II 

111TH CONGRESS 

1ST SESSION S. 1745 

To expand whistleblower protections to non-Federal employees whose 

disclosures involve misuse of Federal funds. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 1, 2009 

Mrs. MCCASKILL 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 2009’’. 

6 SEC. 2. PROTECTING STATE AND LOCAL GOVERNMENT AND 

7 CONTRACTOR WHISTLEBLOWERS. 

8 (a) REPEAL.—Section 315 of the Federal Property 

9 and Administrative Services Act of 1949 (41 U.S.C. 265) 

10 is hereby repealed. 


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1 (b) ENHANCED PROTECTION FOR STATE AND LOCAL

2 GOVERNMENT AND CONTRACTOR WHISTLEBLOWERS.— 

3 Title III of the Federal Property and Administrative Serv4 ices Act of 1949 (41 U.S.C. 251 et seq.), as amended by 

5 subsection (a), is amended by inserting after section 314B 

6 the following new section: 

7 ‘‘SEC. 315. WHISTLEBLOWER PROTECTION FOR STATE AND 

8 LOCAL GOVERNMENT AND CONTRACTOR 

9 WHISTLEBLOWERS. 

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

11 any non-Federal employer receiving covered funds may not 

12 be discharged, demoted, or otherwise discriminated 

13 against as a reprisal for initiating or participating in any 

14 proceeding related to the misuse of any Federal funds, 

15 reasonably opposing the misuse of any Federal funds, or 

16 disclosing, including a disclosure made in the ordinary 

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

18 the Comptroller General of the United States, the Attor19 ney General, a member of Congress, a State or Federal 

20 regulatory or law enforcement agency, a person with su21 pervisory authority over the employee (or such other per22 son working for the employer who has the authority to 

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

24 grand jury, the head of a Federal agency, or their repVerDate Nov 24 2008 07:09 Oct 02, 2009 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1745.IS S1745

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1 resentatives information that the employee reasonably be2 lieves is evidence of— 

3 ‘‘(1) gross mismanagement of an agency con4 tract or grant relating to covered funds; 

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

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

7 health or safety related to the implementation or use 

8 of covered funds; 

9 ‘‘(4) an abuse of authority related to the imple10 mentation or use of covered funds; or 

11 ‘‘(5) a violation of law, rule, or regulation re12 lated to an agency contract (including the competi13 tion for or negotiation of a contract), subcontract, or 

14 grant, awarded or issued relating to covered funds. 

15 ‘‘(b) INVESTIGATION OF COMPLAINTS.— 

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

17 the person has been subjected to a reprisal prohib18 ited by subsection (a) may submit a complaint re19 garding the reprisal to the appropriate inspector 

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

21 unless the inspector general determines that the 

22 complaint is frivolous, does not relate to covered 

23 funds, or another Federal or State judicial or ad24 ministrative proceeding has previously been invoked 

25 to resolve such complaint, the inspector general shall 


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1 investigate the complaint and, upon completion of 

2 such investigation, submit a report of the findings of 

3 the investigation to the person, the person’s em4 ployer, and the head of the appropriate agency. 

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

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

7 under subparagraph (B), the inspector general 

8 shall, not later than 180 days after receiving a 

9 complaint under paragraph (1)— 

10 ‘‘(i) make a determination that the 

11 complaint is frivolous, does not relate to 

12 covered funds, or another Federal or State 

13 judicial or administrative proceeding has 

14 previously been invoked to resolve such 

15 complaint; or 

16 ‘‘(ii) submit a report under paragraph 

17 (1). 

18 ‘‘(B) EXTENSIONS.— 

19 ‘‘(i) VOLUNTARY EXTENSION AGREED

20 TO BETWEEN INSPECTOR GENERAL AND

21 COMPLAINANT.—If the inspector general is 

22 unable to complete an investigation under 

23 this section in time to submit a report 

24 within the 180-day period specified under 

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1 ting the complaint agrees to an extension 

2 of time, the inspector general shall submit 

3 a report under paragraph (1) within such 

4 additional period of time as shall be agreed 

5 upon between the inspector general and 

6 the person submitting the complaint. 

