II 

Calendar No. 569 

112TH CONGRESS 

2D 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, Mr. WEBB, and Mr. TESTER) introduced the 

following bill; which was read twice and referred to the Committee on 

Homeland Security and Governmental Affairs 

DECEMBER 19, 2012 

Reported by Mr. LIEBERMAN, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

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’’. 


pwalker on DSK7TPTVN1PROD with 
2 

•S 241 RS

1 SEC. 2. PROTECTING STATE AND LOCAL GOVERNMENT AND 

2 CONTRACTOR WHISTLEBLOWERS. 

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

4 Code, is hereby repealed. 

5 (b) ENHANCED PROTECTION FOR STATE AND LOCAL

6 GOVERNMENT AND CONTRACTOR WHISTLEBLOWERS.— 

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

8 is amended by inserting after section 4704 the following 

9 new section: 

10 ‘‘§ 4705. Whistleblower protection for State and local 

11 government and contractor whistle12 blowers 

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

14 any non-Federal employer receiving covered funds may not 

15 be discharged, demoted, or otherwise discriminated 

16 against as a reprisal for initiating or participating in any 

17 proceeding related to the misuse of any Federal funds, 

18 reasonably opposing the misuse of any Federal funds, or 

19 disclosing, including a disclosure made in the ordinary 

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

21 the Comptroller General of the United States, the Attor22 ney General, a member of Congress, a State or Federal 

23 regulatory or law enforcement agency, a person with su24 pervisory authority over the employee (or such other per25 son working for the employer who has the authority to 

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


pwalker on DSK7TPTVN1PROD with 
3 

•S 241 RS

1 grand jury, the head of a Federal agency, or their rep2 resentatives information that the employee reasonably be3 lieves is evidence of— 

4 ‘‘(1) gross mismanagement of an agency con5 tract or grant relating to covered funds; 

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

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

8 health or safety related to the implementation or use 

9 of covered funds; 

10 ‘‘(4) an abuse of authority related to the imple11 mentation or use of covered funds; or 

12 ‘‘(5) a violation of law, rule, or regulation re13 lated to an agency contract (including the competi14 tion for or negotiation of a contract), subcontract, or 

15 grant, awarded or issued relating to covered funds. 

16 ‘‘(b) INVESTIGATION OF COMPLAINTS.— 

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

18 the person has been subjected to a reprisal prohib19 ited by subsection (a) may submit a complaint re20 garding the reprisal to the appropriate inspector 

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

22 unless the inspector general determines that the 

23 complaint is frivolous, does not relate to covered 

24 funds, or another Federal or State judicial or ad25 ministrative proceeding has previously been invoked 


pwalker on DSK7TPTVN1PROD with 
4 

•S 241 RS

1 to resolve such complaint, the inspector general shall 

2 investigate the complaint and, upon completion of 

3 such investigation, submit a report of the findings of 

4 the investigation to the person, the person’s em5 ployer, and the head of the appropriate agency. 

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

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

8 under subparagraph (B), the inspector general 

9 shall, not later than 180 days after receiving a 

10 complaint under paragraph (1)— 

11 ‘‘(i) make a determination that the 

12 complaint is frivolous, does not relate to 

13 covered funds, or another Federal or State 

14 judicial or administrative proceeding has 

15 previously been invoked to resolve such 

16 complaint; or 

17 ‘‘(ii) submit a report under paragraph 

18 (1). 

19 ‘‘(B) EXTENSIONS.— 

20 ‘‘(i) VOLUNTARY EXTENSION AGREED

21 TO BETWEEN INSPECTOR GENERAL AND

22 COMPLAINANT.—If the inspector general is 

23 unable to complete an investigation under 

24 this section in time to submit a report 

25 within the 180-day period specified under 


pwalker on DSK7TPTVN1PROD with 
5 

•S 241 RS

1 subparagraph (A) and the person submit2 ting the complaint agrees to an extension 

3 of time, the inspector general shall submit 

4 a report under paragraph (1) within such 

5 additional period of time as shall be agreed 

6 upon between the inspector general and 

7 the person submitting the complaint. 

