PUBLIC LAW 112–199—NOV. 27, 2012 126 STAT. 1465 

Public Law 112–199 

112th Congress 

An Act 

To amend chapter 23 of title 5, United States Code, to clarify the disclosures 

of information protected from prohibited personnel practices, require a statement 

in non-disclosure policies, forms, and agreements that such policies, forms, and 

agreements conform with certain disclosure protections, provide certain authority 

for the Special Counsel, and for other purposes. 

Be it enacted by the Senate and House of Representatives of 

the United States of America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Whistleblower Protection 

Enhancement Act of 2012’’. 

TITLE I—PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL EMPLOYEES 

SEC. 101. CLARIFICATION OF DISCLOSURES COVERED. 

(a) IN GENERAL.—Section 2302(b)(8) of title 5, United States 

Code, is amended— 

(1) in subparagraph (A)(i), by striking ‘‘a violation’’ and 

inserting ‘‘any violation’’; and 

(2) in subparagraph (B)(i), by striking ‘‘a violation’’ and 

inserting ‘‘any violation (other than a violation of this section)’’. 

(b) PROHIBITED PERSONNEL PRACTICES UNDER SECTION

2302(b)(9).— 

(1) TECHNICAL AND CONFORMING AMENDMENTS.—Title 5, 

United States Code, is amended— 

(A) in subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of 

section 1214 and in subsections (a), (e)(1), and (i) of section 

1221, by inserting ‘‘or section 2302(b)(9) (A)(i), (B), (C), 

or (D)’’ after ‘‘section 2302(b)(8)’’ each place it appears; 

and 

(B) in section 2302(a)(2)(C)(i), by inserting ‘‘or section 

2302(b)(9) (A)(i), (B), (C), or (D)’’ after ‘‘(b)(8)’’. 

(2) OTHER REFERENCES.—(A) Title 5, United States Code, 

is amended in subsection (b)(4)(B)(i) of section 1214 and in 

subsection (e)(1) of section 1221 by inserting ‘‘or protected 

activity’’ after ‘‘disclosure’’ each place it appears. 

(B) Section 2302(b)(9) of title 5, United States Code, is 

amended— 

(i) by striking subparagraph (A) and inserting the following: 

Whistleblower 

Protection 

Enhancement 

Act of 2012. 

5 USC 101 note. 

Nov. 27, 2012 

[S. 743] 


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126 STAT. 1466 PUBLIC LAW 112–199—NOV. 27, 2012 

‘‘(A) the exercise of any appeal, complaint, or grievance 

right granted by any law, rule, or regulation— 

‘‘(i) with regard to remedying a violation of paragraph (8); or 

‘‘(ii) other than with regard to remedying a violation of paragraph (8);’’; and 

(ii) in subparagraph (B), by inserting ‘‘(i) or (ii)’’ after 

‘‘subparagraph (A)’’. 

(C) Section 2302 of title 5, United States Code, is amended 

by adding at the end the following: 

‘‘(f)(1) A disclosure shall not be excluded from subsection (b)(8) 

because— 

‘‘(A) the disclosure was made to a supervisor or to a person 

who participated in an activity that the employee or applicant 

reasonably believed to be covered by subsection (b)(8)(A)(i) and 

(ii); 

‘‘(B) the disclosure revealed information that had been previously disclosed; 

‘‘(C) of the employee’s or applicant’s motive for making 

the disclosure; 

‘‘(D) the disclosure was not made in writing; 

‘‘(E) the disclosure was made while the employee was off 

duty; or 

‘‘(F) of the amount of time which has passed since the 

occurrence of the events described in the disclosure. 

‘‘(2) If a disclosure is made during the normal course of duties 

of an employee, the disclosure shall not be excluded from subsection 

(b)(8) if any employee who has authority to take, direct others 

to take, recommend, or approve any personnel action with respect 

to the employee making the disclosure, took, failed to take, or 

threatened to take or fail to take a personnel action with respect 

to that employee in reprisal for the disclosure.’’. 

SEC. 102. DEFINITIONAL AMENDMENTS. 

