19–006 

112TH CONGRESS REPT. 112–508 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1 

WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 

2011 

MAY 30, 2012.—Ordered to be printed 

Mr. ISSA, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 3289] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (H.R. 3289) to amend title 5, United States 

Code, to provide clarification relating to disclosures of information 

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

policies, forms, and agreements are in conformance with certain 

protections; to provide certain additional authorities to the Office 

of Special Counsel; and for other purposes, having considered the 

same, report favorably thereon with amendments and recommend 

that the bill as amended do pass. 

CONTENTS 

Page 

Committee Statement and Views ........................................................................... 5 

Section-by-Section .................................................................................................... 6 

Explanation of Amendments ................................................................................... 12 

Committee Consideration ........................................................................................ 12 

Rollcall Votes ............................................................................................................ 13 

Application of Law to the Legislative Branch ....................................................... 13 

Statement of Oversight Findings and Recommendations of the Committee ...... 13 

Statement of General Performance Goals and Objectives .................................... 13 

Federal Advisory Committee Act ............................................................................ 13 

Unfunded Mandate Statement ............................................................................... 13 

Committee Estimate ................................................................................................ 14 

Budget Authority and Congressional Budget Office Cost Estimate .................... 14 

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Changes in Existing Law Made by the Bill as Reported ...................................... 17 

Additional Views ...................................................................................................... 44 

The amendments are as follows: 

Strike ‘‘Whistleblower Protection Enhancement Act of 2011’’ each 

place it appears in the bill and insert ‘‘Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011’’. 

In section 2303a(b) of title 5, United States Code, in the matter 

preceding paragraph (1), as proposed to be added by section 201(a) 

of the bill— 

(1) strike ‘‘or to the head’’ and insert ‘‘to the head’’; and 

(2) insert ‘‘or to a supervisor in the chain of authority of such 

employee who is authorized to access such information’’ before 

‘‘which the employee’’. 

At the end of title I of the bill, add the following: 

SEC. 122. STUDY. 

(a) IN GENERAL.—The Government Accountability Office 

shall study and, not later than 1 year after the date of enactment of this Act, submit to the appropriate committees 

of Congress a report on whistleblower hotlines of Federal 

agencies. Such study and report shall address the following: 

(1) The days and hours the hotline is staffed by 

trained personnel. 

(2) The level of training which operators who are 

designated to receive calls for the hotline possess, including academic credentials and additional training. 

(3) Whether the hotline is staffed by sufficient personnel. 

(4) Whether the hotline is operated in a manner consistent with the requirements established by the Sarbanes-Oxley Act of 2002 relating to whistleblower protections which apply with respect to publicly traded 

companies. 

(5) Whether the hotline is operated independent of 

conflicts of interest. 

(6) Whether the hotline is accessible through multiple methods of communication, such as electronic 

mail, personal interview, and confidential mail deposit. 

(7) Whether sufficient protections from retaliation 

are provided for employees reporting illegal or unethical conduct or behavior. 

(8) Whether the hotline is operated in a manner 

that ensures sufficient confidentiality of disclosures 

made using such hotline. 

(9) Whether employees of the agency are encouraged 

and made aware of their ability to submit disclosures 

of perceived misconduct that they reasonably believe 

evidence a violation of law, rule, or regulation, gross 

waste, gross mismanagement, abuse of authority, or a 

substantial and specific violation of public health or 

safety. 

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(10) Any other issues which the Government Accountability Office may determine. 

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

(1) the term ‘‘appropriate committees of Congress’’ 

means the Committee on Oversight and Government 

Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate; and 

(2) the term ‘‘Federal agency’’ means an agency, as 

defined by section 2302(a)(2)(C) of title 5, United 

States Code. 

Page 11, beginning on line 15, move the margin of clause (ii) 2 

ems to the left. 

Page 35, on lines 10 and 12, insert ‘‘at the end’’ after ‘‘the semicolon’’. 

Page 67, line 1, strike ‘‘designating’’ and insert ‘‘redesignating’’. 

Strike subsection (a) of section 202 and insert the following: 

(a) IN GENERAL.—Section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 

435b) is amended— 

(1) by redesignating subsection (i) as subsection (k); 

and 

(2) by inserting after subsection (h) the following 

new subsection: 

‘‘(i) REVIEW OF SECURITY CLEARANCE OR ACCESS DETERMINATIONS.— 

‘‘(1) IN GENERAL.—Not later than 180 days after the 

date of enactment of the Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011, the head 

of the entity selected pursuant to subsection (b) 

shall— 

‘‘(A) develop policies and procedures that permit, to the extent practicable, individuals who 

challenge in good faith a determination to suspend 

or revoke a security clearance or access to classified information to retain their government employment status while such challenge is pending; 

and 

‘‘(B) develop and implement 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. 

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‘‘(2) LIMITATION PERIOD.—Any limitation period applicable to an agency appeal under paragraph (1) 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 (1) 

have been established for the agency or the Director of 

National Intelligence promulgates the policies and procedures under paragraph (1). The policies and procedures for appeals developed under paragraph (1) 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).’’. 

In subsection (b) of section 202, strike ‘‘is amended by adding at 

the end’’ and insert ‘‘, as amended by subsection (a) of this section, 

is further amended by inserting after subsection (i)’’. 

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1P.L. 101–12. 

Page 2, after the item relating to section 121 (in the matter following line 7), insert the following: 

Sec. 122. Study. 

Page 3, line 15, strike ‘‘section)’’ and insert ‘‘section),’’. 

Page 21, line 11, insert ‘‘or protected activity’’ after ‘‘disclosure’’. 

Page 35, line 2, strike the matter after ‘‘under’’ and before ‘‘or’’ 

and insert ‘‘section 3105,’’. 

Page 47, lines 7 and 8, strike ‘‘of title 5, United States Code,’’. 

Page 52, line 20, insert a period at the end. 

Page 66, line 24, strike ‘‘Whistleblower Protection Enhancement 

Review’’ and insert ‘‘Platts-Van Hollen Whistleblower Protection 

Enhancement’’. 

Page 67, line 25, strike ‘‘submission; and’’ and insert ‘‘submission.’’. 

COMMITTEE STATEMENT AND VIEWS

PURPOSE AND SUMMARY

Whistleblowers are crucial in helping to expose waste, fraud, 

abuse, mismanagement and criminal activity across the Federal 

government. Their disclosures can save billions of dollars, and even 

human lives. It is vital that Congress encourage—not discourage— 

these well-intentioned individuals from coming forward. To accomplish that, prospective whistleblowers must be protected from 

reprisal. 