8 ‘‘(ii) EXTENSION GRANTED BY IN9 SPECTOR GENERAL.—If the inspector gen10 eral is unable to complete an investigation 

11 under this section in time to submit a re12 port within the 180-day period specified 

13 under subparagraph (A), the inspector 

14 general may extend the period for not 

15 more than 180 days without agreeing with 

16 the person submitting the complaint to 

17 such extension, provided that the inspector 

18 general provides a written explanation 

19 (subject to the authority to exclude infor20 mation under paragraph (4)(C)) for the 

21 decision, which shall be provided to both 

22 the person submitting the complaint and 

23 the non-Federal employer. 

24 ‘‘(iii) SEMI-ANNUAL REPORT ON EX25 TENSIONS.—The inspector general shall inVerDate Mar 15 2010 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
6 

•S 241 RS

1 clude in semi-annual reports to Congress a 

2 list of those investigations for which the in3 spector general received an extension. 

4 ‘‘(3) DISCRETION NOT TO INVESTIGATE COM5 PLAINTS.— 

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

7 may decide not to conduct or continue an inves8 tigation under this section upon providing to 

9 the person submitting the complaint and the 

10 non-Federal employer a written explanation 

11 (subject to the authority to exclude information 

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

13 ‘‘(B) ASSUMPTION OF RIGHTS TO CIVIL

14 REMEDY.—Upon receipt of an explanation of a 

15 decision not to conduct or continue an inves16 tigation under subparagraph (A), the person 

17 submitting a complaint shall immediately as18 sume the right to a civil remedy under sub19 section (c)(3) as if the 210-day period specified 

20 under such subsection has already passed. 

21 ‘‘(C) SEMI-ANNUAL REPORT.—The inspec22 tor general shall include in semi-annual reports 

23 to Congress a list of those investigations the in24 spector general decided not to conduct or con25 tinue under this paragraph. 


pwalker on DSK7TPTVN1PROD with 
7 

•S 241 RS

1 ‘‘(4) ACCESS TO INVESTIGATIVE FILE OF IN2 SPECTOR GENERAL.— 

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

4 reprisal under this section shall have access to 

5 the investigation file of the appropriate inspec6 tor general in accordance with section 552a of 

7 title 5 (commonly referred to as the ‘Privacy 

8 Act’). The investigation of the inspector general 

9 shall be deemed closed for purposes of disclo10 sure under such section when an employee files 

11 an appeal to an agency head or a court of com12 petent jurisdiction. 

13 ‘‘(B) CIVIL ACTION.—In the event the per14 son alleging the reprisal brings suit under sub15 section (c)(3), the person alleging the reprisal 

16 and the non-Federal employer shall have access 

17 to the investigative file of the inspector general 

18 in accordance with the Privacy Act. 

19 ‘‘(C) EXCEPTION.— 

20 ‘‘(i) IN GENERAL.—The inspector gen21 eral may exclude from disclosure— 

22 ‘‘(I) information protected from 

23 disclosure by a provision of law; and 

24 ‘‘(II) any additional information 

25 the inspector general determines disVerDate Mar 15 2010 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
8 

•S 241 RS

1 closure of which would impede a con2 tinuing investigation, provided that 

3 such information is disclosed once 

4 such disclosure would no longer im5 pede such investigation, unless the in6 spector general determines that disclo7 sure of law enforcement techniques, 

8 procedures, or information could rea9 sonably be expected to risk circumven10 tion of the law or disclose the identity 

11 of a confidential source. 

12 ‘‘(ii) LIMITATION.—Notwithstanding 

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

14 not withhold information from the em15 ployee which would otherwise be subject to 

16 disclosure under section 552 of title 5 

17 (commonly referred to as the Freedom of 

18 Information Act) or the Privacy Act. 

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

20 general investigating an alleged reprisal under this 

21 section may not respond to any inquiry or disclose 

22 any information from or about any person alleging 

23 such reprisal, except in accordance with the provi24 sions of section 552a of title 5 or as required by any 

25 other applicable Federal law. 


pwalker on DSK7TPTVN1PROD with 
9 

•S 241 RS

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

2 ‘‘(1) BURDEN OF PROOF.— 

3 ‘‘(A) DISCLOSURE AS CONTRIBUTING FAC4 TOR IN REPRISAL.— 

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

6 a reprisal under this section shall be 

7 deemed to have affirmatively established 

8 the occurrence of the reprisal if the person 

9 demonstrates that a disclosure described in 

10 subsection (a) was a contributing factor in 

11 the reprisal. 

