59–006 

110TH CONGRESS REPT. 110–42 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 

2007 

MARCH 9, 2007.—Ordered to be printed 

Mr. WAXMAN, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

[To accompany H.R. 985] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (H.R. 985) to amend title 5, United States 

Code, to clarify which disclosures of information are protected from 

prohibited personnel practices; to require a statement in nondisclosure policies, forms, and agreements to the effect that such policies, 

forms, and agreements are consistent with certain disclosure protections, and for other purposes, having considered the same, reports favorably thereon with amendments and recommends that 

the bill as amended do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 3 

Background and Need for Legislation .................................................................... 3 

Legislative History .................................................................................................. 5 

Section-By-Section ................................................................................................... 5 

Explanation of Amendments ................................................................................... 10 

Committee Consideration ........................................................................................ 10 

Rollcall Votes ............................................................................................................ 10 

Application of Law to the Legislative Branch ....................................................... 12 

Statement of Oversight Findings and Recommendations of the Committee ...... 12 

Statement of General Performance Goals and Objectives .................................... 12 

Constitutional Authority Statement ...................................................................... 12 

Federal Advisory Committee Act ............................................................................ 12 

Unfunded Mandate Statement ............................................................................... 12 

Earmark Identification ............................................................................................ 12 

Committee Estimate ................................................................................................ 12 

Budget Authority and Congressional Budget Office Cost Estimate .................... 13 

Changes in Existing Law Made by the Bill, as Reported ..................................... 14 


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The amendments (stated in terms of the page and line numbers 

of the introduced bill) are as follows: 

Page 4, line 4, strike ‘‘employee’’ and insert ‘‘employee or applicant’’. 

Page 10, line 12, strike ‘‘controversy;’’ and insert ‘‘controversy, 

and which action shall, at the request of either party to such action, be tried by the court with a jury;’’. 

Page 10, after line 18, insert as a flush left sentence the following: 

An appeal from a final decision of a district court 

in an action under this paragraph may, at the 

election of the appellant, be taken to the Court of 

Appeals for the Federal Circuit (which shall have 

jurisdiction of such appeal), in lieu of the United 

States court of appeals for the circuit embracing 

the district in which the action was brought. 

Page 11, line 20, strike ‘‘Circuit.’’ and insert ‘‘Circuit, except that 

in the case of a prohibited personnel practice described in section 

2302(b)(8) (other than a case that, disregarding this paragraph, 

would otherwise be subject to paragraph (2)), such term means the 

United States Court of Appeals for the Federal Circuit and any 

United States court of appeals having jurisdiction over appeals 

from any United States district court which, under section 

1221(k)(2), would be an appropriate United States district court for 

purposes of such prohibited personnel practice.’’. 

Page 11, after line 20, insert the following (and redesignate the 

succeeding subsection accordingly): 

(c) COMPENSATORY DAMAGES.—Section 

1221(g)(1)(A)(ii) of such title 5 is amended by 

striking all after ‘‘travel expenses,’’ and inserting 

‘‘any other reasonable and foreseeable consequential damages, and compensatory damages (including attorney’s fees, interest, reasonable expert witness fees, and costs).’’. 

Page 14, line 22, strike all after ‘‘travel expenses,’’ through the 

period on line 24, and insert ‘‘any other reasonable and foreseeable 

consequential damages, and compensatory damages (including attorney’s fees, interest, reasonable expert witness fees, and costs).’’. 

Page 16, line 21, strike ‘‘controversy.’’ and insert ‘‘controversy, 

and which action shall, at the request of either party to such action, be tried by the court with a jury.’’. 

Page 16, line 21, strike ‘‘A petition’’ and all that follows through 

line 24, and insert the following: ‘‘An appeal from a final decision 

of a district court in an action under this paragraph may, at the 

election of the appellant, be taken to the Court of Appeals for the 

Federal Circuit (which shall have jurisdiction of such appeal), in 

lieu of the United States court of appeals for the circuit embracing 

the district in which the action was brought.’’. 

Page 17, line 7, strike ‘‘Circuit.’’ and insert ‘‘Circuit or any 

United States court of appeals having jurisdiction over appeals 

from any United States district court which, under section 

1221(k)(2), would be an appropriate United States district court.’’. 

Page 17, lines 18 and 21, strike ‘‘plaintiff’’ and insert ‘‘employee, 

former employee, or applicant’’. 


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Page 17, lines 19 and 24, strike ‘‘plaintiff’s’’ and insert ‘‘employee’s, former employee’s, or applicant’s’’. 

Page 19, line 7, strike ‘‘employee’’ and insert ‘‘employee, former 

employee, or applicant for employment’’. 

Page 23, beginning on line 11, strike ‘‘controversy.’’ and insert 

‘‘controversy, and which action shall, at the request of either party 

to such action, be tried by the court with a jury.’’. 

Page 24, line 14, strike ‘‘controversy.’’ and insert ‘‘controversy, 

and which action shall, at the request of either party to such action, be tried by the court with a jury.’’. 

PURPOSE AND SUMMARY

H.R. 985, the Whistleblower Protection Enhancement Act, was 

introduced February 12, 2007, by Reps. Henry A. Waxman, Todd 

Platts, Chris Van Hollen, and Tom Davis. The legislation clarifies 

and expands federal employee and contractor whistleblower protection laws. 

The bill extends whistleblower protections to federal employees 

who work on national security issues; strengthens whistleblower 

rights for federal contractors; ensures that employees of the Transportation Security Agency (TSA), in particular its baggage screeners, have whistleblower rights; provides explicit protections for federal employees who report instances where federal research is suppressed or distorted for political reasons; overrides several court 

and administrative decisions that undermined existing whistleblower protections; and provides whistleblowers access to federal 

district courts if the Merit Systems Protection Board (MSPB) or the 

Inspector General (IG) does not take action on their claims within 

180 days. 

BACKGROUND AND NEED FOR LEGISLATION

A key component of government accountability is whistleblower 

protection. Federal employees are on the inside. They can see when 

taxpayer dollars are wasted and are often the first to see the signals of corrupt or incompetent management. 

Unfortunately, whistleblowers too often receive retaliation rather 

than recognition for their courage. They need adequate protections 

so they are not deterred from stepping forward to blow the whistle. 

There are many federal government workers who deserve whistleblower protection, but perhaps none more than national security 

officials. These are federal government employees who have undergone extensive background investigations, obtained security clearances, and handled classified information on a routine basis. Our 

government has concluded that they can be trusted to work on the 

most sensitive law enforcement and intelligence projects, yet these 

officials receive no protection when they come forward to identify 

abuses that are undermining our national security efforts. The 

Committee has documented numerous cases of retaliation against 

national security officials seeking to expose wrongdoing. This bill 

seeks to give these national security officials needed whistleblower 

protections. 

In addition, employees of federal contractors can also be subject 

to retaliation. Under current law, contract employees can protest 


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company retaliation but have no remedy if the agency refuses to 

act. This bill gives them an avenue to seek a remedy in court. 