BACKGROUND AND NEED FOR LEGISLATION

The American people and the Members of Congress who represent them rely on well-intentioned whistleblowers to bring forth 

information exposing waste, fraud, abuse, mismanagement, or 

criminal behavior in the Federal bureaucracy. These employees are 

well-positioned to shed light on malfeasance in a manner that can 

save American lives as well as billions of taxpayer dollars. 

Enacted in 1989, the Whistleblower Protection Act (WPA) 1 provides statutory protections for Federal employees who engage in 

‘‘whistleblowing’’—making a disclosure of illegal or improper government activity. 

The protections of the WPA apply to most Federal Executive 

Branch employees and become applicable where an adverse personnel action (such as termination or demotion) is taken because 

of a protected disclosure made by a covered employee. Generally, 

whistleblower protections may be raised within three statutory forums: (1) employee appeals to the Merit Systems Protection Board 

(MSPB) of an agency’s adverse action against an employee; (2) actions instituted by the Office of Special Counsel (OSC); and (3) individually maintained rights of action (IRAs) before the MSPB. 

The MSPB is an independent, quasi-judicial agency in the Executive Branch tasked with protecting the Federal merit systems and 

the rights of those within those systems. The OSC is an indemstockstill on DSK6TPTVN1PROD with HEARING

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2P.L. 105–272. 

pendent agency separate from the MSPB. The OSC is tasked with 

protecting employees, former employees, and applicants, and has 

the authority to investigate instances of prohibited personnel practices. 

Current law provides that an employee, former employee, or applicant has the independent right to seek review of whistleblower 

reprisal cases by the MSPB 60 days after the OSC closes an investigation, or 120 days after filing a complaint with the OSC. 

Unfortunately, however, the U.S. Court of Appeals for the Federal District has eroded whistleblower protections over the years 

through a series of decisions. This has adversely impacted well-intentioned whistleblowers and led to an unwillingness by many to 

step forward. The Whistleblower Protection Enhancement Act, H.R. 

3289, (WPEA) reestablishes appropriate whistleblower protections 

from retaliation. It also extends whistleblower protections to certain members of the Intelligence Community, and strengthens the 

Intelligence Community Whistleblower Protection Act (ICWPA).2

These modifications are intended to reduce the often destructive 

disclosures that occur through anonymous leaks by providing an alternative in which institutional channels can be used by whistleblowers assured of certain safeguards. 

LEGISLATIVE HISTORY

H.R. 3289 was introduced by Representatives Darrell Issa, Elijah 

Cummings, Todd Platts, and Chris Van Hollen on November 1, 

2011, and was referred to the Committees on Oversight and Government Reform, Intelligence, and Homeland Security. 

This legislation is substantially similar to a bill that was negotiated and passed by the Senate (S. 372) during the 111th Congress 

on December 10, 2010. The House approved its version of S. 372 

with an amendment that struck the section of the bill that would 

have extended whistleblower protections to certain members of the 

Intelligence Community on December 22, 2010. No further action 

was taken in the 111th Congress. 

On November 3, 2011, the Oversight and Government Reform 

Committee considered the bill and reported the legislation favorably, as amended, by a recorded vote of 35 Ayes to 0 Nays. 

SECTION-BY-SECTION

Section 1. Short title; table of contents 

The short title was amended during the Committee markup and 

changed to the: ‘‘Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011.’’ 

Section 101. Clarification of disclosures covered 

Expands the scope of whistleblower protections to apply to any 

lawful disclosure of any violation of any law, rule, or regulation. 

Section 102. Disclosure defined 

A ‘‘disclosure’’ is defined as a ‘‘formal or informal communication 

or transmission, but does not include a communication concerning 

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less the employee or applicant providing the disclosure reasonably 

believes that the disclosure evidences any violation of any law, 

rule, or regulation, and occurs during the conscientious carrying 

out of official duties; or gross mismanagement, a gross waste of 

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

to public health or safety.’’ This definition covers communications 

beyond the initial disclosure, but does not apply to policy decisions. 

Section 103. Rebuttable presumption 

Reiterates that whistleblowers can disclose information to Congress without fear of reprisal. In addition, states that any presumption relating to the performance of a duty by an employee whose 

conduct is the subject of a ‘‘protected’’ disclosure as defined under 

‘‘this section’’ may be rebutted by substantial evidence. 

Section 104. Personnel actions and prohibited personnel practices 

Includes as a prohibited personnel practice the implementation 

or enforcement of any agency nondisclosure policy, form, or agreement that does not contain a specific statement clarifying that its 

provisions are consistent with and cannot supersede requirements 

that preserve the right of Federal employees to make disclosures 

of illegality, waste, fraud, abuse, or public health or safety threats. 

Also codifies the governing law for demonstrating that retaliatory 

investigations are prohibited personnel practices and permits corrective action awarded to whistleblowers to include damages, fees, 

and costs incurred due to an agency investigation of the employee. 

Section 105. Exclusion of agencies by the President 

Clarifies the President’s flexibility to determine what agencies 

should be exempted from whistleblower protections. Explicit exceptions include the FBI, CIA, the National Geospatial-Intelligence 

Agency, NSA, the Office of Director of National Intelligence, and 

the National Reconnaissance Office. This section does not change 

the President’s existing authority to exempt any Executive agency 

or unit thereof whose principal function is the conduct of foreign 

intelligence or counterintelligence activities, provided such determination is made prior to the personnel action involved. 

Section 106. Disciplinary action 

Increases the Special Counsel’s ability to obtain disciplinary action from the MSPB against employees who commit a prohibited 

personnel practice or knowingly and willfully fail to comply with an 

order from the MSPB. Now the Board may combine disciplinary action to include employment and civil penalties. 

Clarifies burdens of proof so the MSPB may impose disciplinary 

action if it is determined that the exposure of waste, fraud, mismanagement or abuse was a significant motivating factor underlying the prohibited personnel practice. 

Section 107. Remedies 

Grants the MSPB authority to require payment of reasonable attorney fees by the relevant agency. Current law states the ‘‘agency 

involved’’ should make that payment, which had been interpreted 

to mean the Office of Special Counsel if it did not prevail in a disciplinary action. 

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Expands the list of corrective actions available to the Board. 

Section 108. Judicial review 

Under current law, a whistleblower may appeal the MSPB decision to the United States Appeals Court for the Federal Circuit. 

Because of the Federal Circuit has often times misinterpreted Congressional intent when it comes to whistleblowers, so-called ‘‘pure’’ 

whistleblower appeals—that is, appeals only dealing with whistleblower claims—will now be heard in the United States Court of Appeals for the District of Columbia Circuit. 

Grants the OPM authority to bring cases of substantial impact 

on appeal to the United States Court of Appeals for the District of 

Columbia Circuit. 

Section 109. Prohibited personnel practices affecting the Transportation Security Administration 

Extends whistleblower and other anti-discrimination protections 

to employees (and applicants for employment) of the Transportation Security Administration. 