12 ‘‘(ii) USE OF CIRCUMSTANTIAL EVI13 DENCE.—A disclosure may be dem14 onstrated as a contributing factor in a re15 prisal for purposes of this paragraph by 

16 circumstantial evidence, including— 

17 ‘‘(I) evidence that the official un18 dertaking the reprisal knew of the dis19 closure; 

20 ‘‘(II) evidence that the reprisal 

21 occurred within a period of time after 

22 the disclosure such that a reasonable 

23 person could conclude that the disclo24 sure was a contributing factor in the 

25 reprisal; or 


pwalker on DSK7TPTVN1PROD with 
10 

•S 241 RS

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: 


pwalker on DSK7TPTVN1PROD with 
11 

•S 241 RS

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 


pwalker on DSK7TPTVN1PROD with 
12 

•S 241 RS

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 


pwalker on DSK7TPTVN1PROD with 
13 

•S 241 RS

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 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6401 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
14 

•S 241 RS

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) 


pwalker on DSK7TPTVN1PROD with 
15 

•S 241 RS

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 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6401 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
16 

•S 241 RS

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— 


pwalker on DSK7TPTVN1PROD with 
17 

•S 241 RS

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— 


pwalker on DSK7TPTVN1PROD with 
18 

•S 241 RS

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. 

21 SECTION 1. SHORT TITLE. 

22 This Act may be cited as the ‘‘Non-Federal Employee 

23 Whistleblower Protection Act of 2012’’. 


pwalker on DSK7TPTVN1PROD with 
19 

•S 241 RS

1 SEC. 2. PROTECTING STATE AND LOCAL GOVERNMENT AND 

2 CONTRACTOR WHISTLEBLOWERS. 

3 (a) REPEALS.— 

4 (1) CIVILIAN CONTRACTS.—Title 41, United 

5 States Code, is amended as follows: 

6 (A) Section 4705 is repealed. 

7 (B) The table of sections at the beginning of 

8 chapter 47 is amended by striking the item relat9 ing to section 4705. 

10 (2) DEFENSE CONTRACTS.—Title 10, United 

11 States Code, is amended as follows: 

12 (A) Section 2409 is repealed. 

13 (B) The table of sections at the beginning of 

14 chapter 141 is amended by striking the item re15 lating to section 2409. 

16 (b) ENHANCED PROTECTION FOR STATE AND LOCAL

17 GOVERNMENT AND CONTRACTOR WHISTLEBLOWERS.— 

18 (1) IN GENERAL.—Chapter 23 of division B of 

19 title 41, United States Code, is amended by adding 

20 at the end the following new section: 

21 ‘‘§ 2314. Protection for State and local government 

22 and contractor whistleblowers 

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

24 any non-Federal employer receiving covered funds may not 

25 be discharged, demoted, or otherwise discriminated against 

26 as a reprisal for initiating or participating in any proVerDate Mar 15 2010 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6203 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
20 

•S 241 RS

1 ceeding related to the misuse of any Federal funds, reason2 ably opposing the misuse of any Federal funds, or dis3 closing, including a disclosure made in the ordinary course 

4 of an employee’s duties, to an inspector general, the Comp5 troller General of the United States, the Attorney General, 

6 a member of Congress, a State or Federal regulatory or law 

7 enforcement agency, a person with supervisory authority 

8 over the employee (or such other person working for the em9 ployer who has the authority to investigate, discover, or ter10 minate misconduct), a court or grand jury, the head of a 

11 Federal agency, or their representatives information that 

12 the employee reasonably believes is evidence of— 

13 ‘‘(1) gross mismanagement of an agency contract 

14 or grant relating to covered funds; 

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

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

17 health or safety related to the implementation or use 

18 of covered funds; 