TSA baggage screeners currently do not have whistleblower 

rights. In Schott v. Department of Homeland Security, the MSPB 

ruled on August 12, 2004, that the ‘‘Board jurisdiction over Screeners . . . is not found in the HSA [Homeland Security Act].’’ To remedy this situation, this bill extends to screeners the same protections that all other Department of Homeland Security employees 

enjoy. TSA workers could, with full whistleblower protections of 

this bill, report violations of law, mismanagement, waste, abuse of 

authority, or dangers to public health and safety, including those 

regarding or relating solely to homeland or national security. 

The Committee has documented numerous examples of the political manipulation of science in federal agencies, including suppression of research or data that is perceived to conflict with Administration policy; appointment of advisory committee members on the 

basis of political affiliation or views; and the dissemination of false 

or misleading scientific information. While an employee may reasonably believe such actions to constitute ‘‘abuse of authority,’’ already a protected disclosure category, the Office of Special Counsel 

(OSC) has consistently denied whistleblower protections to employees attempting to draw attention to political interference with 

science. This bill clarifies that ‘‘abuse of authority’’ should be interpreted to include actions that compromise the validity and integrity 

of federal science. 

This bill also responds to decisions by the U.S. Court of Appeals 

for the Federal Circuit and the MSPB limiting the scope of disclosures covered under the federal whistleblower protection statute. 

Specifically, it clarifies that ‘‘any’’ disclosure means ‘‘without restriction as to time, place, form, motive, context, or prior disclosure’’ and includes formal or informal communication. In addition, 

the bill provides that a whistleblower could rebut the presumption 

that a federal official performed his or her duties in accordance 

with the law by providing substantial evidence to the contrary. 

Some prior court decisions have required a higher standard, irrefutable proof, to rebut this presumption. Furthermore, the bill requires every nondisclosure policy, form, or agreement of the government to contain the specific addendum set forth in the legislation 

informing employees of their rights, and makes it a prohibited personnel practice for any manager to implement or enforce any nondisclosure policy, form, or agreement that does not contain the specific statement mandated in the bill. 

Too often, a whistleblower brings his or her case to the OSC or 

the MSPB and the case lingers in limbo or a determination occurs 

so long after the alleged prohibited practice occurred that the fired 

employee has been without a paycheck for years. This bill allows 

whistleblowers access to federal district courts for a trial by jury 

if the MSPB (or the IG for cases involving national security officials or contractor whistleblowers) does not take action on their 

claims within 180 days. 

Finally, this bill permits the Federal Circuit or any other circuit 

court to hear whistleblower cases, ending the Federal Circuit’s exclusive jurisdiction over whistleblower appeals. It is the decisions 

of the Federal Circuit that have created the need for many of the 

provisions of this bill. There is no reason that whistleblower cases 


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need one specialized court as in patent law cases. To the contrary, 

whistleblower protection law should benefit from consideration in 

all circuits. This bill allows employees to have their cases heard in 

places were they live and increases opportunities for those cases to 

be heard eventually by the Supreme Court. 

LEGISLATIVE HISTORY

H.R. 985, legislation to strengthen the federal employee whistleblower protection laws, was introduced on February 12, 2007, and 

referred to the Committee on Oversight and Government Reform. 

Similar legislation, H.R. 1317 and section 8 of H.R. 5112, was introduced in the 109th Congress and unanimously reported by the 

Committee. H.R. 985 builds on that legislation as well on earlier 

versions introduced in the 106th, 107th, and 108th Congresses. 

The Committee held a hearing on February 13, 2007, on H.R. 

985. The witnesses were William G. Weaver, PhD, Associate Professor, University of Texas at El Paso, representing the National 

Security Whistleblower Coalition; Nick Schwellenbach, Investigator, Project on Government Oversight; Tom Devine, Legal Director, Government Accountability Project; and Mark Zaid, Attorney 

at Law, Krieger and Zaid, PLLC. Chairman McPhie of the MSPB 

and Stephen Kohn of the National Whistleblower Center submitted 

testimony for the record. 

The Committee held a markup to consider H.R. 985 on February 

15, 2007, and ordered the bill to be reported, as amended, by a roll 

call vote of 280. 

SECTION-BY-SECTION

Section 1. Short title 

This section provides that the short title of H.R. 985 is the 

‘‘Whistleblower Protection Enhancement Act of 2007.’’

Section 2. Clarification of disclosures covered 

This section clarifies current law to state that it applies to any 

disclosure, whether made as part of the duties of an employee, 

former employee, or applicant (hereinafter collectively referred to 

as ‘‘employee’’); concerns consequences of policy or individual misconduct; is oral or written; or is made to any audience inside or 

outside an agency; and without restriction to time, form, motive, 

context, or prior disclosure. These changes are intended as a response to Federal Circuit decisions that have limited the scope of 

disclosures permitted by law. 

Section 3. Covered disclosures 

This section defines ‘‘disclosure’’ to include both formal and informal communications where the employee reasonably believes that 

the disclosure evidences any violation of law, rule, or regulation or 

gross mismanagement, waste, abuse of authority, or specific danger 

to public health or safety. However, a simple policy disagreement 

would not be considered a disclosure. This change is intended as 

a response to Federal Circuit decisions suggesting that only a formal communication may qualify as a disclosure. 


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Section 4. Rebuttable presumption 

This section codifies the reasonable belief test for all whistleblower disclosures: ‘‘whether a disinterested observer with knowledge of the essential facts known to or readily ascertainable by the 

employee, former employee or applicant could reasonably conclude 

that the actions of the government evidence such violations, mismanagement, waste, abuse, or danger.’’ In addition, this section 

provides that any presumption that the public official whose misconduct has been disclosed by the whistleblower acted in good faith 

may be rebutted by ‘‘substantial evidence’’ rather than ‘‘irrefragable 

proof.’’ The Federal Circuit had required the standard ‘‘irrefragable 

proof’’ in a previous decision. 

Section 5. Nondisclosure policies, forms, and agreements 

Subsection (a) states that implementation or enforcement of any 

nondisclosure policy, form, or agreement is a prohibited personnel 

practice. 

Subsection (b) prohibits any agency from implementing or enforcing any nondisclosure policy, form, or agreement, if the policy, 

form, or agreement does not contain specified language notifying 

the employee of his or her rights. Also, this subsection prohibits investigation, other than any ministerial or nondiscretionary factfinding activities necessary for the agency to perform its mission, 

of any employee because of any activity protected under section 

2302. 

Section 6. Exclusion of agencies by the President 

This section requires the removal of any agency or unit by the 

President from whistleblower protection coverage be made prior to 

any personnel action being taken against a whistleblower at that 

agency. 

Section 7. Disciplinary action 

This section states that the MSPB can discipline an employee if 

it finds that the protected activity was a ‘‘primary motivating factor’’ in the employee’s action. Under current MSPB case law, in 

order for the MSPB to discipline an employee, the OSC has to demonstrate that an adverse personnel action would not have occurred 

‘‘but for’’ the whistleblower’s protected activity. 

