This week, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 (HR. 4986). Section 846 of this bill is a provision designed to protect employees of defense contractors when they report fraud to Congress, an Inspector General, the Government Accountability Office, or a Department of Defense employee charged with overseeing contracts.
The Bush administration has consistently opposed whistleblower rights for employees of the federal government and its contractors. Veto threats have been issued against the whistleblower protection legislation that has been proposed by the Congress (click here for the latest on those bills). The administration claims that protecting whistleblowers could harm national security, but the truth is the exact opposite: strong whistleblower laws can help keep this country safe and secure, as well as save us billions of dollars in wasted revenue.
In this case, the President had no choice but to sign the Defense Authorization bill into law, but then he went out of his way to express sharp disapproval of the whistleblower provisions in his signing statement. This statement (below), goes against the spirit of the law, and gives the president justification to ignore a congressional mandate.
“Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.”
In short, the new law is a victory worthy of great praise, but the President’s brash treatment of legislation designed to protect honest employees is deplorable.
See the full text of HR. 4986, sec. 846 after the jump…
SEC. 846. PROTECTION FOR CONTRACTOR EMPLOYEES FROM REPRISAL FOR DISCLOSURE
OF CERTAIN INFORMATION.
(a) Increased Protection From Reprisal- Subsection (a) of section 2409 of
title 10, United States Code, is amended–
(1) by striking `disclosing to a Member of Congress’ and inserting
`disclosing to a Member of Congress, a representative of a committee of
Congress, an Inspector General, the Government Accountability Office, a
Department of Defense employee responsible for contract oversight or
management,’; and
(2) by striking `information relating to a substantial violation of law
related to a contract (including the competition for or negotiation of a
contract)’ and inserting `information that the employee reasonably believes
is evidence of gross mismanagement of a Department of Defense contract or
grant, a gross waste of Department of Defense funds, a substantial and
specific danger to public health or safety, or a violation of law related to
a Department of Defense contract (including the competition for or
negotiation of a contract) or grant’.
(b) Clarification of Inspector General Determination- Subsection (b) of such
section is amended–
(1) by inserting `(1)’ after `Investigation of Complaints- ‘;
(2) by striking `an agency’ and inserting `the Department of Defense, or the
Inspector General of the National Aeronautics and Space Administration in
the case of a complaint regarding the National Aeronautics and Space
Administration’; and
(3) by adding at the end the following new paragraph:
`(2)(A) Except as provided under subparagraph (B), the Inspector General
shall make a determination that a complaint is frivolous or submit a report
under paragraph (1) within 180 days after receiving the complaint.
`(B) If the Inspector General is unable to complete an investigation in time
to submit a report within the 180-day period specified in subparagraph (A)
and the person submitting the complaint agrees to an extension of time, the
Inspector General shall submit a report under paragraph (1) within such
additional period of time as shall be agreed upon between the Inspector
General and the person submitting the complaint.’.
(c) Acceleration of Schedule for Denying Relief or Providing Remedy-
Subsection (c) of such section is amended–
(1) in paragraph (1), by striking `If the head of the agency determines that
a contractor has subjected a person to a reprisal prohibited by subsection
(a), the head of the agency may’ and inserting after `(1)’ the following:
`Not later than 30 days after receiving an Inspector General report pursuant
to subsection (b), the head of the agency concerned shall determine whether
there is sufficient basis to conclude that the contractor concerned has
subjected the complainant to a reprisal prohibited by subsection (a) and
shall either issue an order denying relief or shall’;
(2) by redesignating paragraphs (2) and (3) as paragraphs (4) and (5),
respectively; and
(3) by inserting after paragraph (1) the following new paragraphs:
`(2) If the head of an executive agency issues an order denying relief under
paragraph (1) or has not issued an order within 210 days after the
submission of a complaint under subsection (b), or in the case of an
extension of time under paragraph (b)(2)(B), not later than 30 days after
the expiration of the extension of time, and there is no showing that such
delay is due to the bad faith of the complainant, the complainant shall be
deemed to have exhausted all administrative remedies with respect to the
complaint, and the complainant may bring a de novo action at law or equity
against the contractor to seek compensatory damages and other relief
available under this section in the appropriate district court of the United
States, which shall have jurisdiction over such an action without regard to
the amount in controversy. Such an action shall, at the request of either
party to the action, be tried by the court with a jury.