Section 2302(a)(2) of title 5, United States Code, is amended— 

(1) in subparagraph (B)(ii), by striking ‘‘and’’ at the end; 

(2) in subparagraph (C)(iii), by striking the period at the 

end and inserting ‘‘; and’’; and 

(3) by adding at the end the following: 

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

or transmission, 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.’’. 

SEC. 103. REBUTTABLE PRESUMPTION. 

Section 2302(b) of title 5, United States Code, is amended 

by amending the matter following paragraph (12) to read as follows: 

‘‘This subsection shall not be construed to authorize the withholding 

of information from Congress or the taking of any personnel action 

against an employee who discloses information to Congress. For 

purposes of paragraph (8), (i) any presumption relating to the 

performance of a duty by an employee whose conduct is the subject 

of a disclosure as defined under subsection (a)(2)(D) may be rebutted 

Determination. 


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PUBLIC LAW 112–199—NOV. 27, 2012 126 STAT. 1467 

by substantial evidence, and (ii) 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 and readily ascertainable by the employee or applicant could 

reasonably conclude that the actions of the Government evidence 

such violations, mismanagement, waste, abuse, or danger.’’. 

SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL PRACTICES. 

(a) PERSONNEL ACTION.—Section 2302(a)(2)(A) of title 5, United 

States Code, is amended— 

(1) in clause (x), by striking ‘‘and’’ after the semicolon; 

and 

(2) by redesignating clause (xi) as clause (xii) and inserting 

after clause (x) the following: 

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

(b) PROHIBITED PERSONNEL PRACTICE.— 

(1) IN GENERAL.—Section 2302(b) of title 5, United States 

Code, is amended— 

(A) in paragraph (11), by striking ‘‘or’’ at the end; 

(B) in paragraph (12), by striking the period and 

inserting ‘‘; or’’; and 

(C) by inserting after paragraph (12) the following: 

‘‘(13) 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 

existing statute or Executive order relating to (1) classified 

information, (2) communications to Congress, (3) the reporting 

to an Inspector General of a violation of any law, rule, or 

regulation, or mismanagement, a gross waste of funds, an abuse 

of authority, or a substantial and specific danger to public 

health or safety, or (4) any other whistleblower protection. 

The definitions, requirements, obligations, rights, sanctions, 

and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are 

controlling.’.’’. 

(2) AGENCY WEBSITES.—Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under section 2302(b)(13) of title 5, United States 

Code (as added by this Act) on the agency website, accompanied 

by the specific list of controlling Executive orders and statutory 

provisions. 

(3) NONDISCLOSURE POLICY, FORM, OR AGREEMENT IN

EFFECT BEFORE THE EFFECTIVE DATE.—With respect to a nondisclosure policy, form, or agreement that was in effect before 

the effective date of this Act, but that does not contain the 

statement required under section 2302(b)(13) of title 5, United 

States Code (as added by this Act) for implementation or 

enforcement— 

5 USC 2302 note. 

5 USC 2302 note. 


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126 STAT. 1468 PUBLIC LAW 112–199—NOV. 27, 2012 

(A) it shall not be a prohibited personnel practice to 

enforce that policy, form, or agreement with regard to 

a current employee if the agency gives such employee notice 

of the statement; and 

(B) it shall not be a prohibited personnel practice to 

enforce that policy, form, or agreement after the effective 

date of this Act with regard to a former employee if the 

agency complies with paragraph (2) of this subsection. 

(c) RETALIATORY INVESTIGATIONS.— (1) AGENCY INVESTIGATION.—Section 1214 of title 5, United 

States Code, is amended by adding at the end the following: 

‘‘(h) Any corrective action ordered under this section to correct 

a prohibited personnel practice may include fees, costs, or damages 

reasonably incurred due to an agency investigation of the employee, 

if such investigation was commenced, expanded, or extended in 

retaliation for the disclosure or protected activity that formed the 

basis of the corrective action.’’. 

