On the Limited Promise of Whistle Blower Protection Statutes for University Employees--Narrow Scope and Traps for the Unwary

 (Pix (c) Larry Catá Backer 2014)

We were recently informed (because the Federal government required such disclosure if for no other reason; e.g. 41 U.S. Code § 4712(d);  Notice of Implementation of Pilot Program for Enhancement of Employee Whistleblower Protections Notice Number: NOT-OD-14-068, March 7, 2014) as follows:

Congress has enacted new whistleblower protections effective July 1, 2013. The enhanced protections apply to any employee of a federal grant recipient such as Penn State who works on a federal grant, subgrant or subcontract. The statute (41 U.S.C. §4712) states that an "employee of a contractor, subcontractor, grantee [or subgrantee] may not be discharged, demoted, or otherwise discriminated against as a reprisal for 'whistleblowing.'" More information (as summarized by the National Institute of Health) can be found at http://grants.nih.gov/grants/guide/notice-files/NOT-OD-14-068.html.

On the verge of exuberance over this new set of protections, I took a moment to carefully consider the scope of this protection and the framework within which it might be asserted.  What I found, as I have found before in other context (e.g., Backer, Larry Catá, The Sarbanes-Oxley Act: Federalizing Norms for Officer, Lawyer and Accountant Behavior. St. Johns Law Review, Vol. 76, pp. 897-952, 2002) is that whistleblower statutes continue to be constructed more as gesture than as a functionally effective set of protections for workers.  This new set of "protections" little different from the pattern already well established in federal law provides the appearance of protection that masks a narrow scope and a set of traps for the unwary.

This post considers the scope of this new protection  for employees of universities who work on a federal grant, subgrant or subcontract and the traps they resent for people who mistakenly believe they "whistleblow" under its protection. It suggests that while this provision serves as a lovely gesture, it provides substantially less robust protection for employees seeking to use its provisions. 




Let us consider the specifics of the protections offfered, and its limits

1.  Who is covered by the whistle blower provisions:   "An employee of a contractor, subcontractor, or grantee" 41 U.S. Code § 4712(a)(1); 48 CFR 3.908-3.  Note that the protections apply only to employees of the relevant employer.  The provisions do not apply to independent contractors or to others who are not deemed, under relevant law, to be employees (students ought to be particularly careful).

2. What employer actions are prohibited: discharge, demotion, or other discrimination that are engaged in as a reprisal for "whistleblowing. 41 U.S. Code § 4712(a); 48 CFR 3.908-3.  Note that if a fact finder (court or administrative agent) doe snot determine that the employee conduct complained of amounts to any of these actions, then the employee loses. The issue usually turns on facts and circumstances in close cases, and the conclusion is not always clear.  Moreover, it is likely that an employer will argue that the adverse action was taken for reasons other than disclosure--raising issues of protection where there are multiple reasons supporting employer action.  That makes the risk of disclosure (and the likelihood of employer success in defending adverse action) high.

3. What constitutes whistleblowing: disclosure to a specific list of persons or bodies information that the employee reasonably believes is evidence of a set of specified conduct. 41 U.S. Code § 4712(a); 48 CFR 3.908-3.  This requires some unpacking:

A.  To whom must the disclosure have been made:  There are a number of traps here. A disclosure cannot be made to just anyone.  And making a disclosure in a blog or through social media, to a fellow employee, the press, civil society organizations, investigative journalists, foundations, the United Nations, the governments of other nations or officials of state and local government will put the employee outside the protections of the statute.  To be protected disclosures may only be made to the following people.

 --A Member of Congress, or a representative of a Congressional Committee;
--An Inspector General;
--The Government Accountability Office;
--A federal employee responsible for contract or grant oversight or management at the relevant agency; an authorized official of the Department of Justice or other law enforcement agency;
--A court or grand jury; or,
--A management official or other employee of the contractor, subcontractor, grantee, or subgrantee who has the responsibility to investigate, discover or address misconduct.
41 U.S. Code § 4712(a)(2); 48 CFR 3.908-3(b).

 Even this list includes some traps.  Disclosure to a staff member may not come under the coverage umbrella; neither might disclosure to a federal employee who is not specifically designated for contract or grant oversight/management.  Likewise, disclosure to an employer representative who is not specifically and formally responsible for dealing with misconduct may also ut the disclosing employee outside the protection of the whistle blower protections. Note also that it does not appear that disclosure to an employee's attorney is covered.  Thus employees seeking to come within the law who seek attorney's advice might need to restrict what they might say to their counsel--though it is hard to believe that such a restriction would eb upheld if it were ever brought to a court.

