action for 9 attorney fees, the agency responsible for taking the 10 personnel action shall be the respondent and shall be 11 responsible for paying the fees.’’. 12 (e) EXTENDING WHISTLEBLOWER PROTECTION ACT 13 TO CERTAIN EMPLOYEES.—Section 2302(a)(2)(A) of title 14 5, United States Code, is amended in the matter following 15 clause (xiii)— 16 (1) by inserting ‘‘subsection (b)(9)(A)(i), (B), 17 (C), (D), or (E), subsection (b)(13), or subsection 18 (g),’’ after ‘‘subsection (b)(8),’’; and 19 (2) by inserting after ‘‘title 31’’ the following: 20 ‘‘, a commissioned officer or applicant for employ- 21 ment in the Public Health Service, and a noncareer 22 appointee in the Senior Executive Service’’. 23 (f) RELIEF.—Section 7701(b)(2)(A) of title 5, 24 United States Code, is amended by striking ‘‘upon the 25 VerDate Sep 11 2014 19:59 Aug 27, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H7935.IH H7935 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 7935 IH making of the decision’’ and inserting ‘‘upon making of 1 the decision, necessary to make the employee whole as if 2 there had been no prohibited personnel practice, including 3 training, seniority and promotions consistent with the em [Text truncated for display. 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