```

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2988 Reported in House (RH)]

<DOC>

                                                 Union Calendar No. 251
117th CONGRESS
  2d Session
                                H. R. 2988

                          [Report No. 117-334]

To amend title 5, United States Code, to modify and enhance protections 
     for Federal Government whistleblowers, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                              May 4, 2021

  Mrs. Carolyn B. Maloney of New York (for herself, Mr. Connolly, Ms. 
  Speier, Ms. Mace, Ms. Johnson of Texas, and Miss Rice of New York) 
 introduced the following bill; which was referred to the Committee on 
                          Oversight and Reform

                              May 17, 2022

 Additional sponsors: Mr. Mfume, Mr. Lynch, Mr. Case, Ms. Norton, Mr. 
   Cooper, Mr. Krishnamoorthi, Mr. Khanna, Ms. Porter, Ms. Wasserman 
  Schultz, Mr. Welch, Mr. Quigley, Ms. Tlaib, Ms. Ocasio-Cortez, Mr. 
    Sarbanes, Mr. Raskin, Ms. Kelly of Illinois, Mrs. Lawrence, Mr. 
DeSaulnier, Ms. Pressley, Mr. Johnson of Georgia, Mr. Danny K. Davis of 
              Illinois, Ms. Bush, Mr. Gomez, and Ms. Meng

                              May 17, 2022

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
[For text of introduced bill, see copy of bill as introduced on May 4, 
                                 2021]

_______________________________________________________________________

                                 A BILL

 
To amend title 5, United States Code, to modify and enhance protections 
     for Federal Government whistleblowers, and for other purposes.

 

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Whistleblower Protection Improvement 
Act of 2021''.

SEC. 2. ADDITIONAL WHISTLEBLOWER PROTECTIONS.

    (a) Investigations as Personnel Actions.--
            (1) In general.--Section 2302(a)(2)(A) of title 5, United 
        States Code, is amended--
                    (A) in clause (xi), by striking ``and'' at the end;
                    (B) by redesignating clause (xii) as clause (xiii); 
                and
                    (C) by inserting after the clause (xi) the 
                following:
                    ``(xii) for purposes of subsection (b)(8)--
                            ``(I) the commencement, expansion, or 
                        extension of an investigation, but not 
                        including any investigation that is ministerial 
                        or nondiscretionary (including a ministerial or 
                        nondiscretionary investigation described in 
                        section 1213) or any investigation that is 
                        conducted by an Inspector General of an entity 
                        of the Government of an employee not employed 
                        by the office of that Inspector General; and
                            ``(II) a referral to an Inspector General 
                        of an entity of the Government, except for a 
                        referral that is ministerial or 
                        nondiscretionary; and''.
            (2) Application.--The amendment made by paragraph (1) shall 
        apply to any investigation opened, or referral made, as 
        described under clause (xii) of section 2302(a)(2)(A) of title 
        5, United States Code, as added by such paragraph, on or after 
        the date of enactment of this Act.
    (b) Right to Petition Congress.--
            (1) In general.--Section 2302(b)(9) of title 5, United 
        States Code, is amended--
                    (A) in subparagraph (C), by striking ``or'' at the 
                end;
                    (B) in subparagraph (D), by adding ``or'' after the 
                semicolon at the end; and
                    (C) by adding at the end the following:
                    ``(E) the exercise of any right protected under 
                section 7211;''.
            (2) Application.--The amendment made by paragraph (1) shall 
        apply to the exercise of any right described in section 
        2302(b)(9)(E) of title 5, United States Code, as added by 
        paragraph (1), occurring on or after the date of enactment of 
        this Act.
