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American Reinvestment and Recovery Act § 1553: Protecting State and Local Government and Contractor Whistleblowers

Stakeholders: Employee(s) of non-Federal employer’s receiving covered funds

Scope: Section 1553 of the American Reinvestment and Recovery Act outlines the procedures and guidelines for protecting state and local government and contractor whistleblowers that are employees of any non-Federal employer receiving covered funds. It stipulates that such employees may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to the Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee, a court or grand jury, the head of a Federal agency, or their representatives, information that the employee reasonably believes is evidence of gross mismanagement of an agency contract or grant relating to covered funds; a gross waste of covered funds; a substantial and specific danger to public health or safety related to the implementation or use of covered funds; an abuse of authority related to the implementation or use of covered funds; or a violation of law, rule, or regulation related to an agency contract or grant, awarded or issued relating to covered funds.

Summary:

  • A person who believes that they have been subjected to a reprisal prohibited by this subsection, may submit a complaint to the appropriate inspector general.
  • Unless the inspector general determines that the complaint is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding has previously been invoked to resolve such complaint, 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 person’s employer, the head of the appropriate agency, and the Board.
  • The inspector general shall dismiss the claim or submit a report no later than 180 days after receiving a complaint.
  • The inspector general may decide not to conduct or continue an investigation under this section upon providing to the person submitting the complaint and the non-Federal employer a written explanation
    • Upon receipt of an explanation of a decision not to conduct or continue an investigation the complainant shall immediately assume the right to a civil remedy
    • The inspector general shall include in semi-annual reports to Congress a list of those investigations the inspector general decided not to conduct or continue under this paragraph.
  • The person alleging a reprisal under this section shall have access to the investigation file of the appropriate inspector general in accordance with section 552a of title 5, United States Code (commonly referred to as the `Privacy Act').
  • The investigation of the inspector general shall be deemed closed for purposes of disclosure under such section when an employee files an appeal to an agency head or a court of competent jurisdiction.
  • The inspector general may exclude from disclosure—
    • information protected from disclosure by a provision of law; and
    • any additional information the inspector general determines disclosure of which would impede a continuing investigation, risk circumvention of the law, or disclose the identity of a confidential source
  • An inspector general investigating an alleged reprisal under this section may not respond to any inquiry or disclose any information from or about any person alleging such reprisal, except in accordance with the provisions of section 552a of title 5, United States Code, or as required by any other applicable Federal law.
    Remedy and Enforcement Authority
  • Burden of Proof: A person alleging a reprisal under this section shall be deemed to have affirmatively established the occurrence of the reprisal if the person demonstrates that a disclosure described in subsection (a) was a contributing factor in the reprisal.
    • A disclosure may be demonstrated as a contributing factor in a reprisal for purposes of this paragraph by circumstantial evidence, including—
      • evidence that the official undertaking the reprisal knew of the disclosure; or
      • evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the disclosure was a contributing factor in the reprisal.
  • The head of an agency may not find the occurrence of a reprisal with respect to a reprisal if the non-Federal employer demonstrates by clear and convincing evidence that the non-Federal employer would have taken the action constituting the reprisal in the absence of the disclosure.
  • Not later than 30 days after receiving an inspector general report, the head of the agency concerned shall determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a prohibited reprisal and shall either issue an order denying relief in whole or in part or shall take 1 or more of the following actions:
    • Order the employer to take affirmative action to abate the reprisal.
    • Order the employer to reinstate the person to the position that the person held before the reprisal, together with the compensation (including back pay), compensatory damages, 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.
    • Order the employer 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 or a court of competent jurisdiction.

American Reinvestment and Recovery Act Section 1553: Protecting State and Local Government and Contractor Whistleblowers