II 

109TH CONGRESS 

2D SESSION S. 2285 

To improve the protection of witnesses, victims, and informants. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 14, 2006 

Mr. LAUTENBERG introduced the following bill; which was read twice and 

referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To improve the protection of witnesses, victims, and 

informants. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Whistleblower Em5 powerment, Security, and Taxpayer Protection Act of 

6 2006’’. 

7 SEC. 2. TAMPERING WITH OR RETALIATING AGAINST A 

8 WITNESS, VICTIM, OR AN INFORMANT. 

9 (a) TAMPERING WITH A WITNESS, VICTIM, OR AN

10 INFORMANT.— 
2 

•S 2285 IS

1 (1) IN GENERAL.—Section 1512 of title 18, 

2 United States Code, is amended— 

3 (A) by striking ‘‘or judge of the United 

4 States’’ each place that term appears and in5 serting the following: ‘‘, judge of the United 

6 States, Member of Congress, authorized official 

7 of a Federal agency, or Inspector General’’; 

8 (B) in subsection (a)— 

9 (i) in paragraph (1)(C), by inserting 

10 ‘‘or any other violation of Federal law’’ 

11 after ‘‘commission of a Federal offense’’; 

12 and 

13 (ii) in paragraph (2)(C), by inserting 

14 ‘‘or any other violation of Federal law’’ 

15 after ‘‘commission of a Federal offense’’; 

16 (C) in subsection (b)(3), by inserting ‘‘or 

17 any other violation of Federal law’’ after ‘‘com18 mission of a Federal offense’’; 

19 (D) in subsection (c), by inserting ‘‘, in20 cluding an administrative investigation’’ after 

21 ‘‘official proceeding’’ each place that term ap22 pears; 

23 (E) in subsection (d)— 
3 

•S 2285 IS

1 (i) in paragraph (1), by inserting ‘‘or 

2 supporting an administrative investigation’’ 

3 after ‘‘official proceeding’’; and 

4 (ii) in paragraph (2), by inserting ‘‘or 

5 any other violation of Federal law’’ after 

6 ‘‘commission of a Federal offense’’; and 

7 (F) in subsection (g)(2), by inserting after 

8 ‘‘law enforcement officer’’ the following: ‘‘, 

9 Member of Congress, authorized official of a 

10 Federal agency, or Inspector General’’. 

11 (2) TECHNICAL AMENDMENTS.—Section 1512 

12 of title 18, United States Code, is amended— 

13 (A) in subsection (b)(3)— 

14 (i) by inserting a comma after ‘‘of 

15 probation’’; and 

16 (ii) by striking the second comma 

17 after ‘‘supervised release’’; and 

18 (B) in subsection (d)(2)— 

19 (i) by inserting a comma after ‘‘of 

20 probation’’; and 

21 (ii) by striking the second comma 

22 after ‘‘supervised release’’. 

23 (b) RETALIATING AGAINST A WITNESS, VICTIM, OR

24 AN INFORMANT.— 
4 

•S 2285 IS

1 (1) IN GENERAL.—Section 1513 of title 18, 

2 United States Code, is amended— 

3 (A) by inserting ‘‘, Member of Congress, 

4 authorized official of a Federal agency, or In5 spector General’’ after ‘‘law enforcement offi6 cer’’ each place that term appears; 

7 (B) by inserting ‘‘or any other violation of 

8 Federal law’’ after ‘‘commission of a Federal 

9 offense’’ each place that term appears; and 

10 (C) in the first subsection designated as 

11 subsection (e), by striking ‘‘the commission or 

12 possible commission of any Federal offense’’ 

13 and inserting the following: ‘‘the commission or 

14 possible commission of any Federal offense or 

15 any other violation of Federal law’’. 