Section 110. Disclosure of censorship related to research, analysis, 

or technical information 

Extends whistleblower protections to any current or prospective 

Federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or 

technical information. 

Section 111. Clarification of whistleblower rights for critical infrastructure information 

Amends the Homeland Security Act of 2002 to bar Critical Infrastructure Information from overriding Whistleblower Protection Act 

free speech rights. 

Section 112. Advising employees of rights 

Requires Federal agency heads to advise their employees on how 

to make a lawful disclosure of information that is required to be 

kept secret in the interest of national defense or the conduct of foreign affairs. 

Section 113. Special counsel amicus curiae appearance 

Allows the Office of Special Counsel to file ‘‘friend of the court’’ 

briefs for whistleblower cases appealed from the administrative 

level. 

Section 114. Scope of due process 

Current law prohibits corrective action to be ordered in a whistleblower case if the agency can prove through clear and convincing 

evidence that it would have taken the same action against an employee on independently justified grounds despite that employee 

making a protected disclosure. This provision clarifies that before 

considering the independent justification issue the MSPB first 

must issue a finding whether the protected disclosure was a contributing factor to the conditions for either the Special Counsel or 

the individual to seek corrective action against an agency. 

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Section 115. Nondisclosure policies, forms, and agreements 

Codifies and gives a remedy for the anti-gag statute from overriding whistleblower rights. Specifically, the bill would require 

every nondisclosure policy, form, or agreement of the Government 

to contain specific language informing employees of their rights. 

Section 116. Reporting requirements 

Requires the Comptroller General to submit a report to the oversight committees of Congress analyzing: the number of cases filed 

with the MSPB alleging prohibited personnel actions; the outcome 

of those cases; and any other details as determined by the Comptroller. 

Requires the MSPB to include in its reports the outcome of cases 

alleging prohibited personnel practices, including the win-loss track 

record for decisions on each alleged prohibited personnel practice. 

Section 117. Alternative review 

Allows a whistleblower access to an appropriate United States 

district court to file for de novo review of their case. An employee 

may seek de novo review if they seek corrective action from the 

MSPB in a case alleging a prohibited personnel practice occurred, 

or file an appeal with the MSPB under certain circumstances. 

Specifically, the employee may file in district court if no final 

order or decision is issued by the MSPB within 270 days after the 

request was submitted; or if the Board certifies it is not likely to 

dispose of the case within 270 days after the request was submitted, or that the case consists of multiple claims, requires complex or extensive discovery, arises out of the same set of facts as 

a civil action pending in a U.S. court, or involves a question of law 

for which there is no controlling precedent. Under this section, an 

employee may submit a motion for certification to the MSPB within 

30 days of the original request for corrective action or appeal. The 

Board shall rule on the motion within 90 days after the submission, and the Board may not issue a decision on the merits of a request for corrective action within 15 days after granting or denying 

a motion requesting certification. 

In district court, after an employee demonstrates a prima facie 

case that protected activity was a contributing factor to a challenged personnel action, the agency may prevail if it demonstrates 

by clear and convincing evidence that the agency would have taken 

the same personnel action in the absence of a protected disclosure. 

In district court, the employee may not be represented by the Special Counsel. The court may award damages, attorney’s fees, and 

costs, but compensatory damages may not exceed $300,000 and punitive damages are not permitted. A pure whistleblower appeal will 

be filed in the United States Court of Appeals for the District of 

Columbia Circuit; while those appeals that also include allegations 

of violations of other prohibited personnel practices (e.g. discrimination) will be filed in United States Court of Appeals for the Federal Circuit. 

Section 118. Merit Systems Protection Board summary judgment 

Provides the MSPB summary judgment authority. 

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Section 119. Disclosures of classified information 

Provides that employees protected under the WPA may make 

protected classified disclosures under the procedures set forth for 

disclosing classified information under the Intelligence Community 

Whistleblower Protection Act. These protections do not in any way 

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

Follette Act, codified in 5 U.S.C. Sec. 7211, or other provisions of 

law. 

Section 120. Whistleblower Protection Ombudsman 

Instructs agency Inspectors General to designate a Whistleblower 

Protection Ombudsman who will educate employees about prohibitions on retaliations for protected disclosures, as well as those who 

have made or are contemplating making a protected disclosure. 

Agency Inspectors General will appoint an Assistant Inspector 

General for Auditing who will have the responsibility for supervising the performance of auditing activities, and an Assistant Inspector General for Investigations who will be responsible for supervising the performance of the investigative activities. 

Section 121. Pilot program for enhancement of contractor employee 

whistleblower protections 

Establishes a two-year pilot program extending current protections afforded to DOD contract employees to non-DOD contract employees. To the extent practicable, the pilot program should operate 

consistently with the equivalent rights for civil service employees, 

including the burdens of proof governing actions in the pilot program. It requires a report on implementation of the pilot program 

by the Government Accountability Office to help determine whether the program should be made permanent. 

Section 122. Study 

Requires a GAO study and report to Congress on the use by Federal agencies of whistleblower hotlines. GAO will examine whether 

the hotline is operated consistent with best practices, including 

being operated independent of conflicts of interest; whether the 

hotline is accessible through multiple methods of communication; 

and whether there are sufficient protections for employees who use 

a hotline, among other criteria. 

Section 201. Protection of intelligence community whistleblowers 

Extends whistleblower protections to intelligence community employees who make disclosures through institutional checks and balances, such as the supervisory chain of command or the Office of 

Inspector General, including those who work at the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the 

National Geospatial Intelligence Agency, the National Security 

Agency, the Office of the Director of National Intelligence, and the 

National Reconnaissance Office. 

Requires intelligence agency heads to advise their employees on 

how to make a lawful disclosure of information that is required to 

be kept secret in the interest of national defense or the conduct of 

foreign affairs. 

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Section 202. Review of security clearance or access determinations 

Requires the head of the entity chosen by the President that is 

responsible for oversight of investigations and adjudications for 

personnel security clearances to develop policies and procedures 

that permit individuals who challenge a determination to suspend 

or revoke a security clearance or access to classified information to 

retain their government employment status while the challenge is 

pending, and to develop and implement uniform procedures to ensure proper protections during the process for denying, suspending, 

or revoking a security clearance, or access to classified information. 

Codifies current Supreme Court and Merit Systems Protection 

Board case law that decisions ancillary to the clearance or access 

determination, such as eligibility, investigations, compliance with 

agency procedures, and actions subsequent to removal of clearance 

or access, are outside the scope of Executive Orders 10865 and 

12968, and will continue to be under the Board’s jurisdiction. 