7 ‘‘(ii) EXTENSION GRANTED BY IN8 SPECTOR GENERAL.—If the inspector gen9 eral is unable to complete an investigation 

10 under this section in time to submit a re11 port within the 180-day period specified 

12 under subparagraph (A), the inspector 

13 general may extend the period for not 

14 more than 180 days without agreeing with 

15 the person submitting the complaint to 

16 such extension, provided that the inspector 

17 general provides a written explanation 

18 (subject to the authority to exclude infor19 mation under paragraph (4)(C)) for the 

20 decision, which shall be provided to both 

21 the person submitting the complaint and 

22 the non-Federal employer. 

23 ‘‘(iii) SEMI-ANNUAL REPORT ON EX24 TENSIONS.—The inspector general shall in25 clude in semi-annual reports to Congress a 


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1 list of those investigations for which the in2 spector general received an extension. 

3 ‘‘(3) DISCRETION NOT TO INVESTIGATE COM4 PLAINTS.— 

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

6 may decide not to conduct or continue an inves7 tigation under this section upon providing to 

8 the person submitting the complaint and the 

9 non-Federal employer a written explanation 

10 (subject to the authority to exclude information 

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

12 ‘‘(B) ASSUMPTION OF RIGHTS TO CIVIL

13 REMEDY.—Upon receipt of an explanation of a 

14 decision not to conduct or continue an inves15 tigation under subparagraph (A), the person 

16 submitting a complaint shall immediately as17 sume the right to a civil remedy under sub18 section (c)(3) as if the 210-day period specified 

19 under such subsection has already passed. 

20 ‘‘(C) SEMI-ANNUAL REPORT.—The inspec21 tor general shall include in semi-annual reports 

22 to Congress a list of those investigations the in23 spector general decided not to conduct or con24 tinue under this paragraph. 


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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, United States Code (commonly referred 

8 to as the ‘Privacy Act’). The investigation of 

9 the inspector general shall be deemed closed for 

10 purposes of disclosure under such section when 

11 an employee files an appeal to an agency head 

12 or a court of competent 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 Nov 24 2008 07:09 Oct 02, 2009 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1745.IS S1745

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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 United States Code (commonly referred to 

18 as the Freedom of Information Act) or the 

19 Privacy Act. 

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

21 general investigating an alleged reprisal under this 

22 section may not respond to any inquiry or disclose 

23 any information from or about any person alleging 

24 such reprisal, except in accordance with the proviVerDate Nov 24 2008 07:09 Oct 02, 2009 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1745.IS S1745

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1 sions of section 552a of title 5, United States Code, 

2 or as required by any other applicable Federal law. 

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

4 ‘‘(1) BURDEN OF PROOF.— 

5 ‘‘(A) DISCLOSURE AS CONTRIBUTING FAC6 TOR IN REPRISAL.— 

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

8 a reprisal under this section shall be 

9 deemed to have affirmatively established 

10 the occurrence of the reprisal if the person 

11 demonstrates that a disclosure described in 

12 subsection (a) was a contributing factor in 

13 the reprisal. 

14 ‘‘(ii) USE OF CIRCUMSTANTIAL EVI15 DENCE.—A disclosure may be dem16 onstrated as a contributing factor in a re17 prisal for purposes of this paragraph by 

18 circumstantial evidence, including— 

19 ‘‘(I) evidence that the official un20 dertaking the reprisal knew of the dis21 closure; 

22 ‘‘(II) evidence that the reprisal 

23 occurred within a period of time after 

24 the disclosure such that a reasonable 

25 person could conclude that the discloVerDate Nov 24 2008 07:09 Oct 02, 2009 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1745.IS S1745

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1 sure was a contributing factor in the 

2 reprisal; or 

3 ‘‘(III) evidence that the protected 

4 disclosure was well founded in fact or 

5 law. 

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

7 head of an agency may not find the occurrence 

8 of a reprisal with respect to a reprisal that is 

9 affirmatively established under subparagraph 

10 (A) if the non-Federal employer demonstrates 

11 by clear and convincing evidence that the non12 Federal employer would have taken the action 

13 constituting the reprisal in the absence of the 

14 disclosure. An employee may rebut this affirma15 tive defense by direct or circumstantial evi16 dence, including the evidence described in sub17 paragraph (A). 