(2) DAMAGES.—Section 1221(g) of title 5, United States 

Code, is amended by adding at the end the following: 

‘‘(4) Any corrective action ordered under this section to correct 

a prohibited personnel practice may include fees, costs, or damages 

reasonably incurred due to an agency investigation of the employee, 

if such investigation was commenced, expanded, or extended in 

retaliation for the disclosure or protected activity that formed the 

basis of the corrective action.’’. 

SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT. 

Section 2302(a)(2)(C) of title 5, United States Code, is amended 

by striking clause (ii) and inserting the following: 

‘‘(ii)(I) the Federal Bureau of Investigation, the 

Central Intelligence Agency, the Defense Intelligence 

Agency, the National Geospatial-Intelligence Agency, 

the National Security Agency, the Office of the Director 

of National Intelligence, and the National Reconnaissance Office; and 

‘‘(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, provided that the determination be 

made prior to a personnel action; or’’. 

SEC. 106. DISCIPLINARY ACTION. 

Section 1215(a)(3) of title 5, United States Code, is amended 

to read as follows: 

‘‘(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 brought under paragraph (1) in which the 

Board finds that an employee has committed a prohibited personnel 

practice under section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or 

(D), the Board may impose disciplinary action if the Board finds 

that the activity protected under section 2302(b)(8), or 2302(b)(9) 

Time period. 

Determination. 


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PUBLIC LAW 112–199—NOV. 27, 2012 126 STAT. 1469 

(A)(i), (B), (C), or (D) was a significant motivating factor, even 

if other factors also motivated the decision, for the employee’s 

decision to take, fail to take, or threaten to take or fail to take 

a personnel action, 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.’’. 

SEC. 107. REMEDIES. 

(a) ATTORNEY FEES.—Section 1204(m)(1) of title 5, United 

States Code, is amended by striking ‘‘agency involved’’ and inserting 

‘‘agency where the prevailing party was employed or had applied 

for employment at the time of the events giving rise to the case’’. 

(b) DAMAGES.—Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 

5, United States Code, are amended by striking all after ‘‘travel 

expenses,’’ and inserting ‘‘any other reasonable and foreseeable 

consequential damages, and compensatory damages (including 

interest, reasonable expert witness fees, and costs).’’ each place 

it appears. 

SEC. 108. JUDICIAL REVIEW. 

(a) IN GENERAL.—Section 7703(b) of title 5, United States Code, 

is amended by striking the matter preceding paragraph (2) and 

inserting the following: 

‘‘(b)(1)(A) Except as provided in subparagraph (B) and paragraph (2) of this subsection, a petition to review a final order 

or final decision of the Board shall be filed in the United States 

Court of Appeals for the Federal Circuit. Notwithstanding any 

other provision of law, any petition for review shall be filed within 

60 days after the Board issues notice of the final order or decision 

of the Board. 

‘‘(B) During the 2-year period beginning on the effective date 

of the Whistleblower Protection Enhancement Act of 2012, a petition 

to review a final order or final decision of the Board that raises 

no challenge to the Board’s disposition of allegations of a prohibited 

personnel practice described in section 2302(b) other than practices 

described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or 

(D) shall be filed in the United States Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. 

Notwithstanding any other provision of law, any petition for review 

shall be filed within 60 days after the Board issues notice of the 

final order or decision of the Board.’’. 

(b) REVIEW OBTAINED BY OFFICE OF PERSONNEL MANAGE- MENT.—Section 7703(d) of title 5, United States Code, is amended 

to read as follows: 

‘‘(d)(1) Except as provided under paragraph (2), this paragraph 

shall apply to any review obtained by the Director of the Office 

of Personnel Management. The Director may obtain review of any 

final order or decision of the Board by filing, within 60 days after 

the Board issues notice of the final order or decision of the Board, 

a petition for judicial review in the United States Court of Appeals 

for the Federal Circuit if the Director determines, in the discretion 

of the Director, that the Board erred in interpreting a civil service 

law, rule, or regulation affecting personnel management and that 

the Board’s decision will have a substantial impact on a civil service 

law, rule, regulation, or policy directive. If the Director did not 

intervene in a matter before the Board, the Director may not 

petition for review of a Board decision under this section unless 

Applicability. 