Further, the regulations provide a specific definition of Inspector general: "Inspector General means an Inspector General appointed under the Inspector General Act of 1978 and any Inspector General that receives funding from, or has oversight over contracts awarded for, or on behalf of, the executive agency concerned. "48 CFR 3.908-2 (see 41 USC § 4712(g)(2)).  It is not clear what authorization triggers the obligation to disclose to a Department of Justice official or to other law enforcement agency.  It is not clear what the last term means.  It might include anyone from university police to  the local district attorney. But improper disclosure takes the employee out of the protection of the provision.

In addition, the regulations provide protection for disclosures related to certain litigation at which an employee testifies: "An employee who initiates or provides evidence of contractor or subcontractor misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract shall be deemed to have made a disclosure. " 48 CFR 3908-3(c) (see 41 USC § 4712(a)(3)).

B.  What disclosure may be protected:  There are a number fo traps here as well that substantially narrow the scope of proteciton.  Not all disclosures are protected.  Even if the employee discloses to the proper individual, the proteciton extends only to certain classes of disclosure

--Gross mismanagement of a Federal contract or grant;
--A gross waste of Federal funds;
--An abuse of authority relating to a Federal contract or grant;
--A substantial and specific danger to public health or safety; or,
--A violation of law, rule, or regulation related to a Federal contract or grant (including the competition for, or negotiation of, a contract or grant). 41 U.S. Code § 4712(a)(1); 48 CFR 3.908-3(b)

 The statute defines some of these terms.  Most importantly, the term "abuse of discretion" is given a quite precise and legal definition--one that would be difficult, at best for non-lawyer employees to deftly apply without the aid of counsel. The definition: "arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract or grant of such agency"41 USC § 4712(g)(1).  This standard may be quite difficult to meet.  But in addition, "gross mismanagement", "gross waste", "substantial and specific danger" may also be terms of art with specific legal meaning and may in any case indicate a very high standard to permit disclosure.  Of course, the  disclosing employee need to prove that the standards were met, only that she had a reasonable belief that this was the case.  But reasonable belief may also require proof of knowledge of the standard.  For a non-lawyer employee, this may require consultation with a lawyer before disclosing.  It also substantially reduces the utility of the provisions since the price for getting both the scope of disclosure and the person to whom disclosure may be made wrong is to fall outside the protection of the provision. 

Moreover, the statute does not protect any disclosure, even of mismanagement and corruption, that touches on national security. 41 USC § 4712(f).  "This section does not apply to any disclosure made by an employee of a contractor or subcontractor of an element of the intelligence community if such disclosure—(i) Relates to an activity of an element of the intelligence community; or (ii) Was discovered during contract or subcontract services provided to an element of the intelligence community. 48 CFR 3.908(1).

4.  How does the complaint process work:  The whistle blower protection kicks in only after an adverse employer action.  That means that an employee will have to live with the consequences of that action (interim relief is not likely) until the reprisal claim is resolved. But the complaint procedure is precise and includes an administrative element.  A complaint by the employee may not be brought under 41 U.S.C. 4712 more than three years after the date on which the alleged reprisal took place. 41 USC §4712(b)(4); 48 CFR 3904-4.

The whistleblower is required to file a complaint with the Inspector General of the executive agency involved.  41 USC § 4712 (b).  "Procedures for submitting fraud, waste, abuse, and whistleblower complaints are generally accessible on agency Office of Inspector General Hotline or Whistleblower Internet sites." 48 CFR 3904-4. The inspector general must first determine whether the complaint is frivolous, fails to allege a violation of the prohibition, or has been previously addressed.  41 USC § 4712 (b).  That must be determined within 180 days of the receipt of the complaint, but can be extended an additional 180 days.  41 USC §4712(b)(2)(A).  Effectively, then, the Inspector General has a year to decide whether or not to proceed.  The statute does not specify a time within which the the Inspector General must produce a report if she decides to proceed to investigate the complaint. 

Within 30 days of the receipt of an Inspector General's Report is submitted, the relevant agency must determine whether there is a sufficient basis to conclude that a prohibited reprisal has occurred and either deny the claim or provide for remedies.  41 USC § 4712(c).  If the claim is denied the employee, or a report is not produced within 210 days of the filing of a complaint or within 30 days after the end of an extension period, then the employee is free to seek review in court.  The regulations, 48 CFR 3.908-7, provide for the judicial enforcement of orders.

The thing to remember, of course, is that once the complaint is filed, the action is likely to require the assistant of lawyers, which can be expensive.  It also means claims may not be successfully pursued for about a year after complaint is made, during which time the employee's status remains unchanged.  And lastly, for employers who feel strongly, the possibility of judicial action can substantially extend the time and cost of rights vindication.   For a statute with a large number of complex standards and thresholds, that can mean that the price of vindication for an employee can be quite high. 

