II 

112TH CONGRESS 

1ST SESSION S. 241 

To expand whistleblower protections to non-Federal employees whose 

disclosures involve misuse of Federal funds. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 31, 2011 

Mrs. MCCASKILL (for herself and Mr. WEBB) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To expand whistleblower protections to non-Federal 

employees whose disclosures involve misuse of Federal funds. 

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 ‘‘Non-Federal Employee 

5 Whistleblower Protection Act of 2011’’. 

6 SEC. 2. PROTECTING STATE AND LOCAL GOVERNMENT AND 

7 CONTRACTOR WHISTLEBLOWERS. 

8 (a) REPEAL.—Section 4705 of title 41, United States 

9 Code, is hereby repealed. 


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1 (b) ENHANCED PROTECTION FOR STATE AND LOCAL

2 GOVERNMENT AND CONTRACTOR WHISTLEBLOWERS.— 

3 Chapter 47 of division C of title 41, United States Code, 

4 is amended by inserting after section 4704 the following 

5 new section: 

6 ‘‘§ 4705. Whistleblower protection for State and local 

7 government and contractor whistle8 blowers 

9 ‘‘(a) PROHIBITION OF REPRISALS.—An employee of 

10 any non-Federal employer receiving covered funds may not 

11 be discharged, demoted, or otherwise discriminated 

12 against as a reprisal for initiating or participating in any 

13 proceeding related to the misuse of any Federal funds, 

14 reasonably opposing the misuse of any Federal funds, or 

15 disclosing, including a disclosure made in the ordinary 

16 course of an employee’s duties, to an inspector general, 

17 the Comptroller General of the United States, the Attor18 ney General, a member of Congress, a State or Federal 

19 regulatory or law enforcement agency, a person with su20 pervisory authority over the employee (or such other per21 son working for the employer who has the authority to 

22 investigate, discover, or terminate misconduct), a court or 

23 grand jury, the head of a Federal agency, or their rep24 resentatives information that the employee reasonably be25 lieves is evidence of— 


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1 ‘‘(1) gross mismanagement of an agency con2 tract or grant relating to covered funds; 

3 ‘‘(2) a gross waste of covered funds; 

4 ‘‘(3) a substantial and specific danger to public 

5 health or safety related to the implementation or use 

6 of covered funds; 

7 ‘‘(4) an abuse of authority related to the imple8 mentation or use of covered funds; or 

9 ‘‘(5) a violation of law, rule, or regulation re10 lated to an agency contract (including the competi11 tion for or negotiation of a contract), subcontract, or 

12 grant, awarded or issued relating to covered funds. 

13 ‘‘(b) INVESTIGATION OF COMPLAINTS.— 

14 ‘‘(1) IN GENERAL.—A person who believes that 

15 the person has been subjected to a reprisal prohib16 ited by subsection (a) may submit a complaint re17 garding the reprisal to the appropriate inspector 

18 general. Except as provided under paragraph (3), 

19 unless the inspector general determines that the 

20 complaint is frivolous, does not relate to covered 

21 funds, or another Federal or State judicial or ad22 ministrative proceeding has previously been invoked 

23 to resolve such complaint, the inspector general shall 

24 investigate the complaint and, upon completion of 

25 such investigation, submit a report of the findings of 


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1 the investigation to the person, the person’s em2 ployer, and the head of the appropriate agency. 

3 ‘‘(2) TIME LIMITATIONS FOR ACTIONS.— 

4 ‘‘(A) IN GENERAL.—Except as provided 

5 under subparagraph (B), the inspector general 

6 shall, not later than 180 days after receiving a 

7 complaint under paragraph (1)— 

8 ‘‘(i) make a determination that the 

9 complaint is frivolous, does not relate to 

10 covered funds, or another Federal or State 

11 judicial or administrative proceeding has 

12 previously been invoked to resolve such 

13 complaint; or 

14 ‘‘(ii) submit a report under paragraph 

15 (1). 