    (c) Prohibition on Disclosure of Whistleblower Identity.--
            (1) In general.--Section 2302 of title 5, United States 
        Code, is amended by adding at the end the following:
    ``(g)(1) No employee of an agency may willfully communicate or 
transmit to any individual who is not an officer or employee of the 
Government the identity of, or personally identifiable information 
about, any other employee because that other employee has made, or is 
suspected to have made, a disclosure protected by subsection (b)(8), 
unless--
            ``(A) the other employee provides express written consent 
        prior to the communication or transmission of their identity or 
        personally identifiable information;
            ``(B) the communication or transmission is made in 
        accordance with the provisions of section 552a;
            ``(C) the communication or transmission is made to a lawyer 
        for the sole purpose of providing legal advice to an employee 
        accused of whistleblower retaliation; or
            ``(D) the communication or transmission is required or 
        permitted by any other provision of law.
    ``(2) In this subsection, the term `officer or employee of the 
Government' means--
            ``(A) the President;
            ``(B) a Member of Congress;
            ``(C) a member of the uniformed services;
            ``(D) an employee as that term is defined in section 2105, 
        including an employee of the United States Postal Service, the 
        Postal Regulatory Commission, or the Department of Veterans 
        Affairs (including any employee appointed pursuant to chapter 
        73 or 74 of title 38); and
            ``(E) any other officer or employee in any branch of the 
        Government of the United States.''.
            (2) Application.--The amendment made by paragraph (1) shall 
        apply to any transmission or communication described in 
        subsection (g) of section 2302 of title 5, United States Code, 
        as added by paragraph (1), made on or after the date of 
        enactment of this Act.
    (d) Right to Petition Congress.--
            (1) In general.--Section 7211 of title 5, United States 
        Code, is amended to read as follows:
``Sec. 7211. Employees' right to petition or furnish information or 
              respond to Congress
    ``(a) In General.--Each officer or employee of the Federal 
Government, individually or collectively, has a right to--
            ``(1) petition Congress or a Member of Congress;
            ``(2) furnish information, documents, or testimony to 
        either House of Congress, any Member of Congress, or any 
        committee or subcommittee of the Congress; or
            ``(3) respond to any request for information, documents, or 
        testimony from either House of Congress or any Committee or 
        subcommittee of Congress.
    ``(b) Prohibited Actions.--No officer or employee of the Federal 
Government may interfere with or deny the right set forth in subsection 
(a), including by--
            ``(1) prohibiting or preventing, or attempting or 
        threatening to prohibit or prevent, any other officer or 
        employee of the Federal Government from engaging in activity 
        protected in subsection (a); or
            ``(2) removing, suspending from duty without pay, demoting, 
        reducing in rank, seniority, status, pay, or performance or 
        efficiency rating, denying promotion to, relocating, 
        reassigning, transferring, disciplining, or discriminating in 
        regard to any employment right, entitlement, or benefit, or any 
        term or condition of employment of, any other officer or 
        employee of the Federal Government or attempting or threatening 
        to commit any of the foregoing actions protected in subsection 
        (a).
    ``(c) Application.--This section shall not be construed to 
authorize disclosure of any information that is--
            ``(1) specifically prohibited from disclosure by any other 
        provision of Federal law; or
            ``(2) specifically required by Executive order to be kept 
        secret in the interest of national defense or the conduct of 
        foreign affairs, unless disclosure is otherwise authorized by 
        law.
    ``(d) Definition of Officer or Employee of the Federal 
Government.--For purposes of this section, the term `officer or 
employee of the Federal Government' includes--
            ``(1) the President;
            ``(2) a Member of Congress;
            ``(3) a member of the uniformed services;
            ``(4) an employee (as that term is defined in section 
        2105);
            ``(5) an employee of the United States Postal Service or 
        the Postal Regulatory Commission; and
            ``(6) an employee appointed under chapter 73 or 74 of title 
        38.''.
            (2) Clerical amendment.--The table of sections for 
        subchapter II of chapter 72 of title 5, United States Code, is 
        amended by striking the item related to section 7211 and 
        inserting the following:

``7211. Employees' right to petition or furnish information or respond 
                            to Congress.''.

SEC. 3. ENHANCEMENT OF WHISTLEBLOWER PROTECTIONS.

