S. 582 — what changed

Section 1212(b) of title 5, United States Code, is amended by adding at the end the following:

“(5)

“(A) Except as provided in subparagraph (B), the Special Counsel, in carrying out this subchapter, is authorized to—

“(i) have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry conducted under—

“(I) section 1213, 1214, 1215, or 1216 of this title; or

“(II) section 4324(a) of title 38;

“(ii) request from any agency the information or assistance that may be necessary for the Special Counsel to carry out the duties and responsibilities of the Special Counsel under this subchapter; and

“(iii) require, during an investigation, review, or inquiry of an agency, the agency to provide to the Special Counsel any record or other information that relates to an investigation, review, or inquiry conducted under—

“(I) section 1213, 1214, 1215, or 1216 of this title; or

“(II) section 4324(a) of title 38.

“(B)

“(i) The authorization of the Special Counsel under subparagraph (A) shall not apply with respect to any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003), unless the Special Counsel is investigating, or otherwise carrying out activities relating to the enforcement of, an action under subchapter III of chapter 73.

changed “(ii) The Attorney General or an An Inspector General may withhold from the Special Counsel material described in subparagraph (A) if—if the Inspector General determines that the material contains information derived from, or pertaining to, intelligence activities.

changed “(I) disclosing the material could reasonably be expected to interfere with a criminal investigation “(iii) The Attorney General or prosecution that is ongoing as of the date on which an Inspector General may withhold from the Special Counsel submits a request for the material; andmaterial described in subparagraph (A) if—

added “(I)

added “(aa) disclosing the material could reasonably be expected to interfere with a criminal investigation or prosecution that is ongoing as of the date on which the Special Counsel submits a request for the material; or

added “(bb) the material—

added “(AA) may not be disclosed pursuant to a court order; or

added “(BB) has been filed under seal under section 3730 of title 31; and

“(II) the Attorney General or the Inspector General, as applicable, submits to the Special Counsel a written report that describes—

“(aa) the material being withheld; and

“(bb) the reason that the material is being withheld.

“(C)

“(i) A claim of common law privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described in subparagraph (A)(i) with respect to the agency.

“(ii) The submission of material described in subparagraph (A)(i) by an agency to the Special Counsel may not be deemed to waive any assertion of privilege by the agency against a non-Federal entity or against an individual in any other proceeding.

“(iii) With respect to any record or other information made available to the Special Counsel by an agency under subparagraph (A), the Special Counsel may only disclose the record or information for a purpose that is in furtherance of any authority provided to the Special Counsel in this subchapter.

“(6) The Special Counsel shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and each committee of Congress with jurisdiction over the applicable agency a report regarding any case of contumacy or failure to comply with a request submitted by the Special Counsel under paragraph (5)(A).”

“(14) access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).”

“(F) the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or”

“(2) If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (in this paragraph referred to as the “disclosing employee”), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.”

“(2) Upon receipt of any report that the head of an agency is required to submit under subsection (c), the Special Counsel shall review the report and determine whether—

“(A) the findings of the head of the agency appear reasonable; and

“(B) if the Special Counsel requires the head of the agency to submit a supplemental report under paragraph (5), the reports submitted by the head of the agency collectively contain the information required under subsection (d).”

“(5) If, after conducting a review of a report under paragraph (2), the Special Counsel concludes that the Special Counsel requires additional information or documentation to determine whether the report submitted by the head of an agency is reasonable and sufficient, the Special Counsel may request that the head of the agency submit a supplemental report—

“(A) containing the additional information or documentation identified by the Special Counsel; and

“(B) that the head of the agency shall submit to the Special Counsel within a period of time specified by the Special Counsel.”

“(E) If the Board grants a stay under subparagraph (A), the head of the agency employing the employee who is the subject of the action shall give priority to a request for a transfer submitted by the employee.”

