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[Senate Report 112-155]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 358

112th Congress                                                   Report
 2d Session                      SENATE                         112-155
_______________________________________________________________________

            WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 743

  TO AMEND CHAPTER 23 OF TITLE 5, UNITED STATES CODE, TO CLARIFY THE 
    DISCLOSURES OF INFORMATION PROTECTED FROM PROHIBITED PERSONNEL 
 PRACTICES, REQUIRE A STATEMENT IN NON-DISCLOSURE POLICIES, FORMS, AND 
   AGREEMENTS THAT SUCH POLICIES, FORMS, AND AGREEMENTS CONFORM WITH 
   CERTAIN DISCLOSURE PROTECTIONS, PROVIDE CERTAIN AUTHORITY FOR THE 
                SPECIAL COUNSEL, AND FOR OTHER PURPOSES

                 April 19, 2012.--Ordered to be printed

                                _____

                  U.S. GOVERNMENT PRINTING OFFICE

                          WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, KENTUCKY
MARK BEGICH, Alaska                  JERRY MORAN, Kansas

                  Michael L. Alexander, Staff Director
       Beth M. Grossman, Deputy Staff Director and Chief Counsel
       Lawrence B. Novey, Chief Counsel for Governmental Affairs
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government 
                              Management,
          the Federal Workforce, and the District of Columbia
               Nickolas A. Rossi, Minority Staff Director
                Mark B. LeDuc, Minority General Counsel
            John A. Kane, Minority Professional Staff Member
                  Trina Driessnack Tyrer, Chief Clerk

                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background.......................................................2
          A. Clarification of What Constitutes a Protected 
              Disclosure.........................................     4
          B. Reasonable Belief--Irrefragable Proof...............     9
          C. All-Circuit Review..................................    11
          D. Office of Special Counsel--Amicus Curiae Authority..    12
          E. Burden of Proof in Office of Special Counsel 
              Disciplinary Actions...............................    14
          F. Office of Special Counsel Attorney's Fees...........    15
          G. Anti-Gag Provisions.................................    16
          H. Retroactive Exemption of Agency Employees from 
              Whistleblower Protections..........................    17
          I. Whistleblower Protection for Transportation Security 
              Administration Employees...........................    18
          J. Penalties for Retaliatory Investigations............    20
          K. Clarification of Whistleblower Rights for Critical 
              Infrastructure Information.........................    22
          L. Right to a Full Hearing.............................    23
          M. Disclosures of Scientific Censorship................    24
          N. Reporting Requirements..............................    25
          O. Alternative Review..................................    25
          P. MSPB Summary Judgment Authority.....................    28
          Q. Classified Disclosures to Congress for Employees 
              under the Whistleblower Protection Act.............    28
          R. Whistleblower Protection Ombudsman..................    32
          S. Intelligence Community Whistleblower Protections....    32
          T. Review of Security Clearance or Access 
              Determinations.....................................    35
III. Legislative History.............................................40
 IV. Section-by-Section Analysis.....................................41
  V. Estimated Cost of Legislation...................................52
 VI. Evaluation of Regulatory Impact.................................55
VII. Changes in Existing Law.........................................55

                                                       Calendar No. 358

112th Congress                                                   Report
 2d Session                      SENATE                         112-155

======================================================================

 
               WHISTLEBLOWER PROTECTION ENHANCEMENT ACT 
                                OF 2012

                                _______
                                

                 April 19, 2012.--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. 743]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 743) to amend 
chapter 23 of title 5, United States Code, to clarify the 
disclosures of information protected from prohibited personnel 
practices, require a statement in non-disclosure policies, 
forms, and agreements that such policies, forms, and agreements 
conform with certain disclosure protections, provide certain 
authority for the Special Counsel, and for other purposes, 
having considered the same, reports favorably thereon with 
amendments and recommends that the bill (as amended) do pass.

                         I. Purpose and Summary

    The Whistleblower Protection Enhancement Act of 2012 will 
strengthen the rights of and protections for federal 
whistleblowers so that they can more effectively help root out 
waste, fraud, and abuse in the federal government. 
Whistleblowers play a critical role in keeping our government 
honest and efficient. Moreover, in a post-9/11 world, we must 
do our utmost to ensure that those with knowledge of problems 
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 whistleblowers have seen their protections diminish in 
recent years, largely as a result of a series of decisions by 
the United States Court of Appeals for the Federal Circuit, 
which has exclusive jurisdiction over many cases brought under 
the Whistleblower Protection Act (WPA).\1\ Specifically, the 
Federal Circuit has wrongly accorded a narrow definition to the 
type of disclosure that qualifies for whistleblower protection. 
Additionally, the lack of remedies under current law for most 
whistleblowers in the intelligence community and for 
whistleblowers who face retaliation in the form of withdrawal 
of the employee's security clearance leaves unprotected those 
who are in a position to disclose wrongdoing that directly 
affects our national security.
---------------------------------------------------------------------------
    \1\Whistleblower Protection Act of 1989, Public Law No. 101-12, 103 
Stat. 16 (1989).
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    S. 743 would address these problems by restoring the 
original congressional intent of the WPA to adequately protect 
whistleblowers, by strengthening the WPA, and by creating new 
whistleblower protections for intelligence employees and new 
protections for employees whose security clearance is withdrawn 
in retaliation for having made legitimate whistleblower 
disclosures. More specifically, S. 743 would, among other 
things, clarify the broad meaning of ``any'' disclosure of 
wrongdoing that, under the WPA, a covered employee may make 
with legal protection; expand the availability of a protected 
channel to make disclosures of classified information to 
appropriate committees of Congress; 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 whistleblower and other employee 
protections to employees of the Transportation Security 
Administration (TSA); clarify that those who disclose 
scientific censorship are protected under the WPA; establish a 
remedy for certain employees of the intelligence community who 
are not protected under the WPA, modeled on the whistleblower 
protections for Federal Bureau of Investigation (FBI) 
employees; and provide federal employees with a way to 
challenge security clearance determinations made in retaliation 
against protected whistleblower disclosures.

                             II. Background

    The Civil Service Reform Act of 1978 (CSRA) first 
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 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\
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    \2\S. Rep. No. 95-969, at 8 (1978).

    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 an increased percentage of federal 
employees who observed wrongdoing failed to report it because 
they feared 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\
---------------------------------------------------------------------------
    \3\See Merit Systems Protection Board, Blowing the Whistle in the 
Federal Government: A Comparative Analysis of 1980 and 1983 Survey 
Findings, at 5-6 (October 1984).
    \4\S. Rep. No. 100-413, at 6-16 (1988).
---------------------------------------------------------------------------
    In response, Congress in 1989 unanimously passed the WPA, 
which forbids retaliation against a federal employee who 
discloses what the employee reasonably believes evidences a 
violation of law, rule, or regulation, gross mismanagement, a 
gross waste of funds, an abuse of authority, or a substantial 
and specific danger to public health or safety. As discussed in 
more detail below, 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 protections for the rights of federal employees, to 
prevent reprisals, and to help eliminate wrongdoing within the 
government.\5\ The Committee emphasized in its report on the 
legislation that, although it is important to discipline those 
who commit prohibited personnel practices, the protection of 
individuals who are the subject of prohibited personnel 
practices remains the paramount consideration.\6\
---------------------------------------------------------------------------
    \5\Id. at 9.
    \6\Id. at 23.
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    Congress substantially amended the WPA in 1994, as part of 
legislation to reauthorize the OSC and the MSPB.\7\ 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.\8\ Now, seventeen 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.
---------------------------------------------------------------------------
    \7\An Act to authorize appropriations for the United States Office 
of Special Counsel, the Merit Systems Protection Board, and for other 
purposes, Public Law No. 103-424, 108 Stat. 4361 (1994).
    \8\H. Rep. No. 103-769, at 12-18 (1994).
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A. Clarification of what constitutes a protected disclosure

    In order to make a claim under the WPA, an individual must 
qualify as a covered employee and allege that a personnel 
action was taken, or threatened, because of ``any disclosure'' 
of information by the individual that he or she believes 
evidences: 1) a violation of any law, rule, or regulation; or 
2) gross mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to the public 
health or safety.\9\
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    \9\5 U.S.C. 2302(b)(8).
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    Unfortunately, in the years since Congress passed the WPA, 
the MSPB and the Federal Circuit narrowed the statute's 
protection of ``any disclosure'' of certain types of 
wrongdoing, with the effect of denying coverage to many 
individuals Congress intended to protect. Both the House and 
Senate committee reports accompanying the 1994 amendments 
criticized decisions of the MSPB and the Federal 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.''\10\
---------------------------------------------------------------------------
    \10\S. Rep. No. 103-358 (1994), at 10 (quoting S. Rep. No. 100-413 
(1988) at 13).

    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.\11\
---------------------------------------------------------------------------
    \11\H. Rep. No. 103-769, at 18 (1994).

    Despite the clear legislative history and the plain 
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. S. 743 makes 
clear, once and for all, that Congress intends to protect ``any 
disclosure'' of certain types of wrongdoing in order to 
encourage such disclosures. It is critical that employees know 
that the protection for disclosing wrongdoing is extremely 
broad and will not be narrowed retroactively by future MSPB or 
court opinions. Without that assurance, whistleblowers will 
hesitate to come forward.
    Section 101 of S. 743 overturns several court decisions 
that narrowed the scope of protected disclosures. For example, 
in Horton v. Department of the Navy, the court ruled that 
disclosures to the alleged wrongdoer are not protected, because 
the disclosures are not made to persons in a position to remedy 
wrongdoing.\12\ In Willis v. Department of Agriculture, the 
court stated that a disclosure made as part of an employee's 
normal job duties is not protected.\13\ And in Meuwissen v. 
Department of Interior, the court held that disclosures of 
information already known are not protected.\14\
---------------------------------------------------------------------------
    \12\66 F.3d 279, 282 (Fed. Cir. 1995). The Court did not explain 
its reasoning that a wrongdoer is not in a position to halt his or her 
own actions, stating conclusorily that such a disclosure is criticism 
rather than whistleblowing.
    \13\141 F.3d 1139, 1144 (Fed. Cir. 1998) (reasoning that because 
Willis, as a compliance inspector, was required to report farms that 
were out of compliance as a regular part of his job duties, such 
reports could not constitute protected disclosures under the WPA). But 
see Johnson v. Department of Health and Human Services, 87 M.S.P.R. 
204, 210 (2000) (limiting Willis to its factual context); 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'').
    \14\234 F.3d 9, 12-13 (Fed. Cir. 2000).
---------------------------------------------------------------------------
    These holdings are contrary to congressional intent for the 
WPA. The court wrongly focused on whether or not disclosures of 
wrongdoing were protected, instead of applying the very broad 
protection required by the plain language of the WPA. The 
merits of these cases, instead, should have turned on the 
factual question of whether personnel action at issue in the 
case occurred ``because of'' the protected disclosure.
    Section 101 of S. 743 amends the WPA to overturn decisions 
narrowing the scope of protected disclosures by clarifying that 
a whistleblower is not deprived of protection just because the 
disclosure was made to an individual, including a supervisor, 
who participated in the wrongdoing; or revealed information 
that had been previously disclosed; or was not made in writing; 
or was made while the employee was off duty. The bill also 
clarifies that an employee does not lose protection simply 
because of the employee's motive for making the disclosure, or 
because of the amount of time that elapsed between the events 
described in the disclosure and the making of the disclosure.
    Finally, an employee is not deprived of protection merely 
because the employee made the disclosure in the normal course 
of the employee's duties, provided that actual reprisal 
occurred--in other words, provided that the employee can show 
not only that the agency took the personnel action ``because 
of'' the disclosure, but also that the agency took the action 
with an improper, retaliatory motive. This extra proof 
requirement when an employee makes a disclosure in the normal 
course of duties is intended to facilitate adequate supervision 
of employees, such as auditors and investigators, whose job is 
to regularly report wrongdoing. Personnel actions affecting 
auditors, for example, would ordinarily be based on the 
auditor's track-record with respect to disclosure of 
wrongdoing; and therefore a provision forbidding any personnel 
action taken because of a disclosure of wrongdoing would sweep 
too broadly. However, it is important to preserve protection 
for such disclosures, for example where an auditor can show 
that she was retaliated against for refusing to water down a 
report. This provision is intended to strike the balance of 
protecting disclosures made in the normal course of duties but 
imposing a slightly higher burden to show that the personnel 
action was made for the actual purpose of retaliating against 
the auditor for having made a protected whistleblower 
disclosure.
    The evident tendency of adjudicative bodies to scale back 
the intended scope of protected disclosures 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.\15\ 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 U.S. Court of 
Appeals for 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 be under no burden to present an affirmative defense.\16\ 
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.\17\ S. 743 does not 
affect these decisions or regulations.
---------------------------------------------------------------------------
    \15\See, 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).
    \16\See, 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).
    \17\See 5 C.F.R. Sec. Sec. 1201.43 & 1201.55(d).
---------------------------------------------------------------------------
    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, gross 
mismanagement, or one of the other types of wrongdoing 
enumerated in 5 U.S.C. Sec. 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).\18\ The Committee 
believes it is prudent to codify that objective test in the 
whistleblower statute, and has done so in section 103 of S. 
743. 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 employee'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. In cases not so filtered, the 
agency would still prevail on its defense if it could 
demonstrate that it would have taken the same personnel action 
against the employee even absent the disclosure.
---------------------------------------------------------------------------
    \18\Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); accord 
Rusin v. Department of the Treasury, 92 M.S.P.R. 298 (2002).
---------------------------------------------------------------------------
    Moreover, to further address the 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. 743 requires the Government Accountability Office 
(GAO) to evaluate the implementation of the Act, including any 
trends in the number of cases filed, the disposition of those 
cases, and any patterns of abuse. S. 743 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.
    In restoring and enlarging the broad protection of 
whistleblowers under the WPA, the Committee decided it was 
necessary to codify one narrow, reasonable limitation on the 
subject matter of disclosures that are protected. The issue 
first emerged during the hearing on this bill's predecessor, S. 
1358, in 2003 during the 108th Congress. At the hearing, the 
Senior Executives Association expressed concern that, if the 
scope of protected disclosures were completely unrestricted, 
the WPA could be construed to protect employees who disclose 
disagreements with their supervisors' or managers' lawful 
policy decisions, and the Association recommended that the bill 
be clarified to deny protection of disclosures relating to 
policy disagreements.\19\ Put another way, an employee who 
discloses general philosophical or policy disagreements with 
agency decisions or actions should not be protected as a 
whistleblower. Section 102 of S. 743 imposes that limitation by 
excluding communications concerning policy decisions that are a 
lawful exercise of discretionary authority. This exclusion 
reflects congressional intent at the inception of statutory 
whistleblower protection.\20\ At the same time, the Committee 
seeks to ensure that the WPA covers disclosures of substantial 
misconduct, even if the misconduct flows from a policy 
decision. S. 743 balances both of these policy objectives by 
codifying that an employee is still protected against 
retaliation 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.\21\
---------------------------------------------------------------------------
    \19\S. 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).
    \20\See 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.'').
    \21\Gilbert v. Department of Commerce, 194 F.3d 1332 (Fed. Cir. 
1999).
---------------------------------------------------------------------------
    A second limitation that had been included in a prior 
version of the bill is not included in S. 743. To address 
concerns that minor, accidental violations of law committed in 
good faith would become the basis for protected disclosures, 
the Committee accepted an amendment to a version of the bill 
considered during the 111th Congress, S. 372, to exclude 
disclosures of ``an alleged violation that is minor, 
inadvertent, and occurs during conscientious carrying out of 
official duties.''\22\ The language of this provision was 
intended to codify case law finding that disclosures of trivial 
or de minimis violations are not protected under the WPA.\23\ 
However, whistleblower advocates expressed concerns that this 
provision might invite inquiry into the substance and 
importance of the behavior the employee disclosed, rather than 
the employee's reasonable belief that he or she disclosed 
wrongdoing protected under the WPA, as discussed in the next 
section. The statute is intended to encourage disclosure of 
wrongdoing, and the Committee has concluded that an exception 
that may cause would-be whistleblowers to hesitate for fear 
that their disclosures might be deemed too minor for protection 
could be counterproductive. Accordingly, that exception was not 
included in S. 743. Moreover, section 101 of the bill 
underscores the breadth of the WPA's protections by changing 
the term ``a violation'' to the term ``any violation'' in two 
places in the WPA.\24\
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    \22\Whistleblower Protection Enhancement Act (S. 372), 111th 
Congress, section 101(a)(1)(B).
    \23\See S. Rep. No. 111-101, at 6-7 (citing Drake v. Agency for 
International Development, 543 F.3d 1377, 1381 (Fed. Cir. 2008)).
    \24\Cases may nevertheless arise where an employee disclosed 
wrongdoing so trivial that the employee cannot succeed in gaining 
protection under the WPA. For example, the Federal Circuit has found 
that, to be protected, an employee must have reasonably believed he or 
she was reporting a ``genuine violation.'' See Drake, 543 F.3d at 1381-
82 (recognizing that a ``trivial or de minimis exception'' may apply in 
an appropriate case, though it ``is not appropriate in this case'' 
because ``Mr. Drake reported intoxication which he could reasonably 
believe constituted a genuine violation of a law, rule, or 
regulation.'') (emphasis added). Additionally, in some cases, it may be 
difficult to prove that a disclosure involving a trivial or de minimis 
violation actually caused the relevant personnel action. As an example, 
it may be easier to demonstrate to a fact-finder that an employee was 
fired for having complained that other employees accept bribes, than to 
demonstrate that the employee was fired for having complained about 
another employee arriving ten minutes late for work.
---------------------------------------------------------------------------
    Additionally, the Committee notes that, with respect to a 
disclosure of ``gross mismanagement,'' a ``gross waste'' of 
funds, or a ``substantial and specific danger to public health 
or safety,'' the statute requires more than disclosure of de 
minimis wrongdoing. In applying these provisions of the WPA, 
the Merit Systems Protection Board used an appropriate 
definition of ``gross mismanagement'' in Swanson v. General 
Services Administration.\25\ 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.''\26\
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    \25\110 M.S.P.R. 278 (2008).
    \26\Id. at 284-85, citing Shriver v. Department of Veterans 
Affairs, 89 M.S.P.R. 239 (2001).
---------------------------------------------------------------------------
    In sum, the intentionally broad scope of protected 
disclosures should be clear. The Committee emphasizes that the 
Board and the courts should not create new exceptions to 
protected disclosures in place of those overturned by S. 743.