Section 8. GAO study on revocation of security clearances 

Subsection (a) requires GAO to conduct a study of security clearance revocations. 

Subsection (b) requires that GAO report to the Committee and 

the Committee on Homeland Security and Governmental Affairs of 

the Senate within 270 days of the bill’s enactment. 

Section 9. Alternative recourse 

Subsection (a) provides that an employee who seeks corrective action (or on behalf of whom corrective action is sought) from the 

MSPB with respect to a prohibited personnel practice described in 

section 2302(b)(8) may bring an action in federal district court for 

a trial by jury (1) if the MSPB does not take final action on the 

claims within 180 days or (2) within 90 days of final action by the 

MSPB. The employee could file his or her action in the United 


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States district court for the district where the alleged prohibited 

personnel practice occurred, the district in which employment 

records are maintained and administered, or the district in which 

the whistleblower resides. The district court is to apply the standards and award the relief in the same manner as the MSPB. The 

district court decision may be appealed to the U.S. court of appeals 

having jurisdiction over appeals from the district court in which 

the case was brought. 

Subsection (b) allows a whistleblower to seek review of a final 

order or decision of the MSPB in the Federal Circuit or the circuit 

of appeals for the circuit where the alleged prohibited personnel 

practice occurred, the circuit in which the employment records are 

maintained and administered, or the circuit in which the whistleblower resides. 

Subsection (c) provides that the MSPB can award compensatory 

damages including interest and expert witness fees. 

Subsection (d) prohibits an employee who has filed a case in district court under subsection (a) from also appealing an order or decision of the MSPB directly to a court of appeals. 

Section 10. National security whistleblower rights 

Subsection (a) provides that, in addition to rights he or she may 

already have, an employee of a covered agency may not be discharged or discriminated against, including by denying, suspending, or revoking a security clearance or otherwise restricting 

access to classified or sensitive information, as a reprisal for disclosing covered information to an authorized Member of Congress, 

authorized executive official, or the IG of the covered agency. A disclosure means any disclosure, whether that disclosure is made as 

part of an employee’s, former employee’s, or applicant’s duties, concerns consequences of policy or individual misconduct, is oral or 

written, or is made to any audience inside or outside an agency, 

without restriction to time, form, motive, context, or prior disclosure. 

Subsection (b) provides that an employee, former employee, or 

applicant who believes he or she has been the subject of a reprisal 

prohibited by subsection (a) may submit a complaint to the IG and 

the agency head. The IG will investigate the complaint and report 

findings to the employee and the agency head within 120 days. 

Subsection (c) provides that within 180 days of filing of the complaint, the agency head, taking into account the IG report, will determine whether the employee has been subjected to a reprisal prohibited by subsection (a) and will either issue an order denying relief or implement corrective action to return the employee, as nearly as possible, to his pre-reprisal condition, including voiding any 

action denying, suspending, or revoking a security clearance or 

other access to classified or sensitive information, ordering back 

pay, benefits, medical costs, and travel expenses and paying consequential damages and compensatory damages including attorney’s fees, interest, reasonable expert fees, and costs. If the agency 

head issues an order denying relief, he is required to issue a report 

to the employee detailing the reasons for the denial. 

The subsection further provides that where corrective action by 

an agency head involves voiding a suspension or revocation of a security clearance or other access to sensitive or classified informaVerDate Aug 31 2005 04:13 Mar 10, 2007 Jkt 059006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR042P1.XXX HR042P1

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tion, the agency head may re-initiate procedures to suspend the 

clearance or restrict access only if the new actions are based exclusively on national security concerns and not related to the original 

reprisal. In this case, the agency head is required to issue a report 

to the IG and authorized members of Congress explaining how the 

actions are based exclusively on national security concerns, provide 

periodic updates on the actions, and respond promptly to inquiries 

from authorized members of Congress on the procedure status. 

The subsection also provides that an employee may seek corrective action, in federal district court for a trial by jury, if (1) the 

agency head has not made a determination within 180 days or (2) 

within 90 days of the order issuance. The employee could file his 

or her action in the United States district court for the district 

where the alleged prohibited personnel practice occurred, for the 

district in which the employment records are maintained and administered, or for the district in which the whistleblower resides. 

The district court decision may be appealed to the U.S. court of appeals having jurisdiction over appeals from the district court in 

which the case was brought. 

In addition, the employee may, within 60 days, have any order 

issued under this section reviewed by the Federal Circuit or court 

of appeals for the circuit where the alleged prohibited personnel 

practice occurred, the circuit in which the employment records are 

maintained and administered, or the circuit in which the whistleblower resides. 

Also, this subsection contains limitations on the executive agency’s assertion of the so-called ‘‘state secrets privilege’’ in actions for 

damages or relief under this section. Specifically, if the assertion 

of this privilege prevents the employee from establishing an element in support of his or her claim, the court will resolve the disputed issue of fact of law in favor of the employee. When the privilege is asserted, the agency head must issue a report to authorized 

Members of Congress describing why it was asserted and why the 

court cannot protect the classified information in order to hear the 

issue. 

Subsection (d) provides that an employee in a non-covered agency 

should, for the purpose of disclosing covered classified or sensitive 

information, be entitled to the same protections as if the agency 

were a covered agency. The intention of this section is to provide 

whistleblower rights to those individuals whose job functions make 

them eligible for the protections of this section even though their 

agencies are not specified such as intelligence analysts and information sharing employees with access to classified information 

within the Department of Homeland Security’s Office of Intelligence and Analysis or Foreign Service Diplomatic Security Special 

Agents at the Department of State. 

Subsection (e) provides that nothing in this section is to be construed to authorize discharge, demotion, or discrimination against 

an employee for a disclosure other than one protected by this section or to limit a right or remedy otherwise available to the employee, former employee, or applicant, including any rights or remedies available under the Lloyd-La Follette Act. 

Subsection (f) contains definitions. 

The term ‘‘covered information’’ means information, including 

classified or sensitive information, that an employee, former emVerDate Aug 31 2005 04:13 Mar 10, 2007 Jkt 059006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR042P1.XXX HR042P1

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ployee, or applicant, reasonably believes provides evidence of any 

violation of any law, rule, or regulation, or gross mismanagement, 

or waste of funds, abuse of authority, or substantial and specific 

danger to public health or safety. 

The term ‘‘covered agencies’’ means the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence 

Agency, the National Geospatial-Intelligence Agency, National Security Agency, the National Reconnaissance Office and any other 

agency or element thereof involved in foreign intelligence or counterintelligence activities as determined by the President. 