 _________

Here is the NIH Notice:

Notice of Implementation of Pilot Program for Enhancement of Employee Whistleblower Protections
Notice Number: NOT-OD-14-068
Key Dates
Release Date: March 7, 2014 Related Announcements
None
Issued by
National Institutes of Health (NIH)

Purpose
Implementation of "Pilot Program for Enhancement of Employee Whistleblower Protections."
Notices of Award

This Notice serves to amend the Terms and Conditions of all grants issued on or after July 1, 2013, to incorporate the requirements of the "Pilot Program for Enhancement of Contractor Employee Whistleblower Protections" referenced below. See, 48 CFR 3.908. Prospectively, all Notices of Award issued through January 1, 2017, will include by reference these requirements as a term and condition of the award.

See the Award Conditions and Information for NIH Grants webpage for standard and special terms and conditions applicable to NIH grants.
Funding Opportunity Announcements

This Notice also serves to amend all Funding Opportunity Announcements resulting in an award made on or after July 1, 2013, to incorporate the requirements of the "Pilot Program for Enhancement of Contractor Employee Whistleblower Protections" referenced above. Prospectively, all Funding Opportunity Announcements resulting in an award made through January 1, 2017, will include by reference the requirements below.

Pilot Program for Enhancement of Contractor Employee Whistleblower Protections
Congress has enacted many whistleblower protection statutes to encourage employees to report fraud, waste, and abuse. The latest whistleblower protection statutes went into effect on July 1, 2013. The statute, 41 U.S.C. §4712, applies to all employees working for contractors, grantees, subcontractors and subgrantees on federal grants and contracts. The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112-239, enacted January 2, 2013) mandates a pilot program titled "Pilot Program for Enhancement of Contractor Employee Whistleblower Protections."

This program requires all grantees, their subgrantees and subcontractors to:

1. Inform their employees working on any Federal award that they are subject to the whistleblower rights and remedies of the pilot program;
2. Inform their employees in writing of employee whistleblower protections under 41 U.S.C. §4712 in the predominant native language of the workforce; and,
3. Contractors and grantees will include such requirements in any agreement made with a subcontractor or subgrantee.

The statute (41 U.S.C. §4712) states than an "employee of a contractor, subcontractor, grantee [or subgrantee] may not be discharged, demoted, or otherwise discriminated against as a reprisal for "whistleblowing." In addition, whistleblower protections cannot be waived by any agreement, policy, form or condition of employment.

Whistleblowing is defined as making a disclosure "that the employee reasonably believes" is evidence of any of the following:

--Gross mismanagement of a Federal contract or grant;
--A gross waste of Federal funds;
--An abuse of authority relating to a Federal contract or grant;
--A substantial and specific danger to public health or safety; or,
--A violation of law, rule, or regulation related to a Federal contract or grant (including the competition for, or negotiation of, a contract or grant).

To qualify under the statute, the employee's disclosure must be made to:

--A Member of Congress, or a representative of a Congressional Committee;
--An Inspector General;
--The Government Accountability Office;
--A federal employee responsible for contract or grant oversight or management at the relevant agency;
--A court or grand jury; or,
--A management official or other employee of the contractor, subcontractor, grantee, or subgrantee who has the responsibility to investigate, discover or address misconduct.

The requirement to comply with, and inform all employees of, the "Pilot Program for Enhancement of Contractor Employee Whistleblower Protections" is retroactively effective for all grants and subgrants issued beginning July 1, 2013.

Inquiries
For general inquiries on this Notice, please contact:

Division of Grants Policy
Office of Policy for Extramural Research Administration
National Institutes of Health
Telephone: 301-435-0938
Email: GrantsPolicy@od.nih.gov

Here is the text of the statute:

 

41 U.S. Code § 4712 - Pilot program for enhancement of contractor protection from reprisal for disclosure of certain information

(a) Prohibition of Reprisals.—

(1) In general.— An employee of a contractor, subcontractor, or grantee may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.
(2) Persons and bodies covered.— The persons and bodies described in this paragraph are the persons and bodies as follows:

(A) A Member of Congress or a representative of a committee of Congress.
(B) An Inspector General.
(C) The Government Accountability Office.
(D) A Federal employee responsible for contract or grant oversight or management at the relevant agency.
(E) An authorized official of the Department of Justice or other law enforcement agency.
(F) A court or grand jury.
(G) A management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct.

