S 2896

Department of Energy and Nuclear Regulatory Commission Whistleblower Protection Act

This bill clarifies that the scope of whistleblower protections under the Energy Reorganization Act of 1974 covers civil servants filing complaints against their employers, such as the Department of Energy (DOE) and the Nuclear Regulatory Commission (NRC), if the employers discharge or otherwise discriminate against civil servants who engage in certain protected activities, including (1) reporting alleged nuclear safety violations to the employer, (2) refusing to engage in certain unlawful practices, or (3) testifying at or participating in certain governmental proceedings.

In 2021, the U.S. Court of Appeals for the Fourth Circuit in Peck v. Department of Labor dismissed a complaint by a civil servant against the NRC for discriminating against the civil servant for whistleblowing activities on the grounds that the act does not waive sovereign immunity (i.e., the federal government's immunity from the jurisdiction of U.S. courts). Specifically, the court held that (1) the whistleblower protections in the act authorize complaints against persons (e.g., corporate employers) that discriminate against their employees, and (2) federal employers like DOE and the NRC are not considered to be persons.

The bill modifies the act to waive sovereign immunity by clarifying that the whistleblower protections apply to employees of any employer—not just a person—that discharges or otherwise discriminates against its employee for being a whistleblower of nuclear safety violations. Thus, the bill includes civil servants under the act's whistleblower protections on nuclear safety violations.