U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

89–010 

" ! SENATE 

111TH CONGRESS

1st Session 

REPORT

2009

111–101 

Calendar No. 219 

WHISTLEBLOWER PROTECTION 

ENHANCEMENT ACT OF 2009 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 372 

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 NONDISCLOSURE 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 

DECEMBER 3, 2009.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

PAUL G. KIRK, JR., Massachusetts 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

ROBERT F. BENNETT, Utah 

MICHAEL L. ALEXANDER, Staff Director 

KEVIN J. LANDY, Chief Counsel 

LAWRENCE B. NOVEY, Senior Counsel 

LISA M. POWELL, Staff Director, Subcommittee on Oversight of Government Management, the 

Federal Workforce, and the District of Columbia 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

AMANDA WOOD, Minority Director for Governmental Affairs 

JENNIFER A. HEMINGWAY, Minority Staff Director, Subcommittee on Oversight of Government 

Management, the Federal Workforce, and the District of Columbia 

TRINA DRIESSNACK TYRER, Chief Clerk 


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Calendar No. 219 

111TH CONGRESS SENATE REPORT " ! 1st Session 111–101 

WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 

2009 

DECEMBER 3, 2009.—Ordered to be printed 

Mr. LIEBERMAN, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany S. 372] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 372) 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 

nondisclosure 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, having considered the same, reports favorably thereon 

with an amendment and recommends that the bill do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background .................................................................................................... 2 

III. Legislative History ......................................................................................... 38 

IV. Section-by-Section Analysis .......................................................................... 39 

V. Estimated Cost of Legislation ....................................................................... 48 

VI. Evaluation of Regulatory Impact .................................................................. 51 

VII. Changes in Existing Law .............................................................................. 51 

I. PURPOSE AND SUMMARY

The Whistleblower Protection Enhancement Act (WPA) is designed to strengthen the rights of and protections for federal whistleblowers and to help root out waste, fraud, and abuse in federal 

programs. Whistleblowers have long played a critical role in keeping our government honest and efficient, and the events of September 11, 2001 made even clearer the fact that our citizens’ safety 

depends upon our ensuring that those with knowledge of problems 


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1Whistleblower Protection Act of 1989, Public Law No. 101–12, 103 Stat. 16 (1989); Intelligence Community Whistleblower Protection Act of 1998, enacted as title VII of the Intelligence 

Authorization Act for FY 1999, Public Law No. 105–272, 112 Stat. 2396 (1998). 

at our nation’s airports, borders, law enforcement agencies, and nuclear facilities are able to reveal those problems without fear of retaliation or harassment. Unfortunately, federal employees seeking 

to blow the whistle on wrongdoing have seen their protections diminish in recent years, largely as a result of a series of decisions 

of the U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over many WPA cases. The Federal Circuit has 

narrowly defined who qualifies as a whistleblower and what types 

of disclosures qualify those whistleblowers for protection. Just as 

problematically, the lack of remedies for most whistleblowers in the 

intelligence community leaves unprotected those who disclose 

wrongdoing that could undermine our national security. 

S. 372 would address these problems by restoring the original 

congressional intent of the WPA and strengthening it and the Intelligence Community Whistleblower Protection Act (ICWPA).1 It 

would, among other things: clarify the broad meaning of ‘‘any’’ disclosure of waste, fraud, and abuse that, under the WPA, a covered 

employee may make with impunity; expand the availability of a 

protected channel to make disclosures of classified information to 

appropriate committees of Congress; codify an anti-gag provision to 

allow employees to come forward with disclosures of illegality; 

allow certain whistleblowers to bring their cases in federal district 

court (this provision being subject to a five-year sunset); allow 

whistleblowers to appeal decisions on their cases to any federal 

court of appeals (this provision also being subject to a five-year 

sunset); provide whistleblowers protected under the ICWPA with a 

forum to challenge retaliation, with the right to appeal decisions to 

a federal court of appeals; and provide whistleblowers under both 

the ICWPA and the WPA with a forum for challenging retaliatory 

security clearance determinations. 

II. BACKGROUND

The Civil Service Reform Act of 1978 (CSRA) established statutory protections for federal employees to encourage disclosure of 

government illegality, waste, fraud, and abuse. As explained in the 

accompanying Senate Report: 

Often, the whistleblower’s reward for dedication to the 

highest moral principles is harassment and abuse. Whistleblowers frequently encounter severe damage to their careers and substantial economic loss. Protecting employees 

who disclose government illegality, waste, and corruption 

is a major step toward a more effective civil service. In the 

vast federal bureaucracy it is not difficult to conceal 

wrongdoing provided that no one summons the courage to 

disclose the truth. Whenever misdeeds take place in a federal agency, there are employees who know that it has occurred, and who are outraged by it. What is needed is a 

means to assure them that they will not suffer if they help 

uncover and correct administrative abuses. What is needed 

is a means to protect the Pentagon employee who discloses 

billions of dollars in cost overruns, the GSA employee who 


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2S. Rep. No. 95–969, at 8 (1978). 

3See Merit Systems Protection Board, Blowing the Whistle in the Federal Government: A Comparative Analysis of 1980 and 1983 Survey Findings (October 1984). 4S. Rep. No. 100–413, at 6–16 (1988). 

5 Id. at 9, 23. 

discloses widespread fraud, and the nuclear engineer who 

questions the safety of certain nuclear plants. These conscientious civil servants deserve statutory protection rather than bureaucratic harassment and intimidation.2

The CSRA established the Office of Special Counsel (OSC) to investigate and prosecute allegations of prohibited personnel practices or other violations of the merit system and established the 

Merit Systems Protection Board (the MSPB or the Board) to adjudicate such cases. However, in 1984, the MSPB reported that the 

Act had no effect on the number of whistleblowers and that federal 

employees continued to fear reprisal.3 This Committee subsequently reported that employees felt that the OSC engaged in apathetic and sometimes detrimental practices toward employees seeking its assistance. The Committee also found that restrictive decisions by the MSPB and federal courts hindered the ability of whistleblowers to win redress.4

In response, Congress in 1989 unanimously passed the WPA, 

which forbids retaliation against federal employees who disclose 

what they reasonably believe to be evidence of illegal or other seriously improper government activity. The WPA makes it a prohibited personnel practice to take an adverse personnel action against 

a covered employee because that employee makes a protected disclosure. An employee who claims to have suffered retaliation for 

having made a protected disclosure may seek a remedy from the 

MSPB, may ask the OSC investigate the situation and advocate for 

the employee, or may file a grievance under a negotiated grievance 

procedure contained in a collective bargaining agreement. The stated congressional intent of the WPA was to strengthen and improve 

protection for the rights of federal employees, to prevent reprisals, 

and to help eliminate wrongdoing within the government by (1) 

mandating that employees should not suffer adverse consequences 

as a result of prohibited personnel practices; and (2) establishing 

that, while disciplining those who commit prohibited personnel 

practices may be used as a means to help accomplish that goal, the 

protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration.5

Congress substantially amended the WPA in 1994, as part of legislation to reauthorize the OSC and the MSPB. The amendments 

were designed, in part, to address a series of actions by the OSC 

and decisions by the MSPB and the Federal Circuit that Congress 

deemed inconsistent with its intent in the 1989 Act. Now, fifteen 

years after the last major revision of the WPA, it is again necessary for Congress to reform and strengthen several aspects of the 

whistleblower protection statutes in order to achieve the original 

intent and purpose of the laws. 

Clarification of what constitutes a protected disclosure under the 

WPA 

Both the House and Senate committee reports accompanying the 

1994 amendments criticized decisions of the MSPB and the Federal 


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6S. Rep. No. 103–358 (1994), at 10 (quoting S. Rep. No. 100–413 (1988) at 13). 

7 H. Rep. No. 103–769, at 18 (1994). 

8 66 F.3d 279, 283 (Fed. Cir. 1995). 

9 141 F.3d 1139, 1144 (Fed. Cir. 1998). 

10 234 F.3d 9, 13–14 (Fed. Cir. 2000). 11See, e.g., Johnson v. Department of Health and Human Services, 87 M.S.P.R. 204, 210 (2000) 

(limiting Willis to its factual context and rejecting claim that Willis stood for the broad proposition that had been rejected by both the MSPB and the Federal Circuit); accord Askew v. Department of the Army, 88 M.S.P.R. 674, 679–80 (2001) (cautioning that Willis ought not be read 

too broadly and rejecting the proposition that Willis held that ‘‘disclosure of information in the 

course of an employee’s performance of her normal duties cannot be protected whistleblowing’’); 

Sood v. Department of Veteran Affairs, 88 M.S.P.R. 214, 220 (2001); Czarkowski v. Department 

of the Navy, 87 M.S.P.R. 107 (2000). 

Circuit limiting the types of disclosures covered by the WPA. Specifically, this Committee explained that the 1994 amendments were 

intended to reaffirm the Committee’s long-held view that the 

WPA’s plain language covers any disclosure: 

The Committee . . . reaffirms the plain language of the 

Whistleblower Protection Act, which covers, by its terms, 

‘‘any disclosure,’’ of violations of law, gross mismanagement, a gross waste of funds, an abuse of authority, or a 

substantial and specific danger to public health or safety. 

The Committee stands by that language, as it explained in 

its 1988 report on the Whistleblower Protection Act. That 

report states: ‘‘The Committee intends that disclosures be 

encouraged. The OSC, the Board and the courts should not 

erect barriers to disclosures which will limit the necessary 

flow of information from employees who have knowledge of 

government wrongdoing. For example, it is inappropriate 

for disclosures to be protected only if they are made for 

certain purposes or to certain employees or only if the employee is the first to raise the issue.’’ 6

The House Committee on the Post Office and the Civil Service 

similarly stated: 

Perhaps the most troubling precedents involve the 

[MSPB’s] inability to understand that ‘‘any’’ means ‘‘any.’’ 

The WPA protects ‘‘any’’ disclosure evidencing a reasonable belief of specified misconduct, a cornerstone to which 

the MSPB remains blind. The only restrictions are for classified information or material the release of which is specifically prohibited by statute. Employees must disclose 

that type of information through confidential channels to 

maintain protection; otherwise there are no exceptions.7

Despite the clear legislative history and the plain, intended language of the 1994 amendments, the Federal Circuit and the MSPB 

have continued to undermine the WPA’s intended meaning by imposing limitations on the kinds of disclosures by whistleblowers 

that are protected under the WPA. For example, in Horton v. Department of the Navy,8 the court ruled that disclosures to co-workers or to the wrongdoer are not protected, because the disclosures 

are not made to persons in a position to redress wrongdoing. In 

Willis v. Department of Agriculture,9 the court stated in dictum 

that a disclosure made as part of an employee’s normal job duties 

is not protected. And in Meuwissen v. Department of Interior,10 the 

court held that disclosures of information already known are not 

protected.11


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12See, e.g., Herman v. Department of Justice, 193 F.3d 1375, 1381 (Fed. Cir. 1999); Frederick v. Department of Justice, 73 F.3d 349, 353 (Fed. Cir. 1996). 13See, e.g., Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001); Rusin v. Department of Treasury, 92 M.S.P.R. 1298 (2002). 14See 5 C.F.R. §§ 1201.43 & 1201.55(d). 15Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); accord Rusin v. Department of the 

Treasury, 92 M.S.P.R. 298 (2002). 

S. 372 accordingly amends the WPA to clarify that a whistleblower is not deprived of protection because the disclosure was 

made during the normal course of the employee’s duties; was made 

to a person, including a supervisor, who participated in the wrongdoing; revealed information that had been previously disclosed; was 

not made in writing; or was made while the employee was off duty. 

The bill also makes clear that disclosures may not be declared unprotected simply because of the employee’s motive for making the 

disclosure, or because of the amount of time that has passed since 

the events described in the disclosure. By clarifying the broad scope 

of protected disclosures, S. 372 effectively restores Congress’s original intent to the WPA. 

The evident difficulty in settling on a precise scope of protection 

appears to have arisen, at least in part, from concern that management of the federal workforce may be unduly burdened if employees can successfully claim whistleblower status in ordinary employment disputes.12 Taking this concern seriously, the Committee has 

concluded that the strong national interest in protecting good faith 

whistleblowing requires broad protection of whistleblower disclosures, recognizing that the responsible agencies and courts can 

take other steps to deter and weed out frivolous whistleblower 

claims. Under decisions of the Federal Circuit and the MSPB, for 

example, a whistleblower case cannot proceed unless an employee 

has first made non-frivolous allegations satisfying the elements for 

a prima facie case that the employee has suffered unlawful retaliation for having made a protected disclosure. Unless the employee 

can do this, there will be no hearing and the agency will have 

under no burden to present an affirmative defense.13 Moreover, the 

MSPB’s procedural rules may be available to curtail frivolous litigation under certain circumstances, including in cases under the 

WPA. These rules generally authorize an administrative judge at 

the MSPB to impose sanctions necessary to meet the interests of 

justice and to issue protective orders in cases of harassment of a 

witness, including harassment of a party to a case.14 S. 372 does 

not affect these decisions or regulations. 

In addition, to make a prima facie whistleblower case, the employee must show that he or she reasonably believed that the disclosed information evidenced a violation of law or other items enumerated in 5 U.S.C. § 2302(b)(8). As detailed further below, the 

Federal Circuit has held that this reasonable-belief test is an objective one: whether a disinterested observer with knowledge of the 

facts known to and readily ascertainable by the employee reasonably could conclude that the conduct evidences a violation of law, 

gross mismanagement, or other matters identified in 5 U.S.C. 

§ 2302 (b)(8).15 The Committee believes it is prudent to codify that 

objective test in the whistleblower statute, and has done so in S. 

372. Thus, in screening out frivolous claims, the focus for the 

MSPB and the courts would properly shift to whether the employee’s belief was objectively reasonable, rather than whether the emVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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16S. 1358—The Federal Employee Protection of Disclosures Act: Amendments to the Whistleblower Protection Act: Hearing on S. 1358 before the Committee on Governmental Affairs, S. 

Hrg. 108–414, at 163 (2003). 17See S. Rep. No. 969, 95th Cong., 2d Sess. 8 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 

2730 (the Committee intends that only disclosures of public health or safety dangers which are 

both substantial and specific are to be protected. Thus, for example, general criticisms by an 

employee of the Environmental Protection Agency that the agency is not doing enough to protect 

the environment would not be protected under this subsection.). 18Gilbert v. Dept. of Commerce, 194 F.3d 1332 (Fed. Cir. 1999). 

ployee’s disclosure of information meets the statutory definition of 

‘‘disclosure.’’ In the Committee’s view, any potential mischief that 

might otherwise arise from expanding the scope of what kinds of 

‘‘disclosure’’ are protected will be countered by the application of 

this objective reasonable-belief test. And in cases not so filtered, 

the agency may still be able to prevail on its defense if it can demonstrate that it would have taken the same personnel action 

against the employee even absent the disclosure. 

Moreover, to further address the expressed concern that the 

WPA might impose an undue burden on agency management if employees could claim whistleblower protections in cases of ordinary 

workplace disputes, S. 372 requires the Government Accountability 

Office (GAO) to evaluate the implementation of the Act, including 

any trends in the number of cases filed and the disposition of those 

cases and any patterns of abuse. S. 372 also requires the MSPB to 

report yearly on the number of cases filed, the number of petitions 

for review filed, and the disposition of cases alleging violations of 

the WPA. The Committee believes that these provisions will enable 

Congress to examine closely how this bill is implemented and to intervene, if necessary, if an unintended consequence of the legislation should become evident. 

The Committee does believe that there should be two narrow, 

reasonable limitations on the scope of protected disclosures, and it 

has included those limitations in S. 372. The first emerged during 

the hearing on this bill’s predecessor, S. 1358, during the 108th 

Congress. The Senior Executives Association testified that they believed that an unrestricted scope of protected disclosure could be 

construed to include lawful policy decisions of a supervisor or manager, and recommended that the bill be clarified to deny protection 

relating to policy disagreements.16 Put another way, disclosures 

must be specific and factual, not general, philosophical, or policy 

disagreements. S. 372 incorporates that limitation by excluding 

communications concerning policy decisions that lawfully exercise 

discretionary authority. This exclusion reflects congressional intent 

at the inception of statutory whistleblower protection.17 At the 

same time, the Committee recognizes the need to curb a disturbing 

trend to hold that the WPA does not cover disclosures of tangible 

misconduct arguably flowing from a policy decision. As a result, S. 

372 provides balance by codifying that an employee is still protected for disclosing evidence of illegality, gross waste, gross mismanagement, abuse of authority or a substantial and specific danger to public health or safety, regardless of whether the information arguably relates to a policy decision, whether properly or improperly implemented. This language is consistent with Federal 

Circuit precedent.18

Second, to address concerns that minor, accidental violations of 

law committed in good faith would become the basis for protected 

disclosures and legal claims, S. 372 excludes disclosures of ‘‘an alVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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19See Drake v. Agency for International Development, 543 F.3d 1377, 1381 (Fed. Cir. 2008). 20 110 M.S.P.R. 278, 284–85 (2008), citing Shriver v. Department of Veterans Affairs, 89 

M.S.P.R. 239 (2001). 21Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). 

leged violation that is minor, inadvertent, and occurs during conscientious carrying out of official duties.’’ The agency would need 

to prove the employee disclosed alleged wrongdoing that is minor 

or insignificant and that was done inadvertently or accidentally in 

the course of the alleged violator’s duties. As an illustrative example, suppose an agency regulation requires employees to turn off 

their office lights at night, someone forgets to do so occasionally, 

and an employee reports that violation. That is the type of disclosure of a minor, accidental violation that the Committee does not 

intend should be the basis for a WPA claim. Of course, this provision has no effect on whether, in taking a personnel action affecting an employee, the agency may, or may not, consider that the 

employee made such a disclosure of a minor and inadvertent violation; the only effect of the provision is that the protections and procedures of the WPA may not be invoked in this situation. The language of this provision derives from case law finding that disclosures of trivial or de minimis violations are not protected under the 

WPA 19 and is not intended to expand the current scope of that exception. 

The intentionally broad scope of protected disclosures should be 

clear. With respect to ‘‘any violation of any law, rule, or regulation,’’ the Committee emphasizes that ‘‘any’’ means ‘‘any,’’ except 

where an agency proves that one of these two narrow exceptions 

applies. With respect to a disclosure of ‘‘gross mismanagement’’ or 

a ‘‘gross waste’’ of funds, more than de minimis wrongdoing must 

be alleged. The Board used an appropriate definition of ‘‘gross mismanagement’’ in Swanson v. General Services Administration.20 In 

Swanson, the Board held that ‘‘[g]ross mismanagement means 

more than de minimis wrongdoing or negligence; it means a management action or inaction that creates a substantial risk of significant adverse impact on the agency’s ability to accomplish its mission.’’ 

Reasonable belief—Irrefragable proof 

As noted above, a prima facie whistleblower case entails a showing that the employee reasonably believes that the disclosed information evidences a violation of law, rule, or regulation, or gross 

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

a substantial and specific danger to public health and safety. The 

test for reasonable belief, as developed in case law and prospectively codified in S. 372, is an objective one. However, in a very 

troubling decision ten years ago, the Federal Circuit imposed on 

the whistleblower the burden of ‘‘irrefragable proof.’’ Under this 

court-imposed standard, in order to prove that the whistleblower’s 

belief in the disclosed wrongdoing was reasonable, the whistleblower also had to present irrefragable proof that the wrongdoing 

actually occurred, in order to rebut what the court considered to be 

the standard presumption that the government acts in good faith.21

The MSPB and the Federal Circuit have, in subsequent decisions, 

disavowed this requirement of ‘‘irrefragable proof,’’ and S. 372 


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22 Id. 23 Id. (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)). 24Merriam-Webster’s Collegiate Dictionary (10th ed. 1999). The peculiar word has some currency in other jurisprudence entrusted to the Federal Circuit, government contracting for example, though the concept there is usually ‘‘almost irrefragable,’’ or ‘‘well nigh irrefragable’’—rendered in familiar terms as ‘‘clear and convincing.’’ See, e.g., Galen Medical Associates, Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004). 

would codify the removal of the ‘‘irrefragable proof’’ requirement 

from whistleblower jurisprudence. 

In Lachance v. White, the Office of Personnel Management 

(OPM) sought review of an order by the Board that found that 

White made protected disclosures resulting in a downgrade in position. OPM argued that White’s belief that he disclosed gross mismanagement (an allegedly wasteful Air Force education program) 

was inadequate to support a violation of the WPA without an independent review by the MSPB of the reasonableness of White’s belief. 

The Federal Circuit agreed, and stated that the MSPB must 

have an objective test to determine whether it was reasonable to 

believe that the disclosures revealed misbehavior by the Air Force 

covered by 5 U.S.C. § 2302(b)(8). The court said that the test is: 

‘‘Could a disinterested observer with knowledge of the essential 

facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidence gross 

mismanagement?’’ 22 However, the court then added that the review of whether White reasonably believed he disclosed wrongdoing 

must begin with the ‘‘presumption that public officers perform their 

duties correctly, fairly, in good faith, and in accordance with the 

law and governing regulations. . . . And this presumption stands 

unless there is ‘irrefragable proof ’ to the contrary.’’ 23 In other 

words, in the court’s view, the disinterested observer weighing 

whether the employee disclosed wrongdoing would start with the 

presumption that the government acted properly unless there is 

presented irrefragable proof to the contrary. ‘‘Irrefragable’’ means 

impossible to refute.24 Read literally, therefore, the holding required employees to establish that they reasonably believed they 

disclosed wrongdoing by offering indisputable proof that the public 

official or officials acted in bad faith or violated the law. Such an 

evidentiary burden was contrary to logic and clear congressional intent. 

Fortunately, the MSPB recognized the misstep on remand. In 

2003, on remand from the Federal Circuit, the MSPB ruled that: 

The WPA clearly does not place a burden on an appellant to submit ‘‘irrefragable proof’’ to rebut a presumption 

that federal officials act in good faith and in accordance 

with law. There is no suggestion in the legislative history 

of the WPA that Congress intended such a burden be 

placed on an appellant. When Congress amended the WPA 

in 1994, it did nothing to indicate that the objective test, 

which had been articulated by the Board by that time, was 

inconsistent with the statute. The dictionary definition of 

‘‘irrefragable’’ suggests that a putative whistleblower 

would literally have to show that the agency actually engaged in gross mismanagement, even though the WPA 

states that he need only have a reasonable belief as to that 

matter. The Federal Circuit itself has not imposed an ‘‘irVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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25White v. Dept. Air Force, 95 M.S.P.R. 1, 7–8 (2003). 26White v. Dept. Air Force, 391 F. 3d 1377, 1381 (Fed. Cir. 2004). 27Richardson v. Perales, 402 U.S. 389, 401 (1971). 28 Hays v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990) (quoting Laws v. Celebrezze, 368 F. 