    (a) Disclosures Relating to Officers or Employees of an Office of 
Inspector General.--Section 1213(c) of title 5, United States Code, is 
amended by adding at the end the following:
    ``(3) If the information transmitted under this subsection 
disclosed a violation of law, rule, or regulation, or gross waste, 
gross mismanagement, abuse of authority, or a substantial and specific 
danger to public health or safety, by any officer or employee of an 
Office of Inspector General, the Special Counsel may refer the matter 
to the Council of the Inspectors General on Integrity and Efficiency, 
which shall comply with the standards and procedures applicable to 
investigations and reports under subsection (c).''.
    (b) Retaliatory Referrals to Inspectors General.--Section 1214(d) 
of title 5, United States Code, is amended by adding at the end the 
following:
    ``(3) In any case in which the Special Counsel determines that a 
referral to an Inspector General of an entity of the Federal Government 
was in retaliation for a disclosure or protected activity described in 
section 2302(b)(8) or in retaliation for exercising a right described 
in section 2302(b)(9)(A)(i), the Special Counsel shall transmit that 
finding in writing to the Inspector General within seven days of making 
the finding. The Inspector General shall consider that finding and make 
a determination on whether to initiate an investigation or continue an 
investigation based on the referral that the Special Counsel found to 
be retaliatory.''.
    (c) Ensuring Timely Relief.--
            (1) Individual right of action.--Section 1221 of title 5, 
        United States Code, is amended by striking ``section 2302(b)(8) 
        or section 2302(b)(9)(A)(i), (B), (C), or (D),'' each place it 
        appears and inserting ``section 2302(b)(8), section 
        2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13), 
        or section 2302(g),''.
            (2) Stays.--Section 1221(c)(2) of title 5, United States 
        Code, is amended to read as follows:
    ``(2) Any stay requested under paragraph (1) shall be granted 
within 10 calendar days (excluding Saturdays, Sundays, and legal 
holidays) after the date the request is made, if the Board determines--
            ``(A) that there is a substantial likelihood that protected 
        activity was a contributing factor to the personnel action 
        involved; or
            ``(B) the Board otherwise determines that such a stay would 
        be appropriate.''.
            (3) Appeal of stay.--Section 1221(c) of title 5, United 
        States Code, is amended by adding at the end the following:
            ``(4) If any stay requested under paragraph (1) is denied, 
        the employee, former employee, or applicant may, within 7 days 
        after receiving notice of the denial, file an appeal for 
        expedited review by the Board. The agency shall have 7 days 
        thereafter to respond. The Board shall provide a decision not 
        later than 21 days after receiving the appeal. During the 
        period of appeal, both parties may supplement the record with 
        information unavailable to them at the time the stay was first 
        requested.''.
            (4) Access to district court; jury trials.--
                    (A) In general.--Section 1221(i) of title 5, United 
                States Code, is amended--
                            (i) by striking ``(i) Subsections'' and 
                        inserting ``(i)(1) Subsections''; and
                            (ii) by adding at the end the following:
    ``(2)(A) If, in the case of an employee, former employee, or 
applicant for employment who seeks corrective action from the Merit 
Systems Protection Board based on an alleged prohibited personnel 
practice described in section 2302(b)(8), section 2302(b)(9)(A)(i), 
(B), (C), (D), or (E), section 2302(b)(13), or section 2302(g), no 
final order or decision is issued by the Board within 180 days after 
the date on which a request for such corrective action has been duly 
submitted to the Board, such employee, former employee, or applicant 
may, after providing written notice to the Special Counsel and the 
Board and only within 20 days after providing such notice, bring an 
action for review de novo before the appropriate United States district 
court, and such action shall, at the request of either party to such 
action, be tried before a jury. Upon filing of an action with the 
appropriate United States district court, any proceedings before the 
Board shall cease and the employee, former employee, or applicant for 
employment waives any right to refile with the Board.
    ``(B) If the Board certifies (in writing) to the parties of a case 
that the complexity of such case requires a longer period of review, 
subparagraph (A) shall be applied by substituting `240 days' for `180 
days'.