B. 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. 743, is 
an objective one. However, in a troubling decision twelve years 
ago, Lachance v. White, the Federal Circuit imposed on the 
whistleblower the burden of ``irrefragable proof'' of wrong-
doing.\27\ Although, as discussed below, the Federal Circuit 
has since disavowed the ``irrefragable proof'' requirement,\28\ 
the Committee wants to ensure that no court ever again adopts 
this test, and so section 103 of S. 743 would codify the 
removal of the ``irrefragable proof'' requirement from 
whistleblower jurisprudence.
---------------------------------------------------------------------------
    \27\Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
    \28\See, e.g., White v. Department of Air Force, 391 F.3d 1377, 
1381 (Fed. Cir. 2004) (``The WPA does not require that whistleblowers 
establish gross mismanagement by irrefragable proof.'')
---------------------------------------------------------------------------
    In Lachance v. White, the Federal Circuit held, correctly, 
that an objective test is required to determine whether an 
employee reasonably believed that he or she disclosed 
wrongdoing covered by 5 U.S.C. Sec. 2302(b)(8). Where gross 
mismanagement was alleged, 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?''\29\ However, the court then 
added a second hurdle to that review that implied a dramatic 
narrowing of whistleblower protections. The consideration of 
objective reasonableness 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.''\30\ ``Irrefragable'' 
means impossible to refute.\31\ Read literally, therefore, the 
holding required employees to show indisputable proof that a 
public official or officials acted in bad faith or violated the 
law in order to qualify for whistleblower protection. Such an 
evidentiary burden was contrary to logic and clear 
congressional intent.
---------------------------------------------------------------------------
    \29\Id.
    \30\Id. (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 
(Fed. Cir. 1993)).
    \31\Merriam-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).
---------------------------------------------------------------------------
    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 
        ``irrefragable proof'' burden on appellants in cases 
        decided after White . . . and has, in fact, stated that 
        the ``proper test'' is the objective, ``disinterested 
        observer'' standard.\32\
---------------------------------------------------------------------------
    \32\White v. Dept. Air Force, 95 M.S.P.R. 1, 7-8 (2003).

    The Federal Circuit, ruling on this case on appeal from the 
MSPB, rejected the government's argument 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.\33\ To definitely disavow the 
``irrefragable proof'' requirement, S. 743 codifies the 
objective reasonable-belief test in Lachance.
---------------------------------------------------------------------------
    \33\See, e.g., White v. Department of Air Force, 391 F.3d 1377, 
1381 (Fed. Cir. 2004).
---------------------------------------------------------------------------
    The bill also provides that any presumption relating to the 
performance of a duty by an employee whose conduct is the 
subject of a whistleblower disclosure 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.''\34\ It consists of ``more than a 
mere scintilla of evidence but may be somewhat less than a 
preponderance.''\35\ This standard is consistent with the 
legislative history of the existing Act. Indeed, a cornerstone 
of 5 U.S.C. Sec. 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 evidences a kind of misconduct listed 
in section 2302(b)(8).\36\ The Committee emphasizes that there 
should be no additional burdens imposed on the employee beyond 
those provided by the statute, and that this test--that the 
disclosure is protected if the employee had a reasonable belief 
it evidenced misconduct--must be applied consistently to each 
kind of misconduct and each kind of speech covered under 
section 2302(b)(8).\37\
---------------------------------------------------------------------------
    \34\Richardson v. Perales, 402 U.S. 389, 401 (1971).
    \35\Hays v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990) (quoting 
Laws v. Celebrezze, 368 F. 2d 640, 642 (4th Cir. 1966)).
    \36\Ramos v. FAA, 4 M.S.P.R. 388 (1980).
    \37\Despite 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.
---------------------------------------------------------------------------
    The Committee notes that the requirement that the employee 
need show only reasonable belief applies, as well, in 
determining whether the narrow exception for policy disputes, 
added by S. 743, applies. In other words, if an employee has a 
reasonable belief that the disclosed information evidences the 
kinds of misconduct listed in section 2302(b)(8), rather than a 
policy disagreement, the disclosure is protected.

C. 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.\38\ 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.\39\
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    \38\Public Law No. 95-454, 92 Stat. 1143, Sec. 205 (1978) (adding 5 
U.S.C. Sec. 7703).
    \39\Public Law No. 97-164, 96 Stat. 49, Sec. 144 (1982); see also 5 
U.S.C. Sec. Sec. 7702, 7703(b)(2).
---------------------------------------------------------------------------
    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. 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.\40\
---------------------------------------------------------------------------
    \40\S. 1358 Hearing supra note 19, (statement of Stephen Kohn, 
Chairman, Board of Directors, National Whistleblower Center) at 136-
137.

    The Committee believes that this argument raises valid 
points about the current process for judicial review 
consolidated at the Federal Circuit.
    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. Likewise, state or local government employees 
affected by the MSPB's Hatch Act decisions may obtain review in 
the U.S. district courts.\41\ 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 the Court of Appeals for 
the circuit where the petitioner resides, transacts business, 
or to the D.C. Circuit.\42\
---------------------------------------------------------------------------
    \41\5 U.S.C. Sec. 1508.
    \42\5 U.S.C. Sec. 7123(a).
---------------------------------------------------------------------------
    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 
may file a case in district court and, if they lose, appeal to 
the appropriate federal court of appeals.\43\ 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.\44\ In 
1991, Congress passed the Federal Deposit Insurance Corporation 
Improvement Act, providing district court review with regular 
avenues of appeal for whistleblowers in federal credit 
unions.\45\ Whistleblower laws passed as part of the Energy 
Reorganization Act, as amended in 1992,\46\ and the Clean Air 
Act, as amended in 1977,\47\ 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),\48\ enacted 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 alleges 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.\49\ 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.\50\
---------------------------------------------------------------------------
    \43\31 U.S.C. Sec. 3730(h).
    \44\12 U.S.C. Sec. 1441a(q).
    \45\12 U.S.C. Sec. 1790b(b).
    \46\42 U.S.C. Sec. 5851(c).
    \47\42 U.S.C. Sec. 7622(c).
    \48\49 U.S.C. Sec. 42121(b)(4).
    \49\18 U.S.C. Sec. 1514A.
    \50\Public Law No. 111-5, Sec. 1552, 123 Stat. 115 (2009).
---------------------------------------------------------------------------
    In light of the significant number of statutes that 
successfully utilize all-circuit review of whistleblower 
appeals from federal district courts, the Committee concludes 
the rationale for the Federal Circuit's subject matter-based 
jurisdiction--the need for specialization in a particular area 
of law--does not apply in whistleblower jurisprudence. 
Therefore, subject to a five-year sunset, section 108 of S. 743 
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 
congressional intent and 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.

D. 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.''\51\ The primary mission of 
the OSC is to protect 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 who allege that federal 
officials have committed prohibited personnel practices against 
them.
---------------------------------------------------------------------------
    \51\5 U.S.C. Sec. 1211(b).
---------------------------------------------------------------------------
    When such a claim is filed, 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.\52\ If 
an agency does not do so, the OSC is authorized to file a 
petition for corrective action with the MSPB.\53\ At 
proceedings before the MSPB, the OSC is represented by its own 
attorneys, while the employing agency is represented by the 
agency's counsel.
---------------------------------------------------------------------------
    \52\U.S. Office of Special Counsel, Annual Report for Fiscal Year 
2010, at 10.
    \53\5 U.S.C. Sec. 1214(b)(2)(C).
---------------------------------------------------------------------------
    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, the Office of Personnel 
Management (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. Because the OSC 
lacks independent litigating authority, DOJ--not OSC--attorneys 
represent OSC in those cases. Because DOJ usually also 
represents the defending agency, 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. 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 courts of appeals. Therefore, 
section 113 of S. 743 provides the Special Counsel with 
authority to file its own amicus curiae (or, ``friend of the 
court'') briefs with the federal courts in whistleblower cases, 
represented by its own attorneys, not by DOJ, thereby 
presenting the OSC's unfiltered views on the law.
    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),\54\ 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.\55\
---------------------------------------------------------------------------
    \54\Public Law No. 96-354, 94 Stat. 1164 (1980).
    \55\5 U.S.C. Sec. 612(c).
---------------------------------------------------------------------------
    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.

E. 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.\56\
---------------------------------------------------------------------------
    \56\5 U.S.C. Sec. 1215.
---------------------------------------------------------------------------
    Under MSPB case law, however, 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, that the manager would not have taken the adverse 
personnel action if the whistleblowing activity had not 
occurred.\57\ In contrast, under 1989 amendments to the WPA, 
when whistleblowers seek corrective action for retaliation, 
agencies bear the burden of providing independent justification 
for the personnel action at issue and of doing so by clear and 
convincing evidence.\58\ The 1989 amendments did not alter the 
burden in disciplinary actions. As a result, the Board has on 
many occasions ruled that whistleblower reprisal had been 
proven for purposes of providing relief to the employees, while 
at the same time rejecting the OSC's claim for disciplinary 
action against the managers who had just been found responsible 
for the unlawful reprisal in the same case.\59\
---------------------------------------------------------------------------
    \57\Special Counsel v. Santella, 65 M.S.P.R. 452 (1994).
    \58\5 U.S.C. Sec. Sec. 1214 and 1221. See also 135 Cong. Rec. 4509, 
4517, 5033 (1989).
    \59\Letter 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.'').
---------------------------------------------------------------------------
    Section 106 of S. 743 addresses this inconsistency by 
establishing for disciplinary actions the same burden of proof 
the Supreme Court set forth in Mt. Healthy v. Doyle,\60\ in 
which a public school teacher claimed he was unlawfully 
terminated from his employment for exercising his First 
Amendment right to freedom of speech. Under this test, the OSC 
would have to show that protected whistleblowing was a 
``significant motivating factor'' in the official's 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 official would then have the opportunity to 
show, 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. If he 
or she fails that burden, the Board would be authorized to 
impose discipline.
---------------------------------------------------------------------------
    \60\Mt. Healthy City School District Board of Education v. Doyle, 
429 U.S. 274 (1977).
---------------------------------------------------------------------------

F. Office of Special Counsel Attorney's 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's fees undermines 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. 743's 
solution is Santella v. Special Counsel.\61\ In a 2-1 decision, 
the MSPB held that the OSC could be held liable to pay 
attorney's 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.
---------------------------------------------------------------------------
    \61\86 M.S.P.R. 48 (2000).
---------------------------------------------------------------------------
    The OSC argued that its decision to prosecute the 
supervisors was a reasonable one, and an award of fees would 
not be in the interests of justice. Indeed, the OSC contended 
that awarding fees under the 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's fees, then their 
employing agency, the IRS, rather than the OSC, should bear the 
cost of reimbursement. The Board majority rejected the OSC's 
arguments and held that the OSC, and not the IRS, should be 
liable for any award of fees.\62\ Vice Chair Slavet dissented.
---------------------------------------------------------------------------
    \62\Id. at 64-65.
---------------------------------------------------------------------------
    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 before bringing a 
disciplinary action. Because the OSC is a small agency with a 
limited budget, this burden hinders the OSC's use of 
disciplinary action as an enforcement mechanism and threatens 
the OSC's ability to implement and enforce the WPA. To correct 
this problem, section 107 of S. 743 would require the employing 
agency, rather than the OSC, to reimburse any attorney's fees 
the manager is entitled to recover.

G. Anti-gag provisions

    In 1988, Senator Grassley sponsored an amendment to the 
Treasury, Postal and General Government Appropriations bill, 
which is referred to as the ``anti-gag'' provision.\63\ 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,\64\ and to make 
appropriate disclosures under other particular laws specified 
in the statement.
---------------------------------------------------------------------------
    \63\Public Law No. 105-277, 112 Stat. 2681-526 (1998), the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act, 1999, 636.
    \64\The 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. 
Sec. 7211.
---------------------------------------------------------------------------
    S. 743 would institutionalize the anti-gag provision by 
codifying it and making it enforceable. Specifically, section 
115 of the bill would require every nondisclosure policy, form, 
or agreement of the U.S. Government to contain specific 
language set forth in the legislation informing employees of 
their rights. This required language will alert employees that 
the nondisclosure policy, form, or agreement does not override 
employee rights and obligations created by existing statute or 
Executive Order relating to classified information, 
communications with Congress, the reporting of violations to an 
inspector general (IG), or whistleblower protection. The annual 
``anti-gag'' provision has always included a specific list of 
the statutes and Executive Orders to be stated in each policy, 
form, or agreement. Because S. 743 would codify the provision 
in permanent statute, not subject to annual revision and 
reenactment, the Committee considered and adopted an amendment 
to the bill that eliminates the specific list of statutes and 
Executive Orders in the required statement, and instead 
requires that each policy, form, or agreement must state a 
general cross reference to the employee rights and obligations 
under existing statute and Executive Order relating to the 
topics specified in section 115 of the legislation.
    The bill also requires agencies that use nondisclosure 
policies, forms, or agreements to post the same statement on 
the agency website, accompanied by a current list of the 
statutes and Executive Orders that provide the relevant 
employee whistleblower rights and obligations. The provision is 
designed to give employees both the statutory notice of their 
rights, included within each non-disclosure policy, form, or 
agreement, and also a specific list of controlling laws and 
Executive Orders, published in a form that is easily updated.
    Section 104(a) and (b) of the bill also specifically makes 
it a prohibited personnel practice for any manager to implement 
or enforce a nondisclosure policy, form, or agreement that does 
not contain the specific statement mandated in the bill, as 
amended, 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.
    The legislation would not make it a prohibited personnel 
practice to continue to enforce a nondisclosure policy, form, 
or agreement that is in effect before the date of enactment, 
even if it does not contain the statement required under the 
bill, provided the agency gives actual notice of the statement 
to any current employees who are covered by the policy, form or 
agreement. In addition, it would not be a prohibited personnel 
practice for an agency to continue to enforce such a policy, 
form or agreement with regard to former employees, if the 
agency complies with the requirement in the bill to post the 
statement and controlling law on its website. The Committee has 
concluded that these provisions strike an appropriate balance, 
allowing agencies to continue using existing nondisclosure 
agreements, while also ensuring that employees are given 
appropriate notice of their rights under the law.

H. Retroactive exemption of agency employees from whistleblower 
        protections

    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.\65\
---------------------------------------------------------------------------
    \65\5 U.S.C. Sec. 2302(a)(2)(B).
---------------------------------------------------------------------------
    The WPA also excludes certain entire agencies from 
coverage: the GAO, FBI, Central Intelligence Agency (CIA), 
National Security Agency, Defense Intelligence Agency, and 
National Geospatial-Intelligence Agency, and other agencies 
determined by the President to have the principal function of 
conducting foreign intelligence or counterintelligence 
activities.\66\ S. 743 would add to the excluded list two 
offices that clearly have the principal function of conducting 
intelligence activities to the list of statutorily excluded 
intelligence agencies: the Office of the Director of National 
Intelligence (ODNI) and the National Reconnaissance Office. For 
whistleblowers in all of these agencies (except GAO), statutory 
procedures are available under the Intelligence Community 
Whistleblower Protection Act (ICWPA) and similar legislation by 
which they may bring their urgent concerns to Congress,\67\ but 
the rights and remedies generally available under the WPA do 
not apply.\68\
---------------------------------------------------------------------------
    \66\5 U.S.C. Sec. 2302(a)(2)(C).
    \67\The ICWPA was enacted as title VII of the Intelligence 
Authorization Act for FY 1999, Public Law No. 105-272 (Oct. 20, 1998) 
(adding 50 U.S.C. Sec. 403q(d)(5), applicable to the CIA, and adding 
section 8H of the Inspector General Act of 1978, 5 U.S.C. App, 
applicable generally to other intelligence agencies). It provides 
intelligence community employees excluded from the WPA a protected path 
to disclose classified information to Congress. The Intelligence 
Authorization Act for Fiscal Year 2010, Public Law No. 111-259, 
405(a)(1) (Oct 7, 2010) (adding 50 U.S.C. Sec. 403-3h(k)(5)) adds a 
similar protected path, applicable to any member of the intelligence 
community who discloses an ``urgent concern'' to the Inspector General 
of the Intelligence Community, established under that Act.
    \68\Whistleblower protections are already available under 5 U.S.C. 
Sec. 2303 for FBI employee, and section 201 of S. 743 would establish 
whistleblower protections for others in the intelligence community 
similar to the FBI protections.
---------------------------------------------------------------------------
    Under 1994 amendments to the WPA, an agency cannot deprive 
an employee of protection under the WPA by designating the 
employee's particular position as a confidential policy-making 
position after the agency had already retaliated against the 
employee for having blown the whistle. To forbid this practice, 
Congress restricted the statutory exemption to positions 
designated as exceptions ``prior to the personnel action.''\69\
---------------------------------------------------------------------------
    \69\Public 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. Sec. 2302(a)(2)(B).
---------------------------------------------------------------------------
    Unfortunately, a similar practice has recurred in a context 
with potentially broader consequences. In a troubling decision, 
the MSPB held that, in delegating certain intelligence 
functions to an agency, the President had implicitly excluded 
that agency and its employees from WPA protection. The claimant 
argued to the MSPB that the agency did not conclude it was 
exempt from the WPA until after the claimant had filed her 
whistleblower complaint, and that the exemption could therefore 
not apply retroactively to her; but the MSPB rejected that 
argument.\70\
---------------------------------------------------------------------------
    \70\See Czarkowski v. Merit Systems Protection Board, 93 M.S.P.R. 
515 (2003).
---------------------------------------------------------------------------
    On appeal, the Federal Circuit reversed the Board's 
decision, holding that an agency and its employees remain 
covered under the WPA unless the President determines 
explicitly that the agency is exempt.\71\ However, in holding 
that an explicit presidential determination is required, the 
Court did not specifically rule on whether such a determination 
may be applied retroactively to remove WPA coverage from a 
whistleblower who suffered retaliation before the determination 
was made.
---------------------------------------------------------------------------
    \71\Czarkowski v. Merit Systems Protection Board, 390 F.3d 1347, 
1350-51 (Fed. Cir. 2004), vacating and remanding 93 M.S.P.R. 515 
(2003).
---------------------------------------------------------------------------
    Section 105 of S. 743 would close the potential loophole 
for entire agencies in the same manner as Congress did in 1994 
for individual positions. The bill specifies that, when the 
President excludes an agency from the Act, an employee of the 
agency does not lose whistleblower rights if the exclusion of 
the agency occurred after the agency had already taken a 
personnel action against that employee in retaliation for 
making a protected whistleblower disclosure.