19 ‘‘(4) an abuse of authority related to the imple20 mentation or use of covered funds; or 

21 ‘‘(5) a violation of law, rule, or regulation re22 lated to an agency contract (including the competi23 tion for or negotiation of a contract), subcontract, or 

24 grant, awarded or issued relating to covered funds. 


pwalker on DSK7TPTVN1PROD with 
21 

•S 241 RS

1 ‘‘(b) INVESTIGATION OF COMPLAINTS BY INSPECTOR

2 GENERAL.— 

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

4 the person has been subjected to a reprisal prohibited 

5 by subsection (a) may submit a complaint regarding 

6 the reprisal to the appropriate inspector general. Ex7 cept as provided under paragraph (3), unless the in8 spector general determines that the complaint is frivo9 lous, does not relate to covered funds, or another Fed10 eral or State judicial or administrative proceeding 

11 has previously been invoked to resolve such complaint, 

12 the inspector general shall investigate the complaint 

13 and, upon completion of such investigation, submit a 

14 report of the findings of the investigation to the per15 son, the person’s employer, and the head of the appro16 priate agency. 

17 ‘‘(2) TIME LIMITATIONS FOR ACTIONS IN RE18 SPONSE TO COMPLAINTS.— 

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

20 under subparagraph (B), the inspector general 

21 shall, not later than 180 days after receiving a 

22 complaint under paragraph (1)— 

23 ‘‘(i) make a determination that the 

24 complaint is frivolous, does not relate to 

25 covered funds, or another Federal or State 


pwalker on DSK7TPTVN1PROD with 
22 

•S 241 RS

1 judicial or administrative proceeding has 

2 previously been invoked to resolve such com3 plaint; or 

4 ‘‘(ii) submit a report under paragraph 

5 (1). 

6 ‘‘(B) EXTENSIONS.— 

7 ‘‘(i) VOLUNTARY EXTENSION AGREED

8 TO BETWEEN INSPECTOR GENERAL AND

9 COMPLAINANT.—If the inspector general is 

10 unable to complete an investigation under 

11 this section in time to submit a report with12 in the 180-day period specified under sub13 paragraph (A) and the person submitting 

14 the complaint agrees to an extension of 

15 time, the inspector general shall submit a 

16 report under paragraph (1) within such ad17 ditional period of time, up to 180 days, as 

18 shall be agreed upon between the inspector 

19 general and the person submitting the com20 plaint. 

21 ‘‘(ii) EXTENSION GRANTED BY INSPEC22 TOR GENERAL.—If the inspector general is 

23 unable to complete an investigation under 

24 this section in time to submit a report with25 in the 180-day period specified under subVerDate Mar 15 2010 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6203 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
23 

•S 241 RS

1 paragraph (A), the inspector general may 

2 extend the period for not more than 90 days 

3 without agreeing with the person submitting 

4 the complaint to such extension, provided 

5 that the inspector general provides to the 

6 person submitting the complaint a written 

7 explanation (subject to the authority to ex8 clude information under paragraph (4)(C)) 

9 for the decision. 

10 ‘‘(iii) SEMI-ANNUAL REPORT ON EX11 TENSIONS.—The inspector general shall in12 clude in semi-annual reports to Congress a 

13 list of those investigations for which the in14 spector general received an extension. 

15 ‘‘(3) DISCRETION NOT TO INVESTIGATE COM16 PLAINTS.— 

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

18 may decide not to conduct or continue an inves19 tigation under this section upon providing to the 

20 person submitting the complaint a written expla21 nation (subject to the authority to exclude infor22 mation under paragraph (4)(C)) for such deci23 sion. 

24 ‘‘(B) SEMI-ANNUAL REPORT.—The inspector 

25 general shall include in semi-annual reports to 


pwalker on DSK7TPTVN1PROD with 
24 

•S 241 RS

1 Congress a list of those investigations the inspec2 tor general decided not to conduct or continue 

3 under this paragraph. 

4 ‘‘(4) ACCESS TO INVESTIGATIVE FILE.— 

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

6 reprisal under this section shall have access to 

7 the investigation file of the appropriate inspector 

8 general in accordance with section 552a of title 

9 5 (commonly referred to as the ‘Privacy Act’). 