`(3) An Inspector General determination and an agency head order denying
relief under paragraph (2) shall be admissible in evidence in any de novo
action at law or equity brought pursuant to this subsection.’.
(d) Definitions- Subsection (e) of such section is amended–
(1) in paragraph (4), by inserting `or a grant’ after `a contract’; and
(2) by inserting before the period at the end the following: `and any
Inspector General that receives funding from, or has oversight over
contracts awarded for or on behalf of, the Secretary of Defense’.
——
Here is the law that section 846 amends:
10 USC § 2409
Sec. 2409. Contractor employees: protection from reprisal for
disclosure of certain information
(a) Prohibition of Reprisals.–An employee of a contractor may not
be discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing to a Member of Congress or an authorized official of an
agency or the Department of Justice information relating to a
substantial violation of law related to a contract (including the
competition for or negotiation of a contract).
(b) Investigation of Complaints.–A person who believes that the
person has been subjected to a reprisal prohibited by subsection (a) may
submit a complaint to the Inspector General of an agency. Unless the
Inspector General determines that the complaint is frivolous, the
Inspector General shall investigate the complaint and, upon completion
of such investigation, submit a report of the findings of the
investigation to the person, the contractor concerned, and the head of
the agency.
(c) Remedy and Enforcement Authority.–(1) If the head of the agency
determines that a contractor has subjected a person to a reprisal
prohibited by subsection (a), the head of the agency may take one or
more of the following actions:
(A) Order the contractor to take affirmative action to abate the
reprisal.
(B) Order the contractor to reinstate the person to the position
that the person held before the reprisal, together with the
compensation (including back pay), employment benefits, and other
terms and conditions of employment that would apply to the person in
that position if the reprisal had not been taken.
(C) Order the contractor to pay the complainant an amount equal
to the aggregate amount of all costs and expenses (including
attorneys’ fees and expert witnesses’ fees) that were reasonably
incurred by the complainant for, or in connection with, bringing the
complaint regarding the reprisal, as determined by the head of the
agency.
(2) Whenever a person fails to comply with an order issued under
paragraph (1), the head of the agency shall file an action for
enforcement of such order in the United States district court for a
district in which the reprisal was found to have occurred. In any action
brought under this paragraph, the court may grant appropriate relief,
including injunctive relief and compensatory and exemplary damages.
(3) Any person adversely affected or aggrieved by an order issued
under paragraph (1) may obtain review of the order’s conformance with
this subsection, and any regulations issued to carry out this section,
in the United States court of appeals for a circuit in which the
reprisal is alleged in the order to have occurred. No petition seeking
such review may be filed more than 60 days after issuance of the order
by the head of the agency. Review shall conform to chapter 7 of title 5.
(d) Construction.–Nothing in this section may be construed to
authorize the discharge of, demotion of, or discrimination against an
employee for a disclosure other than a disclosure protected by
subsection (a) or to modify or derogate from a right or remedy otherwise
available to the employee.
(e) Definitions.–In this section:
(1) The term “agency” means an agency named in section 2303 of
this title.
(2) The term “head of an agency” has the meaning provided by
section 2302(1) of this title.
(3) The term “contract” means a contract awarded by the head
of an agency.
(4) The term “contractor” means a person awarded a contract
with an agency.
(5) The term “Inspector General” means an Inspector General
appointed under the Inspector General Act of 1978.
(Added Pub. L. 99-500, Sec. 101(c) [title X, Sec. 942(a)(1)], Oct. 18,
1986, 100 Stat. 1783-82, 1783-162, and Pub. L. 99-591, Sec. 101(c)
[title X, Sec. 942(a)(1)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-162;
Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 942(a)(1),
Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100-26,
Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 102-25, title
VII, Sec. 701(k)(1), Apr. 6, 1991, 105 Stat. 116; Pub. L. 102-484, div.
A, title X, Sec. 1052(30)(A), Oct. 23, 1992, 106 Stat. 2500; Pub. L.
103-355, title VI, Sec. 6005(a), Oct. 13, 1994, 108 Stat. 3364; Pub. L.
104-106, div. D, title XLIII, Sec. 4321(a)(10), Feb. 10, 1996, 110 Stat.
671.)