(3) Rules of construction.— For the purposes of paragraph (1)—

(A) an employee who initiates or provides evidence of contractor, subcontractor, or grantee misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract or grant shall be deemed to have made a disclosure covered by such paragraph; and
(B) a reprisal described in paragraph (1) is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request.

(b) Investigation of Complaints.—

(1) Submission of complaint.— 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 the executive agency involved. Unless the Inspector General determines that the complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant, 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 or grantee concerned, and the head of the agency.
(2) Inspector general action.—

(A) Determination or submission of report on findings.— Except as provided under subparagraph (B), the Inspector General shall make a determination that a complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant or submit a report under paragraph (1) within 180 days after receiving the complaint.
(B) Extension of time.— 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, up to 180 days, as shall be agreed upon between the Inspector General and the person submitting the complaint.

(3) Prohibition on disclosure.— The Inspector General may not respond to any inquiry or disclose any information from or about any person alleging the reprisal, except to the extent that such response or disclosure is—

(A) made with the consent of the person alleging the reprisal;
(B) made in accordance with the provisions of section 552a of title 5 or as required by any other applicable Federal law; or
(C) necessary to conduct an investigation of the alleged reprisal.

(4) Time limitation.— A complaint may not be brought under this subsection more than three years after the date on which the alleged reprisal took place.

(c) Remedy and Enforcement Authority.—

(1) In general.— Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the executive agency concerned shall determine whether there is sufficient basis to conclude that the contractor or grantee concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall take one or more of the following actions:

(A) Order the contractor or grantee to take affirmative action to abate the reprisal.
(B) Order the contractor or grantee to reinstate the person to the position that the person held before the reprisal, together with compensatory damages (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 or grantee 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 executive agency.

(2) Exhaustion of remedies.— 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 or grantee 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. An action under this paragraph may not be brought more than two years after the date on which remedies are deemed to have been exhausted.
(3) Admissibility of evidence.— 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.
(4) Enforcement of orders.— Whenever a person fails to comply with an order issued under paragraph (1), the head of the executive agency concerned 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, compensatory and exemplary damages, and attorney fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the executive agency.
(5) Judicial review.— 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 executive agency. Review shall conform to chapter 7 of title 5. Filing such an appeal shall not act to stay the enforcement of the order of the head of an executive agency, unless a stay is specifically entered by the court.
(6) Burdens of proof.— The legal burdens of proof specified in section 1221 (e) of title 5 shall be controlling for the purposes of any investigation conducted by an Inspector General, decision by the head of an executive agency, or judicial or administrative proceeding to determine whether discrimination prohibited under this section has occurred.
(7) Rights and remedies not waivable.— The rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.

(d) Notification of Employees.— The head of each executive agency shall ensure that contractors, subcontractors, and grantees of the agency inform their employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.

(e) 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.

(f) Exceptions.—

(1) This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a (4)).
(2) This section shall not apply to any disclosure made by an employee of a contractor, subcontractor, or grantee of an element of the intelligence community if such disclosure—

(A) relates to an activity of an element of the intelligence community; or
(B) was discovered during contract, subcontract, or grantee services provided to an element of the intelligence community.

(g) Definitions.— In this section:

(1) The term “abuse of authority” means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract or grant of such agency.
(2) The term “Inspector General” means an Inspector General appointed under the Inspector General Act of 1978 and any Inspector General that receives funding from, or has oversight over contracts or grants awarded for or on behalf of, the executive agency concerned.

(h) Construction.— Nothing in this section, or the amendments made by this section, [1] shall be construed to provide any rights to disclose classified information not otherwise provided by law.

(i) Duration of Section.— This section shall be in effect for the four-year period beginning on the date of that is 180 days after the date the enactment of this section. [2]
[1] So in original.

[2] So in original. Probably should be “date that is 180 days after the date of the enactment of this section.”

 ___________

Here is the text of the regulations:

 3.908-1 Scope of section.

(a) This section implements 41 U.S.C. 4712.

(b) This section does not apply to—

(1) DoD, NASA, and the Coast Guard; or

(2) Any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)). This section does not apply to any disclosure made by an employee of a contractor or subcontractor of an element of the intelligence community if such disclosure—

(i) Relates to an activity of an element of the intelligence community; or

(ii) Was discovered during contract or subcontract services provided to an element of the intelligence community.

[78 FR 60171, Sept. 30, 2013]


3.908-2 Definitions.

As used in this section—

Abuse of authority means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract of such agency.

Inspector General means an Inspector General appointed under the Inspector General Act of 1978 and any Inspector General that receives funding from, or has oversight over contracts awarded for, or on behalf of, the executive agency concerned.