16 ‘‘(B) EXTENSIONS.— 

17 ‘‘(i) VOLUNTARY EXTENSION AGREED

18 TO BETWEEN INSPECTOR GENERAL AND

19 COMPLAINANT.—If the inspector general is 

20 unable to complete an investigation under 

21 this section in time to submit a report 

22 within the 180-day period specified under 

23 subparagraph (A) and the person submit24 ting the complaint agrees to an extension 

25 of time, the inspector general shall submit 


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1 a report under paragraph (1) within such 

2 additional period of time as shall be agreed 

3 upon between the inspector general and 

4 the person submitting the complaint. 

5 ‘‘(ii) EXTENSION GRANTED BY IN6 SPECTOR GENERAL.—If the inspector gen7 eral is unable to complete an investigation 

8 under this section in time to submit a re9 port within the 180-day period specified 

10 under subparagraph (A), the inspector 

11 general may extend the period for not 

12 more than 180 days without agreeing with 

13 the person submitting the complaint to 

14 such extension, provided that the inspector 

15 general provides a written explanation 

16 (subject to the authority to exclude infor17 mation under paragraph (4)(C)) for the 

18 decision, which shall be provided to both 

19 the person submitting the complaint and 

20 the non-Federal employer. 

21 ‘‘(iii) SEMI-ANNUAL REPORT ON EX22 TENSIONS.—The inspector general shall in23 clude in semi-annual reports to Congress a 

24 list of those investigations for which the in25 spector general received an extension. 


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1 ‘‘(3) DISCRETION NOT TO INVESTIGATE COM2 PLAINTS.— 

3 ‘‘(A) IN GENERAL.—The inspector general 

4 may decide not to conduct or continue an inves5 tigation under this section upon providing to 

6 the person submitting the complaint and the 

7 non-Federal employer a written explanation 

8 (subject to the authority to exclude information 

9 under paragraph (4)(C)) for such decision. 

10 ‘‘(B) ASSUMPTION OF RIGHTS TO CIVIL

11 REMEDY.—Upon receipt of an explanation of a 

12 decision not to conduct or continue an inves13 tigation under subparagraph (A), the person 

14 submitting a complaint shall immediately as15 sume the right to a civil remedy under sub16 section (c)(3) as if the 210-day period specified 

17 under such subsection has already passed. 

18 ‘‘(C) SEMI-ANNUAL REPORT.—The inspec19 tor general shall include in semi-annual reports 

20 to Congress a list of those investigations the in21 spector general decided not to conduct or con22 tinue under this paragraph. 

23 ‘‘(4) ACCESS TO INVESTIGATIVE FILE OF IN24 SPECTOR GENERAL.— 


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1 ‘‘(A) IN GENERAL.—The person alleging a 

2 reprisal under this section shall have access to 

3 the investigation file of the appropriate inspec4 tor general in accordance with section 552a of 

5 title 5 (commonly referred to as the ‘Privacy 

6 Act’). The investigation of the inspector general 

7 shall be deemed closed for purposes of disclo8 sure under such section when an employee files 

9 an appeal to an agency head or a court of com10 petent jurisdiction. 

11 ‘‘(B) CIVIL ACTION.—In the event the per12 son alleging the reprisal brings suit under sub13 section (c)(3), the person alleging the reprisal 

14 and the non-Federal employer shall have access 

15 to the investigative file of the inspector general 

16 in accordance with the Privacy Act. 

17 ‘‘(C) EXCEPTION.— 

18 ‘‘(i) IN GENERAL.—The inspector gen19 eral may exclude from disclosure— 

20 ‘‘(I) information protected from 

21 disclosure by a provision of law; and 

22 ‘‘(II) any additional information 

23 the inspector general determines dis24 closure of which would impede a con25 tinuing investigation, provided that 


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1 such information is disclosed once 

2 such disclosure would no longer im3 pede such investigation, unless the in4 spector general determines that disclo5 sure of law enforcement techniques, 

6 procedures, or information could rea7 sonably be expected to risk circumven8 tion of the law or disclose the identity 

9 of a confidential source. 

