On August 8, 2005, President Bush signed the Energy Policy Act of 2005 .
The Act includes three amendments to the Energy Reorganization Act relating to whistleblower cases.
The first amendment is contained in Section 627. It prohibits the Department of Energy from reimbursing a contractor or subcontractor for legal fees incurred subsequent to an ALJ finding against the contractor or subcontractor on the merits, unless the ALJ's determination is reversed on appeal. This amendment applies to contracts entered into after the date of enactment.
The second and third amendments are contained in Section 629. The second amendment extends liability under the ERA whistleblower provision to the Nuclear Regulatory Commission, contractors or subcontractors of the Commission, and the Department of Energy. The third amendment permits a SOX-type removal to federal district court if the Department of Labor has not issued a final decision within one year after the filing of the complaint. The Act does not specify an effective date for the amendments in Section 629.
The following excerpts are from Conference Report 109-190, which was agreed to by both the House and Senate.
Title II of the Energy Reorganization Act of 1974 (42 U.S.C. 5841 et seq.) is amended by adding at the end the following new section:
LIMITATION ON LEGAL FEE REIMBURSEMENT
SEC. 212. The Department of Energy shall not, except as required under a contract entered into before the date of enactment of this section, reimburse any contractor or subcontractor of the Department for any legal fees or expenses incurred with respect to a complaint subsequent to�
(1) an adverse determination on the merits with respect to such complaint against the contractor or subcontractor by the Director of the Department of Energy's Office of Hearings and Appeals pursuant to part 708 of title 10, Code of Federal Regulations, or by a Department of Labor Administrative Law Judge pursuant to section 211 of this Act; or
(2) an adverse final judgment by any State or Federal court with respect to such complaint against the contractor or subcontractor for wrongful termination or retaliation due to the making of disclosures protected under chapter 12 of title 5, United States Code, section 211 of this Act, or any comparable State law,
unless the adverse determination or final judgment is reversed upon further administrative or judicial review.''.
SEC. 629. WHISTLEBLOWER PROTECTION.
(a) DEFINITION OF EMPLOYER.�Section 211(a)(2) of the Energy Reorganization Act of 1974 (42 U.S.C. 5851(a)(2)) is amended�
(1) in subparagraph (C), by striking and'' at the end;
(2) in subparagraph (D), by striking the period at the end and inserting a semicolon; and
(3) by adding at the end the following:
(E) a contractor or subcontractor of the Commission; (F) the Commission; and (G) the Department of Energy.''.
(b) DE NOVO REVIEW.�Subsection (b) of such section 211 is amended by adding at the end the following new paragraph:
(4) If the Secretary has not issued a final decision within 1 year after the filing of a complaint under paragraph (1), and there is no showing that such delay is due to the bad faith of the person seeking relief under this paragraph, such person may bring an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.''.