The term ‘‘authorized Member of Congress’’ means a member of 

the House Permanent Select Committee on Intelligence, the Senate 

Select Committee on Intelligence, the House Committee on Oversight and Government Reform, the Senate Committee on Homeland 

Security and Governmental Affairs and the committees of the 

House or Senate that have oversight over the program about which 

the information is disclosed. Members of Congress often receive 

communications through their staff. A communication to a staff 

member of an authorized Member should be considered a communication with the authorized Member if the staff has the appropriate clearances and the purpose of the communication is to convey information to the authorized Member. 

The term ‘‘authorized office of an executive agency’’ is to be defined by the Office of Personnel Management. However, this definition will include the immediate supervisor of the employee or 

former employee and each successive supervisor (immediately 

above such immediate supervisor) in the chain of authority as well 

as the head, general counsel, and ombudsman of the agency. 

The term ‘‘authorized official of the Department of Justice’’

means any employee of the Department of Justice whose duties include the investigation, enforcement, or prosecution of any law or 

regulation. 

Section 11. Enhancement of contractor employee whistleblower protections 

Subsection (a) requires that the head of a civilian executive agency make a determination, within 180 days after the submission of 

a complaint by a contractor employee, about whether the contractor 

concerned has subjected the contractor employee to a reprisal. The 

agency head will either issue an order denying relief or take corrective action. If the head of the executive agency fails to issue an 

order or take correction action within 180 days, the contractor employee may bring an action in district court to seek compensatory 

and other relief. 

Subsection (b) applies the requirements of subsection (a) to contractor employees under the Department of Defense and National 

Aeronautics and Space Administration contracts. 

Section 12. Prohibited personnel practices affecting employees of the 

Transportation Security Administration 

This section grants employees at TSA, including those carrying 

out screener functions, the same whistleblower protections as other 

federal employees. This section is intended to be a response to the 

MSPB decision in Schott v. Department of Homeland Security 


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where the MSPB ruled TSA screeners did not have whistleblower 

rights. 

Section 13. Clarification of whistleblower rights relating to scientific 

and other research 

This section clarifies that the term ‘‘abuse of authority’’ includes 

political interference with science, such as actions that compromise 

the validity or accuracy of federally funded research or analysis 

and the dissemination of false or misleading scientific, medical, or 

technical information. The Committee is aware of OSC determinations denying whistleblower protections to employees attempting to 

disclose political interference with science. This change is intended 

to confirm that these disclosures are to be protected. 

Section 14. Effective date 

This section provides that the provisions of H.R. 985 takes effect 

30 days after date of enactment of the Act. 

EXPLANATION OF AMENDMENTS

The following amendments were adopted in Committee: 

Mr. Van Hollen and Mr. Platts offered an amendment, passed by 

voice vote, to allow a whistleblower to file an appeal of a whistleblower case in the Federal Circuit or the court of appeals for the 

circuit where the alleged prohibited personnel practice occurred, 

where the employment records are maintained and administered, 

or where the whistleblower resides. Mr. Issa raised a point of order 

against this amendment claiming it was not germane because it regarded issues in the jurisdiction of the Committee on the Judiciary. 

After consulting the House Parliamentarian, the Chair ruled 

against Mr. Issa’s point of order explaining that the entire bill 

deals with rights of redress and appeal and the amendment does 

not amend title 18 of the U.S. Code but only grants a right to appeal. 

Mr. Braley offered an amendment, which passed by voice vote, 

clarifying that the bill allows for jury trials at the district court 

level. 

Mr. Braley offered an amendment, which passed by voice vote, 

clarifying what types of damages a whistleblower can recover if the 

MSPB or a district court rules in his or her favor. Under the original text, the words ‘‘compensatory damages’’ were used in one section but not in another. The Braley amendment clarifies that compensatory damages are available to all federal employees and contractors. Further, it details some of the items the MSPB or a district court could award including interest and expert witness fees. 

COMMITTEE CONSIDERATION

On Wednesday, February 14, 2007, the Committee ordered the 

bill reported to the House by a recorded vote. 

ROLLCALL VOTES


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APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch where the bill 

relates to the terms and conditions of employment or access to public services and accommodations. This bill provides enhanced transparency to the operations of the executive branch. As such this bill 

does not relate to employment or access to public services and accommodations. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goals and 

objectives are reflected in the descriptive portions of this report. 

CONSTITUTIONAL AUTHORITY STATEMENT

Under clause 3(d)(1) of rule XIII of the Rules of the House of 

Representatives, the Committee must include a statement citing 

the specific powers granted to Congress to enact the law proposed 

by H.R. 985. Article I, Section 8, Clause 18 of the Constitution of 

the United States grants the Congress the power to enact this law. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or 

authorize the establishment of an advisory committee within the 

definition of 5 U.S.C. App., Section 5(b). 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement whether the 

provisions of the reported bill include unfunded mandates. In compliance with this requirement the Committee has received a letter 

from the Congressional Budget Office included herein. 

EARMARK IDENTIFICATION

H.R. 1255 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), 

or 9(f) of rule XXI. 

COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs that would be incurred in carrying out H.R. 985. 

However, clause 3(d)(3)(B) of that rule provides that this requirement does not apply when the Committee has included in its report 


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a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the 

Congressional Budget Act. 

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the 

Committee has received the following cost estimate for H.R. 985 

from the Director of Congressional Budget Office: 

MARCH 9, 2007. 

Hon. HENRY A. WAXMAN, 

Chairman, Committee on Oversight and Government Reform, House 

of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 985, the Whistleblower 

Protection Enhancement Act of 2007. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

PETER R. ORSZAG. 

Enclosure. 

H.R. 985—Whistleblower Protection Enhancement Act of 2007 

H.R. 985 would amend the Whistleblower Protection Act (WPA), 

clarify current law, and give new protections to federal employees 

and contractors who report abuse, fraud, and waste involving government activities. The legislation also would make several 

changes to the laws governing the Merit Systems Protection Board 

(MSPB) and the Office of Special Counsel (OSC). In addition, the 

legislation would require a study by the Government Accountability 

Office (GAO) regarding the revocation of security clearances. 

CBO estimates that implementing H.R. 985 would cost $5 million 

a year and about $25 million over the 2008–2012 period, assuming 

appropriation of the necessary amounts. Enacting the legislation 

could affect direct spending, but we estimate any amounts would 

not be significant in any year. Enacting the bill would not affect 

revenues. H.R. 985 contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandates Reform Act and 

would not affect the budgets of state, local, or tribal governments. 

Under current law, the OSC investigates complaints regarding 

reprisals against federal employees that inform authorities of fraud 

or other improprieties in the operation of federal programs (such 

individuals are known as whistleblowers). The OSC seeks corrective action for valid complaints. If agencies fail to take corrective 

action, the OSC or the employee can pursue a case through the 

MSPB for resolution. Whistleblower cases may also be reviewed by 

the U.S. Court of Appeals. 

According to the MSPB and OSC, there generally are between 

400 and 500 whistleblower cases per year. Major provisions of H.R. 