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

19 after receiving an inspector general report under 

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

21 shall determine whether there is sufficient basis to 

22 conclude that the non-Federal employer has sub23 jected the complainant to a reprisal prohibited by 

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1 ing relief in whole or in part or shall take 1 or more 

2 of the following actions: 

3 ‘‘(A) Order the employer to take affirma4 tive action to abate the reprisal. 

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

6 person to the position that the person held be7 fore the reprisal, together with the compensa8 tion (including back pay), compensatory dam9 ages, employment benefits, and other terms and 

10 conditions of employment that would apply to 

11 the person in that position if the reprisal had 

12 not been taken. 

13 ‘‘(C) Order the employer to pay the com14 plainant an amount equal to the aggregate 

15 amount of all costs and expenses (including at16 torneys’ fees and expert witnesses’ fees) that 

17 were reasonably incurred by the complainant 

18 for, or in connection with, bringing the com19 plaint regarding the reprisal, as determined by 

20 the head of the agency or a court of competent 

21 jurisdiction. 

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

23 of the decision of the inspector general in a 

24 manner in which every employee of the em25 ployer will have notice of the decision and othVerDate Nov 24 2008 07:09 Oct 02, 2009 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1745.IS S1745

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1 erwise require a reasonable compliance program 

2 to ensure that no further retaliation is com3 mitted by the employer. 

4 ‘‘(E) In the case of a finding that the re5 prisal was willful, wanton, or malicious, pay the 

6 employee no more then 10 times the amount of 

7 all lost wages and other compensatory damages. 

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

9 issues an order denying relief in whole or in part 

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

11 210 days after the submission of a complaint under 

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

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

14 the expiration of the extension of time, or decides 

15 under subsection (b)(3) not to investigate or to dis16 continue an investigation, and there is no showing 

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

18 of the complainant, the complainant shall be deemed 

19 to have exhausted all administrative remedies with 

20 respect to the complaint, and the complainant may 

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

22 employer to seek compensatory damages and all 

23 other relief available under this section in the appro24 priate district court of the United States, which 

25 shall have jurisdiction over such an action without 


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1 regard to the amount in controversy. Such an action 

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

3 tried by the court with a jury. 

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

5 Whenever a person fails to comply with an order 

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

7 shall file an action for enforcement of such order in 

8 the United States district court for a district in 

9 which the reprisal was found to have occurred. In 

10 any action brought under this paragraph, the court 

11 may grant appropriate relief, including injunctive re12 lief, compensatory and exemplary damages, and at13 torneys’ fees and costs. The person upon whose be14 half an order was issued may also file such an action 

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

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

17 affected or aggrieved by an order issued under para18 graph (2) may obtain review of the order’s conform19 ance with this subsection, and any regulations issued 

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

21 of appeals for a circuit in which the reprisal is al22 leged in the order to have occurred. No petition 

23 seeking such review may be filed more than 60 days 

24 after issuance of the order by the head of the agen25 cy. Review shall conform to chapter 7 of title 5, 


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1 United States Code. Filing such an appeal shall not 

2 act to stay the enforcement of the order of a head 

3 of an agency or the judgment of a district court. 

4 ‘‘(6) EXHAUSTION OF ADMINISTRATIVE REM5 EDIES.—Regardless of any other time limit set forth 

6 in this Act, after 360 days an employee shall be 

7 deemed to have exhausted his or her administrative 

8 remedies and may file a civil action or amend a 

9 claim under this Act to any other pending civil ac10 tion filed by the employee. 

11 ‘‘(d) NONENFORCEABILITY OF CERTAIN PROVISIONS

12 WAIVING RIGHTS AND REMEDIES OR REQUIRING ARBI13 TRATION OF DISPUTES.— 

14 ‘‘(1) WAIVER OF RIGHTS AND REMEDIES.—Ex15 cept as provided under paragraph (3), the rights and 

16 remedies provided for in this section may not be 

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

18 of employment, including by any predispute arbitra19 tion agreement. 