Requires intelligence agency heads to design an appeals process 

with minimum internal due process standards equivalent to that 

which exists under section 2308(b)(8) of title 5, USC. In addition, 

that appeals process will provide: (1) for an independent and impartial fact-finder; (2) for notice and the opportunity to be heard, 

including the opportunity to present evidence; (3) that the employee or former employee be represented by counsel; (4) that the 

employee or former employee has a right to a decision based on the 

record developed during the appeal, with ex parte or classified information sanitized or summarized for adequate notice so that a 

decision is not made on secret grounds; (5) that not more than 180 

days shall pass from the filing of the appeal to the report from the 

independent fact-finder to the agency head; (6) 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; and 

(7) that the individual 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. 

Creates an appellate review board, which allows an individual to 

appeal a final decision of an agency determination. If the appellate 

review board finds there was an adverse action taken against an 

employee or former employee in violation of the Whistleblower Protection Act, it can find that the action was illegal, recommend reinstatement of a security clearance or access to classified information, and remand the case for further agency proceedings. In addition, the appellate review board can take corrective action to include reinstatement, reimbursement of attorney’s fees, and can 

award compensatory damages not to exceed $300,000. 

Section 203. Revisions relating to the Intelligence Community Whistleblower Protection Act 

Provides for the direct transmission of a complaint or information under the Intelligence Community Whistleblower Protection 

Act to the Director of National Intelligence if the head of an establishment (i.e., cabinet level agency or department) determines that 

such complaint or information would create a conflict of interest for 

such head. 

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Section 204. Regulations; reporting requirements; nonapplicability 

to certain terminations 

Requires the Director of National Intelligence to prescribe regulations to ensure personnel actions are not taken against employees 

of an intelligence community element for whistleblowing. 

The DNI, in consultation with the Secretary of Defense, Attorney 

General, and appropriate agency heads, shall establish an appellate review board to hear whistleblower appeals related to security 

access determinations. 

No later than 2 years after the date of enactment, the DNI shall 

submit a report on the status of the implementation of these regulations to the Committee on Oversight and Government Reform of 

the House, the Permanent Select Committee on Intelligence of the 

House, the Committee on Homeland Security and Governmental 

Affairs of the Senate, and the Select Committee on Intelligence of 

the Senate. 

Section 301. Effective date 

This act shall take effect 30 days after the date of enactment of 

the Act. 

Section 302. Savings provision 

Nothing in this Act shall be construed to imply any limitation on 

any protections afforded by any other provision of law to employees 

and applicants. Rights in this Act shall govern legal actions filed 

after its effective date. 

EXPLANATION OF AMENDMENTS

At the beginning of debate, Ranking Member Cummings made a 

unanimous consent request that the legislation be renamed as the, 

‘‘Platts-Van Hollen Whistleblower Protection Enhancement Act of 

2011.’’ This request was accepted without objection. 

Representative John Tierney offered an amendment to grant 

whistleblower protections to Intelligence Community employees 

who also make a protected disclosure to their ‘‘supervisor in the 

chain of authority . . . who is authorized to access such information.’’ The Tierney amendment was adopted by voice vote. 

Representative Jackie Speier offered an amendment which added 

a GAO study and report to Congress on the use by Federal agencies of whistleblower hotlines. The Speier amendment was adopted 

by voice vote. 

Representative Bruce Braley offered an amendment to give Federal employee whistleblowers access to trials by jury for the first 

time. Mr. Braley’s amendment failed by a vote of 13–20. 

COMMITTEE CONSIDERATION

On November 3, 2011, the Committee met in open session and 

ordered reported favorably the bill, H.R. 3289, as amended, by a recorded vote of 35 Ayes to 0 Nays, a quorum being present. 

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ROLLCALL VOTES

1. Mr. Braley offered an amendment (# 035) regarding jury trials. 

The amendment was defeated by a recorded vote of 13 Ayes to 20 

Nays. 

Voting Aye: Platts, Cummings, Maloney, Norton, Tierney, Clay, 

Lynch, Connolly, Quigley, Davis, Braley, Yarmuth and Speier. 

Voting Nay: Issa, Burton, Mica, McHenry, Jordan, Chaffetz, 

Walberg, Lankford, Amash, Buerkle, Gosar, Labrador, Meehan, 

DesJarlais, Walsh, Gowdy, Ross, Guinta, Farenthold and Kelly. 

2. The bill, H.R. 3289, as amended, was ordered favorably reported to the House, a quorum being present, by a recorded vote 

of 35 Ayes to 0 Nays. 

Voting Aye: Issa, Burton, Mica, Platts, McHenry, Jordan, 

Chaffetz, Walberg, Lankford, Amash, Buerkle, Gosar, Labrador, 

Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta, Farenthold, 

Kelly, Cummings, Maloney, Norton, Kucinich, Tierney, Clay, 

Lynch, Cooper, Connolly, Quigley, Davis, Braley, Yarmuth and 

Speier. 

Voting Nay: none. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

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

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

relates to the terms and conditions of employment or access to public services and accommodations. This bill concerns the expansion 

of whistleblower protections to current and prospective Federal employees. Legislative branch employees and their families, to the extent that they are otherwise eligible for the benefits provided by 

this legislation, have equal access to its benefits. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

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

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

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

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

House of Representatives, the Committee’s performance goals and 

objectives are reflected in the descriptive portions of this report. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or 

authorize the establishment of an advisory committee within the 

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

UNFUNDED MANDATE STATEMENT

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

the provisions of the reported include unfunded mandates. In commstockstill on DSK6TPTVN1PROD with HEARING

14 

pliance with this requirement the Committee has received a letter 

from the Congressional Budget Office included herein. 

EARMARK IDENTIFICATION

H.R. 3289 does not include any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of Rule 

XXI. 

COMMITTEE ESTIMATE

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

3289. However, clause 3(d)(3)(B) of that rule provides that this requirement does not apply when the Committee has included in its 

report a timely submitted cost estimate of the bill prepared by the 

Director of the Congressional Budget Office under section 402 of 

the Congressional Budget Act. 

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

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

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

Congressional Budget Act of 1974 and with respect to requirements 

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

Committee has received the following cost estimate for H.R. 3289 

from the Director of Congressional Budget Office: 

JANUARY 25, 2012. 

Hon. DARRELL ISSA, 

Chairman, Committee on Oversight and Government Reform, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3289, the Platts-Van Hollen 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. 

H.R. 3289—Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011 

Summary: H.R. 3289 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 H.R. 3289 would cost $26 million over the 2012–2017 period, assuming appropriation of the necessary amounts for awards to whistleblowers and additional adminmstockstill on DSK6TPTVN1PROD with HEARING

15 

istrative costs. Enacting the bill would not affect direct spending or 

revenues; therefore, pay-as-you-go procedures do not apply. 

