Title: Whistleblower Protection Improvement Act of 2021
Policy area: Government Operations and Politics

Summary:
Whistleblower Protection Improvement Act of 2021
This bill establishes, modifies, and expands certain whistleblower protections for federal employees, including with respect to petitions to Congress, whistleblower identity, and protected disclosures.
For example, the bill prohibits personnel action against employees who exercise their right to petition or furnish information to Congress and specifically precludes the President, Members of Congress, members of the uniformed services, and other federal employees from interfering with this right. It also generally prohibits employees from disclosing the identity of whistleblowers to individuals outside of the government. Employees may request corrective action from the Merit Systems Protection Board with respect to such prohibited practices and may file an action in court if the board does not render a final decision within 180 days of a request.
The bill also expands the list of recipients to whom an employee may make a protected disclosure to include a supervisor in the employee's direct chain of command. It also includes personnel actions involving furloughs of more than 14 days but less than 30 days, and furloughs of 13 days or less that are not due to funding lapses, as appealable adverse actions that are subject to certain procedural requirements.

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

<DOC>






117th CONGRESS
  1st Session
                                H. R. 2988

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

_______________________________________________________________________

                                 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 adding after the clause (xi) the following:
                            ``(xii) the opening of any investigation as 
                        a result of a disclosure protected by 
                        subsection (b)(8), but not including--
                                    ``(I) any investigation that is 
                                ministerial or nondiscretionary; or
                                    ``(II) any investigation that is 
                                conducted by an Inspector General of an 
                                entity of the Federal Government of an 
                                employee not employed by the office of 
                                that Inspector General; and''.
            (2) Application.--The amendment made by paragraph (1) shall 
        apply to any investigation opened (as described under section 
        2302(a)(2)(A)(xii) 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'' at the 
                end after the semicolon; 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 who 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;
                    ``(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 Committee of 
        Inspectors General for Integrity and Efficiency, which shall 
        comply with the standards and procedures applicable to 
        investigations and reports under subsection (c).''.
    (b) 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),'' in each 
        instance 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.--Section 1221(i) 
        of title 5, United States Code, is amended--
                    (A) by striking ``(i) Subsections'' and inserting 
                ``(i)(1) Subsections''; and
                    (B) 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).''.
    (c) 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''.
    (d) Attorney Fees.--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 an appeal 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.''.
    (e) 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 (25) as paragraphs (8) through (24), 
                        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.
    (f) Relief.--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,''.

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)'' in each 
        instance and inserting ``, (b)(9), (b)(13), or (g)'';
            (2) in section 1214(a)--
                    (A) by striking ``section 2302(b)(8) or section 
                2302(b)(9)(A)(i), (B), (C), or (D)'' in each instance 
                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, by striking ``section 2302(b)(8), or 
        2302(b)(9)(A)(i), (B), (C), or (D)'' in each instance 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)'' in each 
        instance 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)''.
                                 <all>