Deadlines. 

Notices. 

Determinations. 

Time period. 

Deadlines. 

Notices. 


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126 STAT. 1470 PUBLIC LAW 112–199—NOV. 27, 2012 

the Director first petitions the Board for a reconsideration of its 

decision, and such petition is denied. In addition to the named 

respondent, the Board and all other parties to the proceedings 

before the Board shall have the right to appear in the proceeding 

before the Court of Appeals. The granting of the petition for judicial 

review shall be at the discretion of the Court of Appeals. 

‘‘(2) During the 2-year period beginning on the effective date 

of the Whistleblower Protection Enhancement Act of 2012, this 

paragraph shall apply to any review obtained by the Director of 

the Office of Personnel Management that raises no challenge to 

the Board’s disposition of allegations of a prohibited personnel 

practice described in section 2302(b) other than practices described 

in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). The 

Director may obtain review of any final order or decision of the 

Board by filing, within 60 days after the Board issues notice of 

the final order or decision of the Board, a petition for judicial 

review in the United States Court of Appeals for the Federal Circuit 

or any court of appeals of competent jurisdiction if the Director 

determines, in the discretion of the Director, that the Board erred 

in interpreting a civil service law, rule, or regulation affecting 

personnel management and that the Board’s decision will have 

a substantial impact on a civil service law, rule, regulation, or 

policy directive. If the Director did not intervene in a matter before 

the Board, the Director may not petition for review of a Board 

decision under this section unless the Director first petitions the 

Board for a reconsideration of its decision, and such petition is 

denied. In addition to the named respondent, the Board and all 

other parties to the proceedings before the Board shall have the 

right to appear in the proceeding before the court of appeals. The 

granting of the petition for judicial review shall be at the discretion 

of the court of appeals.’’. 

SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE 

TRANSPORTATION SECURITY ADMINISTRATION. 

(a) IN GENERAL.—Chapter 23 of title 5, United States Code, 

is amended— 

(1) by redesignating sections 2304 and 2305 as sections 

2305 and 2306, respectively; and 

(2) by inserting after section 2303 the following: 

‘‘§ 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.’’. 

Time period. 


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PUBLIC LAW 112–199—NOV. 27, 2012 126 STAT. 1471 

(b) TECHNICAL AND CONFORMING AMENDMENT.—The table of 

sections for chapter 23 of title 5, United States Code, is amended 

by striking the items relating to sections 2304 and 2305, respectively, and inserting the following: 

‘‘2304. Prohibited personnel practices affecting the Transportation Security Administration. 

‘‘2305. Responsibility of the Government Accountability Office. 

‘‘2306. Coordination with certain other provisions of law.’’. 

(c) EFFECTIVE DATE.—The amendments made by this section 

shall take effect on the date of enactment of this section. 

SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, 

ANALYSIS, OR TECHNICAL INFORMATION. 

(a) DEFINITIONS.—In this subsection— 

(1) the term ‘‘agency’’ has the meaning given under section 

2302(a)(2)(C) of title 5, United States Code; 

(2) the term ‘‘applicant’’ means an applicant for a covered 

position; 

(3) the term ‘‘censorship related to research, analysis, or 

technical information’’ means any effort to distort, misrepresent, or suppress research, analysis, or technical information; 

(4) the term ‘‘covered position’’ has the meaning given 

under section 2302(a)(2)(B) of title 5, United States Code; 

(5) the term ‘‘employee’’ means an employee in a covered 

position in an agency; and 

(6) the term ‘‘disclosure’’ has the meaning given under 

section 2302(a)(2)(D) of title 5, United States Code. 