10 The investigation of the inspector general shall 

11 be deemed closed for purposes of disclosure under 

12 such section when an employee files an appeal to 

13 an agency head or a court of competent jurisdic14 tion. 

15 ‘‘(B) CIVIL ACTION.—In the event the per16 son alleging the reprisal brings suit under sub17 section (d)(1), the person alleging the reprisal 

18 and the non-Federal employer shall have access 

19 to the investigative file of the inspector general 

20 in accordance with the Privacy Act. 

21 ‘‘(C) EXCEPTION.— 

22 ‘‘(i) IN GENERAL.—The inspector gen23 eral may exclude from disclosure— 

24 ‘‘(I) information protected from 

25 disclosure by a provision of law; and 


pwalker on DSK7TPTVN1PROD with 
25 

•S 241 RS

1 ‘‘(II) any additional information 

2 the inspector general determines disclo3 sure of which would impede a con4 tinuing investigation, provided that 

5 such information is disclosed once such 

6 disclosure would no longer impede such 

7 investigation, unless the inspector gen8 eral determines that disclosure of law 

9 enforcement techniques, procedures, or 

10 information could reasonably be ex11 pected to risk circumvention of the law 

12 or disclose the identity of a confiden13 tial source. 

14 ‘‘(ii) LIMITATION.—Notwithstanding 

15 clause (i)(II), the inspector general may not 

16 withhold information from the employee 

17 which would otherwise be subject to disclo18 sure under section 552 of title 5 (commonly 

19 referred to as the Freedom of Information 

20 Act) or the Privacy Act. 

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

22 general investigating an alleged reprisal under this 

23 section may not respond to any inquiry or disclose 

24 any information from or about any person alleging 

25 such reprisal, except in accordance with the proviVerDate Mar 15 2010 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6203 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
26 

•S 241 RS

1 sions of section 552a of title 5 or as required by any 

2 other applicable Federal law. 

3 ‘‘(6) LIMITATION ON SUBMITTING COMPLAINT.— 

4 A complaint under this subsection may not be brought 

5 more than 3 years after the date on which the alleged 

6 reprisal prohibited under subsection (a) occurred. 

7 ‘‘(c) ADMINISTRATIVE REMEDY AND ENFORCEMENT

8 AUTHORITY.— 

9 ‘‘(1) AGENCY ACTION.—Not later than 30 days 

10 after receiving an inspector general report under sub11 section (b), the head of the agency concerned shall de12 termine whether there is sufficient basis to conclude 

13 that the non-Federal employer has, directly, or indi14 rectly on behalf of the Federal agency providing the 

15 employer covered funds, subjected the complainant to 

16 a reprisal prohibited by subsection (a) and shall ei17 ther issue an order denying relief in whole or in part 

18 or shall take 1 or more of the following actions: 

19 ‘‘(A) Order the employer to take affirmative 

20 action to abate the reprisal. 

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

22 person to the position that the person held before 

23 the reprisal, together with the compensation (in24 cluding back pay), compensatory damages, em25 ployment benefits, and other terms and condiVerDate Mar 15 2010 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6203 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
27 

•S 241 RS

1 tions of employment that would apply to the per2 son in that position if the reprisal had not been 

3 taken. 

4 ‘‘(C) Order the employer to pay the com5 plainant an amount equal to the aggregate 

6 amount of all costs and expenses (including at7 torneys’ fees and expert witnesses’ fees) that were 

8 reasonably incurred by the complainant for, or 

9 in connection with, bringing the complaint re10 garding the reprisal, as determined by the head 

11 of the agency or a court of competent jurisdic12 tion. 

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

14 of the decision of the inspector general in a man15 ner in which every employee of the employer will 

16 have notice of the decision and otherwise require 

17 a reasonable compliance program to ensure that 

18 no further retaliation is committed by the em19 ployer. 

20 ‘‘(E) In the case of a finding that the re21 prisal was willful, wanton, or malicious, order 

22 the employer to pay the employee no more than 

23 10 times the amount of all lost wages and other 

24 compensatory damages. 

