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103D CONGRESS

1ST SESSION S. 166

The Private Sector Whistleblowers’ Protection Act of 1993.

IN THE SENATE OF THE UNITED STATES

JANUARY 21 (legislative day, JANUARY 5), 1993

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

to the Committee on Governmental Affairs

A BILL

The Private Sector Whistleblowers’ Protection Act of 1993.

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

3 SECTION 1. PURPOSE.

4 The Federal regulatory system should be imple5 mented consistent with the principle that any person sub6 ject to Government regulation should be protected against

7 reprisal for disclosing information that the person believes

8 is indicative of—

9 (1) violation or inconsistent application of any

10 law, rule, regulation, policy, or internal standard;

11 (2) arbitrary action or other abuse of authority;

12 (3) mismanagement;
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1 (4) waste or misallocation of resources;

2 (5) inconsistent, discriminatory or dispropor3 tionate enforcement proceedings;

4 (6) endangerment of public health or safety;

5 (7) personal favoritism; and

6 (8) coercion for partisan political purposes;

7 by any agency or its employees.

8 SEC. 2. COVERAGE.

9 This Act shall apply to:

10 (1) Any agency of the Federal Government as

11 defined in section 551 of title 5, United States Code.

12 (2) Any agency of a State government that ex13 ercises authority under Federal law, or that exer14 cises authority under State law establishing a pro15 gram approved by a Federal agency as a substitute

16 for or supplement to a program established by Fed17 eral law.

18 SEC. 3. PROHIBITED REGULATORY PRACTICES.

19 (a) For purposes of this title, ‘‘prohibited regulatory

20 practice’’ means any action described in subsection (b) of

21 this section.

22 (b)(1) No employee of an Agency who has author23 ity—

24 to take or direct other employees to take,

25 to recommend, or
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1 to approve

2 any regulatory action shall

3 take or fail to take, or threaten to take or fail

4 to take,

5 recommend or direct that others take or fail to

6 take, or threaten to so recommend or direct,

7 approve the taking or failing to take, or threat8 en to so approve,

9 such regulatory action because of any disclosure by

10 a person subject to the action, or by any other person,

11 of information that the person believed indicative of:

12 (A) violation or inconsistent application of any

13 law, rule, regulation, policy, or internal standard;

14 (B) arbitrary action or other abuse of au15 thority;

16 (C) mismanagement;

17 (D) Waste or misallocation of resources;

18 (E) Inconsistent, discriminatory or dis19 proportionate enforcement;

20 (F) endangerment of public health or safety;

21 (G) personal favoritism; or

22 (H) coercion for partisan political pur23 poses;

24 by any agency or its employees.
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1 (2) An action shall be deemed to have been taken,

2 not taken, approved, or recommended because of the dis3 closure of information within the meaning of subsection

4 (b)(1) if the disclosure of information was a contributing

5 factor to the decision to take, not to take, to approve, or

6 to recommend.

7 SEC. 4. PROHIBITED REGULATORY PRACTICE AS A DE8 FENSE TO AGENCY ACTION.

9 (a) In any administrative or judicial action or pro10 ceeding, formal or informal, by an agency to create, apply

11 or enforce any obligation, duty or liability under any law,

12 rule or regulation against any person, the person may as13 sert as a defense that the agency or one or more employees

14 of the agency have engaged in a prohibited regulatory

15 practice with respect to the person or to a related entity

16 in connection with the action or proceeding.

17 (b) If the existence of a prohibited regulatory practice

18 is established, the person may be required to comply with

19 the obligation, duty or liability to the extent compliance

20 is required of and enforced against other persons similarly

21 situated, but no penalty, fine, damages, costs or other obli22 gation except compliance shall be imposed on the person.

23 SEC. 5. ENFORCEMENT.

24 (a) Any agency, and any employee of an agency, en25 gaging in a prohibited regulatory practice may be assessed
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1 a civil penalty of not more than $25,000 for each such

2 practice. In the case of a continuing prohibited regulatory

3 practice, each day that the practice continues shall be

4 deemed a separate practice.

5 (b) The President shall, by regulation, establish pro6 cedures providing for the administrative enforcement of

7 the requirements of subsection (a) of this section.

8 SEC. 6. CITIZEN SUITS.

9 (a) Any person injured or threatened by a prohibited

10 regulatory practice may commence a civil action on his

11 own behalf against any person or agency alleged to have

12 engaged in or threatened to engage in such practice.

13 (b) Any action under subsection (a) of this section

14 shall be brought in the district court for any district in

15 which the alleged prohibited regulatory practice occurred

16 or in which the alleged injury occurred. The district court

17 shall have jurisdiction, without regard to the amount in

18 controversy or the citizenship of the parties, to:

19 (1) restrain any agency or person who has en20 gaged or is engaging in any prohibited regulatory

21 practice;

22 (2) order the cancellation or remission of any

23 penalty, fine, damages, or other monetary assess24 ment that resulted from a prohibited regulatory

25 practice;
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1 (3) order the rescission of any settlement that

2 resulted from a prohibited regulatory practice;

3 (4) order the issuance of any permit or license

4 that has been denied or delayed as a result of a pro5 hibited regulatory practice;

6 (5) order the agency and/or the employee en7 gaging in a prohibited regulatory practice to pay to

8 the injured person such damages as may be nec9 essary to compensate the person for any harm re10 sulting from the practice, including damages for—

11 (A) injury to, deterioration of, or destruc12 tion of real or personal property;

13 (B) loss of profits from idle or

14 underutilized resources, and from business for15 gone;

16 (C) costs incurred, including costs of com17 pliance where appropriate;

18 (D) loss in value of a business;

19 (E) reasonable legal, consulting and expert

20 witness fees; or

21 (F) payments to third parties;

22 (6) order the payment of punitive damages, in

23 an amount not to exceed $25,000 for each such pro24 hibited regulatory practice, provided that, in the case

25 of a continuing prohibited regulatory practice, each
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1 day that the practice continues shall be deemed a

2 separate practice.

3 SEC. 7. OFFICE OF THE SPECIAL COUNSEL.

4 (a) Any person who has reason to believe that any

5 employee of any agency has engaged in a prohibited regu6 latory practice may request the Special Counsel estab7 lished by section 1211 of title 5, United States Code, to

8 investigate.

9 (b) The Special Counsel shall have the same power

10 to investigate prohibited regulatory practices that it has

11 to investigate prohibited personnel practices pursuant to

12 section 1212 of title 5, United States Code.

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