2d 640, 642 (4th Cir. 1966)). 29Ramos v. FAA, 4 M.S.P.R. 388 (1980). 30Despite adopting an appropriate test for reasonable belief, the Court in White v. Department 

of Air Force used a formulation of gross mismanagement that could cause confusion. The Court 

held that ‘‘for a lawful agency policy to constitute ‘gross mismanagement,’ an employee must 

disclose such serious errors by the agency that a conclusion the agency erred is not debatable 

among reasonable people.’’ 391 F.3d. at 1382. The requirement that the disclosure must lead 

to ‘‘a conclusion the agency erred [that] is not debatable among reasonable people’’ could be read 

to require proof that the alleged misconduct actually occurred. Disclosures of gross mismanagement, as all other forms of disclosures, must be evaluated from the perspective of the reasonable 

belief of the employee disclosing the information. The appropriate standard for determining 

whether alleged conduct constitutes ‘‘gross mismanagement’’ is discussed above. See the beginning of this section, entitled ‘‘Reasonable Belief—Irrefragable Proof,’’ supra. 

refragable proof’’ burden on appellants in cases decided 

after White . . . and has, in fact, stated that the ‘‘proper 

test’’ is the objective, ‘‘disinterested observer’’ standard.25

On December 15, 2004, the Federal Circuit, ruling on this case 

on appeal from the MSPB, rejected the government’s argument and 

that disclosures are not protected without a showing of irrefragable 

proof that agency officials acted improperly, and endorsed an objective test for reviewing the whistleblower’s belief that governmental 

wrongdoing occurred.26

To definitely disavow the ‘‘irrefragable proof’’ requirement and to 

ensure that it is not revived in future case decisions, S. 372 codifies 

the objective reasonable-belief test in Lachance for all whistleblower disclosures. The bill also provides that any presumption 

that a public official (i.e., the official whose misconduct the whistleblower is disclosing) acted in good faith may be rebutted by ‘‘substantial evidence’’ rather than ‘‘irrefragable proof.’’ The Supreme 

Court has defined substantial evidence as ‘‘such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion.’’ 27 It consists of ‘‘more than a mere scintilla of evidence but 

may be somewhat less than a preponderance.’’ 28 By establishing a 

substantial evidence test, the Committee intends to provide a 

standard that will not be a higher burden than the preponderance 

of the evidence standard that employees must meet to prove their 

case on the merits. This standard is consistent with the legislative 

history of the Act. Indeed, a cornerstone of 5 U.S.C. § 2302(b)(8) 

since its initial passage in 1978 has been that an employee need 

not ultimately prove any misconduct to qualify for whistleblower 

protection. All that is necessary is for the employee to have a reasonable belief that the information disclosed is evidence of misconduct listed in section 2302(b)(8).29 The Committee emphasizes 

that there should be no additional burdens imposed on the employee beyond those provided by the statute, and that the statutory 

definition must be applied consistently to each protected speech 

category in section 2302(b)(8).30

The Committee notes that the two narrow exceptions to the definition of protected disclosures must be applied within the framework of the objective reasonableness test. In other words, if an employee has a reasonable belief that the information disclosed evidences misconduct listed in section 2302(b)(8), rather than conduct 

excepted from that definition, the disclosure is protected. The agency, for example, may not prevail by demonstrating that the actual 

misconduct meets the minor, inadvertent exception; what matters 


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31Public Law No. 95–454, 92 Stat. 1143, § 205 (1978) (adding 5 U.S.C. § 7703). 32Public Law No. 97–164, 96 Stat. 49, § 144 (1982); see also 5 U.S.C. §§ 7702, 7703(b)(2). 33S. 1358 Hearing supra note 16, (statement of Stephen Kohn, Chairman, Board of Directors, 

National Whistleblower Center) at 136. 34 5 U.S.C. § 1508. 35 5 U.S.C. § 7123(a). 

is the objective reasonableness of the employee’s belief with regard 

to his or her disclosure. 

All-circuit review 

When the Civil Service Reform Act of 1978 was enacted, it gave 

employees an option of where to appeal final orders of the MSPB. 

The 1978 Act allowed them to file a petition in the Court of Claims, 

the U.S. court of appeals for the circuit where the petitioner resided, or the U.S. Court of Appeals for the D.C. Circuit.31 In 1982, 

when Congress created the Federal Circuit, it gave that court exclusive jurisdiction over petitions for review of the MSPB’s orders 

other than those involving certain claims of discrimination.32

At the hearing on S. 1358 during the 108th Congress, attorney 

Stephen Kohn, Chairman of the National Whistleblower Center, 

testified that: 

Restricting appeals to one judicial circuit undermines 

the basic principle of appellate review applicable to all 

other whistleblower laws. That principle is based on an informed peer review process which holds all circuit judges 

accountable. . . . [As appeals courts disagree with each 

other,] courts either reconsider prior decisions and/or the 

case is heard by the Supreme Court, which resolves the 

dispute. 

By segregating federal employee whistleblowers into one 

judicial circuit, the WPA avoids this peer review process 

and no ‘‘split in the circuits’’ can ever occur. In the Federal 

Circuit no other judges critically review the decisions of 

the Court, no split in the circuits’ can ever occur, and thus 

federal employees are denied the most important single 

procedure which holds appeals court judges reviewable and 

accountable. A split in the circuits’ is the primary method 

in which the U.S. Supreme Court reviews wrongly decided 

appeals court decisions.33

The Committee believes that this argument raises valid points 

about the current arrangement for judicial review. 

Furthermore, unlike federal employee whistleblower cases, a 

number of federal statutes already allow cases involving rights and 

protections of federal employees, or involving whistleblowers, to be 

appealed to Courts of Appeals across the country. In cases involving allegations of discrimination, cases decided by the MSPB may 

be brought in the United States District Courts. State or local government employees affected by the MSPB’s Hatch Act decisions 

also may obtain review in the U.S. district courts.34 Appeal from 

decisions of the district courts in these cases may then be brought 

in the appropriate court of appeals for the appropriate Circuit. Additionally, decisions of the Federal Labor Relations Authority 

(FLRA) may be appealed to court of appeals for the circuit where 

the petitioner resides, transacts business, or to the D.C. Circuit.35


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36 31 U.S.C. § 3730(h). 37 12 U.S.C. § 1441a(q). 38 12 U.S.C. § 1790b(b). 39 42 U.S.C. § 5851(c). 40 42 U.S.C. § 7622(c). 41 49 U.S.C. § 42121(b)(4). 42 18 U.S.C. § 1514A. 43Public Law No. 111–5, § 1552, 123 Stat. 115 (2009). 44 5 U.S.C. § 1211(b). 

Moreover, a multi-circuit appellate review process is available 

under existing law for many other types of whistleblower claims. 

Under the False Claims Act, as amended in 1986, whistleblowers 

who disclose fraud in government contracts can file a case in district court and appeal to the appropriate federal court of appeals.36

Congress passed the Resolution Trust Corporation Completion Act 

in 1993, which provided employees of banking related agencies the 

right to go to district court and have regular avenues of appeal.37

In 1991, Congress passed the Federal Deposit Insurance Corporation Improvement Act which provides district court review with 

regular avenues of appeal for whistleblowers in federal credit 

unions.38 Whistleblower laws passed as part of the Energy Reorganization Act, as amended in 1992,39 and the Clean Air Act, as 

amended in 1977,40 allow whistleblowers to obtain review of orders 

issued in the Department of Labor administrative process in the 

appropriate federal court of appeals. The Wendell H. Ford Aviation 

Investment and Reform Act for the 21st Century (AIR 21),41 passed 

in 2000, allows whistleblowers to obtain review of their cases alleging retaliation for reporting air safety violations in the appropriate 

federal court of appeals. The Sarbanes-Oxley Act of 2002 allows 

whistleblowers from all publicly-traded corporations access to the 

courts and jury trials if the whistleblower makes a claim of retaliation for making a disclosure and if the Department of Labor does 

not reach a decision on a whistleblower claim in 180 days, with appeal to the appropriate federal court of appeals.42 The American 

Recovery and Reinvestment Act of 2009 provides jury trials for 

whistleblower claims by all state and local government or contractor employees receiving funding from the stimulus.43

Subject to a five-year sunset, S. 372 would conform the system 

for judicial review of federal whistleblower cases to that established 

for private sector whistleblower cases and certain other federal employee appeal systems by suspending the Federal Circuit’s exclusive jurisdiction over whistleblower appeals. The five-year period 

will allow Congress to evaluate whether decisions of other appellate courts in whistleblower cases are consistent with the Federal 

Circuit’s interpretation of WPA protections, guide congressional efforts to clarify the law if necessary, and determine if this structural 

reform should be made permanent. 

Office of Special Counsel—Amicus Curiae Authority 

The OSC, initially established in 1979 as the investigative and 

prosecutorial arm of the MSPB, became an independent agency 

within the Executive Branch, separate from the MSPB, with passage of the WPA in 1989. The Special Counsel does not serve at 

the President’s pleasure, but is appointed by and ‘‘may be removed 

by the President only for inefficiency, neglect of duty, or malfeasance in office.’’ 44 The primary mission of the OSC is to protect 


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45 U.S. Office of Special Counsel, Annual Report for Fiscal Year 2003, at 7. 46 5 U.S.C. § 1214(b)(2)(C). 

federal employees and applicants from prohibited employment 

practices, with a particular focus on protecting whistleblowers from 

retaliation. The OSC accomplishes this mission by investigating 

complaints filed by federal employees and applicants that allege 

that federal officials have committed prohibited personnel practices. 

When such a claim is filed by a federal employee, the OSC investigates the allegation to determine whether there are reasonable 

grounds to believe that a prohibited personnel practice has occurred. If the Special Counsel determines there are reasonable 

grounds to believe that a prohibited personnel practice has occurred, the Special Counsel sends the head of the employing agency 

a report outlining the OSC’s findings and asking the agency to 

remedy the action. In the majority of cases in which the Special 

Counsel believes that a prohibited personnel practice has occurred, 

agencies voluntarily take corrective action.45 If an agency does not 

do so, the OSC is authorized to file a petition for corrective action 

with the MSPB.46 At proceedings before the MSPB, the OSC is represented by its own attorneys while the employing agency is represented by the agency’s counsel. 

If the OSC does not send the whistleblower’s allegations to an 

agency head, it returns the information and any accompanying documents to the whistleblower explaining why the Special Counsel 

did not refer the information. In such a situation, the whistleblower may file a request for corrective action with the MSPB. This 

procedure is commonly known as an individual right of action 

(IRA). In IRAs, the OSC may not intervene unless it has the consent of the whistleblower. 

After the MSPB renders a decision on a whistleblower claim, the 

OSC’s ability to effectively enforce and defend whistleblower laws 

in the context of that claim is limited. For example, the OSC does 

not have authority to ask the MSPB to reconsider its decision or 

to seek review of an MSPB decision by the Federal Circuit. In contrast, OPM, which typically is not a party to the case, can request 

that the MSPB reconsider its rulings. Even when a party with authority to petition for review of an MSPB decision does so, the OSC 

historically has been denied the right to participate in those proceedings. 

Furthermore, if a case is appealed to the Federal Circuit, the Department of Justice (DOJ) recognizes the OSC’s right to appear as 

an intervener only in those few cases where the OSC was a party 

before the Board and the case reaches the court of appeals on another party’s petition for review. These cases usually involve agency officials’ efforts to reverse Board decisions that have granted a 

petition by the OSC to impose discipline for retaliating against a 

whistleblower. Because the OSC lacks independent litigating authority, it must be represented by the Justice Department, rather 

than its own attorneys, in such cases. DOJ’s representation of the 

OSC in such cases creates a conflict of interest and could be a significant impediment to the effective enforcement of the WPA. 

As a result of the current structure, the OSC is blocked from participating in the forum in which the law is largely shaped: the U.S. 


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47Public Law No. 96–354, 94 Stat. 1164 (1980). 48 5 U.S.C. § 612(c). 49 5 U.S.C. § 1215. 50Special Counsel v. Santella, 65 M.S.P.R. 452 (1994). 51 5 U.S.C. §§ 1214 and 1221. See also 135 Cong. Rec. 4509, 4517, 5033 (1989). 

Court of Appeals for the Federal Circuit (and, if this legislation is 

enacted, the other circuits). This limitation undermines both the 

OSC’s ability to protect whistleblowers and the integrity of the 

whistleblower law. The Committee believes that the OSC should 

play a role in whistleblower cases before the court of appeals. 

Therefore, S. 372 provides the Special Counsel with authority to 

file its own amicus curiae (or, ‘‘friend of the court’’) briefs with the 

federal courts, represented by its own lawyers, not by DOJ, thereby 

presenting the OSC’s views on the law in whistleblower cases or 

other matters designated in the bill. 

This authority is similar to that granted to the Chief Counsel for 

Advocacy of the Small Business Administration (SBA). Under section 612 of the Regulatory Flexibility Act (RFA),47 the Chief Counsel for Advocacy has the authority to appear as amicus curiae in 

any court action to review a government rule. Specifically, the 

Chief Counsel is authorized to present views with respect to compliance with the RFA, the adequacy of a rulemaking record pertaining to small entities, and the effect of rules on small entities. 

Federal courts are bound to grant the amicus curiae application of 

the Chief Counsel, which allows the Chief Counsel to help shape 

the law affecting small businesses.48

The Committee believes that granting this authority to the OSC 

is necessary to ensure the OSC’s effectiveness and to protect whistleblowers from judicial interpretations that unduly narrow the 

WPA’s protections, as has occurred in the past. 

Burden of proof in OSC disciplinary actions 

Current law authorizes the OSC to pursue disciplinary action 

against managers who retaliate against whistleblowers. More specifically, the Special Counsel must present a written complaint to 

the MSPB if the Special Counsel determines that disciplinary action should be taken against a supervisor for having committed a 

prohibited personnel practice or other misconduct within the OSC’s 

purview. The Board then may issue an order taking disciplinary action against the employee.49

However, under MSPB case law, the OSC bears the burden of 

demonstrating that protected activity was the ‘‘but-for cause’’ of an 

adverse personnel action against a whistleblower—in other words, 

if the whistleblowing activity had not occurred, then that manager 

would not have taken the adverse personnel action.50 This can be 

a heavy burden to meet. In 1989, Congress lowered the burden of 

proof for whistleblowers to win corrective action against retaliation. 

The 1989 Act eliminated the relevance of employer motives, eased 

the standard to establish a prima facie case (showing that the protected speech was a contributing factor in the action), and raised 

the burden for agencies, which must now provide independent justification for the personnel action at issue by clear and convincing 

evidence.51 However, the 1989 statutory language only established 

burdens for defending against retaliation. It failed to address disciplinary actions. As a result, the Board has on many occasions 


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52Letter from Elaine Kaplan, Special Counsel, Office of Special Counsel, to Senator Carl Levin 

(Sept. 11, 2002) (arguing that the MSPB case law relating to the OSC’s disciplinary authority 

should be overturned, Ms. Kaplan wrote ‘‘change is necessary in order to ensure that the burden 

of proof in these [disciplinary] cases is not so onerous as to make it virtually impossible to secure disciplinary action against retaliators.’’). 53Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). 54 86 M.S.P.R. 48 (May 9, 2000). 

ruled that whistleblower reprisal had been proven for purposes of 

providing relief to the employees, but rejected the OSC’s claim for 

disciplinary action against the managers in the same case.52

The bill addresses the burden of proof problem in OSC disciplinary action cases by employing the same burden of proof the Supreme Court set forth in Mt. Healthy v. Doyle,53 in which a public 

school teacher claimed he was unlawfully terminated from his employment for exercising his First Amendment freedom of speech. 

Under this test, the OSC would have to show that protected whistleblowing was a ‘‘significant motivating factor’’ in the decision to 

take or threaten to take a personnel action, even if other factors 

were considered in the decision. If the OSC makes such a showing, 

the MSPB would order appropriate discipline unless the official 

shows, by a preponderance of the evidence, that he or she would 

have taken or threatened to take the same personnel action even 

if there had been no protected whistleblower disclosure. 

OSC attorney fees 

The OSC has authority to pursue disciplinary actions against 

managers who retaliate against whistleblowers. Currently, if the 

OSC loses such a case, it must pay the legal fees of those against 

whom it initiated the action. Because the OSC’s budget is small 

and the amounts involved could significantly deplete its resources, 

requiring the OSC to pay attorney fees could have an impact on the 

OSC’s ability to enforce the WPA and defend the merit system by 

protecting whistleblowers. 

Illustrative of the problem and the importance of S. 372’s solution is Santella v. Special Counsel.54 In a 2–1 decision, the MSPB 

held that the OSC could be held liable to pay attorney fees, even 

in cases where its decision to prosecute was a reasonable one, if the 

accused agency officials were ultimately found ‘‘substantially innocent’’ of the charges brought against them. The Board majority further ruled that two supervisors in the Internal Revenue Service 

(IRS) were ‘‘substantially innocent’’ of retaliation, notwithstanding 

an earlier finding by an MSPB administrative law judge that their 

subordinates’ whistleblowing was a contributing factor in four personnel actions the supervisors took against them. 

The OSC argued that, because its decision to prosecute the supervisors was a reasonable one and based upon then-existing law, 

an award of fees would not be in the interests of justice. In fact, 

the OSC contended, sanctioning an award of fees under these circumstances would be counter to the public interest and contrary to 

congressional intent that the OSC vigorously enforce the Whistleblower Protection Act by seeking to discipline supervisors who violate the Act. The OSC also argued, in the alternative, that if the 

supervisors were entitled to be reimbursed for their attorney fees, 

then their employing agency, the IRS, should be found liable. 

The Board majority rejected the OSC’s arguments. It held that 

the OSC, and not the IRS, should be liable for any award of fees. 


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55 Id. at 64–65. 56 Id. at 69–76. 57Public Law No. 105–277, 112 Stat. 2681–526 (1998), the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, § 636. 58The Lloyd-La Follette Act was passed as Section 6 of the Postal Service Appropriations Act 

of 1912, Public Law No. 336, 37 Stat. 539, 555 (1912). Federal employees’ right to petition and 

provide information to Congress under this Act is codified at section 5 U.S.C. § 7211. 

It further found that—because the supervisors had ultimately prevailed in the case under the Board’s more stringent burden of 

proof—they were ‘‘substantially innocent’’ of the charges, and reimbursement of their fees would be in the interests of justice.55

Vice Chair Slavet dissented. She observed that the OSC had presented ‘‘direct evidence of retaliatory animus on the part of one of 

the [supervisors] and circumstantial evidence of retaliation supporting all the charges.’’ Further, she noted that the OSC had proven its charges to the satisfaction of the ALJ under the law as it 

existed when the action was commenced, but lost when the test 

was revised and made harder to meet in the course of the litigation. Under these circumstances, then-Vice Chair Slavet observed 

that the OSC’s pursuit of the case was reasonable and an award 

of fees was not in the interests of justice.56

The Committee believes that the OSC’s disciplinary action authority is a powerful weapon to deter whistleblowing retaliation. 

Should the Santella case remain valid law, the OSC would be subject to heavy financial penalties unless it can predict to a certainty 

that it will prevail (and even predict the unpredictable: changes in 

the law that might affect the OSC’s original assessment of a case’s 

merit) before bringing a disciplinary action. Because the OSC is a 

small agency with a limited budget, this burden would hinder the 

OSC’s use of disciplinary action as an enforcement mechanism and 

threaten the OSC’s ability to implement and enforce the WPA. To 

correct this problem, S. 372 would require the employing agency, 

rather than the OSC, to reimburse the manager’s attorney fees. 

Anti-gag provisions 

In 1988, Senator Grassley sponsored an amendment to the 

Treasury, Postal and General Government Appropriations bill, 

which was and continues to be referred to as the ‘‘anti-gag’’ provision.57 This provision has been included in appropriations legislation every year since then. The annual anti-gag provision states 

that no appropriated funds may be used to implement or enforce 

agency non-disclosure policies or agreements unless there is a specific, express statement informing employees that the disclosure restrictions do not override their right to disclose waste, fraud, and 

abuse under the WPA, to communicate with Congress under the 

Lloyd-La Follette Act,58 and to make appropriate disclosures under 

other particular laws specified in the statement. 

S. 372 would institutionalize the anti-gag provision by codifying 

it and making it enforceable. Specifically, the bill would require 

every nondisclosure policy, form, or agreement of the Government 

to contain specific language set forth in the legislation informing 

employees of their rights. A nondisclosure policy, form, or agreement may not be implemented or enforced in a manner that is inconsistent with the required statement of rights or the underlying 

statutory protections. The bill also specifically makes it a prohibited personnel practice for any manager to implement or enforce a 


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59Such agreements may be enforced during the notice period provided the agency posts notice 

by the effective date of the Act. 60 5 U.S.C. § 2302(a)(2)(B). 61 5 U.S.C. § 2302(a)(2)(C). 62The ICWPA was enacted as title VII of the Intelligence Authorization Act for FY 1999, Public Law No. 105–272, 112 Stat. 2396 (1998). It provides intelligence community employees excluded from the WPA a protected path to disclose classified information to Congress. 63Public Law No. 108–458, 118 Stat. 3638 (2004). 

nondisclosure policy, form, or agreement that does not contain the 

specific statement mandated in the bill, or to implement or enforce 

a nondisclosure policy, form, or agreement in retaliation for whistleblowing. Making it a prohibited personnel practice means that 

the anti-gag requirement is enforceable by the OSC and the MSPB, 

and that an employee may seek protection against a personnel action taken in violation of the anti-gag requirement. 

S. 372 provides that a nondisclosure policy, form, or agreement 

in effect before the date of enactment may be enforced with regard 

to a current employee if the agency gives the employee notice of the 

statement of rights, and may be enforced with regard to a former 

employee if the agency posts notice on the agency website for one 

year following the date of enactment of the Act.59 The Committee 

concludes these provisions strike the appropriate balance between 

allowing existing nondisclosure agreements to remain in force 

while also ensuring that employees are aware of their rights under 

the law. 

Ex post facto exemption of agencies from whistleblower protection 

obligations 

The WPA provides that certain employees and agencies are exempt from the Act. Employees excluded from the Act include those 

in positions exempted from the competitive service because of their 

confidential, policy-determining, policy-making, or policy advocating character and those employees excluded by the President if 

necessary and warranted by conditions of good administration.60

Certain agencies are also excluded from the Act. They include 

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

other agencies determined by the President to have the principal 

function of conducting foreign intelligence or counterintelligence activities.61 S. 372 would add two intelligence community entities 

that clearly have the principal function of conducting intelligence 

activities to the list of statutorily excluded intelligence agencies 

that are covered under the Intelligence Community Whistleblower 

Protection Act 62 rather than the WPA: the Office of the Director 

of National Intelligence (ODNI) and the National Reconnaissance 

Office. ODNI was created in 2004 by the Intelligence Reform and 

Terrorism Prevention Act of 2004 63 and did not exist the last time 

the WPA was amended. 

In 1994, Congress amended the WPA to block agencies from depriving an employee of protection under the WPA by designating 

the employee’s particular position as a confidential policy-making 

position after retaliating against the employee for having blown the 

whistle. To accomplish this, Congress restricted the jurisdictional 

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64Public Law No. 103–424 (1994), 108 Stat. 4361, An act to reauthorize the Office of Special 

Counsel and for other purposes, amending 5 U.S.C. § 2302(a)(2)(C). 65See Czarkowski v. Merit Systems Protection Board, 390 F.3d 1347, 1350–51 (Fed. Cir. 2004) 

(rejecting the argument for implicit exemption from the WPA). The agency sought to invoke the 

exemption after the Board had rejected its previous defense on a different basis and ordered 

a hearing. See Czarkowski v. Dept. of the Navy, 87 M.S.P.R. 107 (2000). 66See the section entitled ‘‘Office of Special Counsel—Amicas Curiae Authority,’’ supra. 67 97 M.S.P.R. 35 (2004). 68See Memorandum of Understanding Between OSC and TSA Regarding Whistleblower Protections for TSA Security Screeners (May 28, 2002), available at http://www.osc.gov/documents/ 

tsa/tsalmou.pdf. 69See Memorandum of Agreement between Transportation Security Administration and Merit 

Systems Protection Board (February 26, 2008); TSA Press Release, ‘‘TSA Announces Agreement 

on Enhanced Whistleblower Protection for Security Officers’’ (February 27, 2008), available at 

http://www.tsa.gov/press/releases/2008/0227.shtm. 

nel action.’’ 64 Unfortunately, a similar practice has occurred again, 

in a context with far broader consequences. An agency argued that 

the President had implicitly exempted the agency from the WPA by 

delegating certain intelligence functions to the agency over a year 

after an employee at the agency had filed a whistleblower protection complaint, and after the Board had overturned an Administrative Judge’s decision to order a hearing.65

S. 372 would close the loophole for entire agencies in the same 

manner as Congress did for individual positions in 1994, by specifying that an employee of an agency loses whistleblower rights only 

if the agency is excluded under the Act prior to the occurrence of 

any personnel action against a whistleblower. The Committee believes that it is important for employees to know their rights and 

protections under the WPA, including if they have no rights, before 

they make any whistleblowing disclosure in reliance on the protections of the WPA. By eliminating the potential for post-disclosure 

exclusion from the WPA, this provision encourages employees to 

disclose waste, fraud, abuse, and illegal activity, and will aid them 

in determining the appropriate way to do so. 