(b) PROTECTED DISCLOSURE.— 

(1) IN GENERAL.—Any disclosure of information by an 

employee or applicant for employment that the employee or 

applicant reasonably believes is evidence of censorship related 

to research, analysis, or technical information— 

(A) shall come within the protections of section 

2302(b)(8)(A) of title 5, United States Code, if— 

(i) the employee or applicant reasonably believes 

that the censorship related to research, analysis, or 

technical information is or will cause— 

(I) any violation of 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; and 

(ii) such disclosure is not specifically prohibited 

by law or such information is not specifically required 

by Executive order to be kept classified in the interest 

of national defense or the conduct of foreign affairs; 

and 

(B) shall come within the protections of section 

2302(b)(8)(B) of title 5, United States Code, if— 

(i) the employee or applicant reasonably believes 

that the censorship related to research, analysis, or 

technical information is or will cause— 

(I) any violation of 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; and 

5 USC 2302 note. 

5 USC 2304 note. 


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126 STAT. 1472 PUBLIC LAW 112–199—NOV. 27, 2012 

(ii) the disclosure is made to the Special Counsel, 

or to the Inspector General of an agency or another 

person designated by the head of the agency to receive 

such disclosures, consistent with the protection of 

sources and methods. 

(2) DISCLOSURES NOT EXCLUDED.—A disclosure shall not 

be excluded from paragraph (1) for any reason described under 

section 2302(f)(1) or (2) of title 5, United States Code. 

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

be construed to imply any limitation on the protections of 

employees and applicants afforded by any other provision of 

law, including protections with respect to any disclosure of 

information believed to be evidence of censorship related to 

research, analysis, or technical information. 

SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL 

INFRASTRUCTURE INFORMATION. 

Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C. 

133(c)) is amended by adding at the end the following: ‘‘For purposes 

of this section a permissible use of independently obtained information includes the disclosure of such information under section 

2302(b)(8) of title 5, United States Code.’’. 

SEC. 112. ADVISING EMPLOYEES OF RIGHTS. 

Section 2302(c) of title 5, United States Code, is amended 

by inserting ‘‘, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be 

kept classified in the interest of national defense or the conduct 

of foreign affairs to the Special Counsel, the Inspector General 

of an agency, Congress, or other agency employee designated to 

receive such disclosures’’ after ‘‘chapter 12 of this title’’. 

SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE. 

Section 1212 of title 5, United States Code, is amended by 

adding at the end the following: 

‘‘(h)(1) The Special Counsel is authorized to appear as amicus 

curiae in any action brought in a court of the United States related 

to section 2302(b) (8) or (9), or as otherwise authorized by law. 

In any such action, the Special Counsel is authorized to present 

the views of the Special Counsel with respect to compliance with 

section 2302(b) (8) or (9) and the impact court decisions would 

have on the enforcement of such provisions of law. 

‘‘(2) A court of the United States shall grant the application 

of the Special Counsel to appear in any such action for the purposes 

described under subsection (a).’’. 

SEC. 114. SCOPE OF DUE PROCESS. 

(a) SPECIAL COUNSEL.—Section 1214(b)(4)(B)(ii) of title 5, 

United States Code, is amended by inserting ‘‘, after a finding 

that a protected disclosure was a contributing factor,’’ after ‘‘ordered 

if’’. 

(b) INDIVIDUAL ACTION.—Section 1221(e)(2) of title 5, United 

States Code, is amended by inserting ‘‘, after a finding that a 

protected disclosure was a contributing factor,’’ after ‘‘ordered if’’. 

SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS. 

(a) IN GENERAL.— 

5 USC 2302 note. 


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PUBLIC LAW 112–199—NOV. 27, 2012 126 STAT. 1473 

(1) REQUIREMENT.—Each agreement in Standard Forms 

312 and 4414 of the Government and any other nondisclosure 

policy, form, or agreement of the Government shall 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 existing 

statute or Executive order relating to (1) classified information, 

(2) communications to Congress, (3) the reporting to an 

Inspector General of a violation of any law, rule, or regulation, 

or mismanagement, a gross waste of funds, an abuse of 

authority, or a substantial and specific danger to public health 

or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities 

created by controlling Executive orders and statutory provisions 

are incorporated into this agreement and are controlling.’’. 