“(k) If the Board grants a stay under subsection (c) and the employee who is the subject of the action is in probationary status, the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee.”

changed “(i) The Special Counsel may petition the Board to order corrective action, including fees, costs, or damages reasonably incurred by an employee due to an investigation of the employee by an agency, if the investigation by an agency was commenced, expanded, or extended in retaliation for a disclosure or protected activity described in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), even if no without regard to whether a personnel action, as defined in section 2302(a)(2)(A), is taken or not taken.”

“(b)

“(1) The head of each agency, in consultation with the Director of the Office of Personnel Management and the Special Counsel, shall develop criteria that—

“(A) the head of the agency shall use as a critical element for establishing the job requirements of a supervisory employee; and

“(B) promote the protection of whistleblowers.

“(2) The criteria required under paragraph (1) shall include—

“(A) principles for the protection of whistleblowers, such as the degree to which supervisory employees—

“(i) respond constructively when employees of the agency make disclosures described in subparagraph (A) or (B) of section 2302(b)(8);

“(ii) take responsible actions to resolve the disclosures described in clause (i); and

changed “(iii) foster an environment in which employees of the agency feel comfortable making disclosures described in subparagraph (A) clause (i) to supervisory employees or other appropriate authorities; and

“(B) for each supervisory employee—

“(i) whether the agency entered into an agreement with an individual who alleged that the supervisory employee committed a prohibited personnel practice; and

“(ii) if the agency entered into an agreement described in clause (i), the number of instances in which the agency entered into such an agreement with respect to the supervisory employee.

“(3) In this subsection—

“(A) the term agency means any entity the employees of which are covered by paragraphs (8) and (9) of section 2302(b), without regard to whether any other provision of this section is applicable to the entity;

“(B) the term prohibited personnel practice has the meaning given the term in section 2302(a)(1);

“(C) the term supervisory employee means an employee who would be a supervisor, as defined in section 7103(a), if the agency employing the employee was an agency for purposes of chapter 71; and

“(D) the term whistleblower means an employee who makes a disclosure described in section 2302(b)(8).”

“(6) protecting whistleblowers, as described in section 4302(b)(2).”

changed Section 1214(a) of title 5, United States Code, is amended—amended by adding at the end the following:

added “(6)

added “(A) Notwithstanding any other provision of this section, not later than 30 days after receiving an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel may terminate an investigation of the allegation without further inquiry if the Special Counsel determines that—

added “(i) the same allegation, based on the same set of facts and circumstances had previously been—

added “(I)

added “(aa) made by the individual; and

added “(bb) investigated by the Special Counsel; or

added “(II) filed by the individual with the Merit Systems Protection Board;

added “(ii) the Special Counsel does not have jurisdiction to investigate the allegation; or

added “(iii) the individual knew or should have known of the alleged prohibited personnel practice on or before the date that is 3 years before the date on which the Special Counsel received the allegation.

added “(B) Not later than 30 days after the date on which the Special Counsel terminates an investigation under subparagraph (A), the Special Counsel shall provide a written notification to the individual who submitted the allegation of a prohibited personnel practice that states the basis of the Special Counsel for terminating the investigation.”

removed “(6)

removed “(A) Not later Notwithstanding any other provision of this section, not later than 30 days after receiving an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel may terminate an investigation of the allegation without further inquiry or an opportunity for the individual who submitted the allegation to respond if the Special Counsel determines that—

removed “(i) the same allegation, based on the same set of facts and circumstances had previously been—

removed “(I)

removed “(aa) made by the individual; and

removed “(bb) investigated by the Special Counsel; or

removed “(II) filed by the individual with the Merit Systems Protection Board;

removed “(ii) the Special Counsel does not have jurisdiction to investigate the allegation; or

removed “(iii) the individual knew or should have known of the alleged prohibited personnel practice on or before the date that is 3 years before the date on which the Special Counsel received the allegation.

removed “(B) Not later than 30 days after the date on which the Special Counsel terminates an investigation under subparagraph (A), the Special Counsel shall provide a written notification to the individual who submitted the allegation of a prohibited personnel practice that states the basis of the Special Counsel for terminating the investigation.”