Whistleblower protection for Transportation Security Administration employees 

As noted above,66 the WPA generally provides whistleblowers the 

opportunity to file a request for corrective action known as an individual right of action, or IRA, before the Board. However, in Schott 

v. Department of Homeland Security, the MSPB ruled that it had 

no jurisdiction over whistleblower cases brought by employees of 

the Transportation Security Administration (TSA). The Board reasoned that the Aviation and Transportation Security Act (ATSA), 

which created TSA and gave the TSA Administrator authority to 

establish a personnel system outside of title 5 of the United States 

Code, provides the Administrator with ‘‘final authority’’ over TSA 

personnel actions.67 The Board held that the Administrator’s ‘‘exclusive personnel authority’’ encompasses an exclusion from the 

whistleblower protections found in title 5 and is not subject to 

Board review. 

In May 2002, TSA and the OSC entered into a memorandum of 

understanding that provided the OSC the authority to investigate 

whistleblower retaliation complaints and recommend to TSA that 

it take corrective and/or disciplinary action.68 In February 2008, 

TSA and the Board announced an agreement to provide TSA employees with a limited right to bring WPA claims before the 

Board; 69 and in July 2008, TSA and the Board announced that 


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70See Interagency Agreement and Statement of Work between the Transportation Security 

Administration and the Merit Systems Protection Board, Interagency Agreement Number 

MSPB–08–IAG–001 (July 28, 2008). 71Statement of Rajesh De, S. 372—The Whistleblower Protection Enhancement Act of 2009 

before the Subcommittee on Oversight of Government Management, the Federal Workforce, and 

the District of Columbia, Committee on Homeland Security and Governmental Affairs (June 11, 

2009). 

they had implemented that agreement.70 Under the agreement, 

TSA employees are permitted to file an appeal with the Board after 

the OSC has reviewed and closed a matter involving a whistleblower complaint. Whistleblowers may not appeal Board orders, 

and Board hearings for whistleblowers are closed to the public absent good cause for opening them. Also, the OSC does not have authority to represent TSA employees before the MSPB. The agreement is subject to cancellation by either the Board or TSA at any 

time with 60 days’ notice. 

The Committee concludes that there is no basis for excluding 

TSA employees from the full protections of the WPA. Employees of 

all other components of the Department of Homeland Security are 

protected by the WPA, and encouraging the disclosure of illegal activity, waste, and mismanagement helps to further the mission of 

the Department, as with all other agencies subject to the WPA. As 

Rajesh De, Deputy Assistant Attorney General, Office of Legal 

Counsel, at the Department of Justice testified on behalf of the Administration at the June 2009 hearing on S. 372: 

We are pleased to see that this bill provides full whistleblower protection to Transportation Security Administration screeners, also known as Transportation Security Officers. Transportation Security Officers stand literally at the 

front lines of our nation’s homeland security system. They 

deserve the same whistleblower protections afforded to all 

other employees of the Department of Homeland Security.71

Therefore, consistent with the Administration’s view that TSA employees should be protected by the WPA, the Committee determined that S. 372 should extend full WPA protections to TSA employees. S. 372 also would make the provisions prohibiting certain 

personnel practices under 5 U.S.C. § 2302(b)(1) applicable to TSA 

employees. Section 2302(b)(1) classifies certain unlawful actions as 

prohibited personnel practices, including discrimination against an 

employee or applicant on the basis of race, color, religion, sex, or 

national origin, age, as prohibited by the Civil Rights Act of 1964; 

on the basis of age as prohibited by the Age Discrimination in Employment Act of 1967; on the basis of sex under the Fair Labor 

Standards Act of 1938 (which, as amended, includes the Equal Pay 

Act); on the basis of handicapping condition under the Rehabilitation Act of 1973; and on the basis of marital status or political affiliation as prohibited by any law, rule, or regulation. 

Penalties for retaliatory investigations 

In the legislative history to the 1994 amendments, House Civil 

Service Subcommittee Chairman Frank McCloskey highlighted 

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72 140 Cong. Rec. 29,353 (1994) and H.R. Rep. No. 103–769, at 15. 73 76 M.S.P.R. 317, 323–24 (1997). 74 5 U.S.C. § 2302(a)(2). Certain other types of actions, such as disciplinary action, transfers, 

and decisions affecting pay also would be considered personnel actions. 75S. 1358 Hearing supra note 16 at 60. 

tected disclosures, thereby undermining the merit system.72 In 

1997, the Board held, in Russell v. Department of Justice, that the 

WPA protects employees from retaliatory investigations under certain circumstances.73 Specifically, in this case where an employee 

asserted a WPA violation as a defense against a proposed personnel action, the Board held that ‘‘[w]hen . . . an investigation is 

so closely related to the personnel action that it could have been 

a pretext for gathering evidence to retaliate, and the agency does 

not show by clear and convincing evidence that the evidence would 

have been gathered absent the protected disclosure, then the appellant [whistleblower] will prevail on his affirmative defense of retaliation for whistleblowing.’’ 

As noted above, the WPA makes it a prohibited personnel practice to take an adverse personnel action against a covered employee 

because that employee makes a protected disclosure. However, 

agency investigations of employees are not explicitly covered under 

the statutory definition of a ‘‘personnel action.’’ Instead, such investigations can come within that definition only when they result in 

a significant change in job duties, responsibilities, or working conditions or meet certain other criteria.74 Therefore, even if a whistleblower can demonstrate that an investigation was undertaken in 

retaliation for a protected disclosure, the whistleblower has no remedy under the WPA unless the whistleblower can also show that 

the investigation amounts to a significant change in job duties, responsibilities, or working conditions. 

S. 372, as introduced, and its predecessors, would have explicitly 

and specifically recognized retaliatory investigations as a prohibited personnel practice. However, the Administration expressed 

concerns with that provision. Specifically, the Administration wanted to ensure that legitimate agency inquiries—including criminal 

investigations, routine background investigations for initial employment, investigations for determining eligibility for a security clearance, Inspector General investigations, and management inquiries 

of potential wrongdoing in the workplace—are not chilled by fear 

of challenge and litigation.75

To address this concern, while still increasing whistleblowers’ 

protection from retaliatory investigations, the Committee agreed in 

the substitute amendment to S. 372 to alter S. 372’s original provision on retaliatory investigations. As amended, the provision leaves 

Russell as the governing law for prohibited personnel practices, but 

provides that any corrective action awarded to whistleblowers may 

include fees, costs, and damages incurred due to an agency investigation of the employee that was commenced, expanded, or extended in retaliation for protected whistleblowing. This provision 

would not change the existing standard for showing that a retaliatory investigation or other supervisory activity rises to the level of 

a prohibited personnel practice forbidden under the WPA, but, once 

an employee is able to prove a claim under the WPA, the provision 

of S. 372 would create an additional avenue for financial relief if 


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76Public Law No. 107–296, § 214, 116 Stat. 2135 (2002). 77See 5 U.S.C. § 552. 78Letter from Elaine Kaplan, Special Counsel, Office of Special Counsel, to Sen. Charles 

Grassley (March 10, 2003). 

the employee can further demonstrate that an investigation was 

undertaken in retaliation for the protected disclosure. 

Clarification of whistleblower rights for critical infrastructure information 

The Homeland Security Act (HSA) encouraged non-federal owners and operators of critical infrastructure to submit critical infrastructure information voluntarily to the Department of Homeland 

Security (DHS) so that the Department could assess and address 

potential security threats.76 To encourage submission of this information, the HSA stipulates that voluntarily submitted critical infrastructure information is to be treated as exempt under the Freedom of Information Act.77 The HSA, however, makes clear that it 

is not to be construed to limit or otherwise affect the ability of a 

State, local, or Federal government entity or third party to independently obtain critical infrastructure information. 

At the same time, the Act criminalizes the unauthorized disclosure of this type of information, leading to confusion as to whether 

the HSA limits a whistleblower’s disclosure of independently obtained critical infrastructure information. According to then-Special 

Counsel Elaine Kaplan: 

[T]he statutory language is very ambiguous in several 

respects. The rights preserved under section 214(c) extend 

to government entities, agencies, authorities and ‘‘third 

parties.’’ It is unclear whether employees of the United 

States would be considered ‘‘third parties.’’ Elsewhere in 

section 214, the statute uses the phrase ‘‘officer or employee of the United States’’ when it refers to disclosures 

by federal employees. See, section 214(a)(1)(D). 

Similarly, the phrase to ‘‘use’’ the information ‘‘in any 

manner permitted by law,’’ does not clearly encompass 

‘‘disclosures’’ of information. Elsewhere, in section 

214(a)(1)(D), the statute states that an officer or employee 

of the United States, shall not ‘‘us[e] or disclos[e]’’ voluntarily provided critical infrastructure information. The use 

of the disjunctive ‘‘use or disclose’’ (emphasis added) in section 214(a)(1)(D) suggests that the word ‘‘use’’ alone in section 214(c) may not encompass the act of ‘‘disclosing.’’ In 

short, it is unclear whether Congress intended to authorize 

‘‘disclosures of information’’ that are protected by the WPA 

when it authorized the ‘‘use of information in any manner 

permitted by law’’ in section 214(c). 

These ambiguities become especially troublesome in the 

context of the tendency of the judiciary to narrowly construe the scope of protection afforded under the WPA.78

When DHS issued proposed regulations implementing section 

214 of the HSA, it received comments expressing concern that 

whistleblowers could be treated unfairly and be subject to termination, fines, and imprisonment if they disclosed critical infrastructure information. This would discourage the accurate reporting of 


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79See 69 Fed. Reg. 8074. 80See 71 Fed. Reg. 52262, and 6 CFR § 29.8(f). 81See, e.g., Rusin v. Dept. of Treasury, 92 M.S.P.R. 298 (2002). 82Reprinted in 135 Cong. Rec. 5033 (1989). 

information vital to the public. In response, in its interim regulations published in February 2004, DHS specifically referenced the 

WPA to ensure full protections for whistleblowers.79 However, as 

stated in DHS’s final regulations, published in September 2006, the 

‘‘refer[ence] to the Whistleblower Protection Act [ ] has been omitted because . . . [it] merely restates the law of the land.’’ 80

The regulations clearly intend to ensure that disclosures of independently obtained critical infrastructure information are not exempt from the WPA. S. 372 would codify that regulatory intent and 

make clear that disclosures of this type are free from criminal penalties and are fully covered by the whistleblower provisions in 5 

U.S.C. § 2302(b)(8). 

Right to a full hearing 

Board case law has created a disturbing trend of denying the employees’ right to a due process hearing and a public record to resolve their WPA claims. The prevailing practice at the Board now 

is to deny employees the opportunity to present whistleblower 

claims if the agency first prevails in its affirmative defense of proving, by clear and convincing evidence, that the agency would have 

taken the same personnel action for lawful reasons independent of 

retaliation against the employee for protected whistleblowing.81

Taking away whistleblowers’ opportunity to present their cases 

undermines key purposes of the WPA. The order in which parties 

get to present their cases may influence the fact-finders’ perception 

of the merits and, therefore, potentially the outcome, and the Board 

is imposing a process that is the inverse of what most adjudicators 

use, where claimants are typically permitted to present their affirmative case before the defense gets its turn to put on evidence. 

Thus, employees may be disadvantaged under the MSPB practice 

by not being permitted the opportunity to affirmatively and fully 

present the evidence for their claims. Moreover, if employees cannot present their cases, they may also lose a key opportunity to develop a record for appeal, which is an important check on agency 

decisionmaking. Finally, denying whistleblowers a hearing deprives 

them of a forum in which to air grievances, which may be legitimate and important even where the disputed personnel action does 

not violate the WPA. 

Furthermore, the current procedure allowing the agency to 

present its evidence first precludes the Board from exercising some 

of its most significant merit system oversight duties. These include 

creating a public record of both parties’ positions on alleged governmental misconduct that could threaten or harm citizens. Similarly, 

it precludes the Board from a significant merit system oversight 

function that Congress emphasized when it passed the 1994 

amendments to the Act. As explained in the Joint Explanatory 

statement of the House-Senate conferees who negotiated the 1989 

WPA amendments, ‘‘[w]histleblowing should never be a factor that 

contributes in any way to an adverse personnel action.’’ 82 The 

Board’s merit system oversight duty is so significant that under the 

1994 amendments to the Act, the Board must refer managers for 


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83 140 Cong. Rec. H11422 (daily ed. Oct 7, 1994) (statement of Rep. McCloskey). 

OSC disciplinary investigation whenever there is a finding that reprisal for a protected disclosure was a contributing factor in a decision to take a personnel action, even if the agency ultimately prevails on its affirmative defense of independent justification.83 The 

current procedure relieves the Board of these oversight responsibilities, as long as the agency has an acceptable overall affirmative 

defense. 

S. 372 resolves this problem by requiring that, before the agency 

may present its defense, the employee must have had an opportunity to present his or her evidence first and must have succeeded 

in presenting a prima facie case that the protected activity was a 

contributing factor in the personnel action. If the employee fails to 

do that, then the case is dismissed; if the employee succeeds, then 

the agency gets its turn to present its defense. 

Disclosures of scientific censorship 

The Committee has heard concerns that federal employees may 

be discouraged from, or retaliated against for, disclosing evidence 

of unlawful or otherwise improper censorship related to research, 

analysis, and other technical information related to scientific research. Although disclosures of such censorship may be protected 

as a disclosure of a legal violation or of an abuse of authority under 

the WPA, uncertainty on this specific issue may cause confusion 

and inhibit disclosure. It is essential that Congress and the public 

receive accurate data and findings from federal researchers and analysts to inform lawmaking and other public policy decisions. 

In order to encourage the reporting of improper censorship, S. 

372 would specifically protect employees who disclose information 

that the employees reasonably believe is evidence of scientific or 

technical censorship that may cause gross government waste or 

mismanagement, or a substantial and specific danger to public 

health or safety, or that violates the law. This definition of protected disclosures is nearly identical to the general definition of 

protected disclosures that do not relate to censorship.μ This is intended to make unmistakably clear that employees are protected 

for disclosing scientific censorship in the same manner as they are 

protected for making any other disclosure. 

Reporting requirements 

In order to assist Congress in evaluating the effects of this legislation, S. 372 would require three reports. S. 372 would require 

GAO to evaluate the implementation of the Act. In light of concerns that have been raised in the past that clarifying the broad 

scope of protected disclosures would lead to frivolous claims, the 

bill requires GAO specifically to report on outcomes of cases, including a review of the number of cases where the MSPB or a federal court has determined any allegations to be frivolous or malicious. Additionally, S. 372 would require the Council of Inspectors 

General on Integrity and Efficiency to conduct a study on security 

clearance revocations and the appeals processes available. Finally, 

it will require the MSPB to report annually on the number of cases 

filed, the number of petitions for review filed, and the disposition 

of cases alleging violations of 5 U.S.C. §§ 2302(b)(8) or (9). The 


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Committee believes that these provisions will enable Congress to 

examine closely how this bill is implemented and to evaluate 

whether provisions subject to the five-year sunset should be extended and to consider additional steps if needed in the interim. 

Alternative review 

The duration of the MSPB process often leaves whistleblowers, 

many of whom have been terminated from federal employment, 

without resolution of their claims for far too long. To address this 

problem, the bill as reported establishes an alternative review procedure for certain whistleblower retaliation cases. Subject to a fiveyear sunset, the bill would allow claims involving major personnel 

actions to go to federal district court if at least one of the following 

conditions is met: the MSPB does not issue a final order or decision 

within 270 days after the request for corrective action was submitted; or if the MSPB certifies, upon motion from the employee, 

that the Board is not likely to dispose of the case within 270 days 

or that the case consists of multiple claims, requires complex or extensive discovery, arises out of the same set of facts as a civil action pending in a federal court, involves a novel question of law, 

or states a claim upon which relief can be granted. With respect 

to the last condition, the MSPB may examine any evidence or 

pleadings before it at the time of the certification request, but all 

parties must be given a reasonable opportunity to present all the 

material that is pertinent to the motion. If evidence is examined 

in the certification decision, the Board shall grant the certification 

only if it concludes, viewing the evidence in the light most favorable to the employee, that the employee has raised a genuine issue 

of material fact with respect to his or her claim. The MSPB must 

rule on the motion for certification within 90 days and may not 

rule on the merits of the underlying request for corrective action 

within 15 days of its certification decision. If the MSPB determines 

that any of the specified conditions apply, then the case may be 

moved to federal district court. 

An MSPB decision that denies certification to remove a whistleblower case to district court may be considered on appeal only with 

the appeal of the Board’s final decision on the merits of the whistleblower claim and may be overturned only if the Board’s decision 

on the merits of the claim is overturned. If a court of appeals overturns a decision denying certification, the employee may file his or 

her claim in federal district court without further proceedings by 

the MSPB. 

The Committee wishes to emphasize that this provision does not 

replace the MSPB as the primary forum for adjudicating whistleblower lawsuits under the WPA. First, the alternative recourse provision is limited to major personnel actions under 5 U.S.C. §§ 7512 

and 7542. Second, alternative review is limited to cases that take 

more than 270 days to resolve, or are certified for district court because they are likely to take more than 270 days or they involve 

complex or multiple claims, novel questions of law, or state a claim 

upon which relief can be granted. These limitations will ensure 

that only the more significant and complex cases will be brought 

in district court. 

According to Thomas Devine, Legal Director of the Government 

Accountability Project, certain decisions by the MSPB and the FedVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00025 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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84See Statement of Thomas Devine, Legal Director, Government Accountability Project, S. 372 

Hearing supra note 71. 85 Id. 86See Statement of Robert Vaughn, Professor of Law and A. Allen King Scholar, Washington 

College of Law at American University, S. 372 Hearing supra note 71, at 12–13. 87See id. at 12–17 (arguing that relatively few whistleblowers would remove their cases to 

district court if provided the opportunity, but that complex and contentious cases are more likely 

to need an alternative forum). 88 Id. 89See id.; see also Devine Statement, S. 372 Hearing supra note 71. 90 Vaughn Statement, S. 372 Hearing supra note 71, at 14. 91See id. at 11, 16 (nearly all Sarbanes-Oxley litigants were eligible to go to district court, 

but most stuck with the administrative process); see also is Richard E. Moberly, Unfulfilled Expectations: Why Sarbanes Oxley Whistleblowers Seldom Win, 49 William and Mary Law Review 

65 (2007) & table J of Basic Data for Unfulfilled Expectations article, available at http:// 

law.unl.edu/c/documentllibrary/getlfile?folderId=3600&name=DLFE–1326.pdf. Professor 

Moberly’s data shows that 54 employees withdrew from the administrative process with an intention of filing a district court claim and 82 employees withdrew from the administrative process with no stated reason. Assuming that 100 percent of those employees filed a district court 

claim, less than 28 percent of the 491 Sarbanes-Oxley litigants filed district court claims. 

eral Circuit Court of Appeals that narrowly interpret the WPA 

have undermined employees’ confidence in the Board process.84 In 

recent years, both the MSPB and the Federal Circuit Court of Appeals have repeatedly applied the WPA in a manner inconsistent 

with congressional intent. Employees, therefore, may feel greater 

confidence that they will be protected if provided alternate recourse 

in a federal district court and with a jury of their peers than in the 

Board process. Furthermore, the alternative process may provide a 

check against any future narrowing of the WPA by the Board and 

the Federal Circuit.85

Additionally, district courts may be better equipped than the 

Board to handle certain complex cases. The Board uses less formal 

procedures, discovery, and rules of evidence than federal courts, 

adapted for the fact that most employees appearing before the 

Board are not represented by counsel.86 For most employees, the 

less expensive, less formal Board process will be preferable, but 

district courts may be better suited for certain novel and complex 

cases.87 Mr. Devine testified at the hearing on S. 372 that ‘‘the 

Board is not structured or funded for complex, high stakes conflicts 

that can require lengthy proceedings.’’ 88 For these reasons, district 

court certification is available for WPA cases involving a ‘‘major 

personnel action’’ under 5 U.S.C. §§ 7512 or 7542 and multiple 

claims, complex or extensive discovery, or a novel legal question. 

The Committee anticipates, however, that most employees with 

the option of filing their case in district court will choose to remain 

in the administrative system through the MSPB because it is the 

lower cost, less burdensome alternative.89 Trends under other statutes offering district court access as a supplement to an administrative remedy are instructive. According to Professor Robert 

Vaughn, only approximately ten percent of discrimination claims 

brought by federal employees to the Equal Employment Opportunity Commission are pursued in district court.90 Similarly, only 

a small minority of whistleblower claims filed under the SarbanesOxley Act of 2002, which protects whistleblowers who report illegal 

corporate activity, are pursued in district court rather than the administrative process at the Department of Labor, although most 

Sarbanes-Oxley whistleblowers are eligible to remove their cases to 

district court.91

As discussed in the section above regarding all circuit review, numerous whistleblower statutes provide access to district court to 


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92Statement of William L. Bransford, General Counsel, Senior Executives Association, S. 372 

Hearing supra note 71. 93De Statement, S. 372 Hearing supra note 71. 94 Id. 

litigate whistleblower claims. As a few examples, discussed above, 

whistleblowers may file cases in district court under the False 

Claims Act, the Resolution Trust Corporation Completion Act, the 

Federal Deposit Insurance Corporation Improvement Act, and the 

Sarbanes-Oxley Act in district court. 

The Committee believes it is appropriate to limit the alternative 

review provisions in certain respects to address concerns raised at 

the hearing on S. 372. At the hearing, William Bransford, on behalf 

of the Senior Executive Association, expressed concern that allowing jury trials in federal district courts could contribute to a perception among federal managers that disciplining a problem employee is unacceptably risky. In particular, he stated that a ‘‘sensational jury trial resulting in a finding against the manager with a 

substantial award of damages w[ould] create significant pause for 

managers.’’ He recommended that a limit on compensatory damages would mitigate this concern if a district court access provision 

were adopted.92 Likewise, Rajesh De from the Department of Justice testified on behalf of the Administration that if a district court 

access provision were included in S. 372, ‘‘we would suggest that 

Congress consider adopting damages caps analogous to the Title 

VII context to ensure that incentives are properly aligned and to 

alleviate concerns about runaway juries.’’ 93

To address the concern that fear of litigation could chill needed 

discipline of problem employees, and to ensure that there is no financial incentive to bring less significant WPA cases in district 

court, the alterative recourse provision limits compensatory damages to $300,000, which is the limit on compensatory damages for 

Title VII discrimination claims, and it does not allow for punitive 

damages. Likewise, limiting the alternative recourse provisions to 

major personnel actions is intended to address managers’ concerns 

with the potential burden of federal court litigation and with being 

able to effectively discipline employees when needed. 

Additionally, Mr. De raised the concern at the hearing on S. 372 

that juries may not be as familiar with the clear and convincing 

evidence standard used under the WPA, but may be more familiar 

with the preponderance of the evidence standard. He recommended, on behalf of the Administration, that a preponderance of 

the evidence standard with a burden-shifting framework similar to 

the Title VII context might be more appropriate for district court 

trials.94 The Committee concludes that this is an appropriate limit, 

which may help to address the concern that allowing jury trials 

might discourage some supervisors from making appropriate personnel decisions. Accordingly, for district court WPA cases only, relief may not be ordered if the agency demonstrates by a preponderance of the evidence, rather than by clear and convincing evidence, 

that the agency would have taken the same personnel action in the 

absence of a protected disclosure. 