I. Whistleblower protection for Transportation Security Administration 
        employees

    The Aviation and Transportation Security Act (ATSA), which 
created the Transportation Security Administration (TSA) in 
2001, gave the TSA Administrator broad authority to establish a 
personnel system notwithstanding any other law and provides the 
Administrator with ``final authority'' over TSA personnel 
actions. As a result of this broad personnel authority, TSA 
employees do not have statutory whistleblower rights under the 
WPA.
    However, TSA has administratively granted to TSA employees 
some, but not all, of the rights generally available to federal 
employees under the WPA.\72\ More specifically, TSA has by 
internal directive forbidden retaliation against its employees 
who make protected whistleblower disclosures.\73\ Moreover, in 
May 2002, TSA and the OSC entered into a memorandum of 
understanding that gave the OSC authority to investigate 
whistleblower retaliation complaints and to recommend to TSA 
that it take corrective and/or disciplinary action.\74\ In 
February 2008, TSA and the Board announced an agreement to 
provide TSA employees with a limited right to bring 
whistleblower claims before the Board;\75\ and in July 2008, 
TSA and the Board announced that they had implemented that 
agreement.\76\ Under the agreement, employees may file an 
appeal with the Board after the OSC has reviewed and closed a 
matter involving a whistleblower complaint.
---------------------------------------------------------------------------
    \72\97 M.S.P.R. 35 (2004).
    \73\TSA Management Directive No. 1100.75-5.
    \74\See 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/tsa_mou.pdf.
    \75\See 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. 
    \76\See 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).
---------------------------------------------------------------------------
    However, the employee rights under these memoranda are 
subject to important limitations. Whistleblowers may not appeal 
Board orders to the courts, and Board hearings for 
whistleblowers are closed to the public unless there is 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. And the underlying TSA policy forbidding 
retaliation against employees who blow the whistle is subject 
to revision or cancellation by administrative action of the 
agency.
    The Committee has concluded that there is no basis for 
excluding TSA employees from the full protections of the WPA. 
The WPA protects employees of all other components of the 
Department of Homeland Security, 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 the Whistleblower Protection Enhancement Act (S. 
372) in the 111th Congress:

        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.\77\
---------------------------------------------------------------------------
    \77\Statement 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).

    Therefore, consistent with the Administration's view that 
TSA employees should have WPA protection, section 109 of S. 743 
extends full WPA protections to TSA employees.
    Section 109 of S. 743 also extends to TSA employees the 
protections against the prohibited personnel practices listed 
under 5 U.S.C. Sec. 2302(b)(1). These prohibited actions 
include 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;\78\ on the basis 
of age as prohibited by the Age Discrimination in Employment 
Act of 1967;\79\ on the basis of sex under the Fair Labor 
Standards Act of 1938 (which, as amended, includes the Equal 
Pay Act);\80\ on the basis of handicapping condition under the 
Rehabilitation Act of 1973;\81\ and on the basis of marital 
status or political affiliation as prohibited by any law, rule, 
or regulation.
---------------------------------------------------------------------------
    \78\Public Law No. 88-352, 78 Stat. 241; 42 U.S.C. Sec. 2000a et 
seq.
    \79\Public Law No. 90-202, 81 Stat. 602; 29 U.S.C. Sec. 621 et seq.
    \80\Public Law No. 75-718, 52 Stat. 1060; 29 U.S.C. Sec. 201 et 
seq.
    \81\Public Law No. 93-112, 87 Stat. 355; 29 U.S.C. Sec. 701 et seq.
---------------------------------------------------------------------------

J. Penalties for retaliatory investigations

    The WPA makes it a prohibited personnel practice to take an 
adverse personnel action against a covered employee because 
that employee made a protected disclosure, and the applicable 
definition of ``personnel action'' includes a variety of 
actions significantly affecting employees, such as 
appointments, promotions, transfers or removals, performance 
evaluations, decisions concerning pay or benefits, significant 
changes in duties, responsibilities, or working conditions, and 
several others. However, agency investigations of employees are 
not explicitly covered under the statutory definition of a 
``personnel action.'' Instead, such investigations come within 
that definition only if they result in a significant change in 
job duties, responsibilities, or working conditions or have 
effects that otherwise fit within one of the items listed under 
the statutory definition of ``personnel action.''\82\
---------------------------------------------------------------------------
    \82\5 U.S.C. Sec. 2302(a)(2).
---------------------------------------------------------------------------
    In the legislative history of the 1994 amendments, House 
Civil Service Subcommittee Chairman Frank McCloskey highlighted 
that retaliatory investigation of whistleblowers may be a 
prohibited form of harassment. He stated:

        [T]he prohibition against threats in sections 
        2302(b)(8) and (b)(9) should be broadly construed[, 
        and] even if [there are] not formal changes in duties, 
        responsibilities, or working conditions, the Board 
        should consider whether other common forms of 
        harassment represent prohibited threats, because they 
        are a prelude or precondition to listed forms of 
        personnel actions. The techniques to harass a 
        whistleblower are limited only by the imagination. 
        Illustrative examples, however, include retaliatory 
        investigations, threat of or referral for prosecution, 
        defunding, reductions in force and denial or workers 
        compensation benefits. In evaluating whether harassment 
        constitutes a threatened personnel action, among 
        factors the board should consider is whether the 
        activity is discriminatory, or could have a chilling 
        effect on merit system duties and responsibilities.\83\
---------------------------------------------------------------------------
    \83\140 Cong. Rec. 29,353 (1994); see also H. Rep. No. 103-769 
(1994), at 15.

    In 1997, the Board held, in Russell v. Department of 
Justice, that the WPA protects employees from retaliatory 
investigations under certain circumstances.\84\ In that case, 
an employee asserted a WPA violation as a defense against a 
proposed personnel action, and 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.''\85\ The Board observed that 
to ``hold otherwise would sanction the use of a purely 
retaliatory tool, selective investigations.''\86\
---------------------------------------------------------------------------
    \84\76 M.S.P.R. 317, 323-25 (1997)
    \85\Id. at 324.
    \86\Id. at 325.
---------------------------------------------------------------------------
    Because retaliatory investigations are not explicitly 
referenced as a ``personnel action'' that may be prohibited 
under the WPA, a whistleblower might be able to demonstrate 
that an investigation was undertaken in retaliation for a 
protected disclosure, but nevertheless have no remedy under the 
WPA if the investigation did not result in a significant change 
in job duties, responsibilities, or working conditions. To 
prevent this outcome, predecessors to S. 743 would have 
explicitly and specifically recognized retaliatory 
investigations as a prohibited personnel practice. However, in 
testimony on the introduced version of S. 372 in the 111th 
Congress, the Administration expressed concerns about the 
provision. Specifically, the Administration wanted to ensure 
that legitimate and important agency inquiries--including 
criminal investigations, routine background investigations for 
initial employment, investigations for determining eligibility 
for a security clearance, IG investigations, and management 
inquiries of potential wrongdoing in the workplace--not be 
chilled by fear of challenge and litigation.\87\
---------------------------------------------------------------------------
    \87\S. 1358 Hearing supra note 19 at 60.
---------------------------------------------------------------------------
    To address this concern, while still increasing 
whistleblowers' protection from retaliatory investigations, the 
Committee agreed to a middle ground. S. 743 does not add 
retaliatory investigations as personnel actions expressly 
prohibited by the WPA and leaves Russell as the governing law. 
Section 104(c) of S. 743 does, however, create an additional 
avenue for financial relief once an employee is able to prove a 
claim under the WPA, if the employee can further demonstrate 
that an investigation was undertaken in retaliation for the 
protected disclosure. The bill 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 of the legislation 
does not in any way reduce current protections against 
retaliatory investigations, and it would retain 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.

K. 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.\88\ To 
encourage submission of this information, the HSA sets out a 
process by which critical infrastructure information may be 
submitted voluntarily to DHS and stipulates\89\ that such 
voluntarily submitted critical infrastructure information is to 
be treated as exempt under the Freedom of Information Act.\90\ 
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 and to use such 
information in any manner permitted by law.\91\
---------------------------------------------------------------------------
    \88\Public Law No. 107-296, Sec. 214, 116 Stat. 2135 (2002), 
codified at 6 U.S.C. Sec. 133.
    \89\6 U.S.C. Sec. 133(a).
    \90\5 U.S.C. Sec. 552 (the Freedom of Information Act).
    \91\ 6 U.S.C. Sec. 133(c).
---------------------------------------------------------------------------
    At the same time, the Act criminalizes the unauthorized 
disclosure by a federal employee of this type of 
information,\92\ 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:
---------------------------------------------------------------------------
    \92\ 6 U.S.C. Sec. 133(f).

        [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.\93\
---------------------------------------------------------------------------
    \93\Letter from Elaine Kaplan, Special Counsel, Office of Special 
Counsel, to Senator Charles Grassley (March 10, 2003).

    When DHS issued proposed regulations implementing section 
214 of the HSA, the Department received comments expressing 
concern that whistleblowers could be treated unfairly and face 
termination, fines, and imprisonment if they disclosed critical 
infrastructure information. This would discourage the accurate 
reporting of 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.\94\ However, DHS's final regulations, published 
in September 2006, stated that the earlier provision that had 
``referred to the Whistleblower Protection Act . . . has been 
omitted because . . . [it] merely restates the law of the 
land.''\95\
---------------------------------------------------------------------------
    \94\See 69 Fed. Reg. 8074, 8081 (Feb. 20, 2004).
    \95\See 71 Fed. Reg. 52262, 52269 (Sept. 1, 2006); see also the 
regulations codified at 6 C.F.R. Sec. 29.8(f).
---------------------------------------------------------------------------
    The regulations clearly intend to ensure that disclosures 
of independently obtained critical infrastructure information 
are not exempt from the WPA. Section 111 of S. 743 would codify 
that regulatory intent and make clear that, when an employee or 
applicant covered by the WPA obtains information in a manner 
not covered by the critical infrastructure information program 
under the HSA, disclosure by the employee or applicant of that 
independently obtained information may be a protected 
disclosure under the WPA (5 U.S.C. Sec. 2302(b)(8)) without 
risk of criminal penalties, even if the same information was 
also voluntarily submitted to DHS as part of the critical 
infrastructure information program.

L. Right to a full hearing

    Board case law has created a disturbing trend of denying 
employees' right to a due process hearing and a public record 
to resolve their WPA claims. The Board currently allows an 
agency to present its affirmative defense that the agency would 
have taken the same personnel action for lawful reasons, 
independent of any retaliation against the employee for 
protected whistleblowing, without first allowing the employee 
to present his or her case proving that the whistleblower 
retaliation occurred.\96\ The Federal Circuit has affirmed this 
process.\97\
---------------------------------------------------------------------------
    \96\See, e.g., McCarthy v. International Boundary and Water 
Commission, 116 M.S.P.R. 594, 612 (2011); Azbill v. Department of 
Homeland Security, 105 M.S.P.R. 363, 370-71 (2007) (``The Board may 
resolve the merits issues in any order it deems most efficient.'').
    \97\See, e.g., Fellhoetler v. Department of Agriculture, 568 F.3d 
965, 971 (Fed. Cir. 2009) (explicitly affirming the process and noting 
that the court had ``tacitly approved of the Board's practice'' in the 
past).
---------------------------------------------------------------------------
    Taking away whistleblowers' opportunity to present their 
cases undermines key purposes of the WPA. 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. This is concerning for several reasons. The order in 
which parties get to present their cases may influence the 
fact-finder's perception of the merits and, therefore, 
potentially the outcome. 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 full 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, 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.''\98\ If reprisal for a protected disclosure 
is a contributing factor in a decision to take a personnel 
action, even if the agency ultimately prevails on its 
affirmative defense of independent justification, that is a 
significant merit system concern even if it is not an 
actionable legal claim. Under the current procedure, the Board 
does not exercise these oversight responsibilities as long as 
the agency has an acceptable overall affirmative defense, 
analyzed without the benefit of having first heard the 
employee's evidence.
---------------------------------------------------------------------------
    \98\Reprinted in 135 Cong. Rec. 5033 (1989).
---------------------------------------------------------------------------
    Section 114 of S. 743 resolves this problem by requiring 
that, before the agency may present its defense, the employee 
must have first had an opportunity to present his or her 
evidence and must have succeeded showing, by a preponderance of 
the evidence, that the protected disclosure was a contributing 
factor in the personnel action. If the employee fails to do 
that, the claim fails; if the employee succeeds, then the 
agency may present its defense.

M. 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 of 
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, 
section 110 of S.743 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. 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.

N. Reporting requirements

    In order to assist Congress in evaluating the effects of 
this legislation, section 116 of S. 743 would require a report 
from GAO and an annual report from the MSPB. S. 743 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 could 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. 743 
would 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. 
Sec. 2302(b)(8) or (9). The Committee believes that these 
provisions will enable Congress to examine closely how this 
bill is implemented, to evaluate whether provisions subject to 
the five-year sunset should be extended, and to consider 
additional steps if needed in the interim.

O. Alternative review

    Subject to a five-year sunset, section 117 of S. 743 would 
allow whistleblower claims where the alleged retaliation 
involves major personnel actions under 5 U.S.C. Sec. Sec. 7512 
and 7542\99\ to go to federal district court under certain 
circumstances. First, cases may be filed in district court if 
the MSPB does not issue a final order or decision within 270 
days after the MSPB claim was submitted (unless the Board 
determines that the employee intentionally delayed the 
proceedings). Additionally, cases may be filed in district 
court if the MSPB certifies, upon motion from the employee, 
that the claim would survive a motion to dismiss under the 
standards set forth in the Federal Rules of Civil Procedure and 
that any one of the following conditions is met: the Board is 
not likely to dispose of the case within 270 days; or 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, or involves a novel question 
of law. With respect to the requirement that the case would 
survive a motion to dismiss, 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.
---------------------------------------------------------------------------
    \99\For a member of the competitive service and certain members of 
the excepted service, 5 U.S.C. Sec. 7512 refers generally to a removal, 
a suspension for more than 14 days, a reduction in grade, a reduction 
in pay, or a furlough of 30 days or less; and, for a career appointee 
of the Senior Executive Service, 5 U.S.C. Sec. 7542 refers generally to 
a removal from the civil service or a suspension for more than 14 days.
---------------------------------------------------------------------------
    An MSPB decision that denies certification to remove a 
whistleblower case to district court may be appealed only 
together 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 claims that involve major 
personnel actions. Alternative review is further limited to 
cases that have taken more than 270 days to resolve, or are 
certified for district court because they would survive a 
motion to dismiss, and either are likely to take more than 270 
days or involve complex or multiple claims or novel questions 
of law. 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 Federal Circuit Court of Appeals that narrowly 
interpret the WPA have undermined employees' confidence in the 
Board process.\100\ 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.\101\
---------------------------------------------------------------------------
    \100\See Statement of Thomas Devine, Legal Director, Government 
Accountability Project, S. 372 Hearing supra note 77.
    \101\Id.
---------------------------------------------------------------------------
    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.\102\ 
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.\103\ 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.''\104\ For these reasons, 
district court certification is available for WPA cases 
involving a ``major personnel action'' under 5 U.S.C. 
Sec. Sec. 7512 or 7542 and multiple claims, complex or 
extensive discovery, or a novel legal question.
---------------------------------------------------------------------------
    \102\See Statement of Robert Vaughn, Professor of Law and A. Allen 
King Scholar, Washington College of Law at American University, S. 372 
Hearing supra note 77, at 12-13.
    \103\See 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).
    \104\Id.
---------------------------------------------------------------------------
    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.\105\ 
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.\106\ Similarly, only a small minority of 
whistleblower claims filed under the Sarbanes-Oxley 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.\107\
---------------------------------------------------------------------------
    \105\See id.; see also Devine Statement, S. 372 Hearing supra note 
77.
    \106\Vaughn Statement, S. 372 Hearing supra note 77, at 14.
    \107\See 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/
document_library/get_file?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.
---------------------------------------------------------------------------
    As discussed in the section above regarding all circuit 
review, numerous whistleblower statutes provide access to 
district court to 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.\108\
---------------------------------------------------------------------------
    \108\See supra notes 41-49 and accompanying text.
---------------------------------------------------------------------------
    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 during the 111th 
Congress. 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.\109\ 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, the predecessor of S. 743 in the 111th 
Congress, ``we would suggest that Congress consider adopting 
damages caps analogous to the Title VII [of the Civil Rights 
Act of 1964] context to ensure that incentives are properly 
aligned and to alleviate concerns about runaway juries.''\110\
---------------------------------------------------------------------------
    \109\Statement of William L. Bransford, General Counsel, Senior 
Executives Association, S. 372 Hearing supra note 77.
    \110\De Statement, S. 372 Hearing supra note 77.
---------------------------------------------------------------------------
    To address these concerns, 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 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.\111\ The Committee has concluded 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, S. 743 provides that 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.
---------------------------------------------------------------------------
    \111\Id.
---------------------------------------------------------------------------
    The alternative review provisions are subject to a five-
year sunset, in order to allow Congress to evaluate the impact 
of this provision on federal whistleblower protections, the 
MSPB, and the federal district courts.