H.R. 3289 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 H.R. 3289 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 ............................ * 4 2 * * * 6 

Estimated Outlays .............................................. * 4 2 * * * 6 

Total Changes: 

Estimated Authorization Level ................... * 8 6 4 4 4 26 

Estimated Outlays ..................................... * 8 6 4 4 4 26 

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. 

H.R. 3289 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 aumstockstill on DSK6TPTVN1PROD with HEARING

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thorize monetary awards to federal employees who suffered retaliation by their agency of up to $300,000 (including compensatory 

damages). 

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 

fully implemented, those offices would spend about $2 million a 

year to hire additional professional and administrative staff to handle additional cases. 

Other provisions 

H.R. 3289 also would establish a two-year pilot program to protect employees of federal contractors who disclose improprieties related to federal spending and would require each Inspector General 

to designate a Whistleblower Protection Ombudsman to educate 

employees about the rights of whistleblowers. The bill would require the Government Accountability Office to prepare two reports 

on whistleblowers. In addition, agencies would be required to make 

changes to their personnel training and nondisclosure policies. 

Based on information from federal agencies and on the costs of 

similar requirements, CBO estimates that implementing those provisions would cost $6 million over the 2012–2017 period assuming 

appropriation of the necessary amounts. 

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Pay-As-You-Go Considerations: None. 

Intergovernmental and private-sector impact: H.R. 3289 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. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

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

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

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

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

TITLE 5, UNITED STATES CODE 

* * * * * * * 

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 

* * * * * * * 

§ 1204. Powers and functions of the Merit Systems Protection Board 

(a) * * * 

(b)(1) * * * 

* * * * * * * 

(3) With respect to a request for corrective action based on an alleged prohibited personnel practice described in section 2302(b)(8) or 

subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9) 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, or any employee of the Board designated by the Board may, with respect to any party, grant a motion 

for summary judgment. 

ø(3)¿ (4) Witnesses (whether appearing voluntarily or under subpoena) shall be paid the same fee and mileage allowances which 

are paid subpoenaed witnesses in the courts of the United States. 

* * * * * * * 

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(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 øagency involved¿ agency in which the prevailing party was employed or with which the prevailing party 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 

* * * * * * * 

§ 1212. Powers and functions of the Office of Special Counsel 

(a) * * * 

* * * * * * * 

(h)(1) The Special Counsel may appear as amicus curiae in any 

action brought in a court of the United States related to any civil 

action brought in connection with paragraph (8) or (9) of section 

2302(b), or as otherwise authorized by law. In any such action, the 

Special Counsel may present the views of the Special Counsel with 

respect to compliance with the provisions of paragraph (8) or (9) of 

section 2302(b) and the impact court decisions would have on the 

enforcement of such provisions. 

(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). 

* * * * * * * 

§ 1214. Investigation of prohibited personnel practices; corrective action 

(a)(1) * * * 

* * * * * * * 

(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 subparagraph (A)(i), (B), (C), or (D) of section 

2302(b)(9) from the Special Counsel and— 

(A) * * * 

* * * * * * * 

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(b)(1) * * * 

* * * * * * * 

(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 subparagraph 

(A)(i), (B), (C), or (D) of section 2302(b)(9), 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 subparagraph (A)(i), (B), (C), or (D) of section 

2302(b)(9), 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 subparagraph (A)(i), (B), (C), or (D) of section 

2302(b)(9) 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 by the Board 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) * * * 

(2) reimbursement for attorney’s fees, back pay and related 

benefits, medical costs incurred, travel expenses, øand any 

other reasonable and foreseeable consequential damages.¿ any 

other reasonable and foreseeable consequential damages, and 

compensatory damages (including interest, reasonable expert 

witness fees, and costs). 

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

prohibited personnel practice may include fees, costs, or damages 

reasonably incurred due to an agency investigation of the employee, 

if such investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the 

basis of the corrective action. 

§ 1215. Disciplinary action 

(a)(1) * * * 

* * * * * * * 

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

consisting of removal, reduction in grade, debarment from Federal 

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

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

(i) disciplinary action consisting of removal, reduction in 

grade, debarment from Federal employment for a period not to 

exceed 5 years, suspension, or reprimand; 

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

(iii) any combination of disciplinary actions described under 

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

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(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 subparagraph (A)(i), (B), (C), or (D) 

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

the Board finds that the activity protected under section 2302(b)(8) 

or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9) was a 

significant motivating factor, even if other factors also motivated the 

decision, for the employee’s decision to take, fail to take, or threaten 

to take or fail to take a personnel action, unless that employee demonstrates, by a preponderance of the evidence, that the employee 

would have taken, failed to take, or threatened to take or fail to take 

the same personnel action, in the absence of such protected activity. 

* * * * * * * 

SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN 

CERTAIN REPRISAL CASES 

§ 1221. Individual right of action in certain reprisal cases 

(a) * * * 

* * * * * * * 

(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), 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) 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 or protected activity 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 or protected activity. 

* * * * * * * 

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

such corrective action may include— 

(i) * * * 

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

travel expenses, øand any other reasonable and foreseeable 

consequential changes.¿ any other reasonable and foreseeable 

consequential damages, and compensatory damages (including 

interest, reasonable expert witness fees, and costs). 

* * * * * * * 

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(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. 

* * * * * * * 

(k)(1) For purposes of this subsection, the term ‘‘appropriate 

United States district court’’, as used with respect to an alleged prohibited personnel practice, means the United States district court 

for the judicial district in which— 

(A) such prohibited personnel practice is alleged to have been 

committed; or 

(B) the employee, former employee, or applicant for employment allegedly affected by such prohibited personnel practice resides. 

(2) An employee, former employee, or applicant for employment in 

any case to which paragraph (4) or (5) applies may file an action 

at law or equity for de novo review in the appropriate United States 

district court. 

(3) Upon initiation of any action under paragraph (2), 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 paragraph (2) before the appropriate United States district court. 

(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 subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), 

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 subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), 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. 

(5) 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 promstockstill on DSK6TPTVN1PROD with HEARING

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hibited personnel practice, described in section 2302(b)(8) 

or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), 

for which the associated personnel action is an action covered under section 7512 or 7542; or 

(ii) files an appeal under section 7701(a)(1) alleging as 

an affirmative defense the commission of a prohibited personnel practice, described in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), 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 or an administrative law judge or other employee of the 

Board designated to hear the case; and 

(ii) such employee has not previously filed a motion under 

clause (i) related to that request for corrective action; and 

(C) the Board or an administrative law judge or other employee of the Board designated to hear the case certifies that— 

(i) under standards applicable to the review of motions to 

dismiss under rule 12(b)(6) of the Federal Rules of Civil 

Procedure, including rule 12(d) thereof, the request for corrective action (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 a request for that corrective action 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 

court of the United States; or 

(dd) involves a question of law for which there is no 

controlling precedent. 