The alternative review provisions included in the substitute 

amendment adopted by the Committee are subject to a five-year 

sunset, in order to allow Congress to evaluate the impact of this 


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95See Justifications for Legislative Proposals submitted by the MSPB to accompany the Merit 

Systems Protection Board Reauthorization Act of 2006, available upon request to the Committee. 

provision on federal whistleblower protections, the MSPB, and the 

federal district courts. 

MSPB summary judgment authority 

Currently, the Board does not have the authority to grant summary judgment in a whistleblower case, even when there is no genuine issue as to any material fact and the moving party would be 

entitled to prevail as a matter of law. In its 2006 reauthorization 

request, the Board requested authority to grant motions for summary judgment in order to help it speed case processing.95 To assist the Board with prompt adjudication of WPA claims, the Committee included in the substitute amendment to S. 372 a provision 

authorizing the MSPB to consider and grant summary judgment 

motions in WPA cases that involve major personnel actions, subject 

to a five-year sunset. In considering a motion for summary judgment, the MPSB may examine evidence and pleadings before it and 

shall determine, viewing the evidence in the light most favorable 

to the non-moving party, whether any genuine issue of material 

fact exists. This five-year period will allow Congress to evaluate the 

impact of this provision on the cases heard by the MSPB and any 

impact on the WPA protections for federal whistleblowers. 

Classified disclosures to Congress for employees under the WPA 

In order to clarify a procedure under the WPA by which federal 

employees may disclose to Congress classified information that 

evidences waste, fraud, and abuse, S. 372 amends 5 U.S.C. 

§ 2302(b)(8) to allow all federal employees to take advantage of the 

procedures that have already been set forth for disclosing classified 

information to Congress in the Intelligence Community Whistleblower Protection Act. 

As introduced, S. 372 would have explicitly provided full WPA 

protection to federal whistleblowers who disclose classified information to Congress in certain circumstances. A whistleblower would 

have been covered under the WPA if he or she was retaliated 

against for disclosing classified information to a member of Congress who is authorized to receive the information disclosed or congressional staff who holds the appropriate security clearance and 

is authorized to receive the information disclosed. In order for such 

a disclosure to be protected, the employee would have been required to have a reasonable belief that the disclosure is direct and 

specific evidence of wrongdoing. 

The Executive Branch and Congress long have taken somewhat 

different positions regarding their respective roles with respect to 

the control and disclosure of classified information. The debate 

prior to enactment of the ICWPA provides useful context. In 1998, 

Congress considered a bill (S. 1668), which contained very similar 

provisions to S. 372 as introduced, although that bill would have 

applied only to the intelligence community. The Executive Branch 

opposed the bill, arguing that ‘‘S. 1668 would deprive the President 

of his authority to decide, based on the national interest, how, 

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96See Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. 92 (1998) (statement 

of Randolph D. Moss, Deputy Assistant Attorney General, Office of Legal Counsel, before the 

House Permanent Select Committee on Intelligence). 97S. Rep. No. 105–165 (1998). 98 Intelligence Authorization Act for FY 1999, Public Law No. 105–272, 112 Stat. 2396, title 

VII (1998) (‘‘Intelligence Community Whistleblower Protection Act of 1998’’). 99 H.R. Rep. No. 105–780 (1998) (emphasis added). 100See De Statement, S. 372 Hearing supra note 71, at 11. 

sible encroachment on the President’s ability to carry out core executive functions.’’ 96 In its report, the Senate Select Committee on 

Intelligence described its consideration of Constitutional and other 

ramifications of the legislation. That Committee concluded that the 

regulation of national security information, while implicitly in the 

command authority of the President, is equally in the national security and foreign affairs authorities vested in Congress by the 

Constitution. The Intelligence Committee, furthermore, was convinced that the provision was constitutional because it did not prevent the President from accomplishing his constitutionally assigned 

functions, and it was justified by an overriding need to promote the 

objectives within the constitutional authority of Congress.97

Nonetheless, in order to address the Administration’s concerns, 

the House and Senate agreed to modify the Senate proposal and 

enacted the ICWPA, which provides a secure process by which a 

whistleblower in the intelligence community may disclose wrongdoing to Congress.98 Specifically, the ICWPA requires an employee 

to first inform the inspector general for his or her agency, who determines if the employee’s complaint is credible. If the inspector 

general determines the complaint is credible, he or she must transmit the information to the House and Senate Intelligence Committees. The employee may also transmit the information to those 

committees if the inspector general does not determine the complaint to be credible, but the employee must first notify the inspector general that he or she will take such action. Thereafter, the 

agency has the ability to provide the employee with appropriate instructions regarding how to transmit classified information to the 

Congress and an opportunity to review the disclosure of this information. However, as the House and Senate agreed in the conference report for the ICWPA, the ICWPA ‘‘establishes an additional process to accommodate the disclosure of classified information of interest to Congress.’’ The conference report similarly emphasized that the new provision ‘‘is not the exclusive process by 

which an Intelligence Community employee may make a report to 

Congress.’’ 99

The current Administration likewise objected to S. 372’s provisions explicitly protecting classified disclosures to Congress. Mr. 

De, on behalf of the Administration, testified at the hearing on S. 

372: 

Of course, Congress has significant and legitimate oversight interests in learning about, and remedying, waste, 

fraud and abuse in the intelligence community, and we 

recognize that Congress has long held a different view of 

the relevant constitutional issues. However, as Presidents 

dating back to President Washington have maintained, the 

Executive Branch must be able to exercise control over national security information where necessary.100


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101Public Law No. 336, 37 Stat. 539, 555 (1912); 5 U.S.C. § 7211. 

The Committee believes that the original provision of S.372, as 

introduced, is consistent with Congress’s constitutional role; however, to accommodate the concerns expressed by the Administration, the Committee agreed to alter this provision. The substitute 

amendment to S. 372 adopted by the Committee strikes the original provision described above and adds provisions that would provide federal employees covered under the WPA with protection 

under the WPA if they disclose classified information to Congress 

using the procedures that now apply under the ICWPA only to employees at certain intelligence agencies. This provision in S. 372, as 

amended, is intended to ensure that employees who witness waste, 

fraud, and abuse are not inhibited from disclosing it appropriately, 

and thereby seeking to end it, simply because it involves classified 

information, and to ensure that Congress receives the information 

necessary to fulfill its oversight responsibilities, while protecting all 

federal employees from retaliation for disclosing wrongdoing to 

Congress. In addition, this provision seeks to ensure the proper 

handling of classified documents and information in the process of 

reporting wrongdoing, consistent with the requirements under the 

ICWPA, and will extend WPA protection to employees who come 

forward under this process with information about prohibited practices and waste, fraud, and abuse in the federal government. 

The Committee emphasizes that this new process is but one way 

for federal employees to disclose classified information to Congress. 

5 U.S.C. § 2302(b) currently states that it is not to be construed to 

authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to the Congress. The new process does not in any way 

limit the right to communicate with Congress under the Lloyd-La 

Follette Act 101 (which codifies federal employees’ right to petition 

or provide information to Congress) or any other provision of law. 

Whistleblower Protection Ombudsman 

To ensure that employees are aware of their rights under the 

WPA and avenues of redress, the Committee agreed to include a 

provision in the substitute amendment to S. 372 adopted by the 

Committee that requires each agency inspector general to designate a Whistleblower Protection Ombudsman within the Office of 

the Inspector General. This Ombudsman would advocate for agency 

employees, educate agency personnel about prohibited personnel 

practices on retaliation for protected disclosures, and advise agency 

employees on how to make a protected disclosure and help those 

who have made a protected disclosure. This applies to all inspectors general, whether the employees are covered by the WPA or 

ICWPA. 

The addition of a Whistleblower Protection Ombudsman at each 

agency would provide the agency and the employees with an intermediary to ensure that supervisors and leaders within the agency, 

as well as employees, are aware of prohibited retaliatory actions 

and employee rights under the WPA. In this intermediary role, the 

ombudsman could also help provide recommendations for resolving 

problems between an individual and the employer before any prohibited personnel practices are taken in violation of the WPA. 


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102Some agencies have internal agency procedures to protect whistleblowers, which generally 

are not required by law. The Federal Bureau of Investigation does have whistleblower protections under 5 U.S.C. § 2303. Although S. 372 creates a consolidated process for all employees 

in the intelligence community who allege retaliation for protected whistleblower disclosures to 

seek redress under the ICWPA, the committee does not intend that this legislation would interfere in any way with the ability of Congress and various committees of Congress to exercise 

oversight of the treatment of Executive branch whistleblowers. 103De Statement, S. 372 Hearing supra note 71, at 6–7. 104 Id. at 7. 

Establishment of Intelligence Community Whistleblower Protection 

Board 

As discussed above, numerous elements of the intelligence community are excluded from the WPA, under 5 U.S.C. 

§ 2302(a)(2)(C)(ii) because the intelligence community handles highly classified programs and information that must be closely guarded from public disclosure. These whistleblowers are provided a secure channel under the ICWPA by which to disclose sensitive information, first to the appropriate inspector general and then to the 

Intelligence Committees of Congress. However, the ICWPA does 

not offer redress if the employee suffers retaliation because of the 

disclosure.102

As Mr. De testified on behalf of the Administration at the hearing on S. 372, establishing a scheme to provide redress would be 

desirable: 

Yet it is essential that we root out waste, fraud and 

abuse in the intelligence community just as elsewhere, and 

that intelligence community employees have safe channels 

to report such wrongdoing. Such whistleblowers expose 

flaws in programs that are essential for protecting our national security. We believe it is necessary to craft a scheme 

carefully in order to protect national security information 

while ensuring that intelligence community whistleblowers 

are protected in reality, not only in name. Properly structured, a remedial scheme should actually reduce harmful 

leaks by ensuring that whistleblowers are protected only 

when they make disclosures to designated Executive 

Branch officials or through proper channels to Congress.’’ 103

Specifically, in order to reconcile the competing interests of providing more robust protections for whistleblowers in the intelligence community and ensuring that classified information vital to 

national security remains protected, Mr. De, on behalf of the Administration, recommended that a central element of such a remedial process would be the creation of an Intelligence Community 

Whistleblower Protection Board. According to Mr. De: 

This Board could be composed of senior presidentiallyappointed officials from key agencies within and outside of 

the intelligence community, including inspectors general, 

to provide a safe and effective means for intelligence community employees to obtain redress if they suffer retaliation for disclosing waste, fraud, or abuse.104

The Committee concluded that providing additional protections 

for intelligence community employees to expose waste, fraud, 

abuse, and illegal activities, would help protect this country’s interests and strengthen its national security. Providing an effective avVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00031 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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105The intelligence community elements under the jurisdiction of the ICWPB are the same 

elements that are excluded from the WPA and under the ICWPA, discussed above. These do 

not include (unless designated by the President) all of the elements of the intelligence community as it typically is defined in law, which is having the same meaning as set forth in section 

3(4) of the National Security Act of 1947 (50 U.S.C. § 401a(4)). The agencies excluded from the 

WPAs protections and within the scope of the ICWPA always have been narrower than the intelligence community as defined by the National Security Act. Although there may be some value 

to a consistent definition in law, the Committee has determined that consistency is not a sufficient basis to exclude additional entities from the more robust protections of the WPA. The Committee does note that the President has the authority to exclude other elements of the intelligence community. 

enue for intelligence community employees to obtain redress outside of their employing agencies if they suffer retaliation for disclosing agency waste, fraud or abuse would encourage intelligence 

community whistleblowers to come forward. Protecting disclosures 

made according to a specified, protected channel additionally would 

likely better protect national security information, as Mr. De testified, by removing the incentive to leak information publicly. 

Accordingly, the substitute amendment to S. 372 that was agreed 

to by the Committee adds a second title to S. 372, establishing the 

Intelligence Community Whistleblower Protection Board (ICWPB) 

to hear appeals of intelligence community whistleblower cases.105

The ICWPB would act in many respects as the MSPB does for 

whistleblowers outside the intelligence community, and would be 

located within the Office of the Director for National Intelligence 

to ensure that it has the expertise and resources needed to appropriately protect highly sensitive information that may be involved 

in intelligence-community whistleblower cases. The ICWPB would 

consist of a Chairperson appointed by the President and four other 

members, all of whom would be confirmed by the Senate. Two of 

the four members would be designated by the President from individuals serving as an Inspector General of any agency. The designation of these members is intended to ensure that there is 

strong representation of members who have a firm understanding 

of the importance of and mechanisms for oversight and accountability. The President would appoint the other two members, in 

consultation with the Secretary of Defense, Director of National Intelligence, and the Attorney General. The designation of these 

members is intended to ensure that the Board contains members 

with a firm understanding of the importance of and mechanisms 

for protecting national security information. The members would 

serve four-year terms, except for the initial terms, which vary from 

four to six years so that future terms will be staggered. 

The Chairman of the ICWPB would be paid at level III of the executive schedule on a pro rata basis for time spent on Board activities. The members appointed in consultation with the Secretary of 

Defense, Director of National Intelligence, and the Attorney General would be compensated at the same rate for time spent on 

ICWPB activities, up to 130 days per year. The inspectors general 

appointed to the ICWPB would not receive additional compensation. 

S. 372 provides the ICWPB with the authority, in consultation 

with the Attorney General, the Director of National Intelligence, 

and the Secretary of Defense, to promulgate rules, regulations and 

guidance and issue orders to fulfill its functions. 


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106Public Law No. 81–110, 63 Stat. 208 (1949). The relevant procedures are codified at 50 

U.S.C. § 403q. 

Prohibited personnel practices against employees under the ICWPA 

Under the substitute amendment agreed to by the Committee, S. 

372 would make it a ‘‘prohibited personnel practice’’ for a supervisor to take or fail to take, or threaten to take or fail to take, a 

personnel action, as defined under the WPA, against an employee 

under the ICWPA. Additionally, like the WPA, S. 372 would make 

it a prohibited personnel practice for a supervisor to take or fail to 

take, or threaten to take or fail to take, any personnel action 

against any employee because he or she—(1) exercises an appeal, 

complaint or grievance right; (2) testifies for or otherwise assists 

any individual in the exercise of their whistleblower rights; or (3) 

cooperates with, or discloses information to, an agency Inspector 

General. The denial, suspension, or revocation of a security clearance or denying access to classified or sensitive information or a 

suspension with pay pending an investigation would be subject to 

challenge under separate government-wide provisions on security 

clearances, discussed below. If an ICWPA employee seeks to challenge both a security clearance determination and other alleged retaliation, the employee would bring both claims jointly under the 

security clearance process. 

These provisions afford employees under the ICWPA protections 

against most of the same forms of retaliatory personnel actions 

that are forbidden under the WPA. The exception is that it cannot 

be considered unlawful retaliation to withdraw an employee’s security clearance, to deny an employee’s access to classified or sensitive information, or to suspend an employee with pay pending the 

conclusion of an investigation. This exception recognizes that intelligence entities may need to take quick action to protect national 

security while an investigation of an employee is pending. 

Protected disclosures by employees under the ICWPA 

As under the WPA, protected disclosures under S. 372 would include information the employee reasonably believes evidences a violation of law, rule, or regulation, or gross mismanagement, a gross 

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

danger to public health and safety. However, employees could seek 

protection through the ICWPB appeals process only if they made 

their disclosures to certain officials in certain ways, due to the sensitive information involved and limits on which officials have security clearances and access to certain information. Any disclosure to 

an agency official would be protected if disclosure is not specifically 

prohibited by law or executive order. The Committee intends to 

treat information that would reveal classified information the same 

as classified information. This restriction does not apply to disclosure to Inspectors General or agency officials designated to receive 

such disclosures, because these officials have procedures in place 

for handling classified disclosures of wrongdoing. Additionally, disclosures to Congress that comply with the ICWPA procedures, described above, or with the process for disclosing information under 

the Central Intelligence Agency Act 106 are protected within this 

appeals process. 


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The provisions governing protected disclosures by employees 

under the ICWPA include the same clarifications that S. 372 would 

add to the WPA regarding the nature and circumstances of disclosures that are protected under the WPA. As described above, employees’ disclosures are protected under S. 372 if the disclosure was 

made during the normal course of the employee’s duties; made to 

a person, including a supervisor, who participated in the wrongdoing; revealed information that had been previously disclosed; was 

not made in writing; or was made while the employee was off duty; 

without regard to the employee’s motive for making the disclosure 

or the amount of time that has passed since the events described 

in the disclosure. 

Remedial procedures for employees under the ICWPA 

A. Appeals to the agency head or designee 

For employees, applicants, or former employees under the 

ICWPA who allege a prohibited personnel practice, as described 

above, S. 372 would provide a process for review. First, an affected 

individual would file an appeal with the head of his or her employing agency or the agency head’s designee. An individual who is not 

satisfied with the agency head’s or designee’s decision, could appeal 

that decision to the ICWPB. Finally, the individual could file a petition for review of the ICWPB’s decision in a federal court of appeal. 

Regarding the first level of review, S. 372 would provide employees, applicants, or former employees of an intelligence community 

element with the right to appeal a prohibited personnel practice to 

the head of his or her employing agency, or the agency head’s designee. S. 372 provides flexibility for agencies within larger Departments, such as the National Security Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, and 

the National Reconnaissance Office within the Department of Defense, to determine how best to allocate responsibility for this function. Such intra-agency appeals would be conducted according to 

rules of procedures issued by the ICWPB, unless the ICWPB determines that agency procedures in effect on the date of enactment of 

S. 372, including existing rules for employees of the Federal Bureau of Investigation promulgated under 5 U.S.C. § 2303, adequately provide certain procedural guarantees. 

With respect to these procedural guarantees, S. 372 would require that agency rules of procedure be based on those pertaining 

to prohibited personnel practices under 5 U.S.C. § 2302(b)(8) and 

provide: (1) An independent and impartial fact-finder; (2) notice 

and the opportunity to be heard and present evidence, including 

witness testimony; (3) that the individual may be represented by 

counsel; (4) that the individual has a right to a decision based on 

the record developed during the appeal; (5) that the impartial factfinder shall provide the agency head, or designee, a report within 

180 days of the appeal, unless agreed to by the employee and the 

agency; (6) for the use of classified information in a manner consistent with the interests of national security, including ex parte 

submissions where the agency determines they are warranted; and 

(7) that the individual shall have no right to compel the production 

of classified information, except evidence needed to establish that 


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the employee made the disclosure or communication at issue. The 

fact-finder is required to prepare a written report with findings, 

conclusions, and if applicable, recommended corrective action that 

should be taken by the agency. The agency would issue an order 

implementing corrective action or denying relief within 60 days of 

the fact-finder issuing the report, unless the employee consents to 

additional time. These procedures are intended to ensure that 

agencies establish robust processes to allow full, fair, and prompt 

adjudication of ICWPA whistleblower claims, while appropriately 

protecting classified information. 

As under the WPA, if an employee demonstrates that a protected 

disclosure or the exercise of other protected whistleblower rights 

was a contributing factor in a personnel action, the agency can prevail if it demonstrates by clear and convincing evidence that it 

would have taken the same personnel action in the absence of the 

protected disclosure. Prevailing employees subjected to a prohibited 

personnel practice would be entitled to corrective action including 

damages, attorney’s fees, and costs, but compensatory damages 

would be capped at $300,000, as under the WPA alternative review 

process. 

B. Appeals to the ICWPB and Courts of Appeal 

Employees may appeal the agency’s order to the ICWPB within 

60 days. The ICWPB’s review is de novo based on the agency 

record, and the Board will not admit any additional evidence, although it can remand to the agency for further fact-finding, if needed. S. 372 requires the ICWPB to issue a final decision no later 

than 180 days after the appeal is filed unless the employee consents to a longer period of time. If the ICWPB determines that an 

employee has been subjected to a prohibited personnel practice, it 

shall order the agency head to take corrective action, of the same 

types and with the same limits as apply to the agency appeal process. The ICWPB may also recommend, but cannot order, the reinstatement or hiring of a former employee or applicant. S. 372 requires that the agency head take the actions ordered by the 

ICWPB, unless the President determines that doing so would endanger national security. These procedures are intended to ensure 

independent and prompt review of agency determinations. Moreover, to facilitate congressional oversight of the ICWPB and the implementation of S. 372, Congress would be notified of ICWPB orders. 

As under the WPA, employees may file a petition for review of 

a final ICWPB order with the Court of Appeals for the Federal Circuit or the Federal Court of Appeals for a circuit in which the retaliation is alleged to have occurred. In order to maintain consistency 

with the WPA, the right to appeal to a circuit court other than the 

Federal Circuit is subject to a five-year sunset. 

Review of security clearance or access determinations 

Whistleblowers covered by the WPA, as well as those who fall 

under the ICWPA, have sometimes found themselves inadequately 

protected when they allege government waste, fraud, and abuse 

that poses a risk to national security. That is because some such 

whistleblowers suffer retaliation not in the form of direct termination of their jobs, but instead through means against which neiVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00035 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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107See, e.g., Mark Hertsgaard, Nuclear Insecurity, Vanity Fair, Nov. 2003, at 175. 108 Hesse v. State, 217 F.3d 1372 (Fed. Cir. 2000). 109S. 995—Whistleblower Protection Act Amendments: Hearing on S. 995 before the Subcommittee on International Security, Proliferation, and Federal Services of the Committee on 

Governmental Affairs, S. Hrg. 107–160 (2001) (testimony of Hon. Elaine Kaplan, Special Counsel, Office of Special Counsel). 110De Statement, S. 372 Hearing supra note 71, at 7. 

ther the WPA nor the ICWPA currently provides any protection: 

the revocation of their security clearance.107 The effective result of 

the removal of an employee’s security clearance or the denial of access to classified information typically is employment termination. 

However, in 2000 the Federal Circuit held that the MSPB lacks jurisdiction over an employee’s claim that his security clearance was 

revoked in retaliation for whistleblowing.108 It held that the MSPB 

may neither review a security clearance determination nor require 

the grant or reinstatement of a clearance, and that the denial or 

revocation of a clearance is not a personnel action. 

As a result of this decision, if an employee’s security clearance 

or access to classified information is suspended or revoked in retaliation for making protected disclosures—even if the employee is 

terminated from his or her federal government job because of the 

suspended or revoked clearance—the MSPB may not review the 

suspension or revocation. This is so, even though a supervisor may 

have recommended revocation of the employee’s security clearance 

in retaliation for the whistleblowing, and with the intent that the 

employee lose his or her job as a result. At the hearing during the 

107th Congress on S. 995, one of the predecessor bills to S. 372, 

Senator Levin asked then-Special Counsel Elaine Kaplan about ‘‘a 

situation where a federal employee can blow the whistle on waste, 

fraud or abuse, and then, in retaliation for so doing, have his or 

her security clearance withdrawn and then be fired because he or 

she no longer has a security clearance.’’ Ms. Kaplan responded: 

It is sort of Kafkaesque. If you are complaining about 

being fired, and then one can go back and say, ‘‘Well, you 

are fired because you do not have your security clearance 

and we cannot look at why you do not have your security 

clearance,’’ it can be a basis for camouflaging retaliation.109

In light of the heightened need to ensure that federal employees 

can come forward with information vital to preserving our national 

security, the Committee supports extending the protections for 

whistleblowers to include those who are retaliated against through 

the loss of their security clearances or access to classified information. The Administration likewise supports strengthening these 

protections. At the hearing on S. 372, Mr. De testified: 

We are aware that Congress has heard testimony in the 

past from individuals who have claimed that their security 

clearances were revoked due to whistleblowing activities. 

This administration has zero tolerance for such actions. Although current law provides some procedural protections, 

the administration believes that an employee who is denied a security clearance should be able to seek recourse 

outside of her agency.110


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111 Id. at 8–9. 112 Id. at 8–9. 113 If an employee seeks to challenge both an alleged prohibited personnel practice and an adverse security clearance determination, the employee must bring both claims under the procedures for security clearance revocations. 