[78 FR 60171, Sept. 30, 2013]


3.908-3 Policy.

(a) Contractors and subcontractors are prohibited from discharging, demoting, or otherwise discriminating against an employee as a reprisal for disclosing, to any of the entities listed at paragraph (b) of this subsection, information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract, a gross waste of Federal funds, an abuse of authority relating to a Federal contract, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract). A reprisal is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request.

(b) Entities to whom disclosure may be made.

(1) A Member of Congress or a representative of a committee of Congress.

(2) An Inspector General.

(3) The Government Accountability Office.

(4) A Federal employee responsible for contract oversight or management at the relevant agency.

(5) An authorized official of the Department of Justice or other law enforcement agency.

(6) A court or grand jury.

(7) A management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

(c) An employee who initiates or provides evidence of contractor or subcontractor misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract shall be deemed to have made a disclosure.

[78 FR 60171, Sept. 30, 2013]


3.908-4 Filing complaints.

A contractor or subcontractor employee who believes that he or she has been discharged, demoted, or otherwise discriminated against contrary to the policy in 3.908-3 of this section may submit a complaint with the Inspector General of the agency concerned. Procedures for submitting fraud, waste, abuse, and whistleblower complaints are generally accessible on agency Office of Inspector General Hotline or Whistleblower Internet sites. A complaint by the employee may not be brought under 41 U.S.C. 4712 more than three years after the date on which the alleged reprisal took place.

[78 FR 60171, Sept. 30, 2013]


3.908-5 Procedures for investigating complaints.

Investigation of complaints by the Inspector General will be in accordance with 41 U.S.C. 4712(b).

[78 FR 60171, Sept. 30, 2013]


3.908-6 Statutory remedies.

(a) Agency response to Inspector General report. Not later than 30 days after receiving an Inspector General report in accordance with 41 U.S.C. 4712, the head of the agency shall—

(1) Determine whether sufficient basis exists to conclude that the contractor or subcontractor has subjected the employee who submitted the complaint to a reprisal as prohibited by 3.908-3; and

(2) Issue an order denying relief or take one or more of the following actions:

(i) Order the contractor to take affirmative action to abate the reprisal.

(ii) Order the contractor or subcontractor to reinstate the complainant-employee to the position that the person held before the reprisal, together with compensatory damages (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.

(iii) Order the contractor or subcontractor to pay the complainant-employee 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.

(b) Complainant's right to go to court. If the head of the agency issues an order denying relief or has not issued an order within 210 days after the submission of the complaint or within 30 days after the expiration of an extension of time granted in accordance with 41 U.S.C. 4712(b)(2)(B) for the submission of the Inspector General's report on the investigative findings of the complaint to the head of the agency, the contractor or subcontractor, and the complainant, and there is no showing that such delay is due to the bad faith of the complainant—

(1) The complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint; and

(2) The complainant may bring a de novo action at law or equity against the contractor or subcontractor to seek compensatory damages and other relief available under 41 U.S.C. 4712 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. An action under this authority may not be brought more than two years after the date on which remedies are deemed to have been exhausted.

(c) Admissibility in evidence. An Inspector General determination and an agency head order denying relief under this section shall be admissible in evidence in any de novo action at law or equity brought pursuant to 41 U.S.C. 4712.

(d) No waiver. The rights and remedies provided for in 41 U.S.C. 4712 may not be waived by any agreement, policy, form, or condition of employment.

[78 FR 60171, Sept. 30, 2013]


3.908-7 Enforcement of orders.

(a) Whenever a contractor or subcontractor fails to comply with an order issued under 3.908-6(a)(2) of this section, the head of the agency concerned shall file an action for enforcement of the order in the U.S. district court for a district in which the reprisal was found to have occurred. In any action brought pursuant to this authority, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorney fees and costs. The complainant-employee upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the agency.

(b) Any person adversely affected or aggrieved by an order issued under 3.908-6(a)(2) may obtain review of the order's conformance with 41 U.S.C. 4712 and its implementing regulations, in the U.S. 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. Filing such an appeal shall not act to stay the enforcement of the order of the head of an agency, unless a stay is specifically entered by the court.

[78 FR 60171, Sept. 30, 2013]


3.908-8 Classified information.

41 U.S.C. 4712 does not provide any right to disclose classified information not otherwise provided by law.

[78 FR 60171, Sept. 30, 2013]


3.908-9 Contract clause.

The contracting officer shall insert the clause at 52.203-17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights, in all solicitations and contracts that exceed the simplified acquisition threshold.

[78 FR 60171, Sept. 30, 2013]

.