25 ‘‘(2) BURDEN OF PROOF.— 


pwalker on DSK7TPTVN1PROD with 
28 

•S 241 RS

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

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

4 reprisal under this section shall be deemed 

5 to have affirmatively established the occur6 rence of the reprisal if the person dem7 onstrates that a disclosure described in sub8 section (a) was a contributing factor in the 

9 reprisal. 

10 ‘‘(ii) USE OF CIRCUMSTANTIAL EVI11 DENCE.—A disclosure may be demonstrated 

12 as a contributing factor in a reprisal for 

13 purposes of this paragraph by circumstan14 tial evidence, including— 

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

18 ‘‘(II) evidence that the reprisal oc19 curred 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 


pwalker on DSK7TPTVN1PROD with 
29 

•S 241 RS

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 af7 firmatively established under subparagraph (A) 

8 if the non-Federal employer demonstrates by 

9 clear and convincing evidence that the non-Fed10 eral employer would have taken the action con11 stituting the reprisal in the absence of the disclo12 sure. An employee may rebut this affirmative de13 fense by direct or circumstantial evidence, in14 cluding the evidence described in subparagraph 

15 (A). 

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

17 Whenever a person fails to comply with an order 

18 issued under paragraph (1), the head of the agency 

19 shall file an action for enforcement of such order in 

20 the United States district court for a district in which 

21 the reprisal was found to have occurred. In any ac22 tion brought under this paragraph, the court may 

23 grant appropriate relief, including injunctive relief, 

24 compensatory and exemplary damages, and attorneys’ 

25 fees and costs. The person upon whose behalf an order 


pwalker on DSK7TPTVN1PROD with 
30 

•S 241 RS

1 was issued may also file such an action or join in an 

2 action filed by the head of the agency. 

3 ‘‘(d) CIVIL ACTION AND JUDICIAL REVIEW.— 

4 ‘‘(1) CIVIL ACTION.—A person who has submitted 

5 a complaint under subsection (b) shall be deemed to 

6 have exhausted all administrative remedies with re7 spect to the complaint and may bring a de novo ac8 tion at law or equity against the employer to seek 

9 compensatory damages and all other relief available 

10 under this section in the appropriate district court of 

11 the United States, which shall have jurisdiction over 

12 such an action without regard to the amount in con13 troversy, if— 

14 ‘‘(A)(i) the head of an agency— 

15 ‘‘(I) issues an order denying relief in 

16 whole or in part under subsection (c)(1); or 

17 ‘‘(II) has not issued an order— 

18 ‘‘(aa) within 210 days after the 

19 submission of a complaint under sub20 section (b); or 

21 ‘‘(bb) in the case of an extension 

22 of time under subsection (b)(2)(B), 

23 within 30 days after the expiration of 

24 the extension of time; or 


pwalker on DSK7TPTVN1PROD with 
31 

•S 241 RS

1 ‘‘(ii) the inspector general decides under 

2 subsection (b)(3) not to investigate or to dis3 continue an investigation; and 

4 ‘‘(B) there is no showing that such delay or 

5 decision is due to the bad faith of the complain6 ant. 

7 ‘‘(2) TRIAL BY JURY.—An action brought under 

8 paragraph (1) shall, at the request of either party to 

9 the action, be tried by the court with a jury. 

10 ‘‘(3) LIMITATION ON BRINGING CIVIL ACTION.— 

11 An action brought under paragraph (1) may not be 

12 brought more than 2 years after the date on which 

13 remedies are deemed exhausted under subparagraph 

14 (A) of such paragraph. 

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

16 affected or aggrieved by an order issued under sub17 section (c)(1) may obtain review of the order’s con18 formance with this subsection, and any regulations 

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

20 court of appeals for a circuit in which the reprisal is 

21 alleged in the order to have occurred. No petition seek22 ing such review may be filed more than 60 days after 

23 issuance of the order by the head of the agency. Re24 view shall conform to chapter 7 of title 5. Filing such 

25 an appeal shall not act to stay the enforcement of the 


pwalker on DSK7TPTVN1PROD with 
32 

•S 241 RS

1 order of a head of an agency or the judgment of a dis2 trict court. 