As introduced, S. 372 would have provided for an MSPB review 

of security clearance revocations under the WPA. The Administration, however, objected to the MSPB conducting the review. During 

the hearing on S. 372, Mr. De, on behalf of the Administration, testified: 

The current bill would allow an employee who alleges 

that his security clearance was revoked in retaliation for 

whistleblowing to challenge that determination before the 

MSPB. The bill provides that the MSPB, or any reviewing 

court, may grant ‘declaratory relief and any other appropriate relief’ except for the restoration of a security clearance. That limitation quite properly recognizes this function to be the prerogative of the Executive Branch.111

The Administration recommended that the proposed ICWPB, 

rather than the MSPB, review security clearance revocations, because this Board already would be reviewing retaliation against IC 

employees in a forum that would provide robust, independent protections and also careful protection of national security information. As Mr. De testified: 

The [Administration’s] proposed [Intelligence Community Whistleblower Protection] Board, however, could recommend full relief to the aggrieved employee, including 

restoration of the clearance, and could ensure that Congress would be notified if that recommendation is not followed by the agency head. This mechanism would ensure 

that no agency will remove a security clearance as a way 

to retaliate against an employee who speaks truths that 

the agency does not want to hear. Further, we believe that 

such a Board could ably review allegedly retaliatory security-clearance revocations from all agencies, including 

agencies in the intelligence community, rather than limiting review to Title 5 agencies, as S. 372 apparently 

would do.112

The Committee concluded that the Administration’s proposal 

would allow more comprehensive relief for whistleblowers, by expanding the review to include employees under the ICWPA in addition to those covered by the WPA. Accordingly, the substitute 

amendment adopted by the Committee gives review of security 

clearance revocations to the ICWPB rather than the MSPB. 

S. 372 would require that, to the extent practicable, agencies continue to employ individuals who challenge a security clearance suspension or revocation while the challenge is pending. It also would 

require the development and implementation of uniform and consistent policies and procedures for challenging a security clearance 

determination, although it would not authorize challenges to suspensions of one year or less for an investigation.113 The same procedural protections for appealing prohibited personnel practices 

under the ICWPB, discussed above in the section on remedial procedures for ICWPB agency-level appeals, would be incorporated 


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114 In addition to the separate caps of $300,000 for compensatory damages for prohibited personnel practices and for security clearance decisions, an employee who raises both claims may 

not be awarded more than $300,000 in total compensatory damages. 115S. 1358—The Federal Employee Protection of Disclosures Act: Amendments to the Whistleblower Protection Act: Hearing on S. 1358 Before the Committee on Governmental Affairs, S. 

Hrg. 108–414, at 163 (2003). 

into the ICWPB procedures for challenging security clearance revocations. 

The Committee concluded that the process to review allegedly retaliatory security clearance and access determinations should be 

structured like the process for challenging prohibited personnel 

practices against employees covered under the ICWPA, both in the 

interest of consistency and because the balance between encouraging whistleblowing and protecting classified information is the 

same in both cases. Accordingly, the provisions for reviewing security clearance or access determinations define protected disclosures 

in the same way they are defined for challenging other types of retaliation under the ICWPB process. Likewise, as with the other redress provisions under the ICWPB, security clearance determinations made in retaliation for exercising a right of appeal, complaint, 

or grievance; assisting another in the exercise of a whistleblower 

right; or cooperating with an inspector general is prohibited. 

Procedures for review of security clearance decisions 

A. Agency Adjudication 

S. 372 provides that an employee who believes that he or she has 

been subjected to retaliation in the form of revocation of his or her 

security clearance may file an appeal within the agency in the 

same manner as employees covered under the ICWPA, alleging a 

prohibited personnel practice based on a protected disclosure. Employees who prevail in their claims would be entitled to the same 

types of damages as apply to cases involving prohibited personnel 

practices under the ICWPA, with a $300,000 cap on compensatory 

damages.114

The Committee, however, determined that it is appropriate to 

alter the burden of proof for security clearance retaliation claims. 

During the 108th Congress, in testimony before the Committee on 

S. 2682, one of the predecessor bills to S. 372, DOJ argued that the 

burden of proof in whistleblower cases is fundamentally incompatible with the standard for granting security clearances, which only 

permits granting access to classified information where clearly consistent with the interests of national security.115

S. 372’s objective in this section is to prohibit retaliation from 

serving as a factor in decisions that should be grounded solely in 

national security considerations. That means it also is essential 

that S. 372 not disrupt or undermine the preexisting, imperative 

national security objectives of the security clearance process or impose any chilling effect upon officials making these sensitive determinations for legitimate reasons. The Committee’s purpose is to 

deter retaliation against whistleblowers and to close the loophole 

that security clearance revocations have opened. However, the conventional burden of proof in whistleblower cases may not fairly integrate into the security clearance determination process, because 

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116See Executive Order 12968—Access to Classified Information (August 2, 1995). 117 New section 3001(j)(3)(C) of the Intelligence Reform and Terrorism Prevention Act of 2004 

(50 U.S.C. § 435b(j)(3)(C)), as added by section 202(b) of S. 372, as reported. 118 New section 3001(j)(4)(F) of the Intelligence Reform and Terrorism Prevention Act of 2004 

(50 U.S.C. § 435b(j)(4)(F)), as added by section 202(b) of S. 372, as reported. 119De Statement, S. 372 Hearing supra note 71, at 7. 

sistent with the national security interests of the United States, 

and any doubt shall be resolved in favor of the national security.’’ 116 In the especially sensitive area of security clearance and 

classified access determinations, requiring clear and convincing evidence to justify the denial or revocation when the employee has 

made a prima facie whistleblower case may not be appropriate. 

Therefore, the substitute amendment to S. 372 adopted by the 

Committee provides that if an employee shows that a protected disclosure was a contributing factor in a security clearance determination, the agency will prevail if it ‘‘demonstrates by a preponderance 

of the evidence that it would have taken the same action in the absence of such disclosure, giving the utmost deference to the agency’s assessment of the particular threat to the national security interests of the United States in the instant matter.’’ 117 This unique 

deference to national security interests is one element in the factors to be considered when determining if the agency would have 

taken the same security clearance action. It does not apply when 

considering the existence and strength of the affirmative case made 

by the employee, including any proof of motive to retaliate on the 

part of the agency officials involved in the decision. Moreover, if either the agency or the Board finds retaliation, the unique deference 

to national security applied to security clearance decisions does not 

limit other corrective action, including damages. 

B. Review by the ICWPB 

For cases alleging a retaliatory security clearance determination, 

S. 372 also allows for the appeal of a final agency decision to the 

ICWPB within 60 days. As with other ICWPB appeals, the Board’s 

review is de novo based on the agency record, and it will not admit 

any additional evidence, although it can remand to the agency for 

further fact-finding if needed. 

If the ICWPB finds that the agency’s determination was retaliatory, employees are entitled to the same types of damages as discussed above, and the Board may recommend reinstating the security clearance if doing so is ‘‘clearly consistent with the interests of 

national security, with any doubt resolved in favor of national security.’’ 118 The ICWPB may also recommend, but not order, reinstatement or hiring of a former employee or applicant. S. 372 requires the ICWPB to notify Congress of any orders it issues, and 

an agency must notify Congress if it does not follow the ICWPB’s 

recommendation to reinstate a clearance. 

Unlike in cases where prohibited personnel practices are alleged, 

S. 372 does not provide for judicial review of agency or ICWPB actions on appeals taken in connection with the revocation of an employee’s security clearance or access to classified information. The 

Administration takes the position that providing a judicial remedy, 

even one that does not mandate restoration of the clearance, is inconsistent with the traditional deference afforded to the Executive 

Branch in this area.119


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As with the broader issue of control of classified information, the 

Congress long has held a different view of the authorities of the 

Executive Branch and Congress with respect to security clearances. 

Executive Branch authority in this area is not exclusive and Congress properly plays a role. Moreover, the possibility of court review might increase whistleblowers’ confidence in the independence 

and integrity of the protections against retaliation. The Committee 

emphasizes that the focus of any such court review would be 

whether an agency unlawfully retaliated against a whistleblower, 

not whether the national interest is served by granting or revoking 

a security clearance. 

Nevertheless, the Committee concludes that the ICWPB can provide adequate review of security clearance retaliation. Given the 

national security and institutional concerns the Administration 

raised, the Committee agreed, in the substitute amendment adopted by the Committee, to accommodate the Administration’s request 

not to provide judicial review of security clearance determinations. 

However, S. 372 will require congressional notification of ICWPB 

orders and certain agency actions that will facilitate oversight of 

the security clearance redress process created by this legislation, 

which will provide a check against implementation inconsistent 

with congressional intent. 

ICWPA revisions 

An employee covered under either the WPA or ICWPA who has 

submitted a complaint or information to an inspector general under 

the ICWPA procedures would be permitted to inform Congress that 

he or she made a submission to that particular inspector general, 

and of the date on which the submission was made. Additionally, 

S. 372 allows an inspector general to submit a complaint or information under the ICWPA or the Central Intelligence Agency Act of 

1949 directly to the Chair of the ICWPB if the inspector general 

determines that submission to the agency head would create a conflict of interest. 

III. LEGISLATIVE HISTORY

S. 372 was introduced by Senators Akaka, Collins, Grassley, 

Levin, Lieberman, Voinovich, Leahy, Kennedy, Carper, Pryor, and 

Mikulski on February 3, 2009, and was referred to the Committee 

on Homeland Security and Governmental Affairs. Senators Cardin 

and Burris have since joined as cosponsors. The bill was referred 

to the Subcommittee on Oversight of Government Management, the 

Federal Workforce, and the District of Columbia (OGM) on March 

20, 2009. 

This legislation is the culmination of nearly 10 years of work by 

Senator Akaka, other sponsors, and the Committee. S. 372 is similar to S. 274, introduced in the 110th Congress as the Federal Employee Protection of Disclosures Act on January 11, 2007. The Committee reported S. 274 favorably on June 13, 2007, and S. 274 

passed the Senate on December 17, 2007. Additionally, S. 372 is 

similar to S. 494, introduced in the 109th Congress on March 2, 

2005, and favorably reported by the Committee on April 13, 2005. 

S. 494 passed the Senate as an amendment (S. Amdt. 4351) to the 

John Warner National Defense Authorization Act for Fiscal Year 

2007, H.R. 5122, on June 22, 2006. 


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S. 494 was identical to S. 2628, introduced in the 108th Congress 

on July 8, 2004, and favorably reported by the Committee on July 

21, 2004, both of which were similar to S. 1358, introduced on June 

26, 2003. These bills follow previous versions of the legislation: S. 

3190, introduced on October 12, 2000; S. 995, introduced on June 

7, 2001; and S. 3070, introduced on October 8, 2002, and favorably 

reported by the Committee on November 19, 2002. 

The Committee and its subcommittees have held three hearings 

on S. 372 and predecessor bills. Most recently, S. 372 was the subject of a hearing before the OGM Subcommittee on June 11, 2009. 

Witnesses included Mr. Rajesh De, Deputy Assistant Attorney General, Office of Legal Policy, at the U.S. Department of Justice; Mr. 

William L. Bransford, General Counsel of the Senior Executives 

Association; Ms. Danielle Brian, Executive Director of the Project 

on Government Oversight; Mr. Thomas Devine, Legal Director of 

the Government Accountability Project; and Professor Robert G. 

Vaughn, Professor of Law, Washington College of Law at American 

University. 

On November 12, 2003, the Committee held a hearing on S. 

1358. Witnesses included Senator Charles Grassley (R–IA); Mr. 

Peter Keisler, Assistant Attorney General, Civil Division, U.S. Department of Justice; Ms. Elaine Kaplan, attorney and former U.S. 

Special Counsel; Mr. Thomas Devine, Legal Director, Government 

Accountability Project; Mr. Stephen Kohn, Chairman, Board of Directors, National Whistleblower Center; and Mr. William 

Bransford, Partner, Shaw, Bransford, Veilleux & Roth, P.C., and 

General Counsel to the Senior Executives Association. The Committee also received written testimony from Ms. Susanne Marshall, 

then-Chairman of the MSPB. Additionally, on July 25, 2001, the 

Subcommittee on International Security, Proliferation, and Federal 

Services held a hearing on S. 995. 

On July 28, 2009, OGM favorably polled out S. 372, and the 

Committee considered S. 372 on July 29, 2009. Senators Akaka, 

Collins, Lieberman, and Voinovich offered a substitute amendment, 

which was agreed to by voice vote. The amendment allows the 

claimant to move certain WPA cases to federal district court, creates a process for employees under the ICWPA to seek redress for 

whistleblower retaliation, and creates a process for all employees 

to seek redress for security clearance decisions made in retaliation 

for protected whistleblowing, among other provisions. The bill, as 

amended, was ordered reported favorably en bloc by voice vote. 

Members present were Senators Lieberman, Akaka, Carper, Pryor, 

McCaskill, Burris, Collins, Coburn, and Voinovich. 

IV. SECTION-BY-SECTION ANALYSIS

Section 1 titles the bill as the Whistleblower Protection Enhancement Act of 2009. 

TITLE I—PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY

FEDERAL EMPLOYEES

Section 101 

Section 101(a) clarifies congressional intent that the law covers 

a whistleblowing disclosure of ‘‘any’’ violation, except a minor, inadVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00041 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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vertent violation of law that occurs during the conscientious carrying out of official duties. 

Section 101(b) makes technical and conforming amendments and 

clarifies that a disclosure shall not be excluded from protection because it is made during the normal course of an employee’s duties; 

was made to a person, including a supervisor, who participated in 

the wrongdoing; revealed information that had been previously disclosed; was not made in writing; was made while the employee was 

off duty; because of the employee or applicant’s motive for making 

the disclosure; or because of the amount of time since the occurrence of the events described in the disclosure. 

Section 102 

Section 102(a) clarifies the definition of ‘‘disclosure’’ to mean a 

formal or informal communication or transmission, but not to include a communication concerning legitimate policy decisions that 

lawfully exercise discretionary agency authority unless the employee reasonably believes the disclosure evidences illegal activity, 

gross mismanagement, a gross waste of funds, an abuse of authority or specific danger to public health or safety. 

Section 102(b) provides a definition of ‘‘clear and convincing evidence’’—that is, the degree of proof that produces in the mind of 

the trier of fact a firm belief as to the allegations sought to be established—for the purposes of determining whether corrective action is warranted. 

Section 103 provides that any presumption relating to a public 

officer’s performance of a duty can be overcome with substantial 

evidence. It also codifies the objective test for reasonable belief as 

whether a ‘‘disinterested observer with knowledge of the essential 

facts known to and readily ascertainable by the employee could 

reasonably conclude that the actions of the Government evidence 

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

Section 104 

Section 104(a) adds to the list of prohibited personnel practices 

that may not be taken against whistleblowers in retaliation for protected disclosures the enforcement of a nondisclosure policy, form 

or agreement. 

Section 104(b) bars agencies from implementing or enforcing 

against whistleblowers any nondisclosure policy, form or agreement 

that fails to contain specified language preserving the right of federal employees to disclose certain protected information. A non-disclosure policy, form, or agreement in effect before the date of enactment could be enforced after public notice of this specified language. 

Section 104(c) leaves Russell as the governing law for demonstrating that retaliatory investigations are prohibited personnel 

practices and additionally permits corrective action awarded to 

whistleblowers to include damages, fees, and costs incurred due to 

an agency investigation of the employee that was commenced, expanded, or extended in retaliation for engaging in protected whistleblowing. 

Section 105 adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from WPA coverage, and proVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00042 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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vides that a whistleblower at an agency cannot be deprived of coverage under the WPA unless the President removes the agency 

from WPA coverage prior to a challenged personnel action taken 

against the whistleblower. 

Section 106 modifies the proof in disciplinary actions by requiring the OSC to demonstrate that the whistleblower’s protected disclosure was a ‘‘significant motivating factor’’ in the decision by the 

manager to take the adverse action, even if other factors also motivated the decision. Current law requires the OSC to demonstrate 

that an adverse personnel action would not have occurred ‘‘but for’’ 

the whistleblower’s protected activity. 

Section 107 requires that, in disciplinary actions, any attorney 

fees would be reimbursed by the manager’s employing agency rather than the OSC, and permits recovery of reasonable and foreseeable compensatory damages. 

Section 108 

Section 108(a) creates a five-year pilot program that suspends 

the exclusive jurisdiction of the U.S. Court of Appeals for the Federal Circuit over whistleblower appeals and allows petitions for review to be filed either in the federal circuit or in any other federal 

circuit court of competent jurisdiction for a period of five years. 

Section 108(b): During this five-year period, the Office of Personnel Management’s existing authority to file petitions of review 

of the MSPB orders interpreting civil service law would be expanded to permit the filing of WPA cases in the Court of Appeals 

for the Federal Circuit or any other competent court of appeals, 

rather than exclusively in the Federal Circuit. 

Section 109 establishes that employees of the Transportation Security Administration are covered by section 5 U.S.C. 2302(b)(1), 

(8), and (9), which includes full WPA rights as well as protections 

against certain other prohibited personnel practices, including discrimination under the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Rehabilitation Act of 1973. 

Section 110 clarifies that an employee is protected from reprisal 

for disclosing information which an employee reasonably believes is 

evidence of censorship related to research, analysis, or technical information if the employee reasonably believes the censorship is or 

will cause gross government waste or mismanagement, a substantial and specific danger to public health or safety, or any violation 

of law. 

Section 111 clarifies that section 214(c) of the Homeland Security 

Act (HSA) maintains existing WPA rights for independently obtained information that may also qualify as voluntarily submitted 

critical infrastructure information under the HSA. 

Section 112 requires agencies, as part of their education requirements under 5 U.S.C. § 2302(c), to advise employees of their rights 

and protections and to educate employees on how to lawfully make 

a protected disclosure of classified information to the Special Counsel, the Inspector General, Congress, or other designated agency official authorized to receive classified information. 

Section 113 strengthens the OSC’s ability to protect whistleblowers and the integrity of the WPA and the Hatch Act by authorizing the OSC to appear as amicus curiae in any civil action 

brought in connection with the WPA and the Hatch Act and 


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present its views with respect to compliance with the law and the 

impact court decisions would have on the enforcement of such provisions of the law. 

Section 114 specifies that an agency may present its defense to 

a whistleblower case only after the whistleblower has first made a 

prima facie showing that protected activity was a contributing factor in the personnel action. 

Section 115 

Section 115(a) requires all federal nondisclosure policies, forms, 

and agreements to contain specified language preserving the right 

of federal employees to disclose certain protected information. Nondisclosure policies, forms, and agreements without that statement 

may not be implemented or enforced in a manner inconsistent with 

the specified statement of rights. Nondisclosure policies, forms, and 

agreements in effect before the date of enactment may continue to 

be enforced with respect to current employees if the agency provides the employees notice of the statement, and may continue to 

be enforced against past employees if the agency posts notice of the 

statement on the agency website for one year. 

Section 115(b) provides that a nondisclosure policy, form, or 

agreement for a person who is not a federal employee, but who is 

connected with the conduct of intelligence or intelligence-related activity, shall contain appropriate provisions that require nondisclosure of classified information and make clear the forms do not bar 

disclosures to Congress or to an authorized official that are essential to reporting a substantial violation of law. 

Section 116 

Section 116(a) requires the GAO to report on the implementation 

of this Act within 40 months, including an analysis of the number 

of cases filed with the MSPB under 5 U.S.C. §§ 2302 (b)(8) and 

(b)(9), their disposition, and any resulting trends. 

Section 116(b) requires the Council of Inspectors General on Integrity and Efficiency to report on security clearance revocations at 

a select sample of executive branch agencies and on the appeals 

process in place at those agencies and under the Intelligence Community Whistleblower Protection Board within 18 months. 

Section 116(c) requires the MSPB to report on the number and 

outcome of cases filed under 5 U.S.C. §§ 2302(b)(8) and (b)(9) on a 

yearly basis. 

Section 117 creates a five-year pilot program that permits an employee who has been subjected to a major personnel action to file 

for a de novo review in U.S. district court if the employee seeks corrective action or files an appeal with the MSPB under certain circumstances. More specifically, the employee may file in district 

court if no final order or decision is issued by the MSPB within 270 

days after the request was submitted; or upon certification by the 

MSPB that the Board is not likely to dispose of the case within 270 

days after the request was submitted or that the case consists of 

multiple claims, requires complex or extensive discovery, arises out 

of the same set of facts as a civil action pending in a federal court, 

involves a novel question of law, or states a claim upon which relief 

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quest for corrective action or appeal. The MSPB shall rule on the 

motion within 90 days, and not later than 15 days before issuing 

a final decision on the merits of the case, and shall stay any other 

claims while the district court case is pending. In district court, the 

agency may prevail if it demonstrates by a preponderance of the 

evidence (rather than by clear and convincing evidence, which is 

the standard used within the MSPB process) that the agency would 

have taken the same personnel action in the absence of a protected 

disclosure. In district court, the employee may not be represented 

by the Special Counsel. At the request of either party, the case 

shall be tried with a jury. The court may award damages, attorney’s fees, and costs, but compensatory damages may not exceed 

$300,000 and punitive damages are not permitted. An appeal from 

a final decision of a district court can be taken to the Federal Circuit in the district in which the action was filed. 

Section 118 

Section 118(a) authorizes the MSPB to consider and grant summary judgment motions in WPA cases involving major personnel 

actions when the Board or the administrative law judge determines 

that there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law. 

Section 118(b) provides that this authority is subject to a fiveyear sunset. The MSPB would maintain summary judgment authority for those claims pending but not yet resolved at the time 

of the sunset. 

Section 119 provides that employees protected under the WPA 

may make protected classified disclosures under the procedures set 

forth for disclosing classified information under the ICWPA. These 

protections do not in any way limit the right to communicate with 

Congress under the Lloyd-La Follette Act, codified in 5 U.S.C. 

§ 7211, or other provisions of law. 

Section 120 requires that agency inspectors general, including 

the Inspector General of the Central Intelligence Agency and each 

other inspector general within the intelligence community, designate a Whistleblower Protection Ombudsman within the Office of 

the Inspector General. The Ombudsman would advocate for the interests of agency employees who make disclosures of information, 

educate agency personnel about prohibited personnel practices on 

retaliation for protected disclosures, and advise agency employees 

who have made a protected disclosure or are contemplating making 

a disclosure. 

TITLE I—INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS

Section 201 establishes protections for certain intelligence community whistleblowers. 

Section 201(a) would amend Title I of the National Security Act 

of 1947 by adding two sections to the Act, Section 120 and Section 

121: 

Section 120(a) of the National Security Act, as amended, establishes the Intelligence Community Whistleblower Protection Board 

(ICWPB). 

Section 120(b) of the National Security Act, as amended, establishes the membership of the ICWPB. The ICWPB would consist of 

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dividuals serving as Presidentially-appointed, Senate-confirmed inspectors general of any agencies; and two members appointed by 

the President after consultation with the Attorney General, the Director of National Intelligence, and the Secretary of Defense. Two 

alternate Board members would also be designated by the President and would serve if a Board member recuses himself or herself 

from a matter. The Chairperson would be paid at the annual rate 

of basic pay payable for level III of the Executive Schedule under 

5 U.S.C. § 5324, and Board members would be paid at the same 

rate of pay on a pro rata basis for time spent on Board activities, 

except that inspectors general would not receive any additional 

pay. The Board members would serve four-year terms, except that 

the first Chairperson appointed by the President would serve six 

years, two of the original Board members would serve five years, 

and the other two original Board members would serve four years, 

in order to create staggered terms in the future. 