    ``(C) In any such action brought before a United States district 
court under subparagraph (A), the court--
            ``(i) shall apply the standards set forth in subsection 
        (e); and
            ``(ii) may award any relief which the court considers 
        appropriate, including any relief described in subsection 
        (g).''.
                    (B) Application.--
                            (i) The amendments made by subparagraph (A) 
                        shall apply to any corrective action duly 
                        submitted to the Merit Systems Protection 
                        Board, during the five-year period preceding 
                        the date of enactment of this Act, by an 
                        employee, former employee, or applicant for 
                        employment based on an alleged prohibited 
                        personnel practice described in section 
                        2302(b)(8), 2302(b)(9)(A)(i), (B), (C), or (D), 
                        or 2302(b)(13) of title 5, United States Code, 
                        with respect to which no final order or 
                        decision has been issued by the Board.
                            (ii) In the case of an individual described 
                        in clause (i) whose duly submitted claim to the 
                        Board was made not later than 180 days before 
                        the date of enactment of this Act, such 
                        individual may only bring an action before a 
                        United States district court as described in 
                        section 1221(i)(2) of title 5, United States 
                        Code, (as added by subparagraph (A) if that 
                        individual--
                                    (I) provides written notice to the 
                                Office of Special Counsel and the Merit 
                                Systems Protection Board not later than 
                                90 days after the date of enactment of 
                                this Act; and
                                    (II) brings such action not later 
                                than 20 days after providing such 
                                notice.
    (d) Recipients of Whistleblower Disclosures.--Section 2302(b)(8)(B) 
of title 5, United States Code, is amended by striking ``or to the 
Inspector General of an agency or another employee designated by the 
head of the agency to receive such disclosures'' and inserting ``the 
Inspector General of an agency, a supervisor in the employee's direct 
chain of command up to and including the head of the employing agency, 
or to an employee designated by any of the aforementioned individuals 
for the purpose of receiving such disclosures''.
    (e) Attorney Fees.--
            (1) In general.--Section 7703(a) of title 5, United States 
        Code, is amended by adding at the end the following:
            ``(3) If an employee, former employee, or applicant for 
        employment is the prevailing party under a proceeding brought 
        under this section, the employee, former employee, or applicant 
        for employment shall be entitled to attorney fees for all 
        representation carried out pursuant to this section. In such an 
        action for attorney fees, the agency responsible for taking the 
        personnel action shall be the respondent and shall be 
        responsible for paying the fees.''.
            (2) Application.--In addition to any proceeding brought by 
        an employee, former employee, or applicant for employment on or 
        after the date of enactment of this Act to a Federal court 
        under section 7703 of title 5, United States Code, the 
        amendment made by paragraph (1) shall apply to any proceeding 
        brought by an employee, former employee, or applicant for 
        employment under such section before the date of enactment of 
        this Act with respect to which the applicable Federal court has 
        not issued a final decision.
    (f) Extending Whistleblower Protection Act to Certain Employees.--
            (1) In general.--Section 2302(a)(2)(A) of title 5, United 
        States Code, is amended in the matter following clause (xiii)--
                    (A) by inserting ``subsection (b)(9)(A)(i), (B), 
                (C), (D), or (E), subsection (b)(13), or subsection 
                (g),'' after ``subsection (b)(8),''; and
                    (B) by inserting after ``title 31'' the following: 
                ``, a commissioned officer or applicant for employment 
                in the Public Health Service, an officer or applicant 
                for employment in the commissioned officer corps of the 
                National Oceanic and Atmospheric Administration, and a 
                noncareer appointee in the Senior Executive Service''.
            (2) Conforming amendments.--Section 261 of the National 
        Oceanic and Atmospheric Administration Commissioned Officer 
        Corps Act of 2002 (33 U.S.C. 3071) is amended--
                    (A) in subsection (a)--
                            (i) by striking paragraph (8); and
                            (ii) by redesignating paragraphs (9) 
                        through (26) as paragraphs (8) through (25), 
                        respectively; and
                    (B) in subsection (b), by striking the second 
                sentence.