P. 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.\112\ To assist the Board with prompt adjudication 
of WPA claims, section 118 of S. 743 authorizes 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 should 
use the standards set forth in Federal Rule of Civil Procedure 
56. That is, the Board shall determine, examining the evidence 
and pleadings before it and 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.
---------------------------------------------------------------------------
    \112\See 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.
---------------------------------------------------------------------------

Q. Classified disclosures to Congress for employees under the WPA

    If an employee covered by the WPA wants to make a protected 
disclosure of classified information, the WPA states that the 
individual may provide the information ``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.''\113\ However, the WPA does not lay out a process 
by which an employee covered by the Act may make a protected 
disclosure of classified information to Congress. The 
Intelligence Community Whistleblower Protection Act of 1998 
(ICWPA) and similar provisions\114\ establish secure processes 
for disclosing certain classified information to Congress, but 
these processes may be used only by employees of the 
intelligence community, not by employees covered under the WPA. 
In order to clarify a procedure that federal employees who are 
covered under the WPA may use to disclose to Congress 
classified information that evidences waste, fraud, and abuse, 
section 119 of S. 743 amends the WPA and the ICWPA to protect 
employees covered under the WPA if they make classified 
disclosures to Congress using the process established under the 
ICWPA.
---------------------------------------------------------------------------
    \113\5 U.S.C. Sec. 2302(b)(8)(B).
    \114\ICWPA, Public Law No. 105-272, title VII (Oct. 20, 1998) 
(adding 50 U.S.C. Sec. 403q(d)(5), applicable to the CIA, and adding 
section 8H of the Inspector General Act of 1978, 5 U.S.C. App, 
applicable generally to other intelligence agencies); the Intelligence 
Authorization Act for Fiscal Year 2010, Public Law No. 111-259, 
Sec. 405(a)(1) (Oct 7, 2010) (adding 50 U.S.C. Sec. 403-3h(k)(5), 
applicable to any member of the intelligence community).
---------------------------------------------------------------------------
    Certain prior versions of this legislation in past 
Congresses 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 directly and specifically evidences 
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) with similar provisions to those in prior versions of 
S. 743, but that applied only to members of the intelligence 
community. The Clinton Administration opposed the bill, arguing 
that ``S. 1668 would deprive the President of his authority to 
decide, based on the national interest, how, when and under 
what circumstances particular classified information should be 
disclosed to Congress [which would be] an impermissible 
encroachment on the President's ability to carry out core 
executive functions.''\115\ In its report on the bill, 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.\116\
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    \115\See 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).
    \116\S. Rep. No. 105-165 (1998).
---------------------------------------------------------------------------
    Nonetheless, in order to address the concerns of the 
Administration then in office, the House and Senate in 1998 
agreed to modify the Senate proposal and enacted the ICWPA, 
which provides a secure process that whistleblowers in certain 
intelligence agencies and offices may use to disclose 
classified information to Congress.\117\ The ICWPA provides 
that if an employee wishes to convey to Congress information 
about a serious problem or violation involving intelligence 
activities, and if the employee wishes to do so under the ICWPA 
process, the employee must first inform the appropriate IG. The 
IG is then required to determine whether the information 
appears credible, and, if so, the IG must transmit it to the 
head of the relevant intelligence agency or office, who is then 
required to forward it to the House and Senate Intelligence 
Committees. If the IG does not transmit the information to the 
agency head, the employee may contact either or both of the 
congressional intelligence committees to make the disclosure, 
but, before doing so, must first, through the IG, notify the 
head of the agency or office about the employee's intent and 
must follow the instructions from the agency or office head 
regarding how to contact Congress in accordance with 
appropriate security practices.
---------------------------------------------------------------------------
    \117\See Sec. 8H of the Inspector General Act of 1978, 5 U.S.C. 
app; Sec. 17(d)(5) of the Central Intelligence Agency Act of 1949, 50 
U.S.C. Sec. 403q(d)(5)).
---------------------------------------------------------------------------
    It is important to note that in enacting the ICWPA, 
Congress did not contradict its long-held view that an 
individual's right to provide information to Congress and 
Congress's power to receive information are inherent in our 
Constitutional structure. The Congressional findings enacted at 
the beginning of the ICWPA specifically state that ``no basis 
in law exists for requiring prior authorization of disclosures 
to the intelligence committees of Congress by employees of the 
executive branch of classified information about wrongdoing 
within the Intelligence Community'' and that the process under 
the ICWPA provides an ``additional procedure'' established ``to 
encourage such reporting.''\118\ Likewise, the House and Senate 
agreed in the ICWPA conference report it ``establishes an 
additional process to accommodate the disclosure of classified 
information of interest to Congress.''\119\ 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.''\120\
---------------------------------------------------------------------------
    \118\Public Law No. 105-272, Sec. Sec. 701(b)(4)-(6) (Oct. 20, 
1998).
    \119\H.R. Rep. No. 105-780, at 34 (1998).
    \120\Id.
---------------------------------------------------------------------------
    During the 111th Congress, the current Administration took 
a similar position to that taken by earlier Administrations. 
Discussing the provision in S. 372 that would have explicitly 
extended the WPA to protect employees who disclosed classified 
information to Congress, Mr. De testified on behalf of the 
Administration:

        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.\121\
---------------------------------------------------------------------------
    \121\See De Statement, S. 372 Hearing supra note 77, at 11.

    Although the Committee believes that the provisions on 
classified information contained in previous versions of the 
legislation are consistent with Congress's constitutional role, 
the Committee in the 111th Congress accommodated the 
Administration's concerns by adopting a compromise 
provision,\122\ and the sponsors of the legislation in the 
112th Congress included that compromise provision in S. 743.
---------------------------------------------------------------------------
    \122\See S. Rept. 111-101, to accompany S. 372 (Dec. 3, 2009), at 
26-28.
---------------------------------------------------------------------------
    Under this legislation, employees covered under the WPA 
would get WPA protection if they disclose classified 
information to Congress using the procedures that now, under 
the ICWPA, apply only to employees at certain intelligence 
agencies. S. 743 amends the ICWPA provisions to encompass any 
federal employee at an agency covered by the WPA who intends to 
report to Congress information about a serious problem or 
violation in an activity involving classified information. 
Under the legislation, such an employee may report the 
information to the IG of the individual's employing agency. 
Then if the IG finds the information credible, the IG is 
required to transmit the information to the head of the agency, 
to forward it to the committees of jurisdiction; and, if the IG 
does not do so, the employee may directly contact one or both 
of the committees of jurisdiction in order to provide the 
disclosure. As examples, generally an employee of the 
Department of Justice could contact the House and Senate 
Judiciary Committees to provide the disclosure, and generally 
an employee of the Department of Defense could contact the 
House and Senate Armed Services Committees to provide the 
disclosure. (Intelligence-community employees who are covered 
under the ICWPA would still contact the House Permanent Select 
Committee on Intelligence or the Senate Select Committee on 
Intelligence to provide the disclosure.) All such disclosures 
of classified information would continue to be governed by any 
independent legal requirements for the proper handling of such 
information and for disclosure only to Members of Congress or 
to congressional employees with the appropriate security 
clearance.
    By providing legal protection to federal employees who 
disclose wrongdoing to Congress, even if the disclosure 
involves classified information, this provision is intended to 
ensure that employees who witness waste, fraud, and abuse in an 
activity involving classified information are not inhibited 
from disclosing it appropriately, and thereby seeking to end 
it, and to ensure that Congress receives the information 
necessary to fulfill its oversight responsibilities. In 
addition, this provision seeks to ensure the proper handling of 
classified documents and information in the process of 
reporting wrongdoing.
    The Committee emphasizes that this new process is but one 
way for federal employees to disclose classified information to 
Congress. Federal personnel law already states explicitly that 
whistleblower and related protections are 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.\123\ The new process 
also does not in any way limit the right of an employee to 
communicate with Congress under the Lloyd-La Follette Act\124\ 
(which codifies federal employees' right to petition or provide 
information to Congress) or any other provision of law.
---------------------------------------------------------------------------
    \123\5 U.S.C. Sec. 2302(b)
    \124\Public Law No. 336, 37 Stat. 539, 555 (1912); 5 U.S.C. 7211.
---------------------------------------------------------------------------

R. Whistleblower Protection Ombudsman

    To ensure that employees are aware of their rights under 
the WPA and avenues for redress, section 120 of S. 743, subject 
to a five-year sunset, requires each agency IG to designate a 
Whistleblower Protection Ombudsman within the Office of the 
Inspector General. This Ombudsman would educate agency 
personnel about the prohibition against retaliation for 
protected disclosures and the rights and remedies against 
retaliation for a protected disclosure. This provision does not 
apply to inspectors general in the intelligence community.
    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. The ombudsman may not, however, 
act as a legal representative, agent, or advocate for an 
employee.

S. Intelligence community whistleblower protections

    As discussed above, numerous elements of the intelligence 
community are excluded from protection under the WPA,\125\ 
because the intelligence community handles highly classified 
programs and information that must be closely guarded from 
public disclosure. The ICWPA provides these whistleblowers a 
secure channel through which they may disclose sensitive 
information to the Intelligence Committees of Congress. The 
ICWPA offers two parallel processes--one for CIA employees, who 
may begin by submitting their information to the CIA's IG,\126\ 
and one for members of several other elements of the 
intelligence community, who may begin by making their 
submission to the appropriate IG.\127\ Additionally, in the 
Intelligence Authorization Act for Fiscal Year 2010 (FY10 IAA), 
Congress added a third similar process, under which employees 
of any element of the intelligence community may submit their 
information to the Inspector General of the Intelligence 
Community established by that legislation within the ODNI.\128\ 
As described above, under all three of these processes, if the 
IG determines the material submitted is credible, the IG is 
required to send it to the head of the intelligence element, 
who must forward it to the Senate and House Intelligence 
Committees. If the IG does not send it to the relevant agency 
head, the employee may contact the Intelligence Committees 
directly. (Contractor employees may use these same procedures 
as federal employees under the ICWPA and under the FY10 IAA to 
bring information about serious problems or violations 
involving intelligence activities to Congress.)
---------------------------------------------------------------------------
    \125\See 5 U.S.C. Sec. 2302(a)(2)(C)(ii).
    \126\50 U.S.C. Sec. 403q(d)(5).
    \127\Section 8H of the Inspector General Act of 1978 (5 U.S.C. 
App.).
    \128\50 U.S.C. Sec. 403-3h(k)(5), added by the Intelligence 
Authorization Act for Fiscal Year 2010, Public Law No. 111-259, 
Sec. 405(a)(1) (Oct 7, 2010).
---------------------------------------------------------------------------
    Even though the ICWPA and the similar FY10 IAA provision 
are designed to establish procedures by which a whistleblower 
may securely disclose classified information to Congress, these 
statutes do not provide for any redress if the employee suffers 
retaliation because of the disclosure.\129\ Establishing a 
scheme to provide redress would be desirable, as Mr. De 
testified on behalf of the Administration at the hearing in the 
111th Congress:

    \129\Some 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. Sec. 2303.

        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.\130\
---------------------------------------------------------------------------
    \130\De Statement, S. 372 Hearing supra note 77, at 6-7.

    The Committee has concluded that providing additional 
protections for intelligence community employees who expose 
waste, fraud, abuse, and illegal activities would help protect 
this country's interests and strengthen its national security. 
Providing an effective avenue for intelligence community 
employees to obtain redress if they suffer retaliation for 
disclosing agency waste, fraud, or abuse would encourage 
intelligence community whistleblowers to come forward. 
Moreover, protecting disclosures that are made according to a 
specified, protected channel would likely better protect 
national security information, as Mr. De testified, by removing 
the incentive to leak information publicly.
    In the 111th Congress, the version of S. 372 reported by 
the Committee laid out a highly structured process for 
protecting intelligence community whistleblowers, including the 
creation of an Intelligence Community Whistleblower Protection 
Board, modeled on the MSPB, with presidentially-appointed board 
members. However, the Committee subsequently heard concerns 
that these provisions may not have provided the Director of 
National Intelligence (DNI) the flexibility needed to protect 
national security information in the unique context of the 
intelligence community, and that the provisions were more 
constraining and costly than necessary to achieve the desired 
protection. In light of these concerns, the sponsors of S. 372 
offered a substitute amendment when the bill was under 
consideration by the Senate, replacing these detailed 
provisions with a more flexible structure to protect 
intelligence community whistleblowers, and this more flexible 
approach was included in the bill that passed the Senate.\131\ 
The sponsors retained this new provision in S. 743 in the 
current Congress. The revised provision is nearly identical to 
existing protections for FBI employees under 5 U.S.C. 
Sec. 2303. In approving S. 743 with this revised provision in 
it, the Committee determined that adopting this flexible model 
that already has been implemented successfully within the one 
key element of the intelligence community is preferable to 
creating a whole new, untested model for intelligence community 
whistleblowers.
---------------------------------------------------------------------------
    \131\S. amend. No. 4760 to S. 372, 111th Cong.; amendment agreed to 
and S. 372 passed, Cong. Rec. S8809-S8824 (daily edition, Dec. 10, 
2010.)
---------------------------------------------------------------------------
    Specifically, section 201 of S. 743 would make it a 
prohibited personnel practice for a supervisor to take or fail 
to take, or threaten to take or to fail to take, any personnel 
action against an intelligence community employee in reprisal 
for a protected disclosure.\132\ Disclosures would be protected 
if the employee reasonably believes that the information 
evidences any of the following: a violation of any law, rule, 
or regulation; mismanagement, a gross waste of funds, an abuse 
of authority, or a substantial and specific danger to public 
health or safety. The Committee intends for the provisions 
governing protected disclosures by employees under this new 
provision to be applied, as much as possible, in the same 
manner they are applied under the WPA, including the 
clarifications of the broad scope of protected disclosures 
under the WPA made by S. 743.\133\
---------------------------------------------------------------------------
    \132\These provisions do not extend whistleblower protections to 
applicants for intelligence positions. In this respect, the provisions 
are like the protections for FBI employees under 5 U.S.C. Sec. 2303, 
but unlike the WPA, which does protect applicants as well as employees. 
Applicants for intelligence positions are more likely to be unreliable 
than individuals who have already been hired into the intelligence 
community as employees, and are less likely to have valuable 
information about waste, fraud, and abuse to disclose. On balance, the 
risk to national security from granting appeal rights to applicants for 
intelligence community positions outweighs the benefits.
    \133\More specifically, the Committee expects that the following 
clarifications that this bill makes to the WPA would be made applicable 
to whistleblowers in the intelligence community, unless there is a 
compelling national security basis for adopting a different rule: 
clarifications with respect to disclosures made during the normal 
course of the employee's duties; disclosures made to a person, 
including a supervisor, who participated in the wrongdoing; disclosures 
that reveal information that had been previously disclosed; disclosures 
not made in writing or 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.
---------------------------------------------------------------------------
    For a disclosure to be protected, the employee must provide 
the information to the DNI, to the head of the employing 
intelligence agency, or to an employee designated by the DNI or 
by the agency head. The Committee expects that the DNI and the 
agency heads will designate IGs to receive information, as the 
Attorney General designated the IG in the FBI's whistleblower 
protection implementing regulations,\134\ but, in order to 
conform with the existing statutory provisions applicable to 
the FBI, S. 743 does not state that IGs must be 
designated.\135\ Like the FBI provisions, S. 743 directs the 
President to provide for the enforcement of the new 
protections, in a manner consistent with 5 U.S.C. Sec. 1214, 
which provides for OSC investigations of whistleblower and 
other prohibited personnel practice complaints, and with 5 
U.S.C. Sec. 1221, which provides the process for bringing 
whistleblower complaints before the MSPB. This broad delegation 
of authority addresses the concerns that the previous provision 
may have been insufficiently flexible or more structured and 
costly than necessary to achieve the intended result.
---------------------------------------------------------------------------
    \134\28 C.F.R. Sec. 27.1.
    \135\5 U.S.C. Sec. 2303 (FBI protections).
---------------------------------------------------------------------------
    S. 743 does not alter the FBI's separate whistleblower 
protections, nor does it alter the current process as 
articulated by regulation at 28 C.F.R. part 27. The legislation 
contains language explicitly preserving existing rights of FBI 
employees, stating that nothing in the section shall be 
construed to preempt or preclude the current rights, or to 
provide to the President or to the DNI the authority to revise 
the regulations governing those rights.

T. Review of security clearance or access determinations

    Whistleblowers with security clearances who are covered by 
the WPA have nevertheless sometimes found themselves 
inadequately protected when they allege government waste, 
fraud, and abuse, including wrongdoing 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 neither the 
WPA, nor the ICWPA, nor the similar FY10 IAA provision 
currently provides any protection: the revocation of their 
security clearance. 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.\136\ 
The court 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.\137\
---------------------------------------------------------------------------
    \136\Hesse v. State, 217 F.3d 1372 (Fed. Cir. 2000).
    \137\Id. at 1377-80.
---------------------------------------------------------------------------
    As a result, if an employee is terminated from his or her 
federal government job because a clearance is suspended or 
revoked in retaliation for whistleblowing--even if the 
supervisor recommended revocation of the employee's security 
clearance with the intent that the employee would lose his or 
her job as a result--there is no remedy under the WPA or the 
ICWPA or similar FY10 IAA provision. At the hearing during the 
107th Congress on S. 995, one of the predecessor bills to S. 
743, 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.\138\
---------------------------------------------------------------------------
    \138\S. 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).

    In light of the critical need to ensure that federal 
employees 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 during the 111th 
---------------------------------------------------------------------------
Congress, 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.\139\
---------------------------------------------------------------------------
    \139\De Statement, S. 372 Hearing supra note 77, at 7.