20 ‘‘(2) PREDISPUTE ARBITRATION AGREE21 MENTS.—Except as provided under paragraph (3), 

22 no predispute arbitration agreement shall be valid or 

23 enforceable if it requires arbitration of a dispute 

24 arising under this section. 


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1 ‘‘(3) EXCEPTION FOR COLLECTIVE BARGAINING

2 AGREEMENTS.—Notwithstanding paragraphs (1) 

3 and (2), an arbitration provision in a collective bar4 gaining agreement shall be enforceable as to dis5 putes arising under the collective bargaining agree6 ment. 

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

8 AND REMEDIES.—Any employer receiving covered funds 

9 shall post notice of the rights and remedies provided under 

10 this section. 

11 ‘‘(f) RULES OF CONSTRUCTION.— 

12 ‘‘(1) NO IMPLIED AUTHORITY TO RETALIATE

13 FOR NON-PROTECTED DISCLOSURES.—Nothing in 

14 this section may be construed to authorize the dis15 charge of, demotion of, or discrimination against an 

16 employee for a disclosure other than a disclosure 

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

18 from a right or remedy otherwise available to the 

19 employee. 

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

21 in this section may be construed to preempt, pre22 clude, or limit the protections provided for public or 

23 private employees under State whistleblower laws. 

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


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

2 of authority’ means an arbitrary and capricious ex3 ercise of authority by a contracting official or em4 ployee that adversely affects the rights of any per5 son, or that results in personal gain or advantage to 

6 the official or employee or to preferred other per7 sons. 

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

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

10 received by any non-Federal employer if the Federal 

11 Government provides any portion of the money or 

12 property that is provided, requested, or demanded. 

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

14 ‘‘(A) except as provided under subpara15 graph (B), means an individual performing 

16 services on behalf of an employer or a con17 tractor, subcontractor, or agent of an employer; 

18 and 

19 ‘‘(B) does not include any Federal em20 ployee or member of the uniformed services (as 

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

22 10, United States Code). 

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

24 ‘non-Federal employer’— 

25 ‘‘(A) means— 


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1 ‘‘(i) any employer— 

2 ‘‘(I) with respect to covered 

3 funds— 

4 ‘‘(aa) the contractor, sub5 contractor, grantee, or recipient, 

6 as the case may be, if the con7 tractor, grantee, or recipient is 

8 an employer; and 

9 ‘‘(bb) any professional mem10 bership organization, certification 

11 or other professional body, any 

12 agent or licensee of the Federal 

13 Government, or any person act14 ing directly or indirectly in the 

15 interest of an employer receiving 

16 covered funds; or 

17 ‘‘(II) with respect to covered 

18 funds received by a State or local gov19 ernment, the State or local govern20 ment receiving the funds and any con21 tractor or subcontractor of the State 

22 or local government; and 

23 ‘‘(ii) any corporation or person who 

24 receives any Federal funds; and 


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1 ‘‘(B) does not mean any department, agen2 cy, or other entity of the Federal Government. 

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

4 term ‘State or local government’ means— 

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

6 States, the District of Columbia, the Common7 wealth of Puerto Rico, Guam, American Samoa, 

8 the Virgin Islands, the Commonwealth of the 

9 Northern Mariana Islands, or any other terri10 tory or possession of the United States; or 

11 ‘‘(B) the government of any political sub12 division of a government listed in subparagraph 

13 (A).’’. 

14 (c) APPLICABILITY.— 

15 (1) PENDING CLAIMS.—Section 315 of the Fed16 eral Property and Administrative Services Act of 

17 1949, as added by subsection (b), shall apply to 

18 complaints submitted pursuant to such section on or 

19 after the date of the enactment of this Act. 

20 (2) NEW CLAIMS.—Section 315 of the Federal 

21 Property and Administrative Services Act of 1949, 

22 as in effect on the day before the date of the enact23 ment of this Act shall apply to claims submitted 


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1 pursuant to such section before such date of enact2 ment. 

Æ 


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