10 ‘‘(ii) LIMITATION.—Notwithstanding 

11 clause (i)(II), the inspector general may 

12 not withhold information from the em13 ployee which would otherwise be subject to 

14 disclosure under section 552 of title 5 

15 (commonly referred to as the Freedom of 

16 Information Act) or the Privacy Act. 

17 ‘‘(5) PRIVACY OF INFORMATION.—An inspector 

18 general investigating an alleged reprisal under this 

19 section may not respond to any inquiry or disclose 

20 any information from or about any person alleging 

21 such reprisal, except in accordance with the provi22 sions of section 552a of title 5 or as required by any 

23 other applicable Federal law. 

24 ‘‘(c) REMEDY AND ENFORCEMENT AUTHORITY.— 

25 ‘‘(1) BURDEN OF PROOF.— 


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1 ‘‘(A) DISCLOSURE AS CONTRIBUTING FAC2 TOR IN REPRISAL.— 

3 ‘‘(i) IN GENERAL.—A person alleging 

4 a reprisal under this section shall be 

5 deemed to have affirmatively established 

6 the occurrence of the reprisal if the person 

7 demonstrates that a disclosure described in 

8 subsection (a) was a contributing factor in 

9 the reprisal. 

10 ‘‘(ii) USE OF CIRCUMSTANTIAL EVI11 DENCE.—A disclosure may be dem12 onstrated as a contributing factor in a re13 prisal for purposes of this paragraph by 

14 circumstantial evidence, including— 

15 ‘‘(I) evidence that the official un16 dertaking the reprisal knew of the dis17 closure; 

18 ‘‘(II) evidence that the reprisal 

19 occurred within a period of time after 

20 the disclosure such that a reasonable 

21 person could conclude that the disclo22 sure was a contributing factor in the 

23 reprisal; or 


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1 ‘‘(III) evidence that the protected 

2 disclosure was well founded in fact or 

3 law. 

4 ‘‘(B) OPPORTUNITY FOR REBUTTAL.—The 

5 head of an agency may not find the occurrence 

6 of a reprisal with respect to a reprisal that is 

7 affirmatively established under subparagraph 

8 (A) if the non-Federal employer demonstrates 

9 by clear and convincing evidence that the non10 Federal employer would have taken the action 

11 constituting the reprisal in the absence of the 

12 disclosure. An employee may rebut this affirma13 tive defense by direct or circumstantial evi14 dence, including the evidence described in sub15 paragraph (A). 

16 ‘‘(2) AGENCY ACTION.—Not later than 30 days 

17 after receiving an inspector general report under 

18 subsection (b), the head of the agency concerned 

19 shall determine whether there is sufficient basis to 

20 conclude that the non-Federal employer has sub21 jected the complainant to a reprisal prohibited by 

22 subsection (a) and shall either issue an order deny23 ing relief in whole or in part or shall take 1 or more 

24 of the following actions: 


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1 ‘‘(A) Order the employer to take affirma2 tive action to abate the reprisal. 

3 ‘‘(B) Order the employer to reinstate the 

4 person to the position that the person held be5 fore the reprisal, together with the compensa6 tion (including back pay), compensatory dam7 ages, employment benefits, and other terms and 

8 conditions of employment that would apply to 

9 the person in that position if the reprisal had 

10 not been taken. 

11 ‘‘(C) Order the employer to pay the com12 plainant an amount equal to the aggregate 

13 amount of all costs and expenses (including at14 torneys’ fees and expert witnesses’ fees) that 

15 were reasonably incurred by the complainant 

16 for, or in connection with, bringing the com17 plaint regarding the reprisal, as determined by 

18 the head of the agency or a court of competent 

19 jurisdiction. 

20 ‘‘(D) Where appropriate, order the posting 

21 of the decision of the inspector general in a 

22 manner in which every employee of the em23 ployer will have notice of the decision and oth24 erwise require a reasonable compliance program 


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1 to ensure that no further retaliation is com2 mitted by the employer. 

3 ‘‘(E) In the case of a finding that the re4 prisal was willful, wanton, or malicious, pay the 

5 employee no more then 10 times the amount of 

6 all lost wages and other compensatory damages. 