    Prior versions of this legislation, including S. 372 as 
introduced in the 111th Congress, would have allowed 
whistleblowers to appeal security clearance revocations under 
the WPA to the MSPB and to reviewing courts, but would not have 
authorized the Board or reviewing courts to order a security 
clearance restored. However, the Administration recommended 
during the 111th Congress that a proposed new board within the 
ODNI, rather than the MSPB and the courts, review security 
clearance revocations. This structure would ensure that 
security clearance decisions would be reviewed only within the 
Executive Branch, subject to careful protection of national 
security information, while also providing a process for robust 
review that would be independent of the agency that made the 
challenged security-clearance determination.\140\ Additionally, 
the Administration recommended that, if a review board were 
established within the ODNI to review security clearance 
revocations, such a board--unlike the MSPB and reviewing 
courts--could appropriately restore improperly terminated 
clearances. As Mr. De testified:
---------------------------------------------------------------------------
    \140\Id. at 8-9.

        The [Administration's] proposed 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.\141\
---------------------------------------------------------------------------
    \141\Id.

    Following the recommendation of the Administration, section 
202 of S. 743 would forbid agencies from withdrawing security 
clearances in retaliation for protected whistleblower 
disclosures, and would provide for appeal of allegedly 
retaliatory security-clearance decisions, first to the agency, 
and then to an independent review panel within ODNI. The 
Committee has concluded that allowing appeal of alleged 
security clearance retaliation to a board within ODNI would 
provide for comprehensive relief for whistleblowers, by 
allowing restoration of clearances and by covering both 
employees who are under the WPA and employees within the 
intelligence community who are not under the WPA.
    Specifically, S. 743 forbids an agency to take, fail to 
take, or threaten to take or fail to take any action with 
respect to any employee's\142\ security clearance or access 
determination because of a protected disclosure. A protected 
disclosure would include any disclosure of information that the 
employee reasonably believes evidences a violation of any 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 or safety. The same clarifications that 
this bill makes for protected disclosures under the WPA are 
incorporated into this security-clearance provision: that is, 
clarifications to ensure protection of disclosures made during 
the normal course of the employee's duties; disclosures made to 
a person, including a supervisor, who participated in the 
wrongdoing; disclosures that reveal information that had been 
previously disclosed; disclosures not made in writing or made 
while the employee was off duty; and 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. Such disclosures are protected under the bill if 
made to the DNI or an employee designated by the DNI, or to the 
head of the employing agency or an employee designated by the 
head of the employing agency, or to an IG of an agency or 
another employee designated by the head of the agency. In 
addition, this section would protect disclosures that the 
employee makes in compliance with one of the processes under 
the ICWPA\143\ or under the similar FY10 IAA provision.\144\
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    \142\As with applicants for intelligence positions, non-federal 
employees applying for federal positions are not covered by the bill's 
security clearance retaliation provisions. Providing appeal rights to 
applicants for federal positions requiring a security clearance, who 
are more likely to be unreliable than those who have already been hired 
into such a position, could pose a risk to national security.
    \143\Section 8H of the Inspector General Act of 1978 (5 U.S.C. 
App.) (applicable to certain members of the intelligence community); 50 
U.S.C. Sec. 403q (applicable to CIA employees).
    \144\50 U.S.C. Sec. 403-3h(k)(5).
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    S. 743 would require that, to the extent practicable, 
agencies must continue to employ individuals who challenge a 
security clearance suspension or revocation while the challenge 
is pending. The legislation would also require the development 
and implementation of uniform and consistent policies and 
procedures to ensure proper protections while a security 
clearance decision is being made, including the right to appeal 
an adverse decision. However, the bill would not authorize an 
employee to appeal a security clearance suspension for the 
purposes of conducting an investigation, if the suspension 
lasts no longer than one year, or if the agency head certifies 
that a longer suspension is needed to prevent imminent harm to 
national security.
    S. 743 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 first appeal that decision 
within 90 days within the agency. The bill requires that the 
agency's procedures for these appeals must be comparable to 
those pertaining to prohibited personnel practices under 5 
U.S.C. Sec. 2302(b)(8)and must provide essential elements of 
due process listed in the bill. Moreover, classified 
information must be handled in a manner consistent with the 
interests of national security, and the individual would not 
have the right to compel the production of classified 
information, except evidence needed to establish that the 
employee made the disclosure or communication at issue. 
Employees who prevail would be entitled to corrective action, 
including up to $300,000 in compensatory damages.
    Significantly, the Committee has determined that it is 
appropriate to alter the burden of proof when the employee 
appeals an adverse security clearance determination within the 
agency. Generally in whistleblower cases, if the employee 
proves by a preponderance of the evidence that a protected 
disclosure was a contributing factor in the personnel action, 
the burden of proof shifts and the agency can prevail only by 
proving by ``clear and convincing evidence'' that it would have 
taken the same personnel action for independent, legitimate 
reasons in the absence of the whistleblower disclosure. 
However, application of this burden of proof may conflict with 
the compelling need to protect national security in every case 
involving a security clearance decision. Under the applicable 
Executive Order, security clearances may be granted ``only 
where facts and circumstances indicate access to classified 
information is clearly consistent with the national security 
interests of the United States, and any doubt shall be resolved 
in favor of the national security.''\145\ In this especially 
sensitive area, a requirement that an agency must justify its 
decision to deny or revoke a security clearance by ``clear and 
convincing evidence'' may conflict with the mandate in the 
Executive Order that ``any doubt'' be resolved in favor of 
national security.
---------------------------------------------------------------------------
    \145\See Executive Order 12968--Access to Classified Information 
(August 2, 1995).
---------------------------------------------------------------------------
    S. 743 therefore provides that, even if an employee shows 
that a protected disclosure was a contributing factor in a 
security clearance determination, the agency will nevertheless 
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.''\146\
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    \146\Proposed new section 3001(j)(4)(C) of the Intelligence Reform 
and Terrorism Prevention Act of 2004 (50 U.S.C. Sec. 435b(j)(4)(C)), as 
it would be added by section 202(b) of S. 743.
---------------------------------------------------------------------------
    Under the bill, this unique statutory language establishing 
a burden of proof and requiring deference to national security 
interests applies only when the fact-finder is determining 
whether the agency would have taken the same security clearance 
action in the absence of the disclosure. This statutory 
language does not apply to considering the employee's 
affirmative evidence, including any proof the employee presents 
showing a motive to retaliate on the part of the agency 
officials involved in the decision. Moreover, after an employee 
prevails on a retaliation claim, the language defining burden 
of proof and deference to national security does not apply to 
the determination of what corrective action or damages are 
warranted.
    If the agency's decision is adverse to the employee, S. 743 
allows the employee to take a further appeal to the appellate 
review board within ODNI within 60 days. This board will make a 
de novo decision 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 board finds 
that the security clearance decision violated the protections 
provided by S. 743, the employee would be entitled to 
corrective action including damages. Additionally, the board 
may recommend, but not order, 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.''\147\ The board may also 
recommend, but not order, reinstatement or hiring of a former 
employee, and may order that a former employee be treated as a 
current federal employee when applying for other positions in 
the federal government. Under the bill, the board must notify 
Congress of any orders it issues, and an agency must notify 
Congress if it does not follow the board's recommendation to 
reinstate a clearance.
---------------------------------------------------------------------------
    \147\Proposed new section 3001(j)(5)(G) of the Intelligence Reform 
and Terrorism Prevention Act of 2004 (50 U.S.C. Sec. 435b(j)(5)(G)), as 
it would be added by section 202(b) of S. 743.
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    The Administration has taken the position that legislation 
providing judicial review of such appeals, even if the court 
were not allowed to restore a security clearance, would be 
inconsistent with the deference traditionally afforded to the 
Executive Branch in this area.\148\ The Committee notes that, 
as discussed above with respect to the broader issue of control 
of classified information, the Senate and the House of 
Representatives have held a different view of the scope of 
Executive Branch authority over security clearances and 
Congress's role in regulating and overseeing security 
clearances. Executive Branch authority in this area is not 
exclusive, and providing judicial redress of retaliatory 
security clearance decisions is consistent with Congress's 
constitutional regulatory and oversight role. The Senate and 
House of Representatives have each passed a previous version of 
this legislation that included a provision under which alleged 
whistleblower retaliation in security clearance decisions would 
have been subject to review by either the MSPB or an IG, with 
appeal to the federal courts.\149\ 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, which would have been provided under earlier 
versions of the bill, would have been to consider whether an 
agency unlawfully retaliated against a whistleblower, not 
whether the national interest is served by granting or revoking 
a security clearance.
---------------------------------------------------------------------------
    \148\De Statement, S. 372 Hearing supra note 77, at 7.
    \149\See Federal Employee Protection of Disclosures Act, S. 274 in 
the 110th Congress, section 1(e)(3)(A), providing for MSPB and federal 
court review of security clearance decisions, passed the Senate by 
unanimous consent on December 17, 2007; Whistleblower Protection 
Enhancement Act, H.R. 985 in the 110th Congress, section 10(a), 
providing for IG and federal court review of security clearance 
decisions, passed the House of Representatives on March 14, 2007.
---------------------------------------------------------------------------
    Nevertheless, the Committee concluded that an Executive 
Branch process can provide adequate review of security 
clearance retaliation. Moreover, this section's congressional 
notification requirements will facilitate oversight of the 
security clearance redress process created by this legislation 
and provide a check against implementation inconsistent with 
congressional intent. Accordingly, the Committee agreed to 
accommodate the Administration's concerns, and S. 743 does not 
provide for any judicial review of security clearance 
retaliation claims.

                        III. Legislative History

    S. 743 was introduced by Senators Akaka, Collins, Grassley, 
Lieberman, Levin, Carper, Leahy, Harkin, Pryor, Landrieu, 
McCaskill, Tester, Begich, and Cardin on April 6, 2011. It was 
further referred to the Committee on Homeland Security and 
Governmental Affairs. Senator Coons has since joined as a 
cosponsor. The bill was referred to the Subcommittee on 
Oversight of Government Management, the Federal Workforce, and 
the District of Columbia (OGM) on May 9, 2011.
    This legislation is the result of more than a decade of 
work by Senator Akaka, other sponsors, and the Committee. S. 
743 is similar to S. 372, introduced in the 111th Congress as 
the Whistleblower Protection Enhancement Act on February 3, 
2009. The Committee reported S. 372 favorably on July 29, 2009, 
with an amendment, and S. 372 passed the Senate by unanimous 
consent on December 10, 2010. S. 372 passed the House of 
Representatives with an amendment by unanimous consent on 
December 22, 2010, but the Senate and House were not able to 
resolve the differences prior to the sine die adjournment of 
the 111th Congress.
    S. 743 is also 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. S. 743 also 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. 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 S. 494 and S. 2628 were 
similar to S. 1358, introduced in the 108th Congress on June 
26, 2003. These bills follow previous versions of the 
legislation: S. 3070, introduced in the 107th Congress on 
October 8, 2002, and favorably reported by the Committee on 
November 19, 2002; S. 995, introduced in the 107th Congress on 
June 7, 2001; and S. 3190, introduced in the 106th Congress on 
October 12, 2000.
    The Committee and its subcommittees have held three 
hearings on whistleblower protection legislation. The OGM 
Subcommittee held a hearing on last Congress' precursor to S. 
743 (S. 372, 111th Congress). Witnesses at the June 11, 2009, 
hearing 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.
    Past hearings on earlier incarnations of the bill include a 
full Committee hearing on November 12, 2003, and a July 25, 
2001, hearing of the Subcommittee on International Security, 
Proliferation, and Federal Services.
    On July 29, 2011, OGM favorably polled out S. 743, and the 
full Committee considered the bill at a business meeting on 
October 19, 2011. Senator Akaka offered an amendment, which 
made several minor changes to the legislation\150\ and which 
was agreed to by voice vote. The bill, as amended, was ordered 
reported favorably by voice vote. Members present for both 
votes were Senators Lieberman, Akaka, Carper, Pryor, McCaskill, 
Begich, Collins, Brown, Johnson, and Moran.
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    \150\The changes made by the amendment include: (1) in the anti-gag 
provision, requiring nondisclosure orders to include a general 
reference to the kinds of statutes and Executive Orders that establish 
employees' rights and obligations, instead of requiring nondisclosure 
orders to state a specific list of statutes and Executive Orders that 
was set forth in the original bill; (2) extending the time period for 
the Government Accountability Office to complete its report on the 
implementation of the Act from 40 to 48 months; (3) requiring that 
certain complaints arising out of intelligence units within the Defense 
Department be sent to the Secretary of Defense in addition to the DNI; 
(4) requiring the DNI to consult with the Secretary of Defense in 
prescribing regulations against whistleblower retaliation in the 
intelligence community; and (5) requiring that, within the appellate 
review board that will hear security clearance appeals, the special 
subpanel drawn from the intelligence community to hear cases arising 
from the intelligence community shall include the new Inspector General 
of the Intelligence Community and the Department of Defense IG.
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                    IV. Section-by-Section Analysis

Section 1--Short Title

    This section titles the bill as the ``Whistleblower 
Protection Enhancement Act of 2012.''

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

Section 101--Clarification of Disclosures Covered

    The protections of the WPA become applicable when a covered 
employee or applicant makes a protected disclosure. The WPA 
forbids taking, failing to take, or threatening to take or fail 
to take, a personnel action against an employee or applicant 
because of a protected disclosure, and the individual making a 
protected disclosure is provided redress if such a personnel 
action does occur. Section 101 of the legislation makes several 
amendments to the WPA to overturn decisions narrowing the scope 
of protected disclosures and reaffirms congressional intent 
that the law covers whistleblowing of any disclosure of the 
covered forms of wrongdoing.
    Section 101(a) underscores the breadth of the WPA's 
protections by changing the term ``a violation'' to the term 
``any violation'' in two places in 5 U.S.C. Sec. 2302(b)(8), 
which is a provision of the WPA stating the kinds of wrongdoing 
that may be the subject of a protected disclosure.
    Section 101(b) makes clear that ``any disclosure'' means 
``any disclosure'' by specifically stating that a disclosure 
does not lose protection because: the disclosure was made to a 
person, including a supervisor, who participated in the 
wrongdoing disclosed; the disclosure revealed information that 
had previously been disclosed; of the employee's or applicant's 
motive for making the disclosure; the disclosure was made while 
the employee was off duty; or of the amount of time which has 
passed since the occurrence of the events described in the 
disclosure. Section 101(b) also clarifies that a disclosure is 
not excluded from protection because it was made during the 
employee's normal course of duties, providing the employee is 
able to show reprisal--in other words, that the personnel 
action was taken with an improper, retaliatory motive, not 
simply ``because of'' the disclosure without demonstrating the 
motive for the action. Section 101(b) also makes technical and 
conforming amendments.

Section 102--Definitional Amendments

    This section 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 a violation of any law, rule, or regulation; gross 
mismanagement; a gross waste of funds; an abuse of authority; 
or a substantial and specific danger to public health or 
safety.

Section 103--Rebuttable Presumption

    This section provides that any presumption relating to an 
employee whose conduct is the subject of a whistleblower 
disclosure may be rebutted with substantial evidence, in order 
to ensure that no court will again require ``irrefragable 
proof,'' as the court did in Lachance v. White, discussed 
above. This section also codifies the objective test for 
reasonable belief, which the United States Court of Appeals for 
the Federal Circuit established in Lachance v. White. 
Specifically, this section provides that a determination as to 
whether an employee has the requisite reasonable belief about 
the disclosed information will 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 violation, mismanagement, waste, abuse, or danger.''

Section 104--Personnel Actions and Prohibited Personnel Practices

    The WPA generally forbids the taking of a ``personnel 
action'' against a covered employee because of a protected 
disclosure. The term ``personnel action'' is defined in 5 
U.S.C. Sec. 2302(a)(2)(A) to include a number of significant 
employment-related actions, such as promotions, demotions, 
reassignments, pay decisions, as well as any other significant 
change in duties, responsibilities, or working conditions. 
Section 104(a) of the legislation adds implementing or 
enforcing a nondisclosure policy, form, or agreement to the 
definition of ``personnel action'' under 5 U.S.C. 
Sec. 2302(a)(2)(A) .
    Section 104(b) makes it a prohibited personnel practice 
under 5 U.S.C. Sec. 2302(b) for an agency to implement or 
enforce any nondisclosure policy, form, or agreement that fails 
to contain language specified in the legislation preserving 
employee obligations, rights, and liabilities created by 
existing statute or Executive Order relating to disclosure of 
information. As discussed above, the amendment adopted by the 
Committee substitutes a general cross reference to the employee 
rights and obligations under existing statute and Executive 
Orders for the specific list of statutes and Executive Orders. 
Section 104(b), as reported, also requires agencies using any 
nondisclosure policy, form, or agreement to post this language 
on their websites, accompanied by a list of controlling 
Executive Orders and statutory provisions. Section 104(b) 
further provides that it shall not be a prohibited personnel 
practice to enforce a non-disclosure policy, form, or agreement 
in effect before the date of enactment with respect to a 
current employee, providing the agency gives the employee 
notice of the required statement, and with respect to a former 
employee, providing the public notice requirement is met.
    Section 104(c) provides that corrective action awarded to 
whistleblowers under 5 U.S.C. Sec. Sec. 1214 and 1221(g) may 
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. The section does not address the circumstances 
under which a retaliatory investigation may be a prohibited 
personnel practice, thereby leaving the holding of Russell v. 
Department of Justice\151\ (discussed, above, under the topic 
``Penalties for retaliatory investigations'') as the governing 
law.
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    \151\76 M.S.P.R. 317, 323-25 (1997).
---------------------------------------------------------------------------

Section 105--Exclusion of Agencies by the President

    This section amends 5 U.S.C. Sec. 2302(a)(2)(C) by adding 
the ODNI and the National Reconnaissance Office to the list of 
intelligence community entities excluded from WPA coverage. 
This section also states that, when the President exercises his 
authority to remove an agency from WPA coverage because the 
agency's principal function is foreign intelligence or 
counterintelligence, a whistleblower at the agency cannot be 
deprived of coverage under the WPA unless the removal of the 
agency occurred before the agency took a personnel action 
against the whistleblower.