(6) The Board shall grant or deny any motion requesting a certification described under paragraph (5)(C)(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 within 15 days after 

granting or denying a motion requesting certification. 

(7)(A) Any decision of the Board or an administrative law judge 

or other employee of the Board designated to hear the case to grant 

or deny a certification described under paragraph (5)(C)(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 

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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, 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. 

(8) In any action filed under this subsection— 

(A) the appropriate United States district court shall have jurisdiction without regard to the amount in controversy; 

(B) 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 that— 

(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 clear and convincing evidence that the agency would have taken the same personnel 

action in the absence of such disclosure; and 

(C) the Special Counsel may not represent the employee, 

former employee, or applicant for employment. 

(9) A petition to review a final order or final decision of a United 

States district court under this subsection that raises no challenge 

to the district court’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) 

of section 2302(b)(9) shall be filed in the United States Court of Appeals for the District of Columbia Circuit. All other petitions to review any final order or final decision of a United States district 

court in an action brought under this subsection shall be filed in 

the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review under 

this paragraph must be filed within 60 days after the date the petitioner received notice of the final order or final decision of the 

United States district court. 

(10) 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 

provision of law, rule, or regulation. 

* * * * * * * 

PART III—EMPLOYEES 

* * * * * * * 

SUBPART A—GENERAL PROVISIONS 

* * * * * * * 

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CHAPTER 23—MERIT SYSTEM PRINCIPLES 

Sec. 

2301. Merit system principles. 

* * * * * * * 

ø2304. Responsibility of the Government Accountability Office. 

ø2305. Coordination with certain other provisions of law.¿ 

2303a. Prohibited personnel practices in the intelligence community. 

2304. Prohibited personnel practices affecting the Transportation Security Administration. 

2305. Responsibility of the Government Accountability Office. 

2306. Coordination with certain other provisions of law. 

* * * * * * * 

§ 2302. Prohibited personnel practices 

(a)(1) * * * 

(2) For the purpose of this section— 

(A) ‘‘personnel action’’ means— 

(i) * * * 

* * * * * * * 

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

øand¿ 

(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain the 

statement required under subsection (b)(13); and 

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

with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or 

applicant for employment in a Government corporation as defined in section 9101 of title 31; 

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

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

in the excepted service, but does not include any position 

which is, prior to the personnel action— 

(i) * * * 

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

President based on a determination by the President that 

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

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

(i) a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or subsection (b)(9) (other than subparagraph 

(A)(ii) thereof); 

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

National Geospatial-Intelligence 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¿ 

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(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 the personnel action involved; or 

(iii) the Government Accountability Officeø.¿; 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, and occurs during the conscientious carrying out of official duties; 

or 

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

abuse of authority, or a substantial and specific danger to 

public health or safety. 

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

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

respect to such authority— 

(1) * * * 

* * * * * * * 

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

a personnel action with respect to any employee or applicant 

for employment because of— 

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences— 

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

regulation, or 

* * * * * * * 

if such disclosure is not specifically prohibited by law and 

if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; øor¿ 

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

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

øregulation,¿ regulation (other than this section or any 

rule or regulation prescribed under this section), 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.); 

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26 

(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— 

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

right granted by any law, rule, or regulation;¿ 

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

right granted by any law, rule, or regulation— 

(i) with regard to remedying a violation of paragraph 

(8) or any rule or regulation prescribed under such 

paragraph; or 

(ii) with regard to remedying a violation of any law, 

rule, or regulation not described in clause (i); 

* * * * * * * 

(11)(A) * * * 

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

veterans’ preference requirement; øor¿ 

(12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or 

regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this titleø.¿; or 

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

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

the following statement: ‘‘These provisions are consistent with 

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

Order 13526 (75 Fed. Reg. 707, relating to classified national 

security information), or any successor thereto; Executive Order 

12968 (60 Fed. Reg. 40245, relating to access to classified information), or any successor thereto; section 7211 (governing disclosures to Congress); section 1034 of title 10 (governing disclosure to Congress by members of the military); subsection (b)(8) 

(governing disclosures of illegality, waste, fraud, abuse, or public health or safety threats); the Intelligence Identities Protection 

Act of 1982 (50 U.S.C. 421 et seq., governing disclosures that 

could expose confidential Government agents); and the statutes 

which protect against disclosures that could compromise national security, including sections 641, 793, 794, 798, and 952 

of title 18 and section 4(b) of the Subversive Activities Control 

Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, 

obligations, rights, sanctions, and liabilities created by such Executive orders and such statutory provisions are incorporated 

into this agreement and are controlling.’’. 

øThis subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the 

Congress.¿ 

This subsection shall not be construed to authorize the withholding 

of information from Congress or the taking of any personnel action 

against an employee who discloses information to Congress. For 

purposes of paragraph (8), any presumption relating to the performance of a duty by an employee whose conduct is the subject of a protected disclosure under this section may be rebutted by substantial 

evidence. For purposes of paragraph (8), a determination as to 

whether an employee or applicant reasonably believes that such emmstockstill on DSK6TPTVN1PROD with HEARING

27 

ployee or applicant has disclosed information that evidences any 

violation of law, rule, regulation, gross mismanagement, a gross 

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

danger to public health or safety shall be made by determining 

whether a disinterested observer with knowledge of the essential 

facts known to or readily ascertainable by the employee could reasonably conclude that the actions of the Government evidence such 

a violation, 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 a disclosure. 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. 

* * * * * * * 

§ 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, 

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28 

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) 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), to the head of the employing agency (or an employee designated by the head of that agency for such purpose), or to a supervisor in the chain of authority of such employee who is authorized 

to access such information which the employee reasonably believes 

evidences— 

(1) a violation of any law, rule, or regulation, except for an 

alleged violation that occurs during the conscientious carrying 

out of official duties; 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. 

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§ 2304. Prohibited personnel practices affecting the Transportation Security Administration 

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

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

(1) the provisions of paragraph (1), (8), or (9) of section 

2302(b); 

(2) any provision of law implementing paragraph (1), (8), or 

(9) of section 2302(b) by making 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. 

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

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

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

Government Accountability Office shall conduct audits and reviews 

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

service and to assess the effectiveness and soundness of Federal 

personnel management. 

§ ø2305.¿ 2306. Coordination with certain other provisions 

of law 

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

shall be construed to impair the authorities and responsibilities set 

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

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

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

Act to provide certain administrative authorities for the National 

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

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

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

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

* * * * * * * 

SUBPART F—LABOR-MANAGEMENT AND 

EMPLOYEE RELATIONS 

* * * * * * * 

CHAPTER 77—APPEALS 

* * * * * * * 

§ 7703. Judicial review of decisions of the Merit Systems 

Protection Board 

(a) * * * 

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

(b)(1)(A) Except as provided in subparagraph (B) or paragraph (2), 

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) 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 subparagraph 

(A)(i), (B), (C), or (D) of section 2302(b)(9) shall be filed in the 

United States Court of Appeals for the District of Columbia Circuit. 