Section 120(c) of the National Security Act, as amended, establishes the resources and authority of the ICWPB. The Office of the 

Director of National Intelligence would provide the Board with adequate office space, equipment, supplies and communications facilities, and services necessary for the operation of the Board. The 

Chairperson would transmit a budget to the Director of National 

Intelligence specifying the aggregate amount of funds required for 

the fiscal year. The Director of National Intelligence would then 

transmit a proposed budget to the President for approval. The 

Chairperson would be authorized to select, appoint, and employ officers and employees of the Board as necessary. Section 120(c) provides the Board authority to promulgate rules, regulations, and 

guidance, and issue orders, although any Board rule, regulation, or 

guidance must be jointly approved by the Director of National Intelligence, Secretary of Defense, and Attorney General. 

Section 121(a) of the National Security Act, as amended, specifies 

that the intelligence community elements under the jurisdiction of 

the ICWPB will be the same as those intelligence entities excluded 

from the WPA by 5 U.S.C. § 2302(a)(2)(C) and covered under the 

ICWPA, specifically, 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, the National 

Reconnaissance Office, and, as determined by President, any Executive agency or unit thereof the principal function of which is the 

conduct of foreign intelligence or counterintelligence activities, if 

that determination is made before the challenged personnel action. 

Section 121(a) also defines ‘‘personnel action’’ as an action taken 

against an employee under the ICWPA that would be considered a 

personnel action as defined in 5 U.S.C. § 2302(a)(2)(A), but would 

not include the denial, suspension, or revocation of a security clearance or the denial of access to classified information or a suspension with pay pending an investigation. 

Section 121(b) of the National Security Act, as amended, prohibits taking any personnel action against employees under this 

section because of a protected disclosure. Disclosures protected 

under this section are the same types of disclosure of wrongdoing 

as are protected under the WPA in 5 U.S.C. § 2302(b)(8). Disclosures to agency officials are protected if not specifically prohibited 


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by law or executive order. Disclosures that comply with section 8H 

of the Inspector General Act of 1978 (5 U.S.C. App.) or with section 

17(d)(5) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 

§ 403q(d)(5)), as well as disclosures of wrongdoing to inspectors general and designated agency officials, are also protected. A prohibited personnel practice would include taking action against someone because he or she—(1) exercises an appeal, complaint or grievance right; (2) testifies for or otherwise assists any individual in 

the exercise of their whistleblower rights; or (3) cooperates with, or 

discloses information to, an inspector general. Disclosures would 

not be excluded from protection under the intelligence community 

whistleblower protections under the same circumstances as disclosures are not excluded from WPA coverage, as set forth in Section 

101(b). Section 121(b) does not authorize the withholding of information from Congress or the taking of any personnel action against 

an employee who discloses information to Congress. 

Section 121(c)(1) of the National Security Act, as amended, establishes a remedial procedure for employees under the ICWPA who 

believe they have been subjected to a prohibited personnel practice. 

Employees would have the right to appeal an alleged prohibited 

personnel practice to the agency head, and applicable rules of procedure, based on those pertaining to prohibited personnel practices 

under 5. U.S.C. § 2302(b)(8), would provide: (1) for an independent 

and impartial fact-finder; (2) for notice and the opportunity to be 

heard and present evidence, including witness testimony; (3) that 

the individual may be represented by counsel; (4) that the individual has a right to a decision based on the record developed during the appeal; (5) that the impartial fact-finder shall provide the 

agency head, or designee, a report within 180 days, unless agreed 

to by the employee and the agency; (6) for the use of the classified 

information in a manner consistent with the interests of national 

security, including ex parte submissions; and (7) that the individual 

shall have no right to compel the production of classified information, except evidence to establish that the employee made the disclosure alleged to be protected. 

Section 121(c)(2) of the National Security Act, as amended, requires the impartial fact-finder to prepare a report with findings, 

conclusions, and if necessary, recommended corrective action. After 

reviewing the record and the fact-finder’s report, the agency head 

would determine whether the individual has been subjected to a 

prohibited personnel practice and either issue an order denying relief or implement corrective action. This decision would be made 

within 60 days, unless the employee consents to additional time. 

Corrective action would include the employee’s reasonable attorney’s fees and costs, and may include back pay and related benefits, travel expenses, and compensatory damages no greater than 

$300,000. 

Section 121(c)(3) of the National Security Act, as amended, requires the agency head to find that a prohibited personnel practice 

occurred if a protected disclosure was a ‘‘contributing factor’’ in the 

personnel action unless the agency can demonstrate by clear and 

convincing evidence that it would have taken the same action in 

the absence of the employee’s protected disclosure. 

Section 121(c)(4) of the National Security Act, as amended, allows an employee to appeal an agency head’s final order to the InVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00047 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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telligence Community Whistleblower Protection Board within 60 

days. The ICWPB’s review of the record would be de novo, and its 

determination would be based on the entire record. The appeal 

would be conducted under the rules of procedure issued by the 

ICWPB, described in Section 121(c)(1). The ICWPB could not admit 

additional evidence, but it would have authority to remand to the 

agency for further fact-finding if necessary or if the agency improperly denied the employee or applicant the ability to present evidence. Unless the employee consents, the Board would be required 

to issue a decision within 180 days. The Board shall order the 

agency to take corrective action if it determines that a prohibited 

personnel practice has occurred. Corrective action would include 

the employee’s reasonable attorney’s fees and costs, and might include back pay and related benefits, travel expenses, and compensatory damages no greater than $300,000. The Board could recommend, but not order, the reinstatement or hiring of a former employee or applicant. The Agency head would be required to take the 

actions ordered by the Board unless the President determines that 

doing so would endanger national security. 

Section 121(c)(5) of the National Security Act, as amended, allows for judicial review of a final order. For a five-year trial period, 

an employee would be permitted to file a petition for review in the 

Court of Appeals for the Federal Circuit or the court of appeals of 

a circuit in which the reprisal is alleged in the order to have occurred. After that period, appeals would be filed in the Court of Appeals for the Federal Circuit. Any portions of the record that were 

submitted ex parte during agency proceedings would be submitted 

ex parte to the ICWPB and any reviewing court. Section 121(d) limits judicial review to the express provisions of this section. This section also requires the ICWPB to notify Congress when it issues 

final orders. 

Section 121(d) of the National Security Act, as amended, limits 

judicial review to the express provisions of this section. 

Section 121(e) of the National Security Act, as amended, provides 

that the legislation affords no protections for certain terminations 

of employment: (1) Those under 10 U.S.C. § 1609; and (2) those personally and summarily carried out by the Director of National Intelligence, the Director of the Central Intelligence Agency, or an 

agency head under 5 U.S.C. § 7532, if the Director or agency head 

determines the termination to be in the interest of the United 

States, determines that the procedures prescribed in other provisions of law that authorize the termination of the employee’s employment cannot be invoked in a manner consistent with national 

security, and notifies Congress. 

Section 121(f) of the National Security Act, as amended, requires 

employees challenging both a prohibited personnel practice under 

this section and an adverse security clearance determination to 

bring both claims under the procedures set forth for security clearances. The total amount of compensatory damages for such claims 

may not exceed $300,000. 

Section 201(b) strikes 5 U.S.C. § 2303. 

Section 201(c) makes technical and conforming amendments. 


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Section 202 

Section 202(a) amends Section 3001(b) of the Intelligence Reform 

and Terrorism Prevention Act of 2004 by requiring the development of policies and procedures that permit, to the extent practicable, individuals covered under both the WPA and ICWPA who, 

in good faith, challenge a security clearance determination to remain employed while the challenge is pending; and the development and implementation of uniform and consistent policies and 

procedures to ensure protections to allow review of security clearance determinations alleged to be in retaliation for whistleblowing. 

Those procedures would be required to include the same guarantees as are described under the new Section 121(c)(1) of the National Security Act, as added by Section 201(a) of the bill. 

Section 202(b) prohibits revoking a security clearance in retaliation for a protected disclosure. Disclosures would not be excluded 

from protection under this section under the same circumstances as 

disclosures are not excluded from WPA coverage, as set forth in 

Section 101(b). Section 202(b) provides similar remedial procedures 

to employees who seek to appeal the revocation of their security 

clearance determinations as employees who are covered under the 

ICWPA and who seek to appeal alleged prohibited personnel practices, although it does not allow for an appeal of a suspension for 

purposes of conducting an investigation that lasts no longer than 

one year. An employee who believes his or her security clearance 

was revoked because of a protected disclosure would be permitted 

to file an appeal within the agency in the same manner as employees alleging a prohibited personnel practice based on a disclosure. 

If the agency determines that the adverse security clearance determination was retaliatory, it would be required to take corrective action. The same types of damages are available, and with the same 

limits, as for prohibited personnel practice agency appeals for intelligence employees. The standard of review, however, differs from 

other whistleblower retaliation claims. The agency would be required to find that a security clearance determination was retaliatory if a protected disclosure was a ‘‘contributing factor’’ in the determination, unless the agency can demonstrate by a preponderance of the evidence that it would have taken the same action in 

the absence of the disclosure, giving the utmost deference to the 

agency’s assessment of the particular threat to the national security interests of the United States in the instant matter. 

Section 202(b) also allows an employee to appeal an agency 

head’s final order or decision to the ICWPB within 60 days. The 

Board, in consultation with the Attorney General, the Director of 

National Intelligence, and the Secretary of Defense, would develop 

and implement policies and procedures for such appeals. The 

ICWPB could not admit additional evidence, but it would have authority to remand to the agency for further fact-finding, if necessary, or if the agency improperly denied the employee or applicant the ability to present evidence. The Board’s review would be 

de novo, and its determination would be based on the entire record. 

Section 202(b) further requires the ICWPB to order corrective action, including damages, attorney’s fees, and costs, with compensatory damages capped at $300,000, if the ICWPB determines that 

an adverse security clearance determination was retaliatory. The 

Agency head would be required to take the actions ordered by the 


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Board unless the President determines that doing so would endanger national security. Section 202(b) also allows the Board to recommend, but not order, the reinstatement or hiring of a former employee or applicant, as well as to recommend the reinstatement of 

a security clearance if it determines that doing so is clearly consistent with the interests of national security. Section 202(b) requires the Board to notify Congress of any orders it issues and requires the agency to notify Congress if an agency does not follow 

the Board’s recommendation to reinstate a security clearance. Judicial review of agency or Board actions under this section is not permitted. Section 202(b) does not apply to adverse security clearance 

determinations if the employee was terminated under the circumstances described in Section 201(a) under the new Section 

121(e) of the National Security Act. 

Section 203 allows the inspector general to submit a complaint 

or information submitted under the ICWPA or the Central Intelligence Agency Act of 1949 directly to the Chair of the ICWPB if 

the inspector general determines that submission to the agency 

head would create a conflict of interest. Section 203 also would 

allow an individual who has submitted a complaint or information 

to an inspector general to notify any member of Congress, or congressional staff members, of the submission made under the 

ICWPA or the Central Intelligence Agency Act of 1949. 

Section 301 states that the Act would take effect 30 days after 

the date of enactment. 

V. ESTIMATED COST OF LEGISLATION

SEPTEMBER 8, 2009. 

Hon. JOSEPH I. LIEBERMAN, 

Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 372, the Whistleblower Protection Enhancement Act of 2009. 

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

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

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 372—Whistleblower Protection Enhancement Act of 2009 

Summary: S. 372 would amend the Whistleblower Protection Act 

(WPA) to clarify current law and give new protections to federal 

employees including those who report abuse, fraud, and waste involving government activities. The legislation also would affect activities of the Merit Systems Protection Board (MSPB) and the Office of Special Counsel (OSC). Finally, it would establish an oversight board within the intelligence community to review whistleblower claims. 

CBO estimates that implementing S. 372 would cost $54 million 

over the 2010–2014 period, assuming appropriation of the necessary amounts for awards to whistleblowers and additional staffing and reporting requirements. Enacting the bill would not affect 

direct spending or revenues. 


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S. 372 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act (UMRA) and 

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

Estimated cost to the Federal Government: The estimated budgetary impact of S. 372 is shown in the following table. The costs 

of this legislation fall within budget function 800 (general government) and all other budget functions that include federal salaries 

and expenses. 

By fiscal year, in millions of dollars— 

2010 2011 2012 2013 2014 2010– 

2014 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Whistleblower Awards: 

Estimated Authorization Level ................................. 5 5 5 5 5 25 

Estimated Outlays ................................................... 5 5 5 5 5 25 

Intelligence Community Whistleblower Protection Board: 

Estimated Authorization Level ................................. 3 3 3 3 3 15 

Estimated Outlays ................................................... 3 3 3 3 3 15 

MSPB and OSC: 

Estimated Authorization Level ................................. 2 2 2 2 2 10 

Estimated Outlays ................................................... 2 2 2 2 2 10 

Other Provisions: 

Estimated Authorization Level ................................. 3 1 * * * 4 

Estimated Outlays ................................................... 3 1 * * * 4 

Total Changes: 

Estimated Authorization Level ........................ 13 11 10 10 10 54 

Estimated Outlays .......................................... 13 11 10 10 10 54 

Notes: MSPB = Merit Systems Protection Board; OSC = Office of Special Counsel. * = less than $500,000. 

Basis of the estimate: For this estimate, CBO assumes that the 

bill will be enacted near the start of fiscal year 2010 and that 

spending will follow historical patterns for similar programs. 

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 takes corrective action for valid complaints. If agencies fail to take corrective 

actions, 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. 

Whistleblower awards 

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 (some are paid by the Judgment Fund 

and reimbursed by each individual agency) to pay for an employee’s 

attorney, back pay, and any associated travel and medical costs. 

S. 372 would expand protections for whistleblowers and extend 

protections to Transportation Security Administration passenger 

and baggage screeners and federal employees working on research, 

analysis, or technical information. This would include additional 

awards to employees who suffered from retaliation by their agency 

and compensatory damages of up to $300,000. In addition, the legislation would allow access to jury trials and would remove the exclusive jurisdiction of the U.S. Court of Appeals over whistleblower 

appeals. 


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According to the MSPB and OSC, there are generally between 

400 and 500 whistleblower cases each year and around 2,000 prohibited personnel practice complaints. CBO is unaware of any comprehensive information on the current costs of corrective actions related to those cases. Damage awards in each case depend on the 

particular circumstances of each case. Recent settlements amounts 

under the Whistleblower Protection Act have ranged from $20,000 

to $300,000. In addition, the Government Accountability Office has 

reported that the Judgment Fund spends about $15 million annually on equal employment opportunity and whistleblower cases. 

While it is uncertain how often damages would be awarded in such 

cases, CBO expects that the added protections under the bill would 

increase costs for such awards by about $5 million each year. 

Intelligence Community Whistleblower Protection Board 

Section 201 would establish the Intelligence Community Whistleblower Protection Board. The new board, which would have five 

members, would be responsible for issuing guidance on the procedures intelligence agencies should use when reviewing the claims 

of intelligence community employees who believe that they have experienced an adverse personnel action, such as termination of employment or denial of a promotion, or security clearance determination in retaliation for such employee revealing certain types of misconduct. Based on information from the Office of the Director of 

National Intelligence about the board’s staff requirements and the 

costs of similar government boards, CBO estimates that implementing that this provision would cost $3 million annually. 

MSBP and OSC 

CBO expects that the bill’s changes to existing laws would increase the workload of the MSPB and the OSC. For fiscal year 

2009, the MSPB received an appropriation of $39 million, and the 

OSC received $17 million. Based on information from those agencies, we estimate that implementing this bill would cost about $2 

million a year to hire additional professional and administrative 

staff. 

Other provisions 

The bill would require a report by the Government Accountability Office on whistleblowers and the Council of Inspectors General on the security clearance revocations, as well as changes to 

training and nondisclosure policies governmentwide. Based on information from agencies and on the costs of similar existing requirements, CBO estimates that implementing those provisions 

would cost $4 million over the 2010–2014 period. 

Intergovernmental and private-sector impact: S. 372 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

and would impose no significant costs on state, local, or tribal governments. 

Estimate prepared by: Federal costs: Matthew Pickford and 

Jason Wheelock; Impact on state, local, and tribal governments: 

Elizabeth Cove Delisle; Impact on the private sector: Paige Piper/ 

Bach. 

Estimate approved by: Peter H. Fontaine, Assistant Director for 

Budget Analysis. 


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VI. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this bill. CBO states that there are no 

intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and no costs on state, local, or tribal 

governments. The legislation contains no other regulatory impact. 

VII. CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, 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 and 

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

TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES 

PART II—CIVIL SERVICE FUNCTIONS AND 

RESPONSIBILITIES 

CHAPTER 12—MERIT SYSTEMS PROTECTION BOARD, 

OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT 

OF ACTION 

Subchapter I—Merit Systems Protection Board 

SEC. 1204. POWERS AND FUNCTIONS OF THE MERIT SYSTEMS PROTECTION BOARD. 

* * * * * * * 

(b) * * * 

* * * * * * * 

(3) With respect to a request for corrective action based on an 

alleged prohibited personnel practice described in section 

2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) for which the associated 

personnel action is an action covered under section 7512 or 

7542, the Board, any administrative law judge appointed by the 

Board under section 3105 of this title, or any employee of the 

Board designated by the Board may, with respect to any party, 

grant a motion for summary judgment when the Board or the 

administrative law judge determines that there is no genuine 

issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 

ø(3)¿ (4) Witnesses (whether appearing voluntarily or under 

subpoena) shall be paid the same fee and mileage allowances 

which are paid subpoenaed witnesses in the courts of the 

United States. 

* * * * * * * 

(m)(1) Except as provided in paragraph (2) of this subsection, the 

Board, or an administrative law judge or other employee of the 

Board designated to hear a case arising under section 1215, may 


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require payment by the øagency involved¿ agency where the prevailing party is employed or has applied for employment of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the 

Board, administrative law judge, or other employee (as the case 

may be) determines that payment by the agency is warranted in 

the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which 

the agency’s action was clearly without merit. 

Subchapter II—Office of Special Counsel 

* * * * * * * 

(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 any civil action brought in connection with 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. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; 

CORRECTIVE ACTION. 

(a) * * * 

* * * * * * * 

(3) Except in a case in which an employee, former employee, 

or applicant for employment has the right to appeal directly to 

the Merit Systems Protection Board under any law, rule, or 

regulation, any such employee, former employee, or applicant 

shall seek corrective action from the Special Counsel before 

seeking corrective action from the Board. An employee, former 

employee, or applicant for employment may seek corrective action from the Board under section 1221, if such employee, 

former employee, or applicant seeks corrective action for a prohibited personnel practice described in section 2302(b)(8) or 

section 2302(b)(9)(A)(i), (B)(i), (C), or (D) from the Special 

Counsel and— 

(A)(i) the Special Counsel notifies such employee, former 

employee, or applicant that an investigation concerning 

such employee, former employee, or applicant has been terminated; and 

(ii) no more than 60 days have elapsed since notification 

was provided to such employee, former employee, or applicant for employment that such investigation was terminated; or 

(B) 120 days after seeking corrective action from the 

Special Counsel, such employee, former employee, or applicant has not been notified by the Special Counsel that the 

Special Counsel shall seek corrective action on behalf of 

such employee, former employee, or applicant. 


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(b) * * * 

* * * * * * * 

(4)(A) The Board shall order such corrective action as the 

Board considers appropriate, if the Board determines that the 

Special Counsel has demonstrated that a prohibited personnel 

practice, other than one described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B)(i), (C), or (D), has occurred, exists, or 

is to be taken. 

(B)(i) Subject to the provisions of clause (ii), in any case involving an alleged prohibited personnel practice as described 

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

or (D), the Board shall order such corrective action as the 

Board considers appropriate if the Special Counsel has demonstrated that a disclosure or protected activity described 

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

or (D) was a contributing factor in the personnel action which 

was taken or is to be taken against the individual. 

(ii) Corrective action under clause (i) may not be ordered if, 

after a finding that a protected disclosure was a contributing 

factor, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in 

the absence of such disclosure. For purposes of the preceding 

sentence, ‘clear and convincing evidence’ means the degree of 

proof that produces in the mind of the trier of fact a firm belief 

as to the allegations sought to be established. 

* * * * * * * 

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

corrective action may include— 

(1) that the individual be placed, as nearly as possible, in the 

position the individual would have been in had the prohibited 

personnel practice not occurred; and 

(2) reimbursement for attorney’s fees, back pay and related 

benefits, medical costs incurred, travel expenses, øand any 

other reasonable and foreseeable consequential damages¿ any 

other reasonable and foreseeable consequential damages, and 

compensatory damages (including interest, reasonable expert 

witness fees, and costs). 

* * * * * * * 

(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. 

SEC. 1215. DISCIPLINARY ACTION. 

(a) * * * 

* * * * * * * 

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— 


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(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)(i), (C) , or (D), the Board shall impose disciplinary action 

if the Board finds that the activity protected under section 

2302(b)(8), or 2302(b)(9)(A)(i), (B)(i), (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 preponderance of 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. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL 

CASES 

(a) Subject to the provisions of subsection (b) of this section and 

subsection 1214(a)(3), an employee, former employee, or applicant 

for employment may, with respect to any personnel action taken, 

or proposed to be taken, against such employee, former employee, 

or applicant for employment, as a result of a prohibited personnel 

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

(B)(i), (C), or (D) seek corrective action from the Merit Systems 

Protection Board. 

* * * * * * * 

(e)(1) Subject to the provisions of paragraph (2), in any case involving an alleged prohibited personnel practice as described under 

section 2302(b)(8) or section 2302(b)(9)(A)(i), (B)(i), (C), or (D), the 

Board shall order such corrective action as the Board considers appropriate if the employee, former employee, or applicant for employment has demonstrated that a disclosure or protected activity 

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

(C), or (D) was a contributing factor in the personnel action which 

was taken or is to be taken against such employee, former employee, or applicant. The employee may demonstrate that the disclosure or protected activity was a contributing factor in the personnel action through circumstantial evidence, such as evidence 

that— 

(A) the official taking the personnel action knew of the disclosure or protected activity; and 

(B) the personnel action occurred within a period of time 

such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action. 

(2) Corrective action under paragraph (1) may not be ordered if, 

after a finding that a protected disclosure was a contributing factor, 


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the agency demonstrates by clear and convincing evidence that it 

would have taken the same personnel action in the absence of such 

disclosure. For purposes of the preceding sentence, ‘clear and convincing evidence’ means the degree of proof that produces in the 

mind of the trier of fact a firm belief as to the allegations sought 

to be established. 

* * * * * * * 

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

such corrective action may include— 

(i) that the individual be placed, as nearly as possible, in the 

position the individual would have been in had the prohibited 

personnel practice not occurred; and 

(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 

interest, reasonable expert witness fees, and costs). (B) Corrective action shall include attorney’s fees and costs as 

provided for under paragraphs (2) and (3). 

* * * * * * * 

(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. 

* * * * * * * 

(i) Subsections (a) through (h) shall apply in any 

proceeding brought under section 7513(d) if, or to the 

extent that, a prohibited personnel practice as defined 

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

(C), or (D) is alleged. 

* * * * * * * 

(k)(1) In 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 judicial district in which— 

(A) the prohibited personnel practice is alleged to have been 

committed; 

(B) the employment records relevant to such practice are 

maintained and administered; or 

(C) the employee, former employee, or applicant for employment allegedly affected by such practice resides. 

(2)(A) An employee, former employee, or applicant for employment 

in any case to which paragraph (3) or (4) applies may file an action 

at law or equity or de novo review in the appropriate United States 

district court in accordance with this subsection. 

(B) Upon initiation of any action under subparagraph (A), the 

Board shall stay any other claims of such employee, former employee, or applicant pending before the Board at that time which 

arise out of the same set of operative facts. Such claims shall be 

stayed pending completion of the action filed under subparagraph 


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(A) before the appropriate United States district court and any associated appellate review. 