Section 106--Disciplinary Action

    This section amends 5 U.S.C. Sec. 1215(a)(3), which governs 
OSC actions to impose discipline on those who commit a 
prohibited personnel practice; violate another law, rule, or 
regulation under the OSC's jurisdiction; or knowingly and 
willfully refused or failed to comply with an MSPB order. 
Specifically, this section modifies the standard of proof OSC 
must meet to prevail. Under the amendment, the OSC must 
demonstrate to the MSPB that the whistleblower's protected 
disclosure was a ``significant motivating factor'' in an 
agency's decision 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 106 also amends 5 U.S.C. Sec. 1215(a)(3) to 
allow the Board to impose a combination of the types of 
disciplinary action authorized under the statute. The current 
statute allows the Board to impose any of the types of 
disciplinary action individually, but not a combination of more 
than one type.

Section 107--Remedies

    This section requires that, in disciplinary actions brought 
by OSC, the agency where the prevailing party was employed or 
had applied for employment at the time of the events giving 
rise to the case would reimburse any attorney's fees awarded. 
Current law imposes the burden on the OSC. Section 107 also 
permits corrective action awarded to whistleblowers to include 
reasonable and foreseeable compensatory damages.

Section 108--Judicial Review

    Section 108(a) amends 5 U.S.C. Sec. 7703(b) to suspend the 
exclusive jurisdiction of the U.S. Court of Appeals for the 
Federal Circuit over whistleblower appeals from the MSPB for a 
period of five years, allowing petitions for review to be filed 
either in the Federal Circuit or in any other federal circuit 
court of competent jurisdiction during this five-year period.
    Section 108(b) amends 5 U.S.C. Sec. 7703(d) to conform 
OPM's authority to file petitions for review of the MSPB's 
orders interpreting civil service laws, during the five-year 
period in which the Federal Circuit's exclusive jurisdiction is 
suspended, so that OPM could seek review 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--Prohibited Personnel Practices Affecting the 
        Transportation Security Administration

    This section adds a new 5 U.S.C. Sec. 2304, stating that 
employees of the TSA are covered by 5 U.S.C. Sec. 2302(b)(1), 
(8), and (9). These provisions offer 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 of 1967, and 
the Rehabilitation Act of 1973. Nothing in the new section 2304 
would affect any rights to which an individual is otherwise 
entitled under the law.

Section 110--Disclosure of Censorship Related to Research, Analysis, or 
        Technical Information

    This section clarifies that an employee is protected from 
reprisal under the WPA for disclosing information that an 
employee reasonably believes is evidence of censorship related 
to research, analysis, or technical information that is or will 
cause gross government waste or mismanagement, an abuse of 
authority, a substantial and specific danger to public health 
or safety, or any violation of law.

Section 111--Clarification of Whistleblower Rights for Critical 
        Infrastructure Information

    To encourage non-federal owners and operators of critical 
infrastructure to voluntarily submit certain security-related 
information regarding critical infrastructure to the Department 
of Homeland Security, section 214 of the Homeland Security Act 
(HSA) (6 U.S.C. Sec. 133) exempts such information from 
disclosure under the Freedom of Information Act (5 U.S.C. 
Sec. 552) and makes it a crime for a federal employee to 
wrongfully disclose such information. Section 111 of this 
legislation amends section 214(c) of the HSA (6 U.S.C. 
Sec. 133(c)) to clarify that, when an employee or applicant 
covered by the WPA obtains information in a manner not covered 
by the critical infrastructure information program under the 
HSA, disclosure by the employee or applicant of that 
independently obtained information may be a protected 
disclosure under the WPA (5 U.S.C. Sec. 2302(b)(8)) without 
risk of criminal penalties, even if the same information was 
also voluntarily submitted to DHS under the critical-
infrastructure protection program.

Section 112--Advising Employees of Rights

    This section amends 5 U.S.C. Sec. 2302(c) to require 
agencies, as part of their education requirements with respect 
to employees' rights and protections, to inform employees how 
to lawfully make a protected disclosure of classified 
information to the Special Counsel, an Inspector General, 
Congress, or any other designated agency official authorized to 
receive classified information.

Section 113--Special Counsel Amicus Curiae Appearance

    This section amends 5 U.S.C. Sec. 1212 to strengthen OSC's 
ability to protect whistleblowers and the integrity of the WPA, 
by authorizing OSC to appear as amicus curiae in any civil 
action brought in a court of the United States in connection 
with the WPA.

Section 114--Scope of Due Process

    This section amends 5 U.S.C. Sec. Sec. 1214(b)(4)(B)(ii) 
and 1221(e)(2) to specify that an agency may present its 
defense to a whistleblower case only after the whistleblower 
has first made a prima facie showing that a protected 
disclosure was a contributing factor in the personnel action.

Section 115--Nondisclosure Policies, Forms, and Agreements

    Section 115(a) requires all federal nondisclosure policies, 
forms, and agreements to contain specified language preserving 
employee obligations, rights, and liabilities created by 
existing statute and Executive Order with respect to disclosure 
of information. Section 115(a) also requires agencies to post 
this language on their websites, accompanied by a list of 
controlling statutory provisions and Executive Orders. 
Nondisclosure policies, forms, and agreements without that 
statement may not be implemented or enforced in a manner 
inconsistent with the specified statement of rights. 
Additionally, it is not a prohibited personnel practice to 
enforce nondisclosure policies, forms, and agreements in effect 
before the date of enactment with respect to current employees 
if the agency provides the employees notice of the statement, 
and with respect to former employees if the agency posts notice 
of the statement on the agency website. (As discussed above, 
section 104(b) of the bill would generally make it a prohibited 
personnel practice to implement or enforce a nonconforming 
federal nondisclosure policy.)
    Section 115(b) provides that a nondisclosure policy, form, 
or agreement for a person who is not a federal employee, but is 
connected with the conduct of intelligence or intelligence-
related activity, shall contain appropriate provisions that 
require nondisclosure of classified information and make clear 
that the forms do not bar disclosures to Congress or to an 
authorized official that are essential to reporting a 
substantial violation of law. Of course, reporting a 
substantial violation of law is but one example where 
disclosure of classified information to Congress may be 
appropriate. Section 115(b) provides a minimum standard for any 
nondisclosure policy, form, or agreement for a person who is 
not a federal person, and this minimum requirement should not 
be construed to imply that such nondisclosure policy, form, or 
agreement may not provide further information, consistent with 
the minimum requirement, about additional protections that may 
apply.

Section 116--Reporting Requirements

    This section requires the GAO to report to the Committee on 
Homeland Security and Governmental Affairs of the Senate and 
the Committee on Oversight and Government Reform of the House 
of Representatives on the implementation of this Act within 48 
months, including an analysis of the number of cases filed with 
the MSPB under the WPA, their disposition, and the impact the 
process has on the MSPB and the Federal court system. The 
section also requires the MSPB to report on the number and 
outcome of WPA cases annually. In addition to WPA cases, these 
reports must also cover cases filed under 5 U.S.C. 
Sec. 2302(b)(9), which makes it a prohibited personnel practice 
for an agency to take a personnel action in retaliation against 
an employee for exercising appeal or grievance rights, 
assisting another individual in exercising such rights, 
cooperating with an IG or the Special Counsel, or refusing to 
violate a law.

Section 117--Alternative Review

    Section 117(a) amends 5 U.S.C. Sec. 1221 to allow certain 
whistleblower and similar cases to be elevated to federal 
district court. Under the new provisions, an employee, former 
employee, or applicant who is before the MSPB to seek 
corrective action under 5 U.S.C. Sec. 1221(a) or to appeal an 
adverse action under 5 U.S.C. Sec. 7701(a), and whose claim is 
based on alleged retaliation for either a protected disclosure 
under 5 U.S.C. Sec. 2302(b)(8), making a whistleblower-
protection claim protected under Sec. 2302(b)(9)(A), or an 
exercise of other rights protected under 5 U.S.C. 
Sec. 2302(b)(9)(B), (C), or (D),\152\ may file an action for de 
novo review in district court if several additional conditions 
are satisfied. The individual may file only if the alleged 
retaliation consisted of a major personnel action covered under 
5 U.S.C. Sec. Sec. 7512 or 7542 (a removal from the civil 
service, a demotion, a suspension for more than 14 days, or a 
furlough of 30 days or less), and only if either--(i) no final 
order or decision is issued by the MSPB within 270 days after a 
request or appeal was submitted to the MSPB, or (ii) the MSPB 
certifies, upon motion from the employee, that the claim would 
survive a motion to dismiss and that any one of the following 
is true: the Board is not likely to dispose of the case within 
270 days, or 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, or involves 
a novel question of law.
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    \152\As noted above, 5 U.S.C. Sec. 2302(b)(9) makes it a prohibited 
personnel practice for an agency to take a personnel action against an 
employee in retaliation for exercising certain appeal or grievance 
rights, for assisting another individual in exercising such rights, for 
cooperating with an IG or the Special Counsel, or for refusing to 
violate a law. Under the amendments made by section 117(a) of the bill, 
an employee may seek de novo review when the employee claims under 
Sec. 2302(b)(9)(A) to have suffered retaliation for having sought a 
remedy for a whistleblower violation under Sec. 2302(b)(8), but not 
when the employee claims to have suffered retaliation for trying to 
remedy a violation of any other law.
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    A motion for certification may be submitted to the MSPB 
within 30 days after the original request or appeal, and the 
MSPB must rule on the motion within 90 days, and not later than 
15 days before issuing a final decision on the merits of the 
case. If a whistleblower claim goes to district court under 
this provision, the MSPB must stay any other claims that arise 
out of the same set of operative facts until completion of the 
district court action and any appeals.
    Section 117(a) also provides that, in cases removed to 
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 it would have taken the same personnel action in 
the absence of a protected disclosure or other protected 
activity. Section 117(a) also states that the Special Counsel 
may not represent the employee in district court. 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 
not punitive damages, and compensatory damages may not exceed 
$300,000. An appeal from a final decision of a district court 
can be taken to either the Court of Appeals for Federal Circuit 
or the Court of Appeals for the circuit in which the district 
court sits.
    Section 117(b) provides that the provisions of section 
117(a) are subject to a five-year sunset. Any claim pending 
before the MSPB on the last day of the five-year period shall 
continue to be subject to the provisions of section 117(a).

Section 118--Merit Systems Protection Board Summary Judgment

    Section 118(a) amends 5 U.S.C. Sec. 1204(b) to authorize 
the MSPB to consider and grant summary judgment motions in WPA 
cases involving major personnel actions when the MSPB or an 
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 the MSPB's summary judgment 
authority is subject to a five-year sunset. The MSPB would 
maintain summary judgment authority for those claims pending, 
but not yet resolved, at the time of the sunset.

Section 119--Disclosures of Classified Information

    This section amends 5 U.S.C. Sec. 2302(b)(8) and section 8H 
of the Inspector General Act of 1978 (5 U.S.C. App.) to provide 
that employees protected under the WPA may make protected 
disclosures of classified information 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-LaFollette Act, 
codified in 5 U.S.C. Sec. 7211, or other provisions of law.

Section 120--Whistleblower Protection Ombudsman

    This section amends section 3 of the Inspector General Act 
of 1978 (5 U.S.C. App.) to create a five-year pilot program to 
require that each agency IG designate a Whistleblower 
Protection Ombudsman. The Ombudsman would educate agency 
employees about prohibitions on retaliation, and rights and 
remedies against retaliation, for protected disclosures. The 
Ombudsman would not act as a legal representative, agent, or 
advocate of the employee or former employee. Agencies that are 
elements of the intelligence community--as defined in section 
3(4) of the National Security Act of 1947 (50 U.S.C. 
Sec. 401a(4)) or whose principal function is the conduct of 
foreign intelligence and counter intelligence activities, as 
determined by the President--are not subject to this 
requirement.

       TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS

Section 201--Protection of Intelligence Community Whistleblowers

    This section adds a new 5 U.S.C. Sec. 2303A, modeled on the 
current protections for FBI employees in 5 U.S.C. Sec. 2303. 
The new section would prohibit a personnel action against an 
intelligence community employee as a reprisal for making a 
protected whistleblower disclosure to the DNI, the head of the 
employing agency, or an employee designated by the DNI or the 
agency head for such purpose. The President would be directed 
to provide for enforcement of this section. To establish the 
scope of protection, the section defines the term 
``intelligence community element'' to mean the CIA, the Defense 
Intelligence Agency, the National Geospatial-Intelligence 
Agency, the National Security Agency, the ODNI, the National 
Reconnaissance Office, and any executive agency or unit thereof 
determined by the President under 5 U.S.C. 
Sec. 2302(a)(2)(C)(ii) to have as its principal function the 
conduct of foreign intelligence or counterintelligence 
activities. The term ``intelligence community element,'' for 
the purposes of this section, does not include the FBI, which 
is already subject to the similar provisions of 5 U.S.C. 
Sec. 2303, and the new section 2303A also states that it should 
not be construed to affect rights of FBI employees under 
existing provisions of Sec. 2303.

Section 202--Review of Security Clearance or Access Determinations

    Section 202(a) amends section 3001(b) of the Intelligence 
Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 
Sec. 435b) to require the promulgation within 180 days of 
policies and procedures to allow appeals of adverse security 
clearance and access determinations. The section directs that 
employees, to the extent practicable, should be allowed to 
retain government employment while such an appeal is pending. 
Section 202(a) also requires the policies and procedures to 
include due process protections comparable to those pertaining 
to WPA violations, including: an independent and impartial 
fact-finder; notice and the opportunity to be heard, with the 
opportunity to present relevant evidence and witness testimony; 
the right to be represented by counsel; a decision based on the 
record that is developed; and a decision within 180 days unless 
the employee or former employee and the agency agree to an 
extension, or unless the impartial fact-finder determines in 
writing that a greater time period is needed in the interest of 
fairness or national security. Classified information could be 
used in the process, in a manner consistent with national 
security, including through ex parte submissions if the agency 
determines that national security interests so warrant. The 
employee or former employee would have no right to compel the 
production of classified information except as necessary to 
establish that he or she made a protected disclosure.
    Section 202(b) adds a new subsection (j) at the end of 
section 3001 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (50 U.S.C. Sec. 435b) to prohibit any 
personnel action against employees with respect to their 
security clearance or access determination because of a 
protected disclosure. (An ``access determination,'' as defined 
in section 202(c) and discussed below, is a determination 
whether an individual has access to classified information.) 
This section protects disclosures that an employee makes to the 
DNI (or designee), to the head of the employing agency (or 
designee), or to the IG of an agency if the employee reasonably 
believes that the disclosed information evidences the type of 
wrongdoing that may be the subject of disclosures protected 
under the WPA. In addition, this section protects any 
communication that the employee makes in compliance with one of 
the processes under the ICWPA (either the process for CIA 
employees or the process for certain other employees in the 
intelligence community) or the similar process under the FY10 
IAA.\153\
---------------------------------------------------------------------------
    \153\Section 8H of the Inspector General Act of 1978 (5 U.S.C. 
App.); 50 U.S.C. Sec. 403q; 50 U.S.C. Sec. 403-3h(k)(5).
---------------------------------------------------------------------------
    The provision further forbids taking an adverse security 
clearance decision because someone: (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 
IG, provided that the employee or applicant does not unlawfully 
disclose classified information.
    The amendment made by section 202(b) further establishes 
that an individual who believes that he or she has been 
subjected to prohibited reprisal may appeal that decision 
within 90 days, but may not appeal the suspension of a security 
clearance or access determination for purposes of conducting an 
investigation, if that suspension does not last longer than one 
year (or a longer period in accordance with agency 
certification that the longer period is needed to prevent 
imminent harm to the national security). If whistleblower 
retaliation is found, the agency would be required to take 
corrective action, which would include reasonable attorney's 
fees and any other reasonable costs incurred, and could include 
back pay and related benefits, travel expenses, and 
compensatory damages not to exceed $300,000. Corrective action 
shall not be ordered if the agency demonstrates by a 
preponderance of the evidence (rather than by clear and 
convincing evidence, which is the standard for WPA cases) that 
it would have taken the same personnel action absent the 
disclosure, giving the utmost deference to the agency's 
assessment of the particular threat to United States national 
security interests.
    Section 202(b) would also permit an employee or former 
employee to appeal the agency's decision within 60 days to the 
appellate review board that is established within the ODNI 
under section 204 of S. 743. The appellate review board must, 
in consultation with the Attorney General, the DNI, and the 
Secretary of Defense, develop and implement policies and 
procedures for adjudicating such appeals, and the DNI and 
Secretary of Defense would jointly approve any rules, 
regulations, or guidance issued by the board concerning the use 
or handling of classified information. The board's review would 
be de novo based on the complete agency record, and any 
portions of the record that were submitted ex parte shall 
remain ex parte during the appeal. The review board would not 
be permitted to hear witnesses or admit additional evidence, 
and if the board determines that further fact-finding is 
necessary, it would remand to the agency for additional 
proceedings.
    If the appellate review board finds that an adverse 
security clearance or access determination violated this 
section, the board would order the agency to take corrective 
action to return the individual, as nearly as practicable and 
reasonable, to the position the individual would have held had 
the violation not occurred. Corrective action would also 
include reasonable attorney's fees and any other reasonable 
costs incurred, and could include back pay and related 
benefits, travel expenses, and compensatory damages not to 
exceed $300,000. Corrective action must be taken within 90 
days, unless the DNI, Secretary of Defense, or Secretary of 
Energy determines that doing so would endanger national 
security. The board would separately determine whether 
reinstituting the security clearance or access determination is 
clearly consistent with national security, with any doubt 
resolved in favor of national security. It could recommend, but 
not order, the reinstatement of the security clearance or 
access determination, as well as the reinstatement of a former 
employee. The board also could order that the former employee 
be treated as though the employee were transferring from the 
most recent position held when seeking other positions within 
the executive branch. The board would be required to notify 
Congress of its orders, as would an agency that does not follow 
the board's recommendation to reinstate a clearance. This 
section does not authorize either judicial review or a private 
cause of action.
    Section 202(c) further amends section 3001 of the 
Intelligence Reform and Terrorism Prevention Act of 2004 (50 
U.S.C. Sec. 435b) to add a definition of the term ``access 
determination,'' which will mean a determination whether an 
employee is eligible for access to classified information in 
accordance with Executive Order 12968, Executive Order 10865, 
or any successor of those executive orders and possesses the 
need to know under those orders.
    Section 202(d) states that nothing in section 3001 of the 
Intelligence Reform and Terrorism Prevention Act of 2004 (50 
U.S.C. Sec. 435b), as amended by this section, shall be 
construed to require the repeal or replacement of agency appeal 
procedures implementing Executive Order 12968 and Executive 
Order 10865, or any successor of those executive orders, that 
meet the requirements of Section 3001 of the Intelligence 
Reform and Terrorism Prevention Act of 2004, as amended by this 
section. These Executive Orders govern access to and 
safeguarding classified information.