            (3) Application.--
                    (A) In general.--With respect to an officer or 
                applicant for employment in the commissioned officer 
                corps of the National Oceanic and Atmospheric 
                Administration, the amendments made by paragraphs (1) 
                and (2) shall apply to any personnel action taken 
                against such officer or applicant on or after the date 
                of enactment of the National Oceanic and Atmospheric 
                Administration Commissioned Officer Corps Amendments 
                Act of 2020 (Public Law 116-259) for making any 
                disclosure protected under section 2302(8) of title 5, 
                United States Code.
                    (B) Exception.--Subparagraph (A) shall not apply to 
                any personnel action with respect to which a complaint 
                has been filed pursuant to section 1034 of title 10, 
                United States Code, and a final decision has been 
                rendered regarding such complaint.
    (g) Relief.--
            (1) In general.--Section 7701(b)(2)(A) of title 5, United 
        States Code, is amended by striking ``upon the making of the 
        decision'' and inserting ``upon making of the decision, 
        necessary to make the employee whole as if there had been no 
        prohibited personnel practice, including training, seniority 
        and promotions consistent with the employee's prior record''.
            (2) Application.--In addition to any appeal made on or 
        after the date of enactment of this Act to the Merit Systems 
        Protection Board under section 7701 of title 5, United States 
        Code, the amendment made by paragraph (1) shall apply to any 
        appeal made under such section before the date of enactment of 
        this Act with respect to which the Board has not issued a final 
        decision.

SEC. 4. CLASSIFYING CERTAIN FURLOUGHS AS ADVERSE PERSONNEL ACTIONS.

    (a) In General.--Section 7512 of title 5, United States Code, is 
amended--
            (1) in paragraph (4), by striking ``and'' at the end; and
            (2) by striking paragraph (5) and inserting the following:
            ``(5) a furlough of more than 14 days but less than 30 
        days; and
            ``(6) a furlough of 13 days or less that is not due to a 
        lapse in appropriations;''.
    (b) Application.--The amendment made by subsection (a) shall apply 
to any furlough covered by such section 7512(5) or (6) (as amended by 
such subsection) occurring on or after the date of enactment of this 
Act.

SEC. 5. CODIFICATION OF PROTECTIONS FOR DISCLOSURES OF CENSORSHIP 
              RELATED TO RESEARCH, ANALYSIS, OR TECHNICAL INFORMATION.

    (a) In General.--Section 2302 of title 5, United States Code, as 
amended by section 2(c)(1), is further amended by adding at the end the 
following:
    ``(h)(1) In this subsection--
            ``(A) the term `applicant' means an applicant for a covered 
        position;
            ``(B) the term `censorship related to research, analysis, 
        or technical information' means any effort to distort, 
        misrepresent, or suppress research, analysis, or technical 
        information; and
            ``(C) the term `employee' means an employee in a covered 
        position in an agency.
    ``(2)(A) Any disclosure of information by an employee or applicant 
for employment that the employee or applicant reasonably believes is 
evidence of censorship related to research, analysis, or technical 
information--
            ``(i) shall come within the protections of subsection 
        (b)(8)(A) if--
                    ``(I) the employee or applicant reasonably believes 
                that the censorship related to research, analysis, or 
                technical information is or will cause--
                            ``(aa) any violation of law, rule, or 
                        regulation; or
                            ``(bb) gross mismanagement, a gross waste 
                        of funds, an abuse of authority, or a 
                        substantial and specific danger to public 
                        health or safety; and
                    ``(II) such disclosure is not specifically 
                prohibited by law or such information is not 
                specifically required by Executive order to be kept 
                classified in the interest of national defense or the 
                conduct of foreign affairs; and
            ``(ii) shall come within the protections of subsection 
        (b)(8)(B) if--
                    ``(I) the employee or applicant reasonably believes 
                that the censorship related to research, analysis, or 
                technical information is or will cause--
                            ``(aa) any violation of law, rule, or 
                        regulation; or
                            ``(bb) gross mismanagement, a gross waste 
                        of funds, an abuse of authority, or a 
                        substantial and specific danger to public 
                        health or safety; and
                    ``(II) the disclosure is made to the Special 
                Counsel, or to the Inspector General of an agency or 
                another person designated by the head of the agency to 
                receive such disclosures, consistent with the 
                protection of sources and methods.