16 (2) TECHNICAL AMENDMENTS.—Section 1513 

17 of title 18, United States Code, is amended— 

18 (A) in subsection (a)(1)(B)— 

19 (i) by inserting a comma after ‘‘of 

20 probation’’; and 

21 (ii) by striking the second comma 

22 after ‘‘supervised release’’; 

23 (B) in subsection (b)(2)— 

24 (i) by inserting a comma after ‘‘of 

25 probation’’; and 
5 

•S 2285 IS

1 (ii) by striking the second comma 

2 after ‘‘supervised release’’; and 

3 (C) by redesignating the second subsection 

4 designated as subsection (e) as subsection (f). 

5 (c) WHISTLEBLOWER PROTECTION.—Section 2302 

6 of title 5, United States Code, is amended by adding at 

7 the end the following: 

8 ‘‘(f)(1) An individual who is a victim of a prohibited 

9 personnel practice may bring a civil action against a cov10 ered entity in an appropriate district court of the United 

11 States and may recover damages. 

12 ‘‘(2)(A) An individual prevailing in any action under 

13 this subsection shall be entitled to equitable relief, rein14 statement, compensation for special damages, litigation 

15 costs, expert witness fees, and reasonable attorney fees. 

16 ‘‘(B) In the event that reinstatement of an individual 

17 prevailing in an action under this subsection is not prac18 ticable, the individual may be awarded damages for a de19 nial of opportunity to continue accruing Federal pension 

20 benefits. 

21 ‘‘(3) A civil action under this subsection shall be com22 menced not later than 2 years after the date on which 

23 the violation occurs. 
6 

•S 2285 IS

1 ‘‘(4) Any prospective waiver of the right of any indi2 vidual to file a civil action under this subsection shall be 

3 void and unenforceable. 

4 ‘‘(5) An action filed under this subsection shall be 

5 governed by the legal burdens of proof set forth in section 

6 42121(b) of title 49, United States Code. 

7 ‘‘(6) An individual may elect to have a claim under 

8 this subsection adjudicated utilizing the procedures under 

9 section 1514A(b) of title 18, United States Code. 

10 ‘‘(7)(A) If the Government asserts that information 

11 sought by an individual in an action under this subsection 

12 is privileged because such information is a state secret or 

13 could lead to the revelation of state secrets, such indi14 vidual may demand that the Government provide to the 

15 court, in classified form if necessary, a description of the 

16 information purported to be privileged. 

17 ‘‘(B) The court may make arrangements for evidence 

18 pertaining to classified information or state secrets to be 

19 heard in closed session, with opposing counsel present. 

20 ‘‘(C) A claim of state secrets privilege under subpara21 graph (A) shall be upheld only if the court determines that 

22 disclosure of the information to the court in closed session 

23 or to the public would result in substantial likelihood of 

24 the unauthorized disclosure of a bona fide state secret. 
7 

•S 2285 IS

1 ‘‘(D)(i) The Government shall not deny access to an 

2 individual bringing action under this subsection to any in3 formation that the individual previously actually lawfully 

4 accessed. 

5 ‘‘(ii) The Government shall provide an individual de6 scribed in clause (i) with reasonable time to review such 

7 information at a secure facility geographically proximate 

8 to the court. 

9 ‘‘(E) The Government shall not make a frivolous as10 sertion that information is covered by the state secrets 

11 privilege under subparagraph (A). 

12 ‘‘(8) In this subsection, the term ‘covered entity’ 

13 means the employer of the person who engages in a pro14 hibited personnel practice, if the act is performed within 

15 the scope of employment of such person.’’. 

16 SEC. 3. ENHANCING INDEPENDENCE OF INSPECTORS GEN17 ERAL. 

18 (a) REMOVAL FOR CAUSE.—The Inspector General 

19 Act of 1978 (5 U.S.C. App.) is amended— 

20 (1) in section 3(b) by— 

21 (A) inserting ‘‘(1)’’ after ‘‘(b)’’; and 

22 (B) adding at the end the following: 

23 ‘‘(2) An Inspector General may be removed from of24 fice prior to the expiration of the term of that Inspector 

25 General only on 1 of the following grounds: 
8 

•S 2285 IS

1 ‘‘(A) Permanent incapacity. 

2 ‘‘(B) Inefficiency. 