985 would expand the definition of protected whistleblowing, and 


hmoore on PRODPC74 with REPORTS
14 

extend employee protections to federal contractors, Transportation 

Security Administration passenger and baggage screeners, and federal employees working on scientific research or national security 

issues. The bill would allow for access to jury trials for federal employees and contractors in whistleblower cases, authorize the payment of compensatory damages for employees involved in such 

cases, and remove the exclusive jurisdiction of the U.S. Court of 

Appeals over whistleblower appeals. 

In 2007, the MSPB received an appropriation of $36 million, and 

the OSC received $15 million. CBO expects that the bill’s changes 

in whistleblower laws would increase the workload of the MSPB 

and OSC. Based on information from those agencies, we estimate 

that implementing this bill would cost up to $3 million a year to 

cover additional staffing, travel, and security clearance reviews. 

When implementing corrective actions to settle an employment 

dispute between the federal government and its employees regarding prohibited personnel practices, federal agencies are required to 

spend appropriated funds to pay for an employee’s attorney, back 

pay, and any associated travel and medical costs. Under H.R. 985, 

federal employees and contractors could also receive compensatory 

damages for employment disputes. 

CBO cannot estimate the cost of compensatory damage awards 

in such cases because the amount awarded would depend on the 

particular circumstances of each case and the frequency of cases involving such damages. Recent settlement amounts under the Whistleblower Protection Act have ranged from $20,000 to $200,000. 

While it is uncertain how often compensatory damages would be 

awarded in such cases, OSC and MSPB believe such awards could 

more than double the cost of some settlements. Hence, CBO expects that this provision would add a few million dollars each year 

to the cost of agency settlements, which are paid from individual 

agency appropriations. 

In addition, the legislation would require the GAO to prepare a 

study within nine months on security clearance revocations since 

1996. Based on the cost of similar reports, CBO estimates that preparing the report would cost less than $500,000 over the 2007–

2008 period, assuming the availability of appropriated funds. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

TITLE 5, UNITED STATES CODE 

* * * * * * * 


hmoore on PRODPC74 with REPORTS
15 

PART II—CIVIL SERVICE FUNCTIONS AND 

RESPONSIBILITIES 

* * * * * * * 

CHAPTER 12—MERIT SYSTEMS PROTECTION BOARD, 

OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT 

OF ACTION 

* * * * * * * 

SUBCHAPTER II—OFFICE OF SPECIAL COUNSEL 

* * * * * * * 

§ 1215. Disciplinary action 

(a)(1) * * * 

* * * * * * * 

ø(3) A final order of the Board may impose disciplinary action 

consisting of removal, reduction in grade, debarment from Federal 

employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.¿ 

(3)(A) A final order of the Board may impose—

(i) disciplinary action consisting of removal, reduction in 

grade, debarment from Federal employment for a period not to 

exceed 5 years, suspension, or reprimand; 

(ii) an assessment of a civil penalty not to exceed $1,000; or 

(iii) any combination of disciplinary actions described under 

clause (i) and an assessment described under clause (ii). 

(B) In any case in which the Board finds that an employee has 

committed a prohibited personnel practice under paragraph (8) or 

(9) of section 2302(b), the Board shall impose disciplinary action if 

the Board finds that the activity protected under such paragraph (8) 

or (9) (as the case may be) was the primary motivating factor, unless that employee demonstrates, by a preponderance of the evidence, 

that the employee would have taken, failed to take, or threatened to 

take or fail to take the same personnel action, in the absence of such 

protected activity. 

* * * * * * * 

SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN 

CERTAIN REPRISAL CASES 

§ 1221. Individual right of action in certain reprisal cases 

(a) * * * 

* * * * * * * 

(g)(1)(A) If the Board orders corrective action under this section, 

such corrective action may include— (i) * * * 

(ii) back pay and related benefits, medical costs incurred, 

travel expenses, øand any other reasonable and foreseeable 

consequential changes.¿ any other reasonable and foreseeable 

consequential damages, and compensatory damages (including 


hmoore on PRODPC74 with REPORTS
16 

attorney’s fees, interest, reasonable expert witness fees, and 

costs). 

* * * * * * * 

(h)(1) * * * 

* * * * * * * 

(3) Judicial review under this subsection shall not be available 

with respect to any decision or order as to which the employee, 

former employee, or applicant has filed a petition for judicial review 

under subsection (k). 

* * * * * * * 

(k)(1) If, in the case of an employee, former employee, or applicant 

for employment who seeks corrective action (or on behalf of whom 

corrective action is sought) from the Merit Systems Protection Board 

based on an alleged prohibited personnel practice described in section 2302(b)(8), no final order or decision is issued by the Board 

within 180 days after the date on which a request for such corrective action has been duly submitted (or, in the event that a final 

order or decision is issued by the Board, whether within that 180- 

day period or thereafter, then, within 90 days after such final order 

or decision is issued, and so long as such employee, former employee, or applicant has not filed a petition for judicial review of 

such order or decision under subsection (h))—

(A) such employee, former employee, or applicant may, after 

providing written notice to the Board, bring an action at law 

or equity for de novo review in the appropriate United States 

district court, which shall have jurisdiction over such action 

without regard to the amount incontroversy, and which action 

shall, at the request of either party to such action, be tried by 

the court with a jury; and 

(B) in any such action, the court—

(i) shall apply the standards set forth in subsection (e); 

and 

(ii) may award any relief which the court considers appropriate, including any relief described in subsection (g). 

An appeal from a final decision of a district court in an action 

under this paragraph may, at the election of the appellant, be taken 

to the Court of Appeals for the Federal Circuit (which shall have jurisdiction of such appeal), in lieu of the United States court of appeals for the circuit embracing the district in which the action was 

brought. 

(2) For purposes of this subsection, the term ‘‘appropriate United 

States district court’’, as used with respect to an alleged prohibited 

personnel practice, means the United States district court for the 

district in which the prohibited personnel practice is alleged to have 

been committed, the judicial district in which the employment 

records relevant to such practice are maintained and administered, 

or the judicial district in which resides the employee, former employee, or applicant for employment allegedly affected by such practice. 

(3) This subsection applies with respect to any appeal, petition, or 

other request for corrective action duly submitted to the Board, 

whether pursuant to section 1214(b)(2), the preceding provisions of 


hmoore on PRODPC74 with REPORTS
17 

this section, section 7513(d), or any otherwise applicable provisions 

of law, rule, or regulation. 

* * * * * * * 

PART III—EMPLOYEES 

* * * * * * * 

Subpart A—General Provisions 

* * * * * * * 

CHAPTER 23—MERIT SYSTEM PRINCIPLES 

Sec. 

2301. Merit system principles. 

* * * * * * * 

ø2304. Responsibility of the Government Accountability Office. 

ø2305. Coordination with certain other provisions of law.¿ 

2303a. National security whistleblower rights. 