3 ‘‘(e) NONENFORCEABILITY OF CERTAIN PROVISIONS

4 WAIVING RIGHTS AND REMEDIES OR REQUIRING ARBITRA5 TION OF DISPUTES.— 

6 ‘‘(1) WAIVER OF RIGHTS AND REMEDIES.—Ex7 cept as provided under paragraph (3), the rights and 

8 remedies provided for in this section may not be 

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

10 of employment, including by any predispute arbitra11 tion agreement. 

12 ‘‘(2) PREDISPUTE ARBITRATION AGREEMENTS.— 

13 Except as provided under paragraph (3), no 

14 predispute arbitration agreement shall be valid or en15 forceable if it requires arbitration of a dispute arising 

16 under this section. 

17 ‘‘(3) EXCEPTION FOR COLLECTIVE BARGAINING

18 AGREEMENTS.—Notwithstanding paragraphs (1) and 

19 (2), an arbitration provision in a collective bar20 gaining agreement shall be enforceable as to disputes 

21 arising under the collective bargaining agreement. 

22 ‘‘(f) REQUIREMENT TO NOTIFY EMPLOYEES OF

23 RIGHTS AND REMEDIES.—Any non-Federal employer re24 ceiving covered funds shall notify all employees of the rights 


pwalker on DSK7TPTVN1PROD with 
33 

•S 241 RS

1 and remedies provided under this section in the predomi2 nant native language of the workforce. 

3 ‘‘(g) RULES OF CONSTRUCTION.— 

4 ‘‘(1) NO IMPLIED AUTHORITY TO RETALIATE FOR

5 NON-PROTECTED DISCLOSURES.—Nothing in this sec6 tion may be construed to authorize the discharge of, 

7 demotion of, or discrimination against an employee 

8 for a disclosure other than a disclosure protected by 

9 subsection (a) or to modify or derogate from a right 

10 or remedy otherwise available to the employee. 

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

12 in this section may be construed to preempt, preclude, 

13 or limit the protections provided for public or private 

14 employees under State whistleblower laws. 

15 ‘‘(h) DEFINITIONS.—In this section: 

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

17 authority’ means an arbitrary and capricious exercise 

18 of authority that adversely affects the rights of any 

19 person, or that results in personal gain or advantage 

20 to the official or employee or to preferred other per21 sons. 

22 ‘‘(2) COVERED FUNDS.—The term ‘covered funds’ 

23 means any contract, grant, or other payment received 

24 by any non-Federal employer if the Federal GovernVerDate Mar 15 2010 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6203 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
34 

•S 241 RS

1 ment provides any portion of the money or property 

2 that is provided, requested, or demanded. 

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

4 ‘‘(A) except as provided under subpara5 graph (B), means an individual performing 

6 services on behalf of an employer or a contractor, 

7 subcontractor, or agent of an employer; and 

8 ‘‘(B) does not include any Federal employee 

9 or member of the uniformed services (as that 

10 term is defined in section 101(a)(5) of title 10). 

11 ‘‘(4) NON-FEDERAL EMPLOYER.—The term ‘non12 Federal employer’— 

13 ‘‘(A) means— 

14 ‘‘(i) any employer— 

15 ‘‘(I) with respect to covered 

16 funds— 

17 ‘‘(aa) the contractor, subcon18 tractor, grantee, or recipient, as 

19 the case may be, if the contractor, 

20 grantee, or recipient is an em21 ployer; and 

22 ‘‘(bb) any professional mem23 bership organization, certification 

24 or other professional body, any 

25 agent or licensee of the Federal 


pwalker on DSK7TPTVN1PROD with 
35 

•S 241 RS

1 government, or any person acting 

2 directly or indirectly in the inter3 est of an employer receiving cov4 ered funds; or 

5 ‘‘(II) with respect to covered funds 

6 received by a State or local govern7 ment, the State or local government re8 ceiving the funds and any contractor 

9 or subcontractor of the State or local 

10 government; and 

11 ‘‘(ii) any corporation or person who 

12 receives any Federal funds; and 

13 ‘‘(B) does not mean any department, agen14 cy, or other entity of the Federal Government. 