(2) AGENCY WEBSITES.—Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under paragraph (1) on the agency website, 

accompanied by the specific list of controlling Executive orders 

and statutory provisions. 

(3) ENFORCEABILITY.— 

(A) IN GENERAL.—Any nondisclosure policy, form, or 

agreement described under paragraph (1) that does not 

contain the statement required under paragraph (1) may 

not be implemented or enforced to the extent such policy, 

form, or agreement is inconsistent with that statement. 

(B) NONDISCLOSURE POLICY, FORM, OR AGREEMENT IN

EFFECT BEFORE THE EFFECTIVE DATE.—With respect to a 

nondisclosure policy, form, or agreement that was in effect 

before the effective date of this Act, but that does not 

contain the statement required under paragraph (1) for 

implementation or enforcement— 

(i) it shall not be a prohibited personnel practice 

to enforce that policy, form, or agreement with regard 

to a current employee if the agency gives such employee 

notice of the statement; and 

(ii) it shall not be a prohibited personnel practice 

to enforce that policy, form, or agreement after the 

effective date of this Act with regard to a former 

employee if the agency complies with paragraph (2). 

(b) PERSONS OTHER THAN GOVERNMENT EMPLOYEES.—Notwithstanding subsection (a), a nondisclosure policy, form, or agreement 

that is to be executed by a person connected with the conduct 

of an intelligence or intelligence-related activity, other than an 

employee or officer of the United States Government, may contain 

provisions appropriate to the particular activity for which such 

document is to be used. Such policy, form, or agreement shall, 

at a minimum, require that the person will not disclose any classified information received in the course of such activity unless 

specifically authorized to do so by the United States Government. 

Such nondisclosure policy, form, or agreement shall also make 

it clear that such forms do not bar disclosures to Congress or 

to an authorized official of an executive agency or the Department 

of Justice that are essential to reporting a substantial violation 

of law, consistent with the protection of sources and methods. 


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126 STAT. 1474 PUBLIC LAW 112–199—NOV. 27, 2012 

SEC. 116. REPORTING REQUIREMENTS. 

(a) GOVERNMENT ACCOUNTABILITY OFFICE.— 

(1) REPORT.—Not later than 4 years after the date of enactment of this Act, the Comptroller General shall submit a report 

to the Committee on Homeland Security and Governmental 

Affairs of the Senate and the Committee on Oversight and 

Government Reform of the House of Representatives on the 

implementation of this title. 

(2) CONTENTS.—The report under this subsection shall 

include— 

(A) an analysis of any changes in the number of cases 

filed with the Merit Systems Protection Board alleging 

violations of section 2302(b)(8) or (9) of title 5, United 

States Code, since the effective date of this Act; 

(B) the outcome of the cases described under subparagraph (A), including whether or not the Merit Systems 

Protection Board, the United States Court of Appeals for 

the Federal Circuit, or any other court determined the 

allegations to be frivolous or malicious as well as a recommendation whether Congress should grant the Merit 

Systems Protection Board summary judgment authority 

for cases described under subparagraph (A); 

(C) a recommendation regarding whether Congress 

should grant jurisdiction for some subset of cases described 

under subparagraph (A) to be decided by a district court 

of the United States and an evaluation of the impact that 

would have on the Merit Systems Protection Board and 

the Federal court system; and 

(D) any other matter as determined by the Comptroller 

General. 

(b) MERIT SYSTEMS PROTECTION BOARD.— 

(1) IN GENERAL.—Each report submitted annually by the 

Merit Systems Protection Board under section 1116 of title 

31, United States Code, shall, with respect to the period covered 

by such report, include as an addendum the following: 

(A) Information relating to the outcome of cases decided 

by the Merit Systems Protection Board during the period 

covered by such report in which violations of section 

2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) of title 5, United 

States Code, were alleged. 

(B) The number of such cases filed in the regional 

and field offices, and the number of petitions for review 

filed in such cases, during the period covered by such 

report, and the outcomes of any such cases or petitions 

for review (irrespective of when filed) decided during such 

period. 