2304. Prohibited personnel practices affecting the Transportation Security Administration. 

2305. Responsibility of the Government Accountability Office. 

2306. Coordination with certain other provisions of law. 

* * * * * * * 

§ 2302. Prohibited personnel practices 

(a)(1) * * * 

(2) For the purpose of this section— (A) ‘‘personnel action’’ means— (i) * * * 

* * * * * * * 

(x) a decision to order psychiatric testing or examination; 

øand¿ 

(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and 

ø(xi)¿ (xii) any other significant change in duties, responsibilities, or working conditions; 

* * * * * * * 

(B) ‘‘covered position’’ means, with respect to any personnel 

action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position 

in the excepted service, but does not include any position 

which is, prior to the personnel action— (i) * * * 

(ii) excluded from the coverage of this section by the 

President based on a determination by the President that 

it is necessary and warranted by conditions of good administration; øand¿ 

(C) ‘‘agency’’ means an Executive agency and the Government Printing Office, but does not include— (i) * * * 

ø(ii) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the 

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hmoore on PRODPC74 with REPORTS
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curity Agency, and, as determined by the President, any 

Executive agency or unit thereof the principal function of 

which is the conduct of foreign intelligence or counterintelligence activities; or¿ 

(ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, or the National Security Agency; or 

(II) as determined by the President, any Executive agency 

or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, 

if the determination (as that determination relates to a personnel action) is made before that personnel action; or 

(iii) the Government Accountability Officeø.¿; and 

(D) ‘‘disclosure’’ means a formal or informal communication, 

but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the 

employee or applicant providing the disclosure reasonably believes that the disclosure evidences—

(i) any violation of any law, rule, or regulation; or 

(ii) gross mismanagement, a gross waste of funds, an 

abuse of authority, or a substantial and specific danger to 

public health or safety. 

(b) Any employee who has authority to take, direct others to 

take, recommend, or approve any personnel action, shall not, with 

respect to such authority—

(1) * * * 

* * * * * * * 

(8) take or fail to take, or threaten to take or fail to take, 

a personnel action with respect to any employee or applicant 

for employment because of—

(A) any disclosure of information by an employee or applicant øwhich the employee or applicant reasonably believes evidences¿, without restriction as to time, place, 

form, motive, context, or prior disclosure made to any person by an employee or applicant, including a disclosure 

made in the ordinary course of an employee’s duties, that 

the employee or applicant reasonably believes is evidence 

of—

(i) øa violation¿ any violation of any law, rule, or 

regulation, or 

* * * * * * * 

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information øwhich the employee or applicant 

reasonably believes evidences¿, without restriction as to 

time, place, form, motive, context, or prior disclosure made 

to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties, of information that the employee or applicant reasonably believes is evidence of—


hmoore on PRODPC74 with REPORTS
19 

(i) øa violation¿ any violation (other than a violation 

of this section) of any law, rule, or regulation, or 

* * * * * * * 

(11)(A) * * * 

(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a 

veterans’ preference requirement; øor¿ 

(12) implement or enforce any nondisclosure policy, form, or 

agreement, if such policy, form, or agreement does not contain 

the following statement: ‘‘These provisions are consistent with 

and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive 

Order No. 12958; section 7211 of title 5, United States Code 

(governing disclosures to Congress); section 1034 of title 10, 

United States Code (governing disclosures to Congress by members of the military); section 2302(b)(8) of title 5, United States 

Code (governing disclosures of illegality, waste, fraud, abuse, or 

public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 and following) (governing 

disclosures that could expose confidential Government agents); 

and the statutes which protect against disclosures that could 

compromise national security, including sections 641, 793, 794, 

798, and 952 of title 18, United States Code, and section 4(b) 

of the Subversive Activities Control Act of 1950 (50 U.S.C. 

783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such 

statutory provisions are incorporated into this agreement and 

are controlling.’’; 

(13) conduct, or cause to be conducted, an investigation, other 

than any ministerial or nondiscretionary factfinding activities 

necessary for the agency to perform its mission, of an employee 

or applicant for employment because of any activity protected 

under this section; or 

ø(12)¿ (14) take or fail to take any other personnel action if 

the taking of or failure to take such action violates any law, 

rule, or regulation implementing, or directly concerning, the 

merit system principles contained in section 2301 of this title. 

This subsection shall not be construed to authorize the withholding 

of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress. For purposes of paragraph (8), any presumption relating to 

the performance of a duty by an employee who has authority to take, 

direct others to take, recommend, or approve any personnel action 

may be rebutted by substantial evidence. For purposes of paragraph 

(8), a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a 

substantial and specific danger to public health or safety shall be 

made by determining whether a disinterested observer with knowledge of the essential facts known to or readily ascertainable by the 

employee or applicant could reasonably conclude that the actions of 


hmoore on PRODPC74 with REPORTS
20 

the Government evidence such violations, mismanagement, waste, 

abuse, or danger. 

* * * * * * * 

(f) As used in section 2302(b)(8), the term ‘‘abuse of authority’’ includes—

(1) any action that compromises the validity or accuracy of 

federally funded research or analysis; and 

(2) the dissemination of false or misleading scientific, medical, or technical information. 

* * * * * * * 

§ 2303a. National security whistleblower rights 

(a) PROHIBITION OF REPRISALS.— (1) IN GENERAL.—In addition to any rights provided in section 2303 of this title, title VII of Public Law 105–272, or any 

other provision of law, an employee, former employee, or applicant for employment in a covered agency may not be discharged, demoted, or otherwise discriminated against (including by denying, suspending, or revoking a security clearance, or 

by otherwise restricting access to classified or sensitive information) as a reprisal for making a disclosure described in paragraph (2). 

(2) DISCLOSURES DESCRIBED.—A disclosure described in this 

paragraph is any disclosure of covered information which is 

made—

(A) by an employee, former employee, or applicant for employment in a covered agency (without restriction as to 

time, place, form, motive, context, or prior disclosure made 

to any person by an employee, former employee, or applicant, including a disclosure made in the course of an employee’s duties); and 

(B) to an authorized Member of Congress, an authorized 

official of an Executive agency, an authorized official of the 

Department of Justice, or the Inspector General of the covered agency in which such employee is employed, such 

former employee was employed, or such applicant seeks employment. 

(b) INVESTIGATION OF COMPLAINTS.—An employee, former employee, or applicant for employment in a covered agency who believes that such employee, former employee, or applicant has been 

subjected to a reprisal prohibited by subsection (a) may submit a 

complaint to the Inspector General and the head of the covered 

agency. The Inspector General shall investigate the complaint and, 

unless the Inspector General determines that the complaint is frivolous, submit a report of the findings of the investigation within 120 

days to the employee, former employee, or applicant and to the head 

of the covered agency. 