3 ‘‘(C) Neglect of duty. 

4 ‘‘(D) Malfeasance. 

5 ‘‘(E) Conviction of a felony or conduct involving 

6 moral turpitude.’’; and 

7 (2) in section 8G(e) by— 

8 (A) inserting ‘‘(1)’’ after ‘‘(e)’’; and 

9 (B) adding at the end the following: 

10 ‘‘(2) An Inspector General may be removed from of11 fice prior to the expiration of the term of that Inspector 

12 General only on 1 of the following grounds: 

13 ‘‘(A) Permanent incapacity. 

14 ‘‘(B) Inefficiency. 

15 ‘‘(C) Neglect of duty. 

16 ‘‘(D) Malfeasance. 

17 ‘‘(E) Conviction of a felony or conduct involving 

18 moral turpitude.’’. 

19 (b) ESTABLISHMENT OF TERMS OF OFFICE.—The 

20 Inspector General Act of 1978 (5 U.S.C. App.) is amend21 ed— 

22 (1) in section 3, by adding at the end the fol23 lowing: 

24 ‘‘(e)(1) The term of office of each Inspector General 

25 shall be 7 years. An individual may serve for more than 
9 

•S 2285 IS

1 1 term in such office. Any individual appointed and con2 firmed to fill a vacancy in such position, occurring before 

3 the expiration of the term for which the predecessor of 

4 that individual was appointed, shall be appointed and con5 firmed for a full 7-year term. 

6 ‘‘(2) An individual may continue to serve as an In7 spector General beyond the expiration of the term for 

8 which the individual is appointed until a successor is ap9 pointed and confirmed, except that such individual may 

10 not continue to serve for more than 1 year after the date 

11 on which the term would otherwise expire under para12 graph (1).’’; and 

13 (2) in section 8G(c) by— 

14 (A) inserting ‘‘(1)’’ after ‘‘(c)’’; and 

15 (B) by adding at the end the following: 

16 ‘‘(2) The term of office of each Inspector General 

17 shall be 7 years. An individual may serve for more than 

18 1 term in such office. Any individual appointed to fill a 

19 vacancy in such position, occurring before the expiration 

20 of the term for which the predecessor of that individual 

21 was appointed, shall be appointed for a full 7-year term.’’. 

22 (c) APPLICATION.—The amendments made by this 

23 section shall apply to any Inspector General appointed be24 fore, on, or after the date of the enactment of this Act. 

25 The term of office of an Inspector General serving on such 
10 

•S 2285 IS

1 date of enactment is deemed to begin on such date of en2 actment. 

3 SEC. 4. DIRECT SUBMISSION OF BUDGET REQUESTS TO 

4 CONGRESS. 

5 Section 6 of the Inspector General Act of 1978 (5 

6 U.S.C. App.) is amended by adding at the end the fol7 lowing: 

8 ‘‘(e)(1) For each fiscal year, an Inspector General 

9 may transmit an appropriation estimate and request to 

10 the Director of the Office of Management and Budget and 

11 to the appropriate committees or subcommittees of Con12 gress, in addition to any appropriation estimate and re13 quest submitted to the head of the establishment con14 cerned. 

15 ‘‘(2) The President shall include in each budget of 

16 the United States Government submitted to the Con17 gress— 

18 ‘‘(A) a separate statement of the amount of ap19 propriations requested by each Inspector General 

20 who has submitted an appropriation estimate under 

21 paragraph (1); and 

22 ‘‘(B) a statement comparing each such appro23 priation estimate and request submitted by an In24 spector General and the funds requested by the head 

25 of the establishment concerned.’’. 
11 

•S 2285 IS

1 SEC. 5. PROHIBITION OF REPROGRAMMING. 

2 (a) IN GENERAL.—Notwithstanding any other provi3 sion of law, no funds appropriated for activities under the 

4 supervision of an Inspector General shall be repro5 grammed, transferred, or otherwise expended for any 

6 other purpose without the written consent of that Inspec7 tor General, transmitted in advance to the Committee on 

8 Appropriations of the Senate and the Committee on Ap9 propriations of the House of Representatives. 

10 (b) CONDITIONS PRESERVED.—Nothing in this sec11 tion shall be construed as to waive any condition on re12 programming of appropriated sums. 