(3) This paragraph applies in any case that— 

(A) an employee, former employee, or applicant for employment— 

(i) seeks corrective action from the Merit Systems Protection Board under section 1221(a) based on an alleged prohibited personnel practice described in section 2302(b)(8) 

for which the associated personnel action is an action covered under section 7512 or 7542; or 

(ii) files an appeal under section 7701(a)(1) alleging as 

an affirmative defense the commission of a prohibited personnel practice described in section 2302(b)(8) or (9)(A)(i), 

(B)(i), (C), or (D) for which the associated personnel action 

is an action covered under section 7512 or 7542; 

(B) no final order or decision is issued by the Board within 

270 days after the date on which a request for that corrective 

action or appeal has been duly submitted; and 

(C) such employee, former employee, or applicant provides 

written notice to the Board of filing an action under this subsection before the filing of that action. 

(4) This paragraph applies in any case in which— 

(A) an employee, former employee, or applicant for employment— 

(i) seeks corrective action from the Merit Systems Protection Board under section 1221(a) based on an alleged prohibited personnel practice described in section 2302(b)(8) or 

(9)(A)(i), (B)(i), (C), or (D) for which the associated personnel action is an action covered under section 7512 or 

7542; or 

(ii) files an appeal under section 7701(a)(1) alleging as 

an affirmative defense the commission of a prohibited personnel practice described in section 2302(b)(8) or (9)(A)(i), 

(B)(i), (C), or (D) for which the associated personnel action 

is an action covered under section 7512 or 7542; 

(B)(i) within 30 days after the date on which the request for 

corrective action or appeal was duly submitted, such employee, 

former employee, or applicant for employment files a motion requesting a certification consistent with subparagraph (C) to the 

Board, any administrative law judge appointed by the Board 

under section 3105 of this title and assigned to the case, or any 

employee of the Board designated by the Board and assigned to 

the case; and 

(ii) such employee has not previously filed a motion under 

clause (i) related to that request for correction action; and 

(C) the Board, any administrative law judge appointed by the 

Board under section 3105 of this title and assigned to the case, 

or any employee of the Board designated by the Board and assigned to the case certifies that— 

(i) the Board is not likely to dispose of the case within 

270 days after the date on which a request for that corrective action has been duly submitted; 

(ii) the case— 

(I) consists of multiple claims; 

(II) requires complex or extensive discovery; 


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(III) arises out of the same set of operative facts as 

any civil action against the Government filed by the 

employee, former employee, or applicant pending in a 

Federal court; or 

(IV) involves a novel question of law; or 

(iii) under standards applicable to the review of motions 

to dismiss under rule 12(b)(6) of the Federal Rules of Civil 

Procedure, including rule 12(d), the request for corrective 

action (including any allegations made with the motion 

under subparagraph (B)) would not be subject to dismissal. 

(5) The Board shall grant or deny any motion requesting a certification described under paragraph (4)(ii) within 90 days after the 

submission of such motion and, in any event, not later than 15 days 

before issuing a decision on the merits of a request for corrective action. 

(6) Any decision of the Board, any administrative law judge appointed by the Board under section 3105 of this title and assigned 

to the case, or any employee of the Board designated by the Board 

and assigned to the case to grant or deny a certification under this 

paragraph shall be reviewed only on appeal of a final order or decision of the Board under section 7703, if— 

(A) the reviewing court determines that the decision by the 

Board on the merits of the alleged prohibited personnel described in section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) failed 

to meet the standards of section 7703(c); and 

(B) the decision to deny the certification shall be overturned 

by the reviewing court if such decision is found to be arbitrary, 

capricious, or an abuse of discretion; and 

(C) shall not be considered evidence of any determination by 

the Board, any administrative law judge appointed by the 

Board under section 3105 of this title, or any employee of the 

Board designated by the Board on the merits of the underlying 

allegations during the course of any action at law or equity for 

de novo review in the appropriate United States district court 

in accordance with this subsection. 

(7) In any action filed under this subsection— 

(A) the district court shall have jurisdiction without regard to 

the amount in controversy; 

(B) at the request of either party, such action shall be tried 

by the court with a jury; 

(C) the court— 

(i) subject to clause (iii), shall apply the standards set 

forth in subsection (e); and 

(ii) may award any relief which the court considers appropriate under subsection (g), except— 

(I) relief for compensatory damages may not exceed 

$300,000; and 

(II) relief may not include punitive damages; and 

(iii) notwithstanding section (e)(2), may not order relief if 

the agency demonstrates by a preponderance of the evidence 

that the agency would have taken the same personnel action in the absence of such disclosure; and 

(D) the Special Counsel may not represent the employee, 

former employee, or applicant for employment. 


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

under this subsection shall be taken to the Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. 

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

other request for corrective action duly submitted to the Board, 

whether under section 1214(b)(2), the preceding provisions of this 

section, section 7513(d), section 7701, or any otherwise applicable 

provisions of law, rule, or regulation. 

PART III—EMPLOYEES 

Subpart A—General Provisions 

CHAPTER 23—MERIT SYSTEM PRINCIPLES 

SEC. 2302. PROHIBITED PERSONNEL PRACTICES. 

(a)(1) For the purpose of this title, ‘‘prohibited personnel practice’’ 

means any action described in subsection (b). 

(2) For the purpose of this section— 

(A) ‘‘personnel action’’ means— 

* * * * * * * 

(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; with respect to 

an employee in, or applicant for, a covered position in 

an agency, and in the case of an alleged prohibited 

personnel practice described in subsection (b)(8), an 

employee or applicant for employment in a Government corporation as defined in section 9101 of title 31; 

(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) excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or 

(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) a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B)(i), (C), or (D); 

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

National Imagery and Mapping Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of 


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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, 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, 

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

(iii) the General Accountability Office; and 

(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, except for 

an alleged violation that is a minor, inadvertent violation, 

and occurs during the conscientious carrying out of official 

duties; 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— 

* * * * * * * 

(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 which the employee or applicant reasonably believes evidences— 

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

regulation except for an alleged violation that is a 

minor, inadvertent violation, and occurs during the 

conscientious carrying out of official duties; or 

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

an abuse of authority, or a substantial and specific 

danger to public health or safety, if such disclosure is 

not specifically prohibited by law and if such information is not specifically required by Executive order to 

be kept secret in the interest of national defense or the 

conduct of foreign affairs; øor¿ 

(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 which the employee or applicant reasonably believes evidences— 

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

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

for an alleged violation that is a minor, inadvertent 


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violation, and occurs during the conscientious carrying 

out of official duties, or 

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

an abuse of authority, or a substantial and specific 

danger to public health or safety; or 

(C) any communication that complies with subsection 

(a)(1), (d), or (h) of section 8H of the Inspector General Act 

of 1978 (5 U.S.C. App); 

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

any personnel action against any employee or applicant for employment because of— 

(A) øthe exercise of any appeal, complaint, or grievance 

right granted by any law, rule or regulation¿ 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) with regard to remedying a violation of any other 

law, rule, or regulation; 

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii); 

(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in 

accordance with applicable provisions of law; or 

(D) for refusing to obey an order that would require the 

individual to violate a law; 

* * * * * * * 

(11)(A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or 

(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) 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 titleø.¿; or 

(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 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 disclosure 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 et seq.) (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)). 


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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.’’ 

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), any presumption relating to the performance of a duty by an employee who has authority to take or 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 and readily ascertainable by the 

employee could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or 

danger. 

(c) The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and 

enforcement of applicable civil service laws, rules, and regulations, 

and other aspects of personnel management, and for ensuring (in 

consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them 

under this chapter and chapter 12 of this title, including how to 

make a lawful disclosure of information that is specifically required 

by law or Executive order to be kept secret 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. Any individual to whom the 

head of an agency delegates authority for personnel management, 

or for any aspect thereof, shall be similarly responsible within the 

limits of the delegation. 

* * * * * * * 

(f) A disclosure shall not be excluded from subsection (b)(8) because— 

(1) the disclosure was made during the normal course of the 

duties of the employee; 

(2) the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant reasonably believed to be covered by subsection 

(b)(8)(A)(ii); 

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

(4) of the employee or applicant’s motive for making the disclosure; 

(5) the disclosure was not made in writing; 

(6) the disclosure was made while the employee was off duty; 

or 

(7) of the amount of time which has passed since the occurrence of the events described in the disclosure. 


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øSEC. 2303. PROHIBITED PERSONNEL PRACTICES IN THE FEDERAL 

BUREAU OF INVESTIGATION. 

ø(a) Any employee of the Federal Bureau of Investigation who 

has authority to take, direct others to take, recommend, or approve 

any personnel action, shall not, with respect to such authority, take 

or fail to take a personnel action with respect to any employee of 

the Bureau as a reprisal for a disclosure of information by the employee to the Attorney General (or an employee designated by the 

Attorney General for such purpose) which the employee or applicant reasonably believes evidences— 

ø(1) a violation of any law, rule, or regulation, or 

ø(2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or 

safety. 

For the purpose of this subsection, ‘‘personnel action’’ means any 

action described in clauses (i) through (x) of section 2302(a)(2)(A) 

of this title with respect to an employee in, or applicant for, a position in the Bureau (other than a position of a confidential, policydetermining, policymaking, or policy-advocating character). 

ø(b) The Attorney General shall prescribe regulations to ensure 

that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information 

described in subsection (a) of this section. 

ø(c) The President shall provide for the enforcement of this section in a manner consistent with applicable provisions of sections 

1214 and 1221 of this title.¿ 

SEC. 2304. PROHIBITED PERSONNEL PRACTICES AFFECTING THE 

TRANSPORTATION SECURITY ADMINISTRATION. 

(a) IN GENERAL.—Notwithstanding any other provisions 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. 

SEC. ø2304¿ 2305. RESPONSIBILITIES OF THE GOVERNMENT ACCOUNTABILITY OFFICE. 

SEC. ø2305¿ 2306. COORDINATION WITH CERTAIN OTHER PROVISIONS 

OF LAW. 

Subpart F—Labor Management and Employee 

Relations 

CHAPTER 77—APPEALS 

SEC. 7703. JUDICIAL REVIEW OF DECISIONS OF THE MERIT SYSTEMS 

PROTECTION BOARD. 

(a)(1) Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit SysVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00064 Fmt 6659 Sfmt 6602 E:\HR\OC\SR101.XXX SR101

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tems Protection Board may obtain judicial review of the order or 

decision. 

* * * * * * * 

ø(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 the United States Court of Appeals for the Federal Circuit. 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.¿ 

(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 5-year period beginning on the effective date of the 

Whistleblower Protection Enhancement Act of 2009, 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)(i), (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 as provided 

under paragraph (2). 

* * * * * * * 

ø(d) The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, 

within 60 days after the date the Director received 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 his discretion, 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.¿ 

(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 of the Office of Personnel 

Management 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 


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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. 

(2) During the 5-year period beginning on the effective date of the 

Whistleblower Protection Enhancement Act of 2009, 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)(i), (C), or (D). The Director of the 

Office of Personnel Management 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 

as provided under subsection (b)(2) 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. 

Inspector General Act of 1978 

Public Law 95–452 

(as codified at 5 U.S.C. App.) 

SEC. 3. APPOINTMENT OF INSPECTOR GENERAL; SUPERVISION; REMOVAL; POLITICAL ACTIVITIES; APPOINTMENT OF ASSISTANT INSPECTOR GENERAL FOR AUDITING AND ASSISTANT INSPECTOR GENERAL FOR INVESTIGATIONS. 

* * * * * * * 

(d) Each Inspector General shall, in accordance with applicable 

laws and regulations governing the civil service— 

(1) 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; øand¿ 

(2) appoint an Assistant Inspector General for Investigations 

who shall have the responsibility for supervising the performance of investigative activities relating to such programs and 

operationsø.¿; and 

(3) designate a Whistleblower Protection Ombudsman who 

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cants who make protected disclosures of information, educate 

agency personnel about prohibitions on retaliation for protected 

disclosures, and advise agency employees, applicants, or former 

employees who have made or are contemplating making a protected disclosure. 

SEC. 8H. ADDITIONAL PROVISIONS WITH RESPECT TO INSPECTORS 

GENERAL OF THE INTELLIGENCE COMMUNITY. 

(a)(1)(A) 

* * * * * * * 

(D) An employee of any agency, as that term is defined under section 2302(a)(2)(C) of title 5, United States Code, who intends to report to Congress a complaint or information with respect to an urgent concern may report the complaint or information to the Inspector General, or designee, of the agency of which that employee is employed; 

* * * * * * * 

(b)(1) Not later than the end of the 14-calendar day period beginning on the date of receipt of an employee complaint or information 

under subsection (a), the Inspector General shall determine whether the complaint or information appears credible. Upon making 

such a determination, the Inspector General shall transmit to the 

head of the establishment notice of that determination, together 

with the complaint or information. 

(2) If the head of an establishment determines that a complaint 

or information transmitted under paragraph (1) would create a conflict of interest for the head of the establishment, the head of the establishment shall return the complaint or information to the Inspector General with that determination and the Inspector General shall 

make the transmission to the Chair of the Intelligence Community 

Whistleblower Protection Board. In such a case, the requirements of 

this section for the head of the establishment apply to the recipient 

of the Inspector General’s transmission. The Chair shall consult 

with the other members of the Intelligence Community Whistleblower Protection Board regarding all submissions under this section. 

* * * * * * * 

(h) An individual who has submitted a complaint or information 

to an inspector general under this section may notify any member 

of Congress or congressional staff member of the fact that such individual has made a submission to that particular inspector general, 

and of the date on which such submission was made. 

ø(h)¿(i) In this section— 

* * * * * * * 

ø(2) The term ‘‘intelligence committees’’ means the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the 

Senate.¿ 

(2) The term ‘‘intelligence committees’’ means the Permanent 

Select Committee on Intelligence of the House of Representatives 

and the Select Committee on Intelligence of the Senate, except 

that with respect to disclosures made by employees described in 

subsection (a)(1)(D), the term ‘‘intelligence committees’’ means 

the committees of appropriate jurisdiction. 


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The Homeland Security Act of 2002 

Public Law 107–296 

(as codified at 6 U.S.C. 133) 

SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE INFORMATION. 

* * * * * * * 

(c) Independently obtained information. Nothing in this section 

shall be construed to limit or otherwise affect the ability of a State, 

local, or Federal Government entity, agency, or authority, or any 

third party, under applicable law, to obtain critical infrastructure 

information in a manner not covered by subsection (a) of this section, including any information lawfully and properly disclosed generally or broadly to the public and to use such information in any 

manner permitted by law. 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. 

The National Security Act of 1947 

Public Law 81–110 

(as codified at 50 U.S.C. 402 et seq.) 

SEC. 120. INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION 

BOARD. 

(a) ESTABLISHMENT.—There is established within the Office of the 

Director of National Intelligence the Intelligence Community Whistleblower Protection Board (in this section referred to as the 

‘‘Board’’). 

(b) MEMBERSHIP.—(1) The Board shall consist of— 

(A) a Chairperson who shall be appointed by the President, 

by and with the advice and consent of the Senate (in this section referred to as the ‘‘Chairperson’’); 

(B) 2 members who shall be designated by the President— 

(i) from individuals serving as inspectors general of any 

agency or department of the United States who have been 

appointed by the President, by and with the advice and 

consent of the Senate; and 

(ii) after consultation with members of the Council of Inspectors General on Integrity and Efficiency; and 

(C) 2 members who shall be appointed by the President, by 

and with the advice and consent of the Senate, after consultation with the Attorney General, the Director of National Intelligence, and the Secretary of Defense. 

(D)(i) A member of the Board who serves as the inspector general of an agency or department shall recuse themselves from 

any matter brought to the Board by a former employee, employee, or applicant of the agency or department for which that 

member serves as inspector general. 

(2) The President shall designate 2 alternate members of the 

Board from individuals serving as an inspector general of an agency or department of the United States. If a member of the Board 


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recuses themselves from a matter pending before the Board, an alternate shall serve in place of that member for that matter. 

(3) The members of the Board shall be individuals of sound and 

independent judgment who shall collectively possess substantial experience in national security and personnel matters. 

(4)(A) The Chairperson shall be compensated at a rate equal to 

the daily equivalent of the annual rate of basic pay prescribed for 

level III of the Executive Schedule under section 5314 of title 5, 

United States Code, plus 3 percent for each day (including travel 

time) during which the Chairperson is engaged in the performance 

of the duties of the Board. 

(B) The members appointed under paragraph (1)(B) and alternate 

members designated under paragraph (2) shall serve without compensation in addition to that received for their services as inspectors 

general. 

(C) The members appointed under paragraph 1(C) shall— 

(i) perform their duties for a period not to exceed 130 days 

during any period of 365 consecutive days; and 

(ii) shall be compensated at the rate of pay for the Chairperson specified in paragraph (A). 

(D)(i) The members of the Board shall serve 4-year terms at the 

pleasure of the President, except that of the members first appointed 

or designated— 

(I) the Chairperson shall have a term of 6 years; 

(II) 2 members shall have a term of 5 years; and 

(III) 2 members shall have a term of 4 years. 

(ii) A member designated under paragraph (1)(B) shall be ineligible to serve on the Board if that member ceases to serve as an inspector general for an agency or department of the United States. 

(iii) A member of the Board may serve on the Board after the expiration of the term of that member until a successor for that member 

has taken office as a member of the Board. 

(iv) An individual appointed to fill a vacancy occurring, other 

than by the expiration of a term of office, shall be appointed only 

for the unexpired term of the member that individual succeeds. 

(5) Three members shall constitute a quorum of the Board. 

(c) RESOURCES AND AUTHORITY.—(1) The Office of the Director of 

National Intelligence shall provide the Board with appropriate and 

adequate office space, together with such equipment, office supplies, 

and communications facilities and services as may be necessary for 

the operation of the Board, and shall provide necessary maintenance services for the Board and the equipment and facilities located therein. 

(2)(A) For each fiscal year, the Chairperson shall transmit a 

budget estimate and request to the Director of National Intelligence. 

The budget request shall specify the aggregate amount of funds requested for such fiscal year for the operations of the Board. 

(B) In transmitting a proposed budget to the President for approval, the Director of National Intelligence shall include— 

(i) the amount requested by the Chairperson; and 

(ii) any comments of the Chairperson with respect to the 

amount requested. 

(3) Subject to applicable law and policies of the Director of National Intelligence, the Chairperson, for the purposes of enabling the 

Board to fulfill its statutorily assigned functions, is authorized to 


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select, appoint, and employ such officers and employees as may be 

necessary for carrying out the functions, powers, and duties of the 

Office. 

(4) In consultation with the Attorney General, the Director of National Intelligence, and the Secretary of Defense, the Board may promulgate rules, regulations, and guidance and issue orders to fulfill 

its functions. The Director of National Intelligence, Secretary of Defense, and Attorney General shall jointly approve any rules, regulations, or guidance issued under section 121(c)(1)(B). 

(5) The number of individuals employed by or on detail to the 

Board shall not be counted against any limitation on the number 

of personnel, positions, or full-time equivalents in the Office of the 

Director of National Intelligence. 

SEC. 121. INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS. 

(a) DEFINITIONS.—In this section: 

(1) The term ‘‘agency’’ means an Executive department or 

independent establishment, as defined under sections 101 and 

104 of title 5, United States Code, that contains an intelligence 

community element. 

(2) The term ‘‘intelligence community element’’ means— 

(A) 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 

(B) any executive agency or unit thereof determined by 

the President under section 2302(a)(2)(C)(ii) of title 5, 

United States Code, to have as its principal function 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. 

(3) The term ‘‘personnel action’’— 

(A) means any action taken against an employee of an intelligence community element that would be considered a 

personnel action, as defined in section 2302(a)(2)(A) of title 

5, United States Code, if taken against an employee subject 

to such section 2302; and 

(B) shall not include the denial, suspension, or revocation 

of a security clearance or denying access to classified or 

sensitive information or a suspension with pay pending an 

investigation. 

(4) The term ‘‘prohibited personnel practice’’ means any action 

prohibited by subsection (b) of this section. 

(b) PROHIBITED PERSONNEL PRACTICES.—(1) No person who has 

authority to take, direct others to take, recommend, or approve any 

personnel action, shall, with respect to such authority— 

(A) take or fail to take, or threaten to take or fail to take, a 

personnel action with respect to any intelligence community element employee or applicant for employment because of— 

(i) any disclosure of information to an official of an agency by an employee or applicant which the employee or applicant reasonably believes evidences— 

(I) any violation of law, rule, or regulation except for 

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tion, and occurs during the conscientious carrying out 

of official duties; or 

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

abuse of authority, or a substantial and specific danger 

to public health or safety, if such disclosure is not specifically prohibited by law and if such information is 

not specifically required by Executive order to be kept 

secret in the interest of national defense or the conduct 

of foreign affairs; 

(ii) any disclosure to the inspector general of an agency 

or another employee designated by the head of the agency 

to receive such disclosures, of information which the employee or applicant reasonably believes evidences— 

(I) a violation of any law, rule, or regulation except 

for an alleged violation that is a minor, inadvertent 

violation, and occurs during the conscientious carrying 

out of official duties; or 

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

abuse of authority, or a substantial and specific danger 

to public health or safety; or 

(iii) any communication that complies with subsection 

(a)(1), (d), or (h) of section 8H of the Inspector General Act 

of 1978 (5 U.S.C. App.) or that complies with subparagraphs (A), (D), or (H) of section 17(d)(5) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); or 

(B) take or fail to take, or threaten to take or fail to take, any 

personnel action against any intelligence community element 

employee or applicant for employment because of— 

(i) the exercise of any appeal, complaint, or grievance 

right granted by subsection (c); 

(ii) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in clause (i); 

or 

(iii) cooperating with or disclosing information to the inspector general of an agency in connection with an audit, 

inspection, or investigation conducted by the inspector general, in accordance with applicable provisions of law, if the 

actions described under clauses (i), (ii), and (iii) do not result in the employee or applicant unlawfully disclosing information specifically required by Executive order to be kept 

secret in the interest of national defense or the conduct of 

foreign affairs or any other information the disclosure of 

which is specifically prohibited by law. 

(2) A disclosure shall not be excluded from paragraph (1) because— 

(A) the disclosure was made during the normal course of the 

duties of the employee; 

(B) the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant reasonably believed to be covered by paragraph 

(1)(A)(ii); 

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

(D) of the employee or applicant’s motive for making the disclosure; 


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(E) the disclosure was not made in writing; 

(F) the disclosure was made while the employee was off duty; 

or 

(G) of the amount of time which has passed since the occurrence of the events described in the disclosure. 

(3) Nothing in this subsection shall 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. 

(c) REMEDIAL PROCEDURE.—(1)(A) An employee, applicant, or 

former employee of an intelligence community element who believes 

that such employee, applicant, or former employee has been subjected to a prohibited personnel practice may petition for an appeal 

of the personnel action to the agency head or the designee of the 

agency head within 60 days after discovery of the alleged adverse 

personnel action. 

(B) The appeal shall be conducted within the agency according to 

rules of procedure issued by the Intelligence Community Whistleblower Protection Board under section 120(c)(4). Those rules shall 

be based on those pertaining to prohibited personnel practices defined under section 2302(b)(8) of title 5, United States Code, and 

provide— 

(i) for an independent and impartial fact-finder; 

(ii) for notice and the opportunity to be heard, including the 

opportunity to present relevant evidence, including witness testimony; 

(iii) that the employee, applicant, or former employee may be 

represented by counsel; 

(iv) that the employee, applicant, or former employee has a 

right to a decision based on the record developed during the appeal; 

(v) that, unless agreed to by the employee and the agency concerned, not more than 180 days shall pass from the filing of the 

appeal to the report of the impartial fact-finder to the agency 

head or the designee of the agency head; 

(vi) for the use of information specifically required by Executive order to be kept secret in the interest of national defense or 

the conduct of foreign affairs in a manner consistent with the 

interests of national security, including ex parte submissions 

where the agency determines that the interests of national security so warrant; and 

(vii) that the employee, applicant, or former employee shall 

have no right to compel the production of information specifically required by Executive order to be kept secret in the interest 

of national defense or the conduct of foreign affairs, except evidence necessary to establish that the employee made the disclosure or communication such employee alleges was protected by 

subsection (b)(1)(A) through (C). 