(c) REMEDY.—

(1) Within 180 days of the filing of the complaint, the head 

of the covered agency shall, taking into consideration the report 

of the Inspector General under subsection (b) (if any), determine 

whether the employee, former employee, or applicant has been 

subjected to a reprisal prohibited by subsection (a), and shall 

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hmoore on PRODPC74 with REPORTS
21 

tive action to return the employee, former employee, or applicant, as nearly as possible, to the position he would have held 

had the reprisal not occurred, including voiding any directive 

or order denying, suspending, or revoking a security clearance 

or otherwise restricting access to classified or sensitive information that constituted a reprisal, as well as providing back pay 

and related benefits, medical costs incurred, travel expenses, 

any other reasonable and foreseeable consequential damages, 

and compensatory damages (including attorney’s fees, interest, 

reasonable expert witness fees, and costs). If the head of the covered agency issues an order denying relief, he shall issue a report to the employee, former employee, or applicant detailing 

the reasons for the denial. 

(2)(A) If the head of the covered agency, in the process of implementing corrective action under paragraph (1), voids a directive or order denying, suspending, or revoking a security clearance or otherwise restricting access to classified or sensitive information that constituted a reprisal, the head of the covered 

agency may re-initiate procedures to issue a directive or order 

denying, suspending, or revoking a security clearance or otherwise restricting access to classified or sensitive information only 

if those re-initiated procedures are based exclusively on national 

security concerns and are unrelated to the actions constituting 

the original reprisal. 

(B) In any case in which the head of a covered agency re-initiates procedures under subparagraph (A), the head of the covered agency shall issue an unclassified report to its Inspector 

General and to authorized Members of Congress (with a classified annex, if necessary), detailing the circumstances of the 

agency’s re-initiated procedures and describing the manner in 

which those procedures are based exclusively on national security concerns and are unrelated to the actions constituting the 

original reprisal. The head of the covered agency shall also provide periodic updates to the Inspector General and authorized 

Members of Congress detailing any significant actions taken as 

a result of those procedures, and shall respond promptly to inquiries from authorized Members of Congress regarding the status of those procedures. 

(3) If the head of the covered agency has not made a determination under paragraph (1) within 180 days of the filing of 

the complaint (or he has issued an order denying relief, in 

whole or in part, whether within that 180-day period or thereafter, then, within 90 days after such order is issued), the employee, former employee, or applicant for employment may bring 

an action at law or equity for de novo review to seek any corrective action described in paragraph (1) in the appropriate United 

States district court (as defined by section 1221(k)(2)), which 

shall have jurisdiction over such action without regard to the 

amount in controversy, and which action shall, at the request 

of either party to such action, be tried by the court with a jury. 

An appeal from a final decision of a district court in an action 

under this paragraph may, at the election of the appellant, be 

taken to the Court of Appeals for the Federal Circuit (which 

shall have jurisdiction of such appeal), in lieu of the United 


hmoore on PRODPC74 with REPORTS
22 

States court of appeals for the circuit embracing the district in 

which the action was brought. 

(4) An employee, former employee, or applicant adversely affected or aggrieved by an order issued under paragraph (1), or 

who seeks review of any corrective action determined under 

paragraph (1), may obtain judicial review of such order or determination in the United States Court of Appeals for the Federal Circuit or any United States court of appeals having jurisdiction over appeals from any United States district court 

which, under section 1221(k)(2), would be an appropriate 

United States district court. No petition seeking such review 

may be filed more than 60 days after issuance of the order or 

the determination to implement corrective action by the head of 

the agency. Review shall conform to chapter 7. 

(5)(A) If, in any action for damages or relief under paragraph 

(3) or (4), an Executive agency moves to withhold information 

from discovery based on a claim that disclosure would be inimical to national security by asserting the privilege commonly referred to as the ‘‘state secrets privilege’’, and if the assertion of 

such privilege prevents the employee, former employee, or applicant from establishing an element in support of the employee’s, 

former employee’s, or applicant’s claim, the court shall resolve 

the disputed issue of fact or law in favor of the employee, former 

employee, or applicant, provided that an Inspector General investigation under subsection (b) has resulted in substantial confirmation of that element, or those elements, of the employee’s, 

former employee’s, or applicant’s claim. 

(B) In any case in which an Executive agency asserts the 

privilege commonly referred to as the ‘‘state secrets privilege’’, whether or not an Inspector General has conducted an investigation under subsection (b), the head of that agency shall, at 

the same time it asserts the privilege, issue a report to authorized Members of Congress, accompanied by a classified annex 

if necessary, describing the reasons for the assertion, explaining 

why the court hearing the matter does not have the ability to 

maintain the protection of classified information related to the 

assertion, detailing the steps the agency has taken to arrive at 

a mutually agreeable settlement with the employee, former employee, or applicant for employment, setting forth the date on 

which the classified information at issue will be declassified, 

and providing all relevant information about the underlying 

substantive matter. 

(d) APPLICABILITY TO NON-COVERED AGENCIES.—An employee, 

former employee, or applicant for employment in an Executive agency (or element or unit thereof) that is not a covered agency shall, for 

purposes of any disclosure of covered information (as described in 

subsection (a)(2)) which consists in whole or in part of classified or 

sensitive information, be entitled to the same protections, rights, 

and remedies under this section as if that Executive agency (or element or unit thereof) were a covered agency. 

(e) CONSTRUCTION.—Nothing in this section may be construed— (1) to authorize the discharge of, demotion of, or discrimination against an employee, former employee, or applicant for employment for a disclosure other than a disclosure protected by 

subsection (a) or (d) of this section or to modify or derogate 


hmoore on PRODPC74 with REPORTS
23 

from a right or remedy otherwise available to an employee, 

former employee, or applicant for employment; or 

(2) to preempt, modify, limit, or derogate any rights or remedies available to an employee, former employee, or applicant 

for employment under any other provision of law, rule, or regulation (including the Lloyd-La Follette Act). 

No court or administrative agency may require the exhaustion of 

any right or remedy under this section as a condition for pursuing 

any other right or remedy otherwise available to an employee, 

former employee, or applicant under any other provision of law, 

rule, or regulation (as referred to in paragraph (2)). 

(f) DEFINITIONS.—For purposes of this section—

(1) the term ‘‘covered information’’, as used with respect to an 

employee, former employee, or applicant for employment, means 

any information (including classified or sensitive information) 

which the employee, former employee, or applicant reasonably 

believes evidences—

(A) any violation of any law, rule, or regulation; or 

(B) gross mismanagement, a gross waste of funds, an 

abuse of authority, or a substantial and specific danger to 

public health or safety; 

(2) the term ‘‘covered agency’’ means—

(A) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security 

Agency, and the National Reconnaissance Office; and 

(B) any other Executive agency, or element or unit thereof, determined by the President under section 

2302(a)(2)(C)(ii)(II) to have as its principal function the 

conduct of foreign intelligence or counterintelligence activities; 

(3) the term ‘‘authorized Member of Congress’’ means a member of the House Permanent Select Committee on Intelligence, 

the Senate Select Committee on Intelligence, the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and 

the committees of the House of Representatives or the Senate 

that have oversight over the program about which the covered 

information is disclosed; 

(4) the term ‘‘authorized official of an Executive agency’’ shall 

have such meaning as the Office of Personnel Management 

shall by regulation prescribe, except that such term shall, with 

respect to any employee, former employee, or applicant for employment in an agency, include—