13 (c) SPECIFIC REPEAL.—The provisions of this sec14 tion shall not be superseded, except by a provision of law 

15 enacted after the date of the enactment of this Act which 

16 specifically repeals, modifies, or supersedes the provisions 

17 of this section. 

18 SEC. 6. CREATING REPORTING CHANNELS FOR WHISTLE19 BLOWERS. 

20 Section 4(a) of the Inspector General Act of 1978 

21 (5 U.S.C. App.) is amended— 

22 (1) in paragraph (4), by striking ‘‘and’’ after 

23 the semicolon at the end; 

24 (2) in paragraph (5), by striking the period and 

25 inserting a semicolon; and 

26 (3) by adding at the end the following: 
12 

•S 2285 IS

1 ‘‘(6) to create and maintain a means of employ2 ees confidentially reporting alleged violations of rule, 

3 law, or regulation within the establishment that the 

4 Inspector General oversees in the form of a hotline 

5 which shall compile all allegations and refer them to 

6 appropriate offices for investigation; and 

7 ‘‘(7) to compile for annual report to Congress, 

8 a statistical summary of all allegations, the viola9 tions they allege, their deviation from past trends, 

10 and the outcome of the preliminary inquiry or inves11 tigation into each allegation.’’. 

12 SEC. 7. SPECIAL RULE FOR REVOCATION OF SECURITY 

13 CLEARANCE. 

14 (a) CAUSE OF ACTION.—If any action is taken or 

15 failed to be taken regarding the security clearance of an 

16 individual in retaliation for any action protected under 

17 paragraph (8) or (9) of section 2302(b) of title 5, United 

18 States Code, the individual may bring an action against 

19 the United States in any district court of the United 

20 States for damages. 

21 (b) CLASSIFIED FORM.—Any court hearings under 

22 this section may be conducted in classified form, if nec23 essary. 

24 (c) INTENT.—This section shall not be construed to 

25 diminish or enhance the authority of any court or other 
13 

•S 2285 IS

1 administrative body to order any action with respect to 

2 the security clearance of an individual bringing an action 

3 under this section. 

4 SEC. 8. CREATION OF WHISTLEBLOWER AFFAIRS DIREC5 TORATES WITHIN OFFICES OF THE INSPEC6 TORS GENERAL. 

7 Section 7 of the Inspector General Act of 1978 is 

8 amended by adding at the end the following: 

9 ‘‘(d)(1)(A) An Inspector General may create a whis10 tleblower affairs directorate to act upon complaints filed 

11 under subsection (a). 

12 ‘‘(B) Except as provided in paragraph (2), a direc13 torate established under this subsection shall— 

14 ‘‘(i) adopt paragraphs (8) and (9) of section 

15 2302(b) of title 5, United States Code, as the source 

16 of investigative standards for reviewing complaints 

17 described in subparagraph (A); or 

18 ‘‘(ii) adopt a set of investigative standards. 

19 ‘‘(2) An Inspector General whose jurisdiction includes 

20 national security personnel shall not be precluded from 

21 creating a whistleblower affairs directorate under this sub22 section to receive complaints filed pursuant to subsection 

23 (a), if the Inspector General adopts regulations by which 

24 security clearances and personnel actions may be inves25 tigated as pretexts to reprisal without disturbing personnel 
14 

•S 2285 IS

1 decisions based on those security clearances or personnel 

2 actions. 

3 ‘‘(3) The head of an agency in which a directorate 

4 has been established under paragraphs (1) and (2), shall 

5 establish regulations administered by the personnel and 

6 readiness office of the agency, which provide for remedies 

7 recommended in substantiated findings of complaints filed 

8 under this section.’’. 