Notwithstanding any other provision of law, any petition for review 

under this subparagraph must be filed within 60 days after the date 

the petitioner received notice of the final order or decision of the 

Board. 

* * * * * * * 

(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 or the 

United States Court of Appeals for the District of Columbia 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. 

* * * * * * * 

HOMELAND SECURITY ACT OF 2002 

* * * * * * * 

TITLE II—INFORMATION ANALYSIS AND 

INFRASTRUCTURE PROTECTION 

* * * * * * * 

Subtitle B—Critical Infrastructure 

Information 

* * * * * * * 

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SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE INFORMATION. 

(a) * * * 

* * * * * * * 

(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), 

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. 

* * * * * * * 

INSPECTOR GENERAL ACT OF 1978 

* * * * * * * 

APPOINTMENT AND REMOVAL OF OFFICERS

SEC. 3. (a) * * * 

* * * * * * * 

ø(d) Each Inspector General shall, in accordance with applicable 

laws and regulations governing the civil service— 

ø(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 

ø(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. 

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(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. 

* * * * * * * 

SPECIAL PROVISIONS CONCERNING THE DEPARTMENT OF THE

TREASURY

SEC. 8D. (a) * * * 

* * * * * * * 

(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 øsection 3(d)(1)¿ section 3(d)(1)(A), the Assistant Inspector General for Investigations of the Office of the 

Treasury Inspector General for Tax Administration under øsection 

3(d)(2)¿ section 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) * * * 

* * * * * * * 

SEC. 8H. (a)(1)(A) * * * 

* * * * * * * 

(D) An employee of any agency, as that term is defined under section 2302(a)(2)(C) of title 5, United States Code, who intends to report to Congress a complaint or information with respect to an urgent concern may report the complaint or information to the Inspector General (or designee) of the agency of which that employee is employed. 

* * * * * * * 

(b)(1) Not later than the end of the 14-calendar day period beginning on the date of receipt of an employee complaint or information 

under subsection (a), the Inspector General shall determine whether the complaint or information appears credible. Upon making 

such a determination, the Inspector General shall transmit to the 

head of the establishment notice of that determination, together 

with the complaint or information. 

(2) If the head of an establishment determines that a complaint 

or information transmitted under paragraph (1) would create a conflict of interest for the head of the establishment, the head of the establishment shall return the complaint or information to the Inspector General with that determination and the Inspector General shall 

make the transmission to the Director of National Intelligence. In 

such a case, the requirements of this section for the head of the establishment apply to the recipient of the Inspector General’s transmission. The Director of National Intelligence shall consult with the 

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members of the appellate review board established under section 

204 of the Platts-Van Hollen 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 øintelligence 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 øeither or both of the intelligence committees¿ any of the appropriate 

committees directly. 

(2) The employee may contact the øintelligence committees¿ appropriate 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 øintelligence 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 

øintelligence committees¿ appropriate committees in accordance with appropriate security practices. 

(3) A member or employee of one of the øintelligence 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. 

ø(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 øintelligence¿ 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. 

* * * * * * * 

ø(2) The term ‘‘intelligence committees’’ means the Permanent Select Committee on Intelligence of the House of Repmstockstill on DSK6TPTVN1PROD with HEARING

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resentatives and the Select Committee on Intelligence of the 

Senate.¿ 

(2) 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. 

* * * * * * * 

CHAPTER 47 OF TITLE 41, UNITED STATES CODE 

CHAPTER 47—MISCELLANEOUS 

Sec. 

4701. Determinations and decisions. 

* * * * * * * 

4705a. Pilot program for enhancement of protection of contractor employees from 

reprisal for disclosure of certain information. 

* * * * * * * 

§ 4705. Protection of contractor employees from reprisal for 

disclosure of certain information 

(a) * * * 

* * * * * * * 

(f) TWO-YEAR SUSPENSION OF EFFECTIVENESS WHILE PILOT PRO- GRAM IN EFFECT.—While section 4705a of this title is in effect, this 

section shall not be in effect. 

§ 4705a. Pilot program for enhancement of protection of contractor employees from reprisal for disclosure of 

certain information 

(a) DEFINITIONS.—In this section: 

(1) CONTRACT.—The term ‘‘contract’’ means a contract awarded by the head of an executive agency. 

(2) CONTRACTOR.—The term ‘‘contractor’’ means a person 

awarded a contract or a grant with an executive agency. 

(3) INSPECTOR GENERAL.—The term ‘‘Inspector General’’ 

means an Inspector General appointed under the Inspector General Act of 1978 (5 U.S.C. App.) and any Inspector General that 

receives funding from, or has oversight over contracts awarded 

for or on behalf of, an executive agency. 

(b) PROHIBITION OF REPRISALS.—An employee of a contractor may 

not be discharged, demoted, or otherwise discriminated against as 

a reprisal for disclosing to a Member of Congress, a representative 

of a committee of Congress, an Inspector General, the Government 

Accountability Office, an agency employee responsible for contract 

oversight or management, an authorized official of an executive 

agency or the Department of Justice information that the employee 

reasonably believes is evidence of gross mismanagement of a contract or grant, a gross waste of agency funds, a substantial and specific danger to public health or safety, or a violation of a law related 

to a contract (including the competition for or negotiation of a contract) or grant. 

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(c) INVESTIGATION OF COMPLAINTS.— (1) INVESTIGATION.—An individual who believes that the individual has been subjected to a reprisal prohibited by subsection (b) may submit a complaint to the Inspector General of 

the executive agency. Unless the Inspector General determines 

that the complaint is frivolous, the Inspector General shall investigate the complaint and, on completion of the investigation, 

submit a report of the findings of the investigation to the individual, the contractor concerned, and the head of the agency. If 

the executive agency does not have an Inspector General, the duties of the Inspector General under this section shall be performed by an official designated by the head of the executive 

agency. 

(2) DEADLINE.—(A) Except as provided under subparagraph 

(B), the Inspector General shall make a determination that a 

complaint is frivolous or submit a report under paragraph (1) 

within 180 days after receiving the complaint. 

(B) If the Inspector General is unable to complete an investigation in time to submit a report within the 180-day period 

specified in subparagraph (A) and the person submitting the 

complaint agrees to an extension of time, the Inspector General 

shall submit a report under paragraph (1) within such additional period of time as shall be agreed upon between the Inspector General and the person submitting the complaint. 