Section 203--Revisions Relating to the Intelligence Community 
        Whistleblower Act

    This section amends section 8H of the Inspector General Act 
of 1978 and section 17(d)(5) of the Central Intelligence Agency 
Act of 1949 (50 U.S.C. Sec. 403q), both of which were 
originally enacted by the ICWPA, to provide that, if an agency 
head determines that handling a disclosure under these 
procedures would create a conflict of interest, the agency head 
must notify the IG, who would then make the transmission to the 
DNI and, if the establishment is within the Department of 
Defense, to the Secretary of Defense. Each recipient of the 
IG's transmission would consult with the members of the 
appellate review board established by this bill regarding all 
transmissions. The amendments made by section 203 also permit 
individuals who submit a complaint or information to an IG 
under the ICWPA to notify a member of Congress or congressional 
staff member of that submission, and the date on which the 
submission was made.

Section 204--Regulations; Reporting Requirements; Nonapplicability to 
        Certain Terminations

    Section 204(a) defines the term ``congressional oversight 
committees'' to mean the Committee on Homeland Security and 
Governmental Affairs of the Senate, the Select Committee on 
Intelligence of the Senate, the Committee on Oversight and 
Government Reform of the House of Representatives, and the 
Permanent Select Committee on Intelligence of the House of 
Representatives. Section 204(a) also defines the term 
``intelligence community element,'' to mean the CIA, the 
Defense Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security Agency, the ODNI, 
the National Reconnaissance Office, and any executive agency or 
unit thereof determined by the President under 5 U.S.C. 
Sec. 2302(a)(2)(C)(ii), to have as its principal function the 
conduct of foreign intelligence or counterintelligence 
activities. The term ``intelligence community element,'' for 
the purposes of this section, does not include the FBI. This is 
the same definition of ``intelligence community element'' as is 
included in the amendment made by section 201 of this bill for 
the purposes of the intelligence community whistleblower 
protections created by that section.
    Section 204(b) requires the DNI, in consultation with the 
Secretary of Defense, to prescribe regulations to ensure that 
personnel actions will not be taken against intelligence 
community employees as reprisal for making a disclosure that is 
protected under 5 U.S.C. Sec. 2302A, which is the intelligence 
community whistleblower provision enacted by section 201 of 
this bill.
    Section 204(b) also requires the DNI, in consultation with 
the Secretary of Defense, the Attorney General, and the heads 
of appropriate agencies, to establish the appellate review 
board to hear whistleblower appeals related to security 
clearance determinations under the amendments made by section 
202(b) of this bill. The appellate review board would include a 
subpanel composed of intelligence community elements and 
inspectors general from intelligence community elements, 
including the Inspector General of the Intelligence Community 
and of the Department of Defense, to hear cases that arise in 
elements of the intelligence community.
    Section 204(c) requires the DNI, not later than two years 
after the date of enactment, to submit a report on the status 
of the implementation of the regulations to the congressional 
oversight committees.
    Section 204(d) provides that the protections of 
intelligence community whistleblowers established under section 
201 of this bill and the protection from security clearance 
retaliation established under section 202 of this bill would 
not apply to security clearance determinations if the affected 
employee is concurrently terminated under any of several 
specific authorities listed in the bill. Under these listed 
authorities, considered together with conditions stated in the 
bill, an employee could not assert whistleblower rights to 
challenge an adverse security clearance determination if the 
employee is concurrently, personally terminated by the 
Secretary of Defense, the DNI, the CIA Director, or the head of 
any other agency who determines that termination is in the 
interest of the United States and that summary termination is 
necessary because the procedures under other provisions of law 
cannot be followed consistent with national security, and who 
promptly notifies Congress of the termination.\154\
---------------------------------------------------------------------------
    \154\These authorities listed in the bill authorizing summary 
termination are: 10 U.S.C. Sec. 1609, granting authority to the 
Secretary of Defense; section 102A(m) of the National Security Act of 
1947 (50 U.S.C. Sec. 403-1(m)), granting authority to the DNI; section 
104A(e) of the National Security Act of 1947 (50 U.S.C. Sec. 403-
4a(e)), granting authority to the CIA Director; and 5 U.S.C. Sec. 7532, 
granting authority to any other agency head.
---------------------------------------------------------------------------

               TITLE III--SAVINGS CLAUSE; EFFECTIVE DATE

Section 301--Savings Clause

    This section provides a savings clause stating that the 
legislation shall not be construed to imply any limitation on 
any protections afforded by any other provisions of law to 
employees and applicants.

Section 302--Effective Date

    This section states the Act would take effect 30 days after 
the date of enactment. The Committee expects and intends that 
the Act's provisions shall be applied in OSC, MSPB, and 
judicial proceedings initiated by or on behalf of a 
whistleblower and pending on or after that effective date. Such 
application is expected and appropriate because the legislation 
generally corrects erroneous decisions by the MSPB and the 
courts; removes and compensates for burdens that were 
wrongfully imposed on individual whistleblowers exercising 
their rights in the public interest; and improves the rules of 
administrative and judicial procedure and jurisdiction 
applicable to the vindication of whistleblowers' rights.

                    V. Estimated Cost of Legislation

                                                  February 1, 2012.
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. 743, the 
Whistleblower Protection Enhancement Act of 2011.
    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. 743--Whistleblower Protection Enhancement Act of 2011

    Summary: S. 743 would amend the Whistleblower Protection 
Act (WPA) to clarify current law and extend new legal 
protections to federal employees who report abuse, fraud, and 
waste related to government activities (such individuals are 
known as whistleblowers). 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. 743 would cost $24 
million over the 2012-2017 period, assuming appropriation of 
the necessary amounts for awards to whistleblowers and 
additional administrative costs. Enacting the bill would not 
affect direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    S. 743 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. 743 is shown in the following table. The 
costs of this legislation primarily fall within budget 
functions 800 (general government) and 050 (national defense), 
as well as all other budget functions that include federal 
salaries and expenses.

----------------------------------------------------------------------------------------------------------------
                                                          By fiscal year, in millions of dollars--
                                          ----------------------------------------------------------------------
                                             2012      2013      2014      2015      2016      2017    2012-2017
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Cost of Corrective Actions:
    Estimated Authorization Level........         *         1         1         1         1         1          5
    Estimated Outlays....................         *         1         1         1         1         1          5
Intelligence Community Whistleblower
Protection Board:
    Estimated Authorization Level........         *         1         1         1         1         1          5
    Estimated Outlays....................         *         1         1         1         1         1          5
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....         *         7         5         4         4         4         24
        Estimated Outlays................         *         7         5         4         4         4        24
----------------------------------------------------------------------------------------------------------------
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 in fiscal year 2012, that the 
necessary amounts will be made available from appropriated 
funds, and that spending will follow historical patterns for 
similar programs.
    Under current law, the OSC investigates complaints 
regarding reprisals against federal employees who inform 
authorities of fraud or other improprieties in the operation of 
federal programs. The OSC orders corrective action (such as job 
restoration, back pay, and reimbursement of attorneys' fees and 
medical costs) 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.

                       COST OF CORRECTIVE ACTIONS

    When settling an employment dispute between the federal 
government and an employee regarding prohibited personnel 
practices, federal agencies are required to pay for an 
employee's attorney, any retroactive salary payments, and any 
travel and medical costs associated with the claim.
    S. 743 would expand legal protections for whistleblowers 
and extend protections to passenger and baggage screeners 
working for the Transportation Security Administration and all 
federal employees working primarily on scientific research. The 
bill would authorize monetary awards to federal employees who 
suffered retaliation by their agency 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.
    According to the MSPB and OSC, approximately 450 
whistleblower cases and around 2,000 complaints about 
prohibited personnel practices (including engaging in reprisals 
against whistleblowers) are filed against the federal 
government each year. CBO is unaware of comprehensive 
information on the current costs of corrective actions related 
to those cases. Damage awards depend on the particular 
circumstances of each case. Settlement amounts for 
whistleblowers have been as high as $1 million, while the 
average settlement is around $18,000 (most corrective action is 
nonmonetary, for example, amending performance appraisals). In 
addition, the Government Accountability Office has reported 
that about $15 million is spent annually (from the Treasury's 
Judgment Fund) on equal employment opportunity and 
whistleblower cases. While it is uncertain how often damages 
would be awarded in such whistleblower situations, CBO expects 
that increasing the number of covered employees and legal 
protections under the bill would increase costs for such awards 
by about $1 million each year.

         INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION BOARD

    Section 204 would require the Director of National 
Intelligence, in consultation with the Secretary of Defense and 
the Attorney General, to establish an appellate review board. 
That board would adjudicate appeals from employees who believe 
that they have been denied security clearances or other types 
of authorizations to access restricted information in 
retaliation for revealing certain types of misconduct. Based on 
information from the Office of the Director of National 
Intelligence about the staffing needs for similar activities, 
CBO estimates that implementing this provision would cost $1 
million annually.

                              MSBP AND OSC

    CBO expects that enacting the bill would increase the 
workload of the MSPB and the OSC. For fiscal year 2012, the 
MSPB received an appropriation of $40 million, and the OSC 
received $19 million. Based on information from those agencies, 
we estimate that when the legislation was fully implemented, 
those offices would spend about $2 million a year to hire 
additional professional and administrative staff to handle 
additional cases.

                            OTHER PROVISIONS

    S. 743 would require the Government Accountability Office 
to prepare two reports on whistleblowers. In addition, agencies 
would be required to make changes to their whistleblower 
training and nondisclosure policies governmentwide. Based on 
information from federal agencies on the costs of similar 
requirements, CBO estimates that implementing those provisions 
would cost $4 million over the 2012-2017 period assuming 
appropriation of the necessary amounts.
    Previous CBO estimate: On January 25, 2012, CBO transmitted 
a cost estimate for H.R. 3289, the Platts-Van Hollen 
Whistleblower Protection Enhancement Act of 2011, as ordered 
reported by the House Committee on Oversight and Government 
Reform on November 15, 2011. Both S. 743 and H.R. 3289 would 
amend the Whistleblower Protection Act. Both bills have similar 
provisions and implementation costs, but the costs to implement 
H.R. 3289 would be higher primarily because it would impose 
additional responsibilities on Inspectors General.
    Pay-as-you-go considerations: None.
    Intergovernmental and private-sector impact: S. 743 
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: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                  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. The Committee 
agrees with CBO, which 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.
          [(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 require payment by the [agency involved] 
agency where the prevailing party was employed or had applied 
for employment at the time of the events giving rise to the 
case 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

SEC. 1212. POWERS AND FUNCTIONS OF THE 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 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), (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.
    (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), (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), (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), (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.

           *       *       *       *       *       *       *

    (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, [and 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) * * *

           *       *       *       *       *       *       *

          [(3) A final order of the Board may impose 
        disciplinary action consisting of removal, reduction in 
        grade, debarment from Federal employment for a period 
        not to exceed 5 years, suspension, reprimand, or an 
        assessment of a civil penalty not to exceed $1,000.]
          (3)(A) A final order of the Board may impose--
                  (i) disciplinary action consisting of 
                removal, reduction in grade, debarment from 
                Federal employment for a period not to exceed 5 
                years, suspension, or reprimand;
                  (ii) an assessment of a civil penalty not to 
                exceed $1,000; or
                  (iii) any combination of disciplinary actions 
                described under clause (i) and an assessment 
                described under clause (ii).
          (B) In any case brought under paragraph (1) in which 
        the Board finds that an employee has committed a 
        prohibited personnel practice under section 2302(b)(8), 
        or 2302(b)(9)(A)(i), (B), (C), or (D), the Board may 
        impose disciplinary action if the Board finds that the 
        activity protected under section 2302(b)(8), or 
        2302(b)(9)(A)(i), (B), (C), or (D) was a significant 
        motivating factor, even if other factors also motivated 
        the decision, for the employee's decision to take, fail 
        to take, or threaten to take or fail to take a 
        personnel action, unless that employee demonstrates, by 
        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), (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), (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), (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, the agency demonstrates by clear and 
convincing evidence that it would have taken the same personnel 
action in the absence of such disclosure.

           *       *       *       *       *       *       *

    (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, [and 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), (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; or
          (B) 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 (A) before the appropriate United States district 
court and any associated appellate review.
    (3) 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), (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) 
                alleging as an affirmative defense the 
                commission of a prohibited personnel practice 
                described in section 2302(b)(8) or (9)(A)(i), 
                (B), (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, unless the Board determines that the 
        employee, former employee, or applicant for employment 
        engaged in conduct intended to delay the issuance of a 
        final order or decision by the Board; 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), (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) 
                alleging as an affirmative defense the 
                commission of a prohibited personnel practice 
                described in section 2302(b)(8) or (9) (A)(i), 
                (B), (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 corrective 
        action or that appeal; 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) under the 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 or the appeal (including 
                any allegations made with the motion under 
                subparagraph (B)) would not be subject to 
                dismissal; and
                  (ii)(I) the Board is not likely to dispose of 
                the case within 270 days after the date on 
                which the request for corrective action or the 
                appeal has been duly submitted; or
                  (II) the case--
                          (aa) consists of multiple claims;
                          (bb) requires complex or extensive 
                        discovery;
                          (cc) 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
                          (dd) involves a novel question of 
                        law.
    (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 the Board may not issue 
a decision on the merits of a request for corrective action or 
appeal within 15 days after granting or denying a motion 
requesting certification.
    (6)(A) 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 described under paragraph (4)(ii) shall be 
reviewed on appeal of a final order or decision of the Board 
under section 7703 only if--
          (i) a motion requesting a certification was denied; 
        and
          (ii) the reviewing court vacates the decision of the 
        Board on the merits of the claim under the standards 
        set forth in section 7703(c).
    (B) The decision to deny the certification shall be 
overturned by the reviewing court, and an order granting 
certification shall be issued by the reviewing court, if such 
decision is found to be arbitrary, capricious, or an abuse of 
discretion.
    (C) The reviewing court's decision 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 subsection (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.
    (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; [and]
                  (xi) the implementation or enforcement of any 
                nondisclosure policy, form, or agreement; and
                  [(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; [and]
          (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), (C), or (D);
                  [(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 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, 
                provided that the determination be made prior 
                to a 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; 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) [a violation] any violation of 
                        any law, rule, or regulation, or
                          (ii) gross mismanagement, a gross 
                        waste of funds, an abuse of authority, 
                        or a substantial and specific danger to 
                        public health or safety, 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; [or]
                  (B) any disclosure to the Special Counsel, or 
                to the Inspector General of an agency or 
                another employee designated by the head of the 
                agency to receive such disclosures, of 
                information which the employee or applicant 
                reasonably believes evidences--
                          (i) [a violation] any violation 
                        (other than a violation of this 
                        section) of any law, rule, or 
                        regulation, or
                          (ii) gross mismanagement, a gross 
                        waste of funds, an abuse of authority, 
                        or a substantial and specific danger to 
                        public health or safety; or
                  (C) any communication that complies with 
                subsection (a)(1), (d), and (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) [the 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) other than with regard to 
                        remedying a violation paragraph (8);
                  (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; [or]
          (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 title[.]; 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 existing 
        statute or Executive order relating to (1) classified 
        information, (2) communications to Congress, (3) the 
        reporting to an Inspector General of a violation of any 
        law, rule, or regulation, or mismanagement, a gross 
        waste of funds, an abuse of authority, or a substantial 
        and specific danger to public health or safety, or (4) 
        any other whistleblower protection. The definitions, 
        requirements, obligations, rights, sanctions, and 
        liabilities created by controlling Executive orders and 
        statutory provisions are incorporated into this 
        agreement and are controlling.''
    This subsection shall not be construed to authorize the 
withholding of information from Congress or the taking of any 
personnel action against an employee who discloses information 
to Congress. For purposes of paragraph (8), (i) any presumption 
relating to the performance of a duty by an employee whose 
conduct is the subject of a disclosure as defined under 
subsection (a)(2)(D) may be rebutted by substantial evidence; 
and (ii) a determination as to whether an employee or applicant 
reasonably believes that such employee or applicant has 
disclosed information that evidences any violation of law, 
rule, regulation, gross mismanagement, a gross waste of funds, 
an abuse of authority, or a substantial and specific danger to 
public health or safety shall be made by determining whether a 
disinterested observer with knowledge of the essential facts 
known to and readily ascertainable by the employee or applicant 
could reasonably conclude that the actions of the Government 
evidence such violations, mismanagement, waste, abuse, or 
danger.
    (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 classified in the interest of 
national defense or the conduct of foreign affairs to the 
Special Counsel, the Inspector General of an agency, Congress, 
or other agency employee designated to receive such 
disclosures. 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)(1) A disclosure shall not be excluded from subsection 
(b)(8) because--
          (A) 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);
          (B) the disclosure revealed information that had been 
        previously disclosed;
          (C) of the employee's or applicant's motive for 
        making the disclosure;
          (D) the disclosure was not made in writing;
          (E) the disclosure was made while the employee was 
        off duty; or (F) of the amount of time which has passed 
        since the occurrence of the events described in the 
        disclosure.
    (2) If a disclosure is made during the normal course of 
duties of an employee, the disclosure shall not be excluded 
from subsection (b)(8) if any employee who has authority to 
take, direct others to take, recommend, or approve any 
personnel action with respect to the employee making the 
disclosure, took, failed to take, or threatened to take or fail 
to take a personnel action with respect to that employee in 
reprisal for the disclosure.