(A) the immediate supervisor of the employee or former 

employee and each successive supervisor (immediately 

above such immediate supervisor) within the employee’s or 

former employee’s chain of authority (as determined under 

such regulations); and 

(B) the head, general counsel, and ombudsman of such 

agency; and 

(5) the term ‘‘authorized official of the Department of Justice’’

means any employee of the Department of Justice, the duties of 

whose position include the investigation, enforcement, or prosecution of any law, rule, or regulation. 


hmoore on PRODPC74 with REPORTS
24 

§ 2304. Prohibited personnel practices affecting the Transportation Security Administration 

(a) IN GENERAL.—Notwithstanding any other provision of law, 

any individual holding or applying for a position within the Transportation Security Administration shall be covered by—

(1) the provisions of section 2302(b)(1), (8), and (9); 

(2) any provision of law implementing section 2302(b)(1), (8), 

or (9) by providing any right or remedy available to an employee or applicant for employment in the civil service; and 

(3) any rule or regulation prescribed under any provision of 

law referred to in paragraph (1) or (2). 

(b) RULE OF CONSTRUCTION.—Nothing in this section shall be 

construed to affect any rights, apart from those described in subsection (a), to which an individual described in subsection (a) might 

otherwise be entitled under law. 

(c) EFFECTIVE DATE.—This section shall take effect as of the date 

of the enactment of this section. 

§ ø2304.¿ 2305. Responsibility of the Government Accountability Office 

If requested by either House of the Congress (or any committee 

thereof), or if considered necessary by the Comptroller General, the 

Government Accountability Office shall conduct audits and reviews 

to assure compliance with the laws, rules, and regulations governing employment in the executive branch and in the competitive 

service and to assess the effectiveness and soundness of Federal 

personnel management. 

§ ø2305.¿ 2306. Coordination with certain other provisions 

of law 

No provision of this chapter, or action taken under this chapter, 

shall be construed to impair the authorities and responsibilities set 

forth in section 102 of the National Security Act of 1947 (61 Stat. 

495; 50 U.S.C. 403), the Central Intelligence Agency Act of 1949 

(63 Stat. 208; 50 U.S.C. 403a and following), the Act entitled ‘‘An 

Act to provide certain administrative authorities for the National 

Security Agency, and for other purposes’’, approved May 29, 1959 

(73 Stat. 63; 50 U.S.C. 402 note), and the Act entitled ‘‘An Act to 

amend the Internal Security Act of 1950’’, approved March 26, 1964 

(78 Stat. 168; 50 U.S.C. 831-835). 

* * * * * * * 

Subpart F—Labor-Management and Employee 

Relations 

* * * * * * * 

CHAPTER 77—APPEALS 

* * * * * * * 


hmoore on PRODPC74 with REPORTS
25 

§ 7703. Judicial review of decisions of the Merit Systems 

Protection Board 

(a) * * * 

* * * * * * * 

(b)(1) Except as provided in paragraph (2) of this subsection, a 

petition to review a final order or final decision of the Board shall 

be filed in øthe United States Court of Appeals for the Federal Circuit¿ the appropriate United States court of appeals. Notwithstanding any other provision of law, any petition for review must 

be filed within 60 days after the date the petitioner received notice 

of the final order or decision of the Board. 

* * * * * * * 

(3) For purposes of the first sentence of paragraph (1), the term 

‘‘appropriate United States court of appeals’’ means the United 

States Court of Appeals for the Federal Circuit, except that in the 

case of a prohibited personnel practice described in section 

2302(b)(8) (other than a case that, disregarding this paragraph, 

would otherwise be subject to paragraph (2)), such term means the 

United States Court of Appeals for the Federal Circuit and any 

United States court of appeals having jurisdiction over appeals from 

any United States district court which, under section 1221(k)(2), 

would be an appropriate United States district court for purposes 

of such prohibited personnel practice. 

(c) In any case filed in the United States Court of Appeals for the 

Federal Circuit, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found 

to be—

(1) arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; 

(2) obtained without procedures required by law, rule, or regulation having been followed; or 

(3) unsupported by substantial evidence; 

except that in the case of discrimination brought under any section 

referred to in subsection (b)(2) of this section, the employee or applicant shall have the right to have the facts subject to trial de 

novo by the reviewing øcourt.¿ court, and in the case of a prohibited personnel practice described in section 2302(b)(8) brought under 

any provision of law, rule, or regulation described in section 

1221(k)(3), the employee or applicant shall have the right to de novo 

review in accordance with section 1221(k). 

* * * * * * * 

FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES 

ACT OF 1949 

* * * * * * * 

TITLE III—PROCUREMENT PROCEDURE 

* * * * * * * 


hmoore on PRODPC74 with REPORTS
26 

SEC. 315. CONTRACTOR EMPLOYEES: PROTECTION FROM REPRISAL 

FOR DISCLOSURE OF CERTAIN INFORMATION. 

(a) * * * 

* * * * * * * 

(c) REMEDY AND ENFORCEMENT AUTHORITY.—(1) øIf the head of 

an executive agency determines that a contractor has subjected a 

person to a reprisal prohibited by subsection (a), the head of the 

executive agency may take one or more of the following actions:¿ 

Not later than 180 days after submission of a complaint under subsection (b), the head of the executive agency concerned shall determine whether the contractor 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) * * * 

* * * * * * * 

(3) If the head of an executive agency has not issued an order 

within 180 days after the submission of a complaint under subsection (b) 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 his administrative remedies with respect to the complaint, and the complainant may bring an action at law or equity 

for de novo review 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, and which action 

shall, at the request of either party to such action, be tried by the 

court with a jury. 

ø(3)¿ (4) 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, United States Code. 

* * * * * * * 

TITLE 10, UNITED STATES CODE 

* * * * * * * 

Subtitle A—General Military Law 

* * * * * * * 

PART IV—SERVICE, SUPPLY, AND 

PROCUREMENT 

* * * * * * * 


hmoore on PRODPC74 with REPORTS
27 

CHAPTER 141—MISCELLANEOUS PROCUREMENT 

PROVISIONS 

* * * * * * * 

§ 2409. Contractor employees: protection from reprisal for 

disclosure of certain information 

(a) * * * 

* * * * * * * 

(c) REMEDY AND ENFORCEMENT AUTHORITY.—(1) øIf 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:¿ Not later than 180 days 

after submission of a complaint under subsection (b), the head of the 

agency concerned shall determine whether the contractor 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) * * * 

* * * * * * * 

(3) If the head of an agency has not issued an order within 180 

days after the submission of a complaint under subsection (b) 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 

his administrative remedies with respect to the complaint, and the 

complainant may bring an action at law or equity for de novo review 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, and which action shall, at the request 

of either party to such action, be tried by the court with a jury. 

ø(3)¿ (4) 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. 

* * * * * * * 

Æ 


hmoore on PRODPC74 with REPORTS