7 ‘‘(3) CIVIL ACTION.—If the head of an agency 

8 issues an order denying relief in whole or in part 

9 under paragraph (1), has not issued an order within 

10 210 days after the submission of a complaint under 

11 subsection (b), or in the case of an extension of time 

12 under subsection (b)(2)(B)(i), within 30 days after 

13 the expiration of the extension of time, or decides 

14 under subsection (b)(3) not to investigate or to dis15 continue an investigation, and there is no showing 

16 that such delay or decision is due to the bad faith 

17 of the complainant, the complainant shall be deemed 

18 to have exhausted all administrative remedies with 

19 respect to the complaint, and the complainant may 

20 bring a de novo action at law or equity against the 

21 employer to seek compensatory damages and all 

22 other relief available under this section in the appro23 priate district court of the United States, which 

24 shall have jurisdiction over such an action without 

25 regard to the amount in controversy. Such an action 


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1 shall, at the request of either party to the action, be 

2 tried by the court with a jury. 

3 ‘‘(4) JUDICIAL ENFORCEMENT OF ORDER.— 

4 Whenever a person fails to comply with an order 

5 issued under paragraph (2), the head of the agency 

6 shall file an action for enforcement of such order in 

7 the United States district court for a district in 

8 which the reprisal was found to have occurred. In 

9 any action brought under this paragraph, the court 

10 may grant appropriate relief, including injunctive re11 lief, compensatory and exemplary damages, and at12 torneys’ fees and costs. The person upon whose be13 half an order was issued may also file such an action 

14 or join in an action filed by the head of the agency. 

15 ‘‘(5) JUDICIAL REVIEW.—Any person adversely 

16 affected or aggrieved by an order issued under para17 graph (2) may obtain review of the order’s conform18 ance with this subsection, and any regulations issued 

19 to carry out this section, in the United States court 

20 of appeals for a circuit in which the reprisal is al21 leged in the order to have occurred. No petition 

22 seeking such review may be filed more than 60 days 

23 after issuance of the order by the head of the agen24 cy. Review shall conform to chapter 7 of title 5. Fil25 ing such an appeal shall not act to stay the enforceVerDate Mar 15 2010 01:34 Feb 02, 2011 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S241.IS S241

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1 ment of the order of a head of an agency or the 

2 judgment of a district court. 

3 ‘‘(6) EXHAUSTION OF ADMINISTRATIVE REM4 EDIES.—Regardless of any other time limit set forth 

5 in this section, after 360 days an employee shall be 

6 deemed to have exhausted his or her administrative 

7 remedies and may file a civil action or amend a 

8 claim under this section to any other pending civil 

9 action filed by the employee. 

10 ‘‘(d) NONENFORCEABILITY OF CERTAIN PROVISIONS

11 WAIVING RIGHTS AND REMEDIES OR REQUIRING ARBI12 TRATION OF DISPUTES.— 

13 ‘‘(1) WAIVER OF RIGHTS AND REMEDIES.—Ex14 cept as provided under paragraph (3), the rights and 

15 remedies provided for in this section may not be 

16 waived by any agreement, policy, form, or condition 

17 of employment, including by any predispute arbitra18 tion agreement. 

19 ‘‘(2) PREDISPUTE ARBITRATION AGREE20 MENTS.—Except as provided under paragraph (3), 

21 no predispute arbitration agreement shall be valid or 

22 enforceable if it requires arbitration of a dispute 

23 arising under this section. 

24 ‘‘(3) EXCEPTION FOR COLLECTIVE BARGAINING

25 AGREEMENTS.—Notwithstanding paragraphs (1) 


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1 and (2), an arbitration provision in a collective bar2 gaining agreement shall be enforceable as to dis3 putes arising under the collective bargaining agree4 ment. 

5 ‘‘(e) REQUIREMENT TO POST NOTICE OF RIGHTS

6 AND REMEDIES.—Any employer receiving covered funds 

7 shall post notice of the rights and remedies provided under 

8 this section. 