(C) If the Board certifies that agency procedures in effect on the 

date of enactment of this section, including procedures promulgated 

under section 2303 of title 5, United States Code, before that date, 

adequately provide guaranties required under subparagraph (B)(i) 

through (vi), the appeal may be conducted according to those procedures. 


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(2) On the basis of the record developed during the appeal, the impartial fact-finder shall prepare a report to the agency head or the 

designee of the agency head setting forth findings, conclusions, and, 

if applicable, recommended corrective action. After reviewing the 

record and the impartial fact-finder’s report, the agency head or the 

designee of the agency head shall determine whether the employee, 

former employee, or applicant has been subjected to a prohibited 

personnel practice, and shall either issue an order denying relief or 

shall implement corrective action to return the employee, former employee, or applicant, as nearly as practicable and reasonable, to the 

position such employee, former employee, or applicant would have 

held had the prohibited personnel practice not occurred. Such corrective action shall include reasonable attorney’s fees and any other 

reasonable costs incurred, and may include back pay and related 

benefits, travel expenses, and compensatory damages not to exceed 

$300,000. Unless the employee, former employee, or applicant consents, no more than 60 days shall pass from the submission of the 

report by the impartial fact-finder to the agency head and the final 

decision by the agency head or the designee of the agency head. 

(3) In determining whether the employee, former employee, or applicant has been subjected to a prohibited personnel practice, the 

agency head or the designee of the agency head shall find that a 

prohibited personnel practice occurred if a disclosure described in 

subsection (b) was a contributing factor in the personnel action 

which was taken against the individual, unless the agency demonstrates by clear and convincing evidence that it would have taken 

the same personnel action in the absence of such disclosure. 

(4)(A) Any employee, former employee, or applicant adversely affected or aggrieved by a final order or decision of the agency head 

or the designee of the agency head under paragraph (1) may appeal 

that decision to the Intelligence Community Whistleblower Protection Board within 60 days after the issuance of such order. Such appeal shall be conducted under rules of procedure issued by the 

Board under section 120(c)(4). 

(B) The Board’s review shall be on the agency record. The Board 

may not hear witnesses or admit additional evidence. Any portions 

of the record that were submitted ex parte during the agency proceedings shall not be disclosed to the employee, former employee, or 

applicant during proceedings before the Board. 

(C) If the Board concludes that further fact-finding is necessary 

or finds that the agency improperly denied the employee, former employee, or applicant the opportunity to present evidence that, if admitted, would have a substantial likelihood of altering the outcome, 

the Board shall— 

(i) remand the matter to the agency from which it originated 

for additional proceedings in accordance with the rules of procedure issued by the Board; or 

(ii) refer the matter to another agency for additional proceedings in accordance with the rules of procedure issued by the 

Board. 

(D) The Board shall make a de novo determination, based on the 

entire record, of whether the employee, former employee, or applicant suffered a prohibited personnel practice. In considering the 

record, the Board may weigh the evidence, judge the credibility of 

witnesses, and determine controverted questions of fact; in doing so, 


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the Board may consider the prior fact-finder’s opportunity to see 

and hear the witnesses. 

(E) On the basis of the agency record, the Board shall determine 

whether the employee, former employee, or applicant has been subjected to a prohibited personnel practice, and shall either issue an 

order denying relief or shall order the agency head to take specific 

corrective action to return the employee, former employee, or applicant, as nearly as practicable and reasonable, to the position such 

employee, former employee, or applicant would have held had the 

prohibited personnel practice not occurred. Such corrective action 

shall include reasonable attorney’s fees and any other reasonable 

costs incurred, and may include back pay and related benefits, travel expenses, and compensatory damages not to exceed $300,000. The 

Board may recommend, but may not order, reinstatement or hiring 

of a former employee or applicant. The agency head shall take the 

actions so ordered, unless the President determines that doing so 

would endanger national security. Unless the employee, former employee, or applicant consents, no more than 180 days shall pass 

from the filing of the appeal with the Board to the final decision by 

the Board. Any period of time during which the Board lacks a sufficient number of members to undertake a review shall be excluded 

from the 180-day period. 

(F) In determining whether the employee, former employee, or applicant has been subjected to a prohibited personnel practice, the 

agency head or the designee of the agency head shall find that a 

prohibited personnel practice occurred if a disclosure described in 

subsection (b) of this section was a contributing factor in the personnel action which was taken against the individual, unless the 

agency demonstrates by clear and convincing evidence that it would 

have taken the same personnel action in the absence of such disclosure. 

(5)(A)(i) During the 5-year period beginning on the effective date 

of the Whistleblower Protection Enhancement Act of 2009, an employee, former employee, applicant, or an agency may file a petition 

to review a final order of the Board in the United States Court of 

Appeals for the Federal Circuit or the United States court of appeals 

for a circuit in which the reprisal is alleged in the order to have occurred. Notwithstanding any other provision of law, any petition for 

review shall be filed within 60 days after the date of issuance of the 

final order of the Board. 

(ii) After the 5-year period described under clause (i), a petition 

to review a final order described under that clause shall be filed in 

the United States Court of Appeals for the Federal Circuit. 

(B) The court of appeals shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found 

to be— 

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

not in accordance with law; 

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

(iii) unsupported by substantial evidence. 

(C) Any portions of the record that were submitted ex parte during 

the agency proceedings shall be submitted ex parte to the Board and 

any reviewing court. 


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(D) At the time the Board issues an order, the Chairperson shall 

notify the chairpersons and ranking members of— 

(i) the Committee on Homeland Security and Government Affairs of the Senate; 

(ii) the Select Committee on Intelligence of the Senate; 

(iii) the Committee on Oversight and Government Reform of 

the House of Representatives; and 

(iv) the Permanent Select Committee on Intelligence of the 

House of Representatives. 

(d) Except as expressly provided in this section, there shall be no 

judicial review of agency actions under this section. 

(e) This section shall not apply to terminations executed under— 

(1) section 1609 of title 10, United States Code; 

(2) the authority of the Director of National Intelligence under 

section 102A(m) of this Act, if— 

(A) the Director personally summarily terminates the individual; and 

(B) the Director— 

(i) determines the termination to be in the interest of 

the United States; 

(ii) determines that the procedures prescribed in 

other provisions of law that authorize the termination 

of the employment of such employee cannot be invoked 

in a manner consistent with the national security; and 

(iii) notifies the congressional oversight committees of 

such termination within 5 days after the termination; 

(3) the authority of the Director of the Central Intelligence 

Agency under section 104A(e) of this Act, if— 

(A) the Director personally summarily terminates the individual; and 

(B) the Director— 

(i) determines the termination to be in the interest of 

the United States; 

(ii) determines that the procedures prescribed in 

other provisions of law that authorize the termination 

of the employment of such employee cannot be invoked 

in a manner consistent with the national security; and 

(iii) notifies the congressional oversight committees of 

such termination within 5 days after the termination; 

or 

(4) section 7532 of title 5, United States Code, if— 

(A) the agency head personally summarily terminates the 

individual; and 

(B) the agency head— 

(i) determines the termination to be in the interest of 

the United States, 

(ii) determines that the procedures prescribed in 

other provisions of law that authorize the termination 

of the employment of such employee cannot be invoked 

in a manner consistent with the national security; and 

(iii) notifies the congressional oversight committees of 

such termination within 5 days after the termination. 

(f) If an employee, former employee, or applicant seeks to challenge both a prohibited personnel practice under this section and an 

adverse security clearance or access determination under section 


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3001(j) of the Intelligence Reform and Terrorism Prevention Act of 

2004 (50 U.S.C. 435b(j)), the employee shall bring both claims 

under the procedure set forth in 3001(j) of that Act for challenging 

an adverse security clearance or access determination. If the Board 

awards compensatory damages for such claim or claims, the total 

amount of compensatory damages ordered shall not exceed 

$300,000. 

The Central Intelligence Agency Act of 1949 

Public Law 81–110 

(as codified at 50 U.S.C. 403q) 

SEC. 17(e). INSPECTOR GENERAL FOR AGENCY. 

* * * * * * * 

(d) Semiannual reports; immediate reports of serious or flagrant 

problems; reports of functional problems; reports to Congress on urgent concerns. 

* * * * * * * 

(5)(A) An employee of the Agency, or of a contractor to the 

Agency, who intends to report to Congress a complaint or information with respect to an urgent concern may report such complaint or information to the Inspector General. 

(B)(i) Not later than the end of the 14-calendar day period 

beginning on the date of receipt from an employee of a complaint or information under subparagraph (A), the Inspector 

General shall determine whether the complaint or information 

appears credible. Upon making such a determination, the Inspector General shall transmit to the Director notice of that determination, together with the complaint or information. 

(ii) If the Director determines that a complaint or information 

transmitted under paragraph (1) would create a conflict of interest for the Director, the Director shall return the complaint 

or information to the Inspector General with that determination 

and the Inspector General shall make the transmission to the 

Chair of the Intelligence Community Whistleblower Protection 

Board. In such a case— 

(I) the requirements of this subsection for the Director 

apply to the recipient of the Inspector General’s submission; 

and 

(II) the Chairperson shall consult with the other members 

of the Intelligence Community Whistleblower Protection 

Board regarding all submissions under this section. 

* * * * * * * 

(H) An individual who has submitted a complaint or information to the Inspector General under this section may notify 

any member of Congress or congressional staff member of the 

fact that such individual has made a submission to the Inspector General, and of the date on which such submission was 

made. 

* * * * * * * 


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(e) AUTHORITIES OF THE INSPECTOR GENERAL * * *. 

* * * * * * * 

(9) The Inspector General shall designate a Whistleblower 

Protection Ombudsman who shall advocate for the interests of 

agency employees or applicants who make protected disclosures 

of information, educate agency personnel about prohibitions on 

retaliation for protected disclosures, and advise agency employees, applicants, or former employees who have made or are contemplating making a protected disclosure. 

* * * * * * * 

The Intelligence Reform and Terrorism 

Prevention Act of 2004 

Public Law 108–458 

(as codified at 50 U.S.C. 435b) 

SEC. 3001. SECURITY CLEARANCES. 

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(b) SELECTION OF ENTITY.—øNot¿ Except as otherwise provided, 

not later than 90 days after December 17, 2004, the President shall 

select a single department, agency, or element of the executive 

branch to be responsible for— 

(1) directing day-to-day oversight of investigations and adjudications for personnel security clearances, including for highly 

sensitive programs, throughout the United States Government; 

(2) developing and implementing uniform and consistent 

policies and procedures to ensure the effective, efficient, and 

timely completion of security clearances and determinations for 

access to highly sensitive programs, including the standardization of security questionnaires, financial disclosure requirements for security clearance applicants, and polygraph policies 

and procedures; 

(3) serving as the final authority to designate an authorized 

investigative agency or authorized adjudicative agency; 

(4) ensuring reciprocal recognition of access to classified information among the agencies of the United States Government, including acting as the final authority to arbitrate and 

resolve disputes involving the reciprocity of security clearances 

and access to highly sensitive programs pursuant to subsection 

(d) of this section; 

(5) ensuring, to the maximum extent practicable, that sufficient resources are available in each agency to achieve clearance and investigative program goals; øand¿ 

(6) reviewing and coordinating the development of tools and 

techniques for enhancing the conduct of investigations and 

granting of clearancesø.¿; and 

(7) not later than 30 days after the date of enactment of the 

Whistleblower Protection Enhancement Act of 2009— 

(A) developing policies and procedures that permit, to the 

extent practicable, individuals who challenge in good faith 

a determination to suspend or revoke a security clearance 

or access to classified information to retain their governVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00077 Fmt 6659 Sfmt 6603 E:\HR\OC\SR101.XXX SR101

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ment employment status while such challenge is pending; 

and 

(B) developing and implementing uniform and consistent 

policies and procedures to ensure proper protections during 

the process for denying, suspending, or revoking a security 

clearance or access to classified information, including the 

provision of a right to appeal such a denial, suspension, or 

revocation, except that there shall be no appeal of an agency’s suspension of a security clearance or access determination for purposes of conducting an investigation, if that suspension lasts no longer than 1 year, including such policies 

and procedures for appeals based on those pertaining to 

prohibited personnel pactices defined under section 

2302(b)(8) of title 5, United States Code, and that provide— 

(i) for an independent and impartial fact-finder; 

(ii) for notice and the opportunity to be heard, including the opportunity to present relevant evidence, 

including witness testimony; 

(iii) that the employee, applicant, or former employee 

may be represented by counsel; 

(iv) that the employee, applicant, or former employee 

has a right to a decision based on the record developed 

during the appeal; 

(v) that, unless agreed to by the employee and the 

agency concerned, no more than 180 days shall pass 

from the filing of the appeal to the report of the impartial fact finder to the agency head or the designee of the 

agency head; 

(vi) for the use of information specifically required by 

Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs in a 

manner consistent with the interests of national security, including ex parte submissions if the agency determines that the interests of national security so warrant; and 

(vii) that the employee, applicant, or former employee 

shall have no right to compel the production of information specifically required by Executive order to be 

kept secret in the interest of national defense or the 

conduct of foreign affairs, except evidence necessary to 

establish that the employee made the disclosure or communication such employee alleges was protected by 

subparagraphs (A), (B), and (C) of subsection (j)(1). 

* * * * * * * 

(j) RETALIATORY REVOCATION OF SECURITY CLEARANCES AND ACCESS DETERMINATIONS.— 

(1) IN GENERAL.—Agency personnel with authority over personnel security clearance or access determinations shall not 

take or fail to take, or threaten to take or fail to take, any action 

with respect to any employee or applicant’s security clearance or 

access determination because of— 

(A) any disclosure of information to an official of an Executive agency by an employee or applicant which the employee or applicant reasonably believes evidences— 


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(i) a violation of any law, rule, or regulation, except 

for an alleged violation that is a minor, inadvertent 

violation, and occurs during the conscientious carrying 

out of official duties; or 

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

abuse of authority, or a substantial and specific danger 

to public health or safety, if such disclosure is not specifically prohibited by law and if such disclosure does 

not reveal information specifically authorized under 

criteria established by statute, Executive Order, Presidential directive, or Presidential memorandum to be 

kept secret in the interest of national defense or the 

conduct of foreign affairs; 

(B) any disclosure to the Inspector General of an agency 

or another employee designated by the head of the agency 

to receive such disclosures, of information which the employee or applicant reasonably believes evidences— 

(i) a violation of any law, rule, or regulation, except 

for an alleged violation that is a minor, inadvertent 

violation, and occurs during the conscientious carrying 

out of official duties; or 

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

abuse of authority, or a substantial and specific danger 

to public health or safety; 

(C) any communication that complies with subsection 

(a)(1), (d), or (h) of section 8H of the Inspector General Act 

of 1978 (5 U.S.C. App.) or that complies with subsection 

(d)(5)(A), (D), or (H) of section 17 of the Central Intelligence 

Agency Act of 1949 (50 U.S.C. 403q); 

(D) the exercise of any appeal, complaint, or grievance 

right granted by any law, rule, or regulation; 

(E) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (D); or 

(F) cooperating with or disclosing information to the inspector general of an agency, in accordance with applicable 

provisions of law in connection with an audit, inspection, 

or investigation conducted by the inspector general, if the 

actions described under subparagraphs (D) through (F) do 

not result in the employee or applicant unlawfully disclosing information specifically authorized under criteria 

established by Executive Order, statute, Presidential Directive, or Presidential memorandum to be kept secret in the 

interest of national defense or the conduct of foreign affairs. 

Nothing in this paragraph shall 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. 

(2) DISCLOSURES.—A disclosure shall not be excluded from 

paragraph (1) because— 

(A) the disclosure was made during the normal course of 

the duties of the employee; 

(B) the disclosure was made to a person, including a supervisor, who participated in an activity that the employee 


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or applicant reasonably believed to be covered by paragraph (1)(A)(ii); 

(C) the disclosure revealed information that had been 

previously disclosed; 

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

disclosure; 

(E) the disclosure was not made in writing; 

(F) the disclosure was made while the employee was off 

duty; or 

(G) of the amount of time which has passed since the occurrence of the events described in the disclosure. 

(3) AGENCY ADJUDICATION.— (A) APPEAL.—An employee, former employee, or applicant 

for employment who believes that he or she has been subjected to a reprisal prohibited by paragraph (1) of this subsection may, within 60 days after the issuance of notice of 

such decision, appeal that decision within the agency of 

that employee, former employee, or applicant through proceedings authorized by paragraph (8) of subsection (b), except that there shall be no appeal of an agency’s suspension 

of a security clearance or access determination for purposes 

of conducting an investigation, if that suspension lasts no 

longer than 1 year. 

(B) CORRECTIVE ACTION.—If, in the course of proceedings 

authorized under subparagraph (A), it is determined that 

the adverse security clearance or access determination violated paragraph (1) of this subsection, the agency shall take 

specific corrective action to return the employee, former employee, or applicant, as nearly as practicable and reasonable, to the position such employee, former employee, or applicant would have held had the violation not occurred. 

Such corrective action shall include reasonable attorney’s 

fees and any other reasonable costs incurred, and may include back pay and related benefits, travel expenses, and 

compensatory damages not to exceed $300,000. 

(C) CONTRIBUTING FACTOR.—In determining whether the 

adverse security clearance or access determination violated 

paragraph (1) of this subsection, the agency shall find that 

paragraph (1) of this subsection was violated if a disclosure 

described in paragraph (1) was a contributing factor in the 

adverse security clearance or access determination taken 

against the individual, unless the agency demonstrates by 

a preponderance of the evidence that it would have taken 

the same action in the absence of such disclosure, giving 

the utmost deference to the agency’s assessment of the particular threat to the national security interests of the 

United States in the instant matter. 

(4) REVIEW BY THE INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION BOARD.— (A) APPEAL.—Within 60 days after receiving notice of an 

adverse final agency determination under a proceeding 

under paragraph (3), an employee, former employee, or applicant for employment may appeal that determination to 

the Intelligence Community Whistleblower Protection 

Board. 


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(B) POLICIES AND PROCEDURES.—The Board, in consultation with the Attorney General, Director of National Intelligence, and the Secretary of Defense, shall develop and implement policies and procedures for adjudicating the appeals authorized by subparagraph (A). The Director of National Intelligence and Secretary of Defense shall jointly approve any rules, regulations, or guidance issued by the 

Board concerning the procedures for the use or handling of 

classified information. 

(C) REVIEW.—The Board’s review shall be on the complete agency record, which shall be made available to the 

Board. The Board may not hear witnesses or admit additional evidence. Any portions of the record that were submitted ex parte during the agency proceedings shall be submitted ex parte to the Board. 

(D) FURTHER FACT-FINDING OR IMPROPER DENIAL.—If the 

Board concludes that further fact-finding is necessary or 

finds that the agency improperly denied the employee or 

former employee the opportunity to present evidence that, if 

admitted, would have a substantial likelihood of altering 

the outcome, the Board shall— 

(i) remand the matter to the agency from which it 

originated for additional proceedings in accordance 

with the rules of procedure issued by the Board; or 

(ii) refer the case to an intelligence community agency for additional proceedings in accordance with the 

rules of procedure issued by the Board. 

(E) DE NOVO DETERMINATION.—The Board shall make a 

de novo determination, based on the entire record, of 

whether the employee, former employee, or applicant received an adverse security clearance or access determination in violation of paragraph (1). In considering the 

record, the Board may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of 

fact. In doing so, the Board may consider the prior factfinder’s opportunity to see and hear the witnesses. 

(F) ADVERSE SECURITY CLEARANCE OR ACCESS DETER- MINATION.—If the Board finds that the adverse security 

clearance or access determination violated paragraph (1), it 

shall then separately determine whether reinstating the security clearance or access determination is clearly consistent with the interests of national security, with any 

doubt resolved in favor of national security, under Executive Order 12968 (including any adjudicative guidelines 

promulgated under such orders) or any subsequent Executive order, regulation, or policy concerning access to classified information. 

(G) REMEDIES.— 

(i) CORRECTIVE ACTION.—If the Board finds that the 

adverse security clearance or access determination violated paragraph (1), it shall order the agency head to 

take specific corrective action to return the employee, 

former employee, or applicant, as nearly as practicable 

and reasonable, to the position such employee, former 

employee, or applicant would have held had the violaVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00081 Fmt 6659 Sfmt 6603 E:\HR\OC\SR101.XXX SR101

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tion not occurred. Such corrective action shall include 

reasonable attorney’s fees and any other reasonable 

costs incurred, and may include back pay and related 

benefits, travel expenses, and compensatory damages 

not to exceed $300,000. The Board may recommend, 

but may not order, reinstatement or hiring of a former 

employee or applicant, and any relief shall not include 

the reinstating of any security clearance or access determination. The agency head shall take the actions so 

ordered, unless the President determines that doing so 

would endanger national security. 

(ii) RECOMMENDED ACTION.—If the Board finds that 

reinstating the employee, former employee, or applicant’s security clearance or access determination is 

clearly consistent with the interests of national security, it shall recommend such action to the head of the 

entity selected under subsection (b) and the head of the 

affected agency. 

(H) CONGRESSIONAL NOTIFICATION.— (i) ORDERS.—At the time the Board issues an order, 

the Chairperson of the Board shall notify the chairpersons and ranking members of— 

(I) the Committee on Homeland Security and 

Government Affairs of the Senate; 

(II) the Select Committee on Intelligence of the 

Senate; 

(III) the Committee on Oversight and Government Reform of the House of Representatives; and 

(IV) the Permanent Select Committee on Intelligence of the House of Representatives. 

(ii) RECOMMENDATIONS.—If the agency head and the 

head of the entity selected under subsection (b) do not 

follow the Board’s recommendation to reinstate a clearance, the head of the entity selected under subsection 

(b) shall notify the chairpersons and ranking members 

of the committees described in subclauses (I) through 

(IV) of clause (i). 

(5) JUDICIAL REVIEW.—Nothing in this section should be construed to permit or require judicial review of agency or Board 

actions under this section. 

(6) NONAPPLICABILITY TO CERTAIN TERMINATIONS.—This section shall not apply to adverse security clearance or access determinations if the affected employee is concurrently terminated 

under— 

(A) section 1609 of title 10, United States Code; 

(B) the authority of the Director of National Intelligence 

under section 102A(m) of the National Security Act of 1947 

(50 U.S.C. 403–1(m)), if— 

(i) the Director personally summarily terminates the 

individual; and 

(ii) the Director— 

(I) determines the termination to be in the interest of the United States; 

(II) determines that the procedures prescribed in 

other provisions of law that authorize the termiVerDate Nov 24 2008 06:49 Dec 05, 2009 Jkt 089010 PO 00000 Frm 00082 Fmt 6659 Sfmt 6603 E:\HR\OC\SR101.XXX SR101

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nation of the employment of such employee cannot 

be invoked in a manner consistent with the national security, and 

(III) notifies the congressional oversight committees of such termination within 5 days after the 

termination; 

(C) the authority of the Director of the Central Intelligence Agency under section 104A(e) of the National Security Act of 1947 (50 U.S.C. 403–4a(e)), if— 

(i) the Director personally summarily terminates the 

individual; and 

(ii) the Director— 

(I) determines the termination to be in the interest of the United States; 

(II) determines that the procedures prescribed in 

other provisions of law that authorize the termination of the employment of such employee cannot 

be invoked in a manner consistent with the national security; and 

(III) notifies the congressional oversight committees of such termination within 5 days after the 

termination; or 

(D) section 7532 of title 5, United States Code, if— 

(i) the agency head personally summarily terminates 

the individual; and 

(ii) the agency head— 

(I) determines the termination to be in the interest of the United States; 

(II) determines that the procedures prescribed in 

other provisions of law that authorize the termination of the employment of such employee cannot 

be invoked in a manner consistent with the national security; and 

(III) notifies the congressional oversight committees of such termination within 5 days after the 

termination. 

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