(2) FIRST REPORT.—The first report described under paragraph (1) submitted after the date of enactment of this Act 

shall include an addendum required under that paragraph that 

covers the period beginning on the effective date of this Act 

and ending at the end of the fiscal year in which such effective 

date occurs. 

SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN. 

(a) IN GENERAL.—Section 3 of the Inspector General Act of 

1978 (5 U.S.C. App.) is amended by striking subsection (d) and 

inserting the following: 

Time period. 

31 USC 1116 

note. 


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PUBLIC LAW 112–199—NOV. 27, 2012 126 STAT. 1475 

‘‘(d)(1) Each Inspector General shall, in accordance with 

applicable laws and regulations governing the civil service— 

‘‘(A) appoint an Assistant Inspector General for Auditing 

who shall have the responsibility for supervising the performance of auditing activities relating to programs and operations 

of the establishment; 

‘‘(B) appoint an Assistant Inspector General for Investigations who shall have the responsibility for supervising the 

performance of investigative activities relating to such programs and operations; and 

‘‘(C) designate a Whistleblower Protection Ombudsman who 

shall educate agency employees— 

‘‘(i) about prohibitions on retaliation for protected 

disclosures; and 

‘‘(ii) who have made or are contemplating making a 

protected disclosure about the rights and remedies against 

retaliation for protected disclosures. 

‘‘(2) The Whistleblower Protection Ombudsman shall not act 

as a legal representative, agent, or advocate of the employee or 

former employee. 

‘‘(3) For the purposes of this section, the requirement of the 

designation of a Whistleblower Protection Ombudsman under paragraph (1)(C) shall not apply to— 

‘‘(A) any agency that is an element of the intelligence 

community (as defined in section 3(4) of the National Security 

Act of 1947 (50 U.S.C. 401a(4))); or 

‘‘(B) as determined by the President, any executive agency 

or unit thereof the principal function of which is the conduct 

of foreign intelligence or counter intelligence activities.’’. 

(b) TECHNICAL AND CONFORMING AMENDMENT.—Section 8D(j) 

of the Inspector General Act of 1978 (5 U.S.C. App.) is amended— 

(1) by striking ‘‘section 3(d)(1)’’ and inserting ‘‘section 

3(d)(1)(A)’’; and 

(2) by striking ‘‘section 3(d)(2)’’ and inserting ‘‘section 

3(d)(1)(B)’’. 

(c) SUNSET.— 

(1) IN GENERAL.—The amendments made by this section 

shall cease to have effect on the date that is 5 years after 

the date of enactment of this Act. 

(2) RETURN TO PRIOR AUTHORITY.—Upon the date described 

in paragraph (1), section 3(d) and section 8D(j) of the Inspector 

General Act of 1978 (5 U.S.C. App.) shall read as such sections 

read on the day before the date of enactment of this Act. 

TITLE II—SAVINGS CLAUSE; EFFECTIVE 

DATE 

SEC. 201. SAVINGS CLAUSE. 

Nothing in this Act shall be construed to imply any limitation 

on any protections afforded by any other provision of law to 

employees and applicants. 

5 USC 2302 note. 

5 USC app. 3 

note. 

Determination. 

President. 

Designation. 

Appointments. 


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126 STAT. 1476 PUBLIC LAW 112–199—NOV. 27, 2012 

LEGISLATIVE HISTORY—S. 743 (H.R. 3289): 

HOUSE REPORTS: No. 112–508, Pt. 1 (Comm. on Oversight and Government Reform) accompanying H.R. 3289. 

SENATE REPORTS: No. 112–155 (Comm. on Homeland Security and Governmental 

Affairs). 

CONGRESSIONAL RECORD, Vol. 158 (2012): 

May 8, considered and passed Senate. 

Sept. 28, considered and passed House, amended. 

Nov. 13, Senate concurred in House amendment. 

Æ 

SEC. 202. EFFECTIVE DATE. 

Except as otherwise provided in section 109, this Act shall 

take effect 30 days after the date of enactment of this Act. 

Approved November 27, 2012. 

5 USC 1204 note. 


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