9 ‘‘(f) RULES OF CONSTRUCTION.— 

10 ‘‘(1) NO IMPLIED AUTHORITY TO RETALIATE

11 FOR NON-PROTECTED DISCLOSURES.—Nothing in 

12 this section may be construed to authorize the dis13 charge of, demotion of, or discrimination against an 

14 employee for a disclosure other than a disclosure 

15 protected by subsection (a) or to modify or derogate 

16 from a right or remedy otherwise available to the 

17 employee. 

18 ‘‘(2) RELATIONSHIP TO STATE LAWS.—Nothing 

19 in this section may be construed to preempt, pre20 clude, or limit the protections provided for public or 

21 private employees under State whistleblower laws. 

22 ‘‘(g) DEFINITIONS.—In this section: 

23 ‘‘(1) ABUSE OF AUTHORITY.—The term ‘abuse 

24 of authority’ means an arbitrary and capricious ex25 ercise of authority by a contracting official or emVerDate Mar 15 2010 02:00 Feb 02, 2011 Jkt 099200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S241.IS S241

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1 ployee that adversely affects the rights of any per2 son, or that results in personal gain or advantage to 

3 the official or employee or to preferred other per4 sons. 

5 ‘‘(2) COVERED FUNDS.—The term ‘covered 

6 funds’ means any contract, grant, or other payment 

7 received by any non-Federal employer if the Federal 

8 Government provides any portion of the money or 

9 property that is provided, requested, or demanded. 

10 ‘‘(3) EMPLOYEE.—The term ‘employee’— 

11 ‘‘(A) except as provided under subpara12 graph (B), means an individual performing 

13 services on behalf of an employer or a con14 tractor, subcontractor, or agent of an employer; 

15 and 

16 ‘‘(B) does not include any Federal em17 ployee or member of the uniformed services (as 

18 that term is defined in section 101(a)(5) of title 

19 10). 

20 ‘‘(4) NON-FEDERAL EMPLOYER.—The term 

21 ‘non-Federal employer’— 

22 ‘‘(A) means— 

23 ‘‘(i) any employer— 

24 ‘‘(I) with respect to covered 

25 funds— 


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1 ‘‘(aa) the contractor, sub2 contractor, grantee, or recipient, 

3 as the case may be, if the con4 tractor, grantee, or recipient is 

5 an employer; and 

6 ‘‘(bb) any professional mem7 bership organization, certification 

8 or other professional body, any 

9 agent or licensee of the Federal 

10 government, or any person acting 

11 directly or indirectly in the inter12 est of an employer receiving cov13 ered funds; or 

14 ‘‘(II) with respect to covered 

15 funds received by a State or local gov16 ernment, the State or local govern17 ment receiving the funds and any con18 tractor or subcontractor of the State 

19 or local government; and 

20 ‘‘(ii) any corporation or person who 

21 receives any Federal funds; and 

22 ‘‘(B) does not mean any department, agen23 cy, or other entity of the Federal Government. 

24 ‘‘(5) STATE OR LOCAL GOVERNMENT.—The 

25 term ‘State or local government’ means— 


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1 ‘‘(A) the government of each of the several 

2 States, the District of Columbia, the Common3 wealth of Puerto Rico, Guam, American Samoa, 

4 the Virgin Islands, the Commonwealth of the 

5 Northern Mariana Islands, or any other terri6 tory or possession of the United States; or 

7 ‘‘(B) the government of any political sub8 division of a government listed in subparagraph 

9 (A).’’. 

10 (c) APPLICABILITY.— 

11 (1) PENDING CLAIMS.—Section 4705 of title 

12 41, United States Code, as added by subsection (b), 

13 shall apply to complaints submitted pursuant to 

14 such section on or after the date of the enactment 

15 of this Act. 

16 (2) NEW CLAIMS.—Section 4705 of title 41, 

17 United States Code, as in effect on the day before 

18 the date of the enactment of this Act shall apply to 

19 claims submitted pursuant to such section before 

20 such date of enactment. 

Æ 


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