SEC. 2303. PROHIBITED PERSONNEL PRACTICES IN THE FEDERAL BUREAU OF 
                    INVESTIGATION.

           *       *       *       *       *       *       *

SEC. 2303A. PROHIBITED PERSONNEL PRACTICES IN THE INTELLIGENCE 
                    COMMUNITY.

    (a) Definitions.--In this section--
          (1) the term ``agency'' means an executive department 
        or independent establishment, as defined under sections 
        101 and 104, that contains an intelligence community 
        element, except the Federal Bureau of Investigation;
          (2) the term ``intelligence community element''--
                  (A) means--
                          (i) 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) 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; and
                  (B) does not include the Federal Bureau of 
                Investigation; and
          (3) the term ``personnel action'' means any action 
        described in clauses (i) through (x) of section 
        2302(a)(2)(A) with respect to an employee in a position 
        in an intelligence community element (other than a 
        position of a confidential, policy-determining, 
        policymaking, or policy-advocating character).
    (b) In General.--Any employee of an agency 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 an intelligence community element as a 
reprisal for a disclosure of information by the employee to the 
Director of National Intelligence (or an employee designated by 
the Director of National Intelligence for such purpose), or to 
the head of the employing agency (or an employee designated by 
the head of that agency for such purpose), which the employee 
reasonably believes evidences----
          (1) a violation of any law, rule, or regulation; or
          (2) mismanagement, a gross waste of funds, an abuse 
        of authority, or a substantial and specific danger to 
        public health or safety.
    (c) Enforcement.--The President shall provide for the 
enforcement of this section in a manner consistent with 
applicable provisions of sections 1214 and 1221.
    (d) Existing Rights Preserved.--Nothing in this section 
shall be construed to--
          (1) preempt or preclude any employee, or applicant 
        for employment, at the Federal Bureau of Investigation 
        from exercising rights currently provided under any 
        other law, rule, or regulation, including section 2303;
          (2) repeal section 2303; or
          (3) provide the President or Director of National 
        Intelligence the authority to revise regulations 
        related to section 2303, codified in part 27 of the 
        Code of Federal Regulations.

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. [2304] 2305. RESPONSIBILITIES OF THE GOVERNMENT ACCOUNTABILITY 
                    OFFICE.

SEC. [2305] 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 
Systems Protection Board may obtain judicial review of the 
order or decision.

           *       *       *       *       *       *       *

    [(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 2011, a 
petition to review a final order or final decision of the Board 
that raises no challenge to the Board's disposition of 
allegations of a prohibited personnel practice described in 
section 2302(b) other than practices described in section 
2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D) shall be 
filed in the United States Court of Appeals for the Federal 
Circuit or any court of appeals of competent jurisdiction as 
provided under paragraph (2).

           *       *       *       *       *       *       *

    [(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 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.
    (2) During the 5-year period beginning on the effective 
date of the Whistleblower Protection Enhancement Act of 2011, 
this paragraph shall apply to any review obtained by the 
Director of the Office of Personnel Management that raises no 
challenge to the Board's disposition of allegations of a 
prohibited personnel practice described in section 2302(b) 
other than practices described in section 2302(b)(8), or 
2302(b)(9)(A)(i), (B), (C), or (D). The Director 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. 
The granting of the petition for judicial review shall be at 
the discretion of 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, and
          (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 operations.]
    (d)(1) Each Inspector General shall, in accordance with 
applicable laws and regulations governing the civil service--
          (A) appoint an Assistant Inspector General for 
        Auditing who shall have the responsibility for 
        supervising the performance of auditing activities 
        relating to programs and operations of the 
        establishment;
          (B) appoint an Assistant Inspector General for 
        Investigations who shall have the responsibility for 
        supervising the performance of investigative activities 
        relating to such programs and operations; and
          (C) designate a Whistleblower Protection Ombudsman 
        who shall educate agency employees--
                  (i) about prohibitions on retaliation for 
                protected disclosures; and
                  (ii) who have made or are contemplating 
                making a protected disclosure about the rights 
                and remedies against retaliation for protected 
                disclosures.
    (2) The Whistleblower Protection Ombudsman shall not act as 
a legal representative, agent, or advocate of the employee or 
former employee.
    (3) For the purposes of this section, the requirement of 
the designation of a Whistleblower Protection Ombudsman under 
paragraph (1)(C) shall not apply to--
          (A) any agency that is an element of the intelligence 
        community (as defined in section 3(4) of the National 
        Security Act of 1947 (50 U.S.C. 401a(4))); or
          (B) as determined by the President, any executive 
        agency or unit thereof the principal function of which 
        is the conduct of foreign intelligence or counter 
        intelligence activities.

SEC. 8D. SPECIAL PROVISIONS CONCERNING THE DEPARTMENT OF TREASURY.

           *       *       *       *       *       *       *

    (j) An individual appointed to the position of Treasury 
Inspector General for Tax Administration, the Assistant 
Inspector General for Auditing of the Office of the Treasury 
Inspector General for Tax Administration under section 
[3(d)(1)] 3(d)(1)(A), the Assistant Inspector General for 
Investigations of the Office of the Treasury Inspector General 
for Tax Administration under section [3(d)(2)] 3(d)(1)(B), or 
any position of Deputy Inspector General of the Office of the 
Treasury Inspector General for Tax Administration may not be an 
employee of the Internal Revenue Service--
          (1) during the 2-year period preceding the date of 
        appointment to such position; or
          (2) during the 5-year period following the date such 
        individual ends service in such position.

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 at 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 Director of National Intelligence and, if 
the establishment is within the Department of Defense, to the 
Secretary of Defense. In such a case, the requirements of this 
section for the head of the establishment apply to each 
recipient of the Inspector General's transmission. Each 
recipient shall consult with the members of the appellate 
review board established under section 204 of the Whistleblower 
Protection Enhancement Act of 2011 regarding all transmissions 
under this paragraph.
    (c) Upon receipt of a transmittal from the Inspector 
General under subsection (b), the head of the establishment 
shall, within 7 calendar days of such receipt, forward such 
transmittal to the [intelligence committees] appropriate 
committees, together with any comments the head of the 
establishment considers appropriate.

           *       *       *       *       *       *       *

    (d)(1) If the Inspector General does not find credible 
under subsection (b) a complaint or information submitted to 
the Inspector General under subsection (a), or does not 
transmit the complaint or information to the head of the 
establishment in accurate form under subsection (b), the 
employee (subject to paragraph (2)) may submit the complaint or 
information to Congress by contacting [either or both of the 
intelligence committees] any of the appropriate committees 
directly.
    (2) The employee may contact the intelligence committees 
directly as described in paragraph (1) only if the employee--
          (A) before making such a contact, furnishes to the 
        head of the establishment, through the Inspector 
        General, a statement of the employee's complaint or 
        information and notice of the employee's intent to 
        contact the [intelligence committees] appropriate 
        committees directly; and
          (B) obtains and follows from the head of the 
        establishment, through the Inspector General, direction 
        on how to contact the [intelligence committees] 
        appropriate committees in accordance with appropriate 
        security practices.
    (3) A member or employee of one of the [intelligence 
committees] appropriate committees who receives a complaint or 
information under paragraph (1) does so in that member or 
employee's official capacity as a member or employee of that 
committee.

           *       *       *       *       *       *       *

    (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.
    [(h)](i) In this section:
          (1) The term ``urgent concern'' means any of the 
        following:
                  (A) A serious or flagrant problem, abuse, 
                violation of law or Executive order, or 
                deficiency relating to the funding, 
                administration, or operations of an 
                [intelligence] activity involving classified 
                information, but does not include differences 
                of opinions concerning public policy matters.
                  (B) A false statement to Congress, or a 
                willful withholding from Congress, on an issue 
                of material fact relating to the funding, 
                administration, or operation of an intelligence 
                activity or an activity involving classified 
                information.
                  (C) An action, including a personnel action 
                described in section 2302(a)(2)(A) of title 5, 
                constituting reprisal or threat of reprisal 
                prohibited under section 7 (c) in response to 
                an employee's reporting an urgent concern in 
                accordance with this section.
          (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] The term ``appropriate 
        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 
        ``appropriate committees'' means the committees of 
        appropriate jurisdiction.

                   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 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 
        Director of National Intelligence. In such a case, the 
        requirements of this subsection for the Director apply 
        to the Director of National Intelligence. The Director 
        of National Intelligence shall consult with the members 
        of the appellate review board established under section 
        204 of the Whistleblower Protection Enhancement Act of 
        2012 regarding all transmissions under this paragraph.

           *       *       *       *       *       *       *

          (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.

           *       *       *       *       *       *       *

      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.

    (a) Definitions.--

           *       *       *       *       *       *       *

          (9) The term ``access determination'' means the 
        process for determining whether an employee--
                  (A) is eligible for access to classified 
                information in accordance with Executive Order 
                12968 (60 Fed. Reg. 40245; relating to 
                classified information), or any successor 
                thereto, and Executive Order 10865 (25 Fed. 
                Reg. 1583; relating to safeguarding classified 
                information with industry; and
                  (B) possesses a need to know under that 
                Order.

           *       *       *       *       *       *       *

    (b) Selection of Entity.--[Not] 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; 
        [and]
          (6) reviewing and coordinating the development of 
        tools and techniques for enhancing the conduct of 
        investigations and granting of clearances[.]; and
          (7) not later than 180 days after the date of 
        enactment of the Whistleblower Protection Enhancement 
        Act of 2011--
                  (A) developing policies and procedures that 
                permit, to the extent practicable, individuals 
                who in good faith appeal a determination to 
                suspend or revoke a security clearance or 
                access to classified information to retain 
                their government 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 or the head of the agency 
                certifies that a longer suspension is needed 
                before a final decision on denial or revocation 
                to prevent imminent harm to the national 
                security.
        Any limitation period applicable to an agency appeal 
        under paragraph (7) shall be tolled until the head of 
        the agency (or in the case of any component of the 
        Department of Defense, the Secretary of Defense) 
        determines, with the concurrence of the Director of 
        National Intelligence, that the policies and procedures 
        described in paragraph (7) have been established for 
        the agency or the Director of National Intelligence 
        promulgates the policies and procedures under paragraph 
        (7). The policies and procedures for appeals developed 
        under paragraph (7) shall be comparable to the policies 
        and procedures pertaining to prohibited personnel 
        practices defined under section 2302(b)(8) of title 5, 
        United States Code, and provide--
                  (A) for an independent and impartial fact-
                finder;
                  (B) for notice and the opportunity to be 
                heard, including the opportunity to present 
                relevant evidence, including witness testimony;
                  (C) that the employee or former employee may 
                be represented by counsel;
                  (D) that the employee or former employee has 
                a right to a decision based on the record 
                developed during the appeal;
                  (E) that 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, unless--
                          (i) the employee and the agency 
                        concerned agree to an extension; or
                          (ii) the impartial fact-finder 
                        determines in writing that a greater 
                        period of time is required in the 
                        interest of fairness or national 
                        security;
                  (F) for the use of information specifically 
                required by Executive order to be kept 
                classified 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
                  (G) that the employee or former employee 
                shall have no right to compel the production of 
                information specifically required by Executive 
                order to be kept classified 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's 
        security clearance or access determination because of--
                  (A) any disclosure of information to the 
                Director of National Intelligence (or an 
                employee designated by the Director of National 
                Intelligence for such purpose) or the head of 
                the employing agency (or employee designated by 
                the head of that agency for such purpose) by an 
                employee that the employee reasonably believes 
                evidences--
                          (i) a violation of any law, rule, or 
                        regulation; or
                          (ii) gross mismanagement, a gross 
                        waste of funds, an abuse of authority, 
                        or a substantial and specific danger to 
                        public health or safety;
                  (B) any 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 
                reasonably believes evidences--
                          (i) a violation of any law, rule, or 
                        regulation; or
                          (ii) gross mismanagement, a gross 
                        waste of funds, an abuse of authority, 
                        or a substantial and specific danger to 
                        public health or safety;
                  (C) any communication that complies with--
                          (i) subsection (a)(1), (d), and (h) 
                        of section 8H of the Inspector General 
                        Act of 1978 (5 U.S.C. App.);
                          (ii) subsection (d)(5)(A), (D), and 
                        (G) of section 17 of the Central 
                        Intelligence Agency Act of 1949 (50 
                        U.S.C. 403q); or
                          (iii) subsection (k)(5)(A), (D), and 
                        (G), of section 103H of the National 
                        Security Act of 1947 (50 U.S.C. 403-
                        3h);
                  (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 required 
        by Executive order to be kept classified in the 
        interest of national defense or the conduct of foreign 
        affairs.
          (2) Rule of construction.--Consistent with the 
        protection of sources and methods, nothing in paragraph 
        (1) 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.
          (3) Disclosures.--
                  (A) In general.--A disclosure shall not be 
                excluded from paragraph (1) because--
                          (i) the disclosure was made to a 
                        person, including a supervisor, who 
                        participated in an activity that the 
                        employee reasonably believed to be 
                        covered by paragraph (1)(A)(ii);
                          (ii) the disclosure revealed 
                        information that had been previously 
                        disclosed;
                          (iii) of the employee's motive for 
                        making the disclosure;
                          (iv) the disclosure was not made in 
                        writing;
                          (v) the disclosure was made while the 
                        employee was off duty; or
                          (vi) of the amount of time which has 
                        passed since the occurrence of the 
                        events described in the disclosure.
                  (B) Reprisals.--If a disclosure is made 
                during the normal course of duties of an 
                employee, the disclosure shall not be excluded 
                from paragraph (1) if any employee who has 
                authority to take, direct others to take, 
                recommend, or approve any personnel action with 
                respect to the employee making the disclosure, 
                took, failed to take, or threatened to take or 
                fail to take a personnel action with respect to 
                that employee in reprisal for the disclosure.
          (4) Agency adjudication.--
                  (A) Remedial procedure.--An employee or 
                former employee who believes that he or she has 
                been subjected to a reprisal prohibited by 
                paragraph (1) of this subsection may, within 90 
                days after the issuance of notice of such 
                decision, appeal that decision within the 
                agency of that employee or former employee 
                through proceedings authorized by paragraph (7) 
                of subsection (a), 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 not longer than 1 year 
                (or a longer period in accordance with a 
                certification made under subsection (b)(7)).
                  (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 or former employee, as nearly as 
                practicable and reasonable, to the position 
                such employee or former employee 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.
          (5) Appellate review of security clearance access 
        determinations by director of national intelligence.--
                  (A) Definition.--In this paragraph, the term 
                `Board' means the appellate review board 
                established under section 204 of the 
                Whistleblower Protection Enhancement Act of 
                2011.
                  (B) Appeal.--Within 60 days after receiving 
                notice of an adverse final agency determination 
                under a proceeding under paragraph (4), an 
                employee or former employee may appeal that 
                determination to the Board.
                  (C) 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 (B). 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.
                  (D) 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.
                  (E) 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 remand the matter to the agency from 
                which it originated for additional proceedings 
                in accordance with the rules of procedure 
                issued by the Board.
                  (F) De novo determination.--The Board shall 
                make a de novo determination, based on the 
                entire record and under the standards specified 
                in paragraph (4), of whether the employee or 
                former employee 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 fact-finder's 
                opportunity to see and hear the witnesses.
                  (G) Adverse security clearance or access 
                determination.--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 (60 Fed. Reg. 40245; relating to 
                access to classified information) or any 
                successor thereto (including any adjudicative 
                guidelines promulgated under such orders) or 
                any subsequent Executive order, regulation, or 
                policy concerning access to classified 
                information.
                  (H) 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 or former employee, as nearly 
                        as practicable and reasonable, to the 
                        position such employee or former 
                        employee 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. The 
                        Board may recommend, but may not order, 
                        reinstatement or hiring of a former 
                        employee. The Board may order that the 
                        former employee be treated as though 
                        the employee were transferring from the 
                        most recent position held when seeking 
                        other positions within the executive 
                        branch. Any corrective action shall not 
                        include the reinstating of any security 
                        clearance or access determination. The 
                        agency head shall take the actions so 
                        ordered within 90 days, unless the 
                        Director of National Intelligence, the 
                        Secretary of Energy, or the Secretary 
                        of Defense, in the case of any 
                        component of the Department of Defense, 
                        determines that doing so would endanger 
                        national security.
                          (ii) Recommended action.--If the 
                        Board finds that reinstating the 
                        employee or former employee'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.
                  (I) Congressional notification.--
                          (i) Orders.--Consistent with the 
                        protection of sources and methods, at 
                        the time the Board issues an order, the 
                        Chairperson of the Board shall notify--
                                  (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;
                                  (IV) the Permanent Select 
                                Committee on Intelligence of 
                                the House of Representatives; 
                                and
                                  (V) the committees of the 
                                Senate and the House of 
                                Representatives that have 
                                jurisdiction over the employing 
                                agency, including in the case 
                                of a final order or decision of 
                                the Defense Intelligence 
                                Agency, the National 
                                Geospatial-Intelligence Agency, 
                                the National Security Agency, 
                                or the National Reconnaissance 
                                Office, the Committee on Armed 
                                Services of the Senate and the 
                                Committee on Armed Services 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 committees described 
                        in subclauses (I) through (V) of clause 
                        (i).
          (6) Judicial review.--Nothing in this section shall 
        be construed to permit or require judicial review of 
        any--
                  (A) agency action under this section; or
                  (B) action of the appellate review board 
                established under section 204 of the 
                Whistleblower Protection Enhancement Act of 
                2011.
          (7) Private cause of action.--Nothing in this section 
        shall be construed to permit, authorize, or require a 
        private cause of action to challenge the merits of a 
        security clearance determination.

                                  
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