15 ‘‘(5) STATE OR LOCAL GOVERNMENT.—The term 

16 ‘State or local government’ means— 

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

18 States, the District of Columbia, the Common19 wealth of Puerto Rico, Guam, American Samoa, 

20 the Virgin Islands, the Commonwealth of the 

21 Northern Mariana Islands, or any other terri22 tory or possession of the United States; or 

23 ‘‘(B) the government of any political sub24 division of a government listed in subparagraph 

25 (A).’’. 


pwalker on DSK7TPTVN1PROD with 
36 

•S 241 RS

1 (2) CONFORMING AMENDMENT.—The table of sec2 tions at the beginning of chapter 23 of title 41, 

3 United States Code, is amended by inserting after the 

4 item relating to section 2313 the following new item: 

‘‘2314. Protection for State and local government and contractor whistleblowers.’’. 

5 (c) APPLICABILITY.— 

6 (1) REPRISALS AFTER DATE OF ENACTMENT.— 

7 Section 2314 of title 41, United States Code, as added 

8 by subsection (b), shall apply to alleged reprisals de9 scribed under subsection (a) of such section that occur 

10 on or after the date of the enactment of this Act, re11 gardless of the date on which the contract, grant, co12 operative agreement, or other arrangement involving 

13 covered funds is entered into. 

14 (2) REPRISALS BEFORE DATE OF ENACTMENT.— 

15 (A) CIVILIAN CONTRACTS.—Section 4705 of 

16 title 41, United States Code, as in effect on the 

17 day before the date of the enactment of this Act, 

18 shall apply to alleged reprisals described under 

19 such section that occurred on or after the date of 

20 the enactment of such section and before the date 

21 of the enactment of this Act, regardless of the 

22 date on which the contract, grant, cooperative 

23 agreement, or other arrangement involving cov24 ered funds was entered into. 


pwalker on DSK7TPTVN1PROD with 
37 

•S 241 RS

1 (B) DEFENSE CONTRACTS.—Section 2409 of 

2 title 10, United States Code, as in effect on the 

3 day before the date of the enactment of this Act, 

4 shall apply to alleged reprisals described under 

5 such section that occurred on or after the date of 

6 the enactment of such section and before the date 

7 of the enactment of this Act, regardless of the 

8 date on which the contract, grant, cooperative 

9 agreement, or other arrangement involving cov10 ered funds was entered into. 

11 (d) REGULATIONS.— 

12 (1) LIMITED ALLOWABILITY OF LEGAL FEES AS

13 COSTS UNDER CONTRACTS.—Not later than 180 days 

14 after the date of the enactment of this Act, the Federal 

15 Acquisition Regulatory Council shall amend the Fed16 eral Acquisition Regulation to provide that legal fees 

17 and other expenses related to a claim arising under 

18 a whistleblower protection law are not allowable costs 

19 under a contract unless and until the contractor has 

20 been found in an administrative or judicial pro21 ceeding not to be liable for such claim. 

22 (2) NOTIFICATION OF EMPLOYEES OF RIGHTS

23 AND REMEDIES.—Not later than 180 days after the 

24 date of the enactment of this Act, the Federal Acquisi25 tion Regulatory Council shall amend the Federal AcVerDate Mar 15 2010 03:44 Dec 20, 2012 Jkt 029200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6203 E:\BILLS\S241.RS S241

pwalker on DSK7TPTVN1PROD with 
38 

•S 241 RS

1 quisition Regulation to require inclusion of a contract 

2 clause notifying contractors of the requirement under 

3 section 2314(f) of title 41, United States Code, as 

4 added by subsection (b)(1), for non-Federal employers 

5 to notify employees of their rights and remedies under 

6 such section. 


pwalker on DSK7TPTVN1PROD with 

pwalker on DSK7TPTVN1PROD with 
Calendar No. 569 

112TH CONGRESS 

2D SESSION S. 241 

A BILL 

To expand whistleblower protections to non-Federal 

Federal funds. employees whose disclosures involve misuse of 

DECEMBER 19, 2012 

Reported with an amendment 


pwalker on DSK7TPTVN1PROD with