    ``(3) A disclosure shall not be excluded from paragraph (2) for any 
reason described under subsection (f)(1) or (2).
    ``(4) Nothing in this subsection shall be construed to imply any 
limitation on the protections of employees and applicants afforded by 
any other provision of law, including protections with respect to any 
disclosure of information believed to be evidence of censorship related 
to research, analysis, or technical information.''.
    (b) Repeal.--
            (1) In general.--Section 110 of the Whistleblower 
        Protection Enhancement Act of 2012 (Public Law 112-199) is 
        hereby repealed.
            (2) Rule of construction.--Nothing in this section shall be 
        construed to limit or otherwise affect any action under such 
        section 110 commenced before the date of enactment of this Act 
        or any protections afforded by such section with respect to 
        such action.

SEC. 6. TITLE 5 TECHNICAL AND CONFORMING AMENDMENTS.

    Title 5, United States Code, is amended--
            (1) in section 1212(h), by striking ``or (9)'' each place 
        it appears and inserting ``, (b)(9), (b)(13), or (g)'';
            (2) in section 1214--
                    (A) in subsections (a) and (b), by striking 
                ``section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), 
                (C), or (D)'' each place it appears and inserting 
                ``section 2302(b)(8), section 2302(b)(9)(A)(i), (B), 
                (C), (D), or (E), section 2302(b)(13), or section 
                2302(g)''; and
                    (B) in subsection (i), by striking ``section 
                2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of 
                section 2302(b)(9)'' and inserting ``section 
                2302(b)(8), subparagraph (A)(i), (B), (C), (D), or (E) 
                of section 2302(b)(9), section 2302(b)(13), or section 
                2302(g)'';
            (3) in section 1215(a)(3)(B), by striking ``section 
        2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D)'' each place 
        it appears and inserting ``section 2302(b)(8), section 
        2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13), 
        or section 2302(g)'';
            (4) in section 2302--
                    (A) in subsection (a)--
                            (i) in paragraph (1), by inserting ``or 
                        (g)'' after ``subsection (b)''; and
                            (ii) in paragraph (2)(C)(i), by striking 
                        ``subsection (b)(8) or section 
                        2302(b)(9)(A)(i), (B), (C), or (D)'' and 
                        inserting ``section 2302(b)(8), section 
                        2302(b)(9)(A)(i), (B), (C), (D), or (E), 
                        section 2302(b)(13), or section 2302(g)''; and
                    (B) in subsection (c)(1)(B), by striking 
                ``paragraph (8) or subparagraph (A)(i), (B), (C), or 
                (D) of paragraph (9) of subsection (b)'' and inserting 
                ``paragraph (8), subparagraph (A)(i), (B), (C), or (D) 
                of paragraph (9), or paragraph (13) of subsection (b) 
                or subsection (g)'';
            (5) in section 7515(a)(2), by striking ``paragraph (8), 
        (9), or (14) of section 2302(b)'' and inserting ``paragraph 
        (8), (9), (13), or (14) of section 2302(b) or section 
        2302(g)'';
            (6) in section 7701(c)(2)(B), by inserting ``or section 
        2302(g)'' after ``section 2302(b)''; and
            (7) in section 7703(b)(1)(B), by striking ``section 
        2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D)'' and 
        inserting ``section 2302(b)(8), section 2302(b)(9)(A)(i), (B), 
        (C), (D), or (E), section 2302(b)(13), or section 2302(g)''.
                                                 Union Calendar No. 251

117th CONGRESS

  2d Session

                               H. R. 2988

                          [Report No. 117-334]

_______________________________________________________________________

                                 A BILL

To amend title 5, United States Code, to modify and enhance protections 
     for Federal Government whistleblowers, and for other purposes.

_______________________________________________________________________

                              May 17, 2022

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
```