9 SEC. 9. PROHIBITED PERSONNEL PRACTICES. 

10 Section 2302 of title 5, United States Code, is 

11 amended— 

12 (1) in subsection (a)(2)— 

13 (A) in subparagraph (A)— 

14 (i) by redesignating clauses (x) and 

15 (xi) as clauses (xi) and (xii), respectively; 

16 (ii) by inserting after clause (ix) the 

17 following: 

18 ‘‘(x) an investigation of an em19 ployee;’’; and 

20 (iii) in the flush matter at the end, by 

21 striking ‘‘ subsection (b)(8)’’ and inserting 

22 ‘‘paragraph (8) or (9) of subsection (b)’’; 

23 (B) in subparagraph (B)(ii) by striking ‘‘; 

24 and’’ and inserting the following: ‘‘, in which 
15 

•S 2285 IS

1 case the President shall submit a report to Con2 gress, that may be classified if necessary— 

3 ‘‘(I) detailing any position the 

4 President has excluded from the cov5 erage of this section; and 

6 ‘‘(II) including the reasons why 

7 the President determined that exclud8 ing a position from the coverage of 

9 this section is necessary and war10 ranted by the conditions of good ad11 ministration;’’; 

12 (C) in subparagraph (C)— 

13 (i) in clause (i), by striking ‘‘ sub14 section (b)(8)’’ and inserting ‘‘paragraph 

15 (8) or (9) of subsection (b)’’; 

16 (ii) in clause (ii), by striking ‘‘the 

17 Federal Bureau of Investigation,’’; and 

18 (iii) in clause (iii), by striking the pe19 riod and inserting ‘‘; and’’; and 

20 (D) by adding at the end the following: 

21 ‘‘(D) ‘intelligence agency’ means any agen22 cy described in subparagraph (C)(ii).’’; 

23 (2) in subsection (b), by striking paragraphs 

24 (8) and (9) and inserting the following: 
16 

•S 2285 IS

1 ‘‘(8) take or fail to take, or threaten to take or 

2 fail to take, a personnel action with respect to any 

3 employee or applicant for employment because of— 

4 ‘‘(A) any disclosure or planned disclosure 

5 of information by an employee or applicant— 

6 ‘‘(i) that the employee or applicant 

7 reasonably believes evidences— 

8 ‘‘(I) a violation of any law, rule, 

9 or regulation; 

10 ‘‘(II) gross mismanagement, a 

11 gross waste of funds, an abuse of au12 thority, or a substantial and specific 

13 danger to public health or safety; or 

14 ‘‘(III) a substantial and specific 

15 threat to national security or home16 land security; and 

17 ‘‘(ii) for which— 

18 ‘‘(I) the disclosure is not specifi19 cally prohibited by law; and 

20 ‘‘(II) the information is not spe21 cifically required by Executive order 

22 to be kept secret in the interest of na23 tional defense or the conduct of for24 eign affairs; 
17 

•S 2285 IS

1 ‘‘(B) any disclosure or planned disclosure 

2 to the Special Counsel, the Inspector General of 

3 an agency, or another employee designated by 

4 the head of the agency to receive such disclo5 sures, of information which the employee or ap6 plicant reasonably believes evidences— 

7 ‘‘(i) a violation of any law, rule, or 

8 regulation; 

9 ‘‘(ii) gross mismanagement, a gross 

10 waste of funds, an abuse of authority, or 

11 a substantial and specific danger to public 

12 health or safety; or 

13 ‘‘(iii) a substantial and specific threat 

14 to national security or homeland security; 

15 or 

16 ‘‘(C) any failure to report a disclosure 

17 made under this paragraph; 

18 ‘‘(9) take or fail to take, or threaten to take or 

19 fail to take, any personnel action against any em20 ployee or applicant for employment because of— 

21 ‘‘(A) the exercise or planned exercise of 

22 any appeal, complaint, or grievance right grant23 ed by any law, rule, or regulation; 

24 ‘‘(B) testifying for or otherwise lawfully as25 sisting, or planning to testify, or lawfully assist, 
18 

•S 2285 IS

1 any individual in the exercise of any right re2 ferred to in subparagraph (A); 

3 ‘‘(C) cooperating with or disclosing infor4 mation to, or planning to cooperate with or dis5 close information to, the Inspector General of 

6 an agency, or the Special Counsel, in accord7 ance with applicable provisions of law; 

8 ‘‘(D) a refusal to obey, or planning to 

9 refuse to obey, an order that would require the 

10 individual to violate a law; or 

11 ‘‘(E) a failure to report an action under 

12 this paragraph;’’; and 

13 (3) by adding at the end the following: 

14 ‘‘(g)(1)(A) For the purposes of paragraphs (8) and 

15 (9) of subsection (b), positions at Federal contractors that 

16 are funded in whole or in part by appropriated funds shall 

17 be considered to be covered positions under subsection 

18 (a)(2)(B). 

19 ‘‘(B) For purposes of this paragraph— 

20 ‘‘(i) the term ‘Federal contractor’ means any 

21 person that has entered into a contract with the 

22 Federal Government, or any person who has entered 

23 into a contract with such a person pursuant to the 

24 contract with the Federal Government; and 
19 

•S 2285 IS

1 ‘‘(ii) a position at a Federal contractor is fund2 ed in whole or in part by appropriated funds if the 

3 responsibilities of the position include engaging in 

4 any activity with respect to such contract, including 

5 providing services or manufacturing goods procured 

6 under the contract, or providing incidental or sup7 port services related to such a contract, including ac8 counting, human resources, secretarial services, and 

9 any other incidental or support services. 

10 ‘‘(2) For the purposes of paragraph (8)(A) and para11 graph (9) of subsection (b), positions at agencies described 

12 in subsection (a)(2)(C)(ii) shall be considered to be cov13 ered positions under subsection (a)(2)(B). 

14 ‘‘(h) Any person that violates this section shall be 

15 subject to a civil penalty of not to exceed $50,000.’’. 

16 SEC. 10. PETITION FOR SPECIAL PROSECUTORS. 

17 (a) IN GENERAL.—An individual may petition the At18 torney General for the appointment of a special prosecutor 

19 to handle a case in which the individual alleges being a 

20 victim of a prohibited personnel practice, as that term is 

21 defined in section 2302 of title 5, United States Code. 

22 (b) APPOINTMENT.—Not later than 30 days after the 

23 date of the submission of a petition described in subsection 

24 (a), the Attorney General shall appoint a special pros25 ecutor, who shall have independent jurisdiction, in any 
20 

•S 2285 IS

1 case where there is a conflict of interest or where there 

2 is a substantial likelihood of political interference. 

3 (c) REPORTING.—In any case in which the Attorney 

4 General receives a petition described in subsection (a), but 

5 does not appoint a special prosecutor, the Attorney Gen6 eral shall submit a report to Congress detailing the rea7 sons for refusing to appoint a special prosecutor, including 

8 a specific response to any argument in the petition. 

9 SEC. 11. STUDY OF LISTS OF WHISTLEBLOWER RETALIA10 TION AND SUPPRESSIONS. 

11 (a) IN GENERAL.—The Comptroller General shall de12 velop rubrics, methods, and instruments to determine the 

13 costs of retaliation against or suppression of whistle14 blowers, including the costs associated with— 

15 (1) revocation and suspension of security clear16 ances; 

17 (2) litigation; 

18 (3) judgments against the United States and 

19 indemnification of contractor liability; 

20 (4) diversions of resources to nonproductive 

21 tasks to perpetrate retaliation and suppress disclo22 sure of fraud, waste, or abuse; 

23 (5) administrative leave; and 
21 

•S 2285 IS

1 (6) any other factors the Comptroller General 

2 determines are the result of retaliation against or 

3 suppression of whistleblowers. 

4 (b) REPORT TO CONGRESS.—The Comptroller Gen5 eral shall submit to Congress a report, not less than once 

6 every 3 years, beginning with the fiscal year in which this 

7 Act is enacted, estimating the costs of retaliation against 

8 and suppression of whistleblowers. 

Æ