(d) REMEDY AND ENFORCEMENT AUTHORITY.— (1) ACTIONS CONTRACTOR MAY BE ORDERED TO TAKE.—Not 

later than 30 days after receiving an Inspector General report 

pursuant to subsection (c), the head of the agency concerned 

shall determine whether there is sufficient basis to conclude 

that the contractor concerned has subjected the complainant to 

a reprisal prohibited by subsection (b) and shall either issue an 

order denying relief or shall take one or more of the following 

actions: 

(A) ABATEMENT.—Order the contractor to take affirmative action to abate the reprisal. 

(B) REINSTATEMENT.—Order the contractor to reinstate 

the individual to the position that the individual held before the reprisal, together with the compensation (including 

back pay), employment benefits, and other terms and conditions of employment that would apply to the individual in 

that position if the reprisal had not been taken. 

(C) PAYMENT.—Order the contractor to pay the complainant an amount equal to the aggregate amount of all costs 

and expenses (including attorneys’ fees and expert witnesses’ fees) that the complainant reasonably incurred for, 

or in connection with, bringing the complaint regarding the 

reprisal, as determined by the head of the executive agency. 

(2) DE NOVO ACTION.—If the head of an executive agency 

issues an order denying relief under paragraph (1) or has not 

issued an order within 210 days after the submission of a complaint under subsection (c), or in the case of an extension of 

time under paragraph (c)(2)(B), not later than 30 days after the 

expiration of the extension of time, and there is no showing that 

such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative 

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remedies with respect to the complaint, and the complainant 

may bring a de novo action at law or equity against the contractor to seek compensatory damages and other relief available 

under this section in the appropriate district court of the United 

States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, 

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

with a jury. 

(3) EVIDENCE.—An Inspector General determination and an 

agency head order denying relief under paragraph (2) shall be 

admissible in evidence in any de novo action at law or equity 

brought pursuant to this subsection. 

(4) ENFORCEMENT ORDER.—When a contractor fails to comply 

with an order issued under paragraph (1), the head of the executive agency shall file an action for enforcement of the order in 

the United States district court for a district in which the reprisal was found to have occurred. In an action brought under 

this paragraph, the court may grant appropriate relief, including injunctive relief and compensatory and exemplary damages. 

(5) REVIEW OF ENFORCEMENT ORDER.—A person adversely affected or aggrieved by an order issued under paragraph (1) may 

obtain review of the order’s conformance with this subsection, 

and regulations issued to carry out this section, in the United 

States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. A petition seeking review 

must be filed no more than 60 days after the head of the agency 

issues the order. Review shall conform to chapter 7 of title 5. 

(e) SCOPE OF SECTION.—This section does not— 

(1) authorize the discharge of, demotion of, or discrimination 

against an employee for a disclosure other than a disclosure 

protected by subsection (b); or 

(2) modify or derogate from a right or remedy otherwise 

available to the employee. 

(f) DURATION OF SECTION.—This section shall be in effect for the 

two-year period beginning on the date of the enactment of the PlattsVan Hollen Whistleblower Protection Enhancement Act of 2011. 

* * * * * * * 

INTELLIGENCE REFORM AND TERRORISM PREVENTION 

ACT OF 2004 

* * * * * * * 

TITLE III—SECURITY CLEARANCES 

SEC. 3001. SECURITY CLEARANCES. 

(a) DEFINITIONS.—In this section: 

(1) * * * 

* * * * * * * 

(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; 

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relating to access 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. 

* * * * * * * 

(i) REVIEW OF SECURITY CLEARANCE OR ACCESS DETERMINATIONS.— 

(1) IN GENERAL.—Not later than 180 days after the date of 

enactment of the Platts-Van Hollen Whistleblower Protection 

Enhancement Act of 2011, the head of the entity selected pursuant to subsection (b) shall— 

(A) develop policies and procedures that permit, to the extent practicable, individuals who challenge in good faith a 

determination to suspend or revoke a security clearance or 

access to classified information to retain their government 

employment status while such challenge is pending; and 

(B) develop and implement 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. 

(2) LIMITATION PERIOD.—Any limitation period applicable to 

an agency appeal under paragraph (1) 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 (1) have been 

established for the agency or the Director of National Intelligence promulgates the policies and procedures under paragraph (1). The policies and procedures for appeals developed 

under paragraph (1) 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— 

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38 

(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, and occurs during the conscientious carrying out of official 

duties; or 

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

abuse of authority, or a substantial and specific danger 

to public health or safety; 

(B) any 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, and occurs during the conscientious carrying out of official 

duties; or 

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

abuse of authority, or a substantial and specific danger 

to public health or safety; 

(C) any communication that complies with— 

(i) subsection (a)(1), (d), or (h) of section 8H of the 

Inspector General Act of 1978 (5 U.S.C. App.); 

(ii) subsection (d)(5) (A), (D), or (G) of section 17 of 

the Central Intelligence Agency Act of 1949 (50 U.S.C. 

403q); or 

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(iii) subsection (k)(5) (A), (D), or (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 acmstockstill on DSK6TPTVN1PROD with HEARING

40 

cess 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 compensatory damages not 

to exceed $300,000, back pay and related benefits, and travel expenses. 

(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 

clear and convincing 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 DE- TERMINATIONS BY DIRECTOR OF NATIONAL INTELLIGENCE.— (A) DEFINITION.—In this paragraph, the term ‘‘Board’’ 

means the appellate review board established under section 

204 of the Platts-Van Hollen 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 

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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 compensatory damages not to exceed $300,000 

and back pay and related benefits. 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. 

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(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 Platts-Van Hollen 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. 

ø(i)¿ (k) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated such sums as may be necessary for fiscal 

year 2005 and each fiscal year thereafter for the implementation, 

maintenance, and operation of the database required by subsection 

(e). 

* * * * * * * 

CENTRAL INTELLIGENCE AGENCY ACT OF 1949 

* * * * * * * 

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SEC. 17. INSPECTOR GENERAL FOR THE AGENCY. 

(a) * * * 

* * * * * * * 

(d) SEMIANNUAL REPORTS; IMMEDIATE REPORTS OF SERIOUS OR

FLAGRANT PROBLEMS; REPORTS OF FUNCTIONAL PROBLEMS; RE- PORTS TO CONGRESS ON URGENT CONCERNS.—(1) * * * 

* * * * * * * 

(5)(A) * * * 

(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 recipient of the Inspector General’s submission. 

* * * * * * * 

(H) An individual who has submitted a complaint or information 

to the Inspector General under this section may notify any member 

of Congress or congressional staff member of the fact that such individual has made a submission to the Inspector General, and of the 

date on which such submission was made. 

* * * * * * * 

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(44) 

ADDITIONAL VIEWS 

The Whistleblower Protection Enhancement Act would help reduce waste, fraud, and abuse by significantly expanding the protections available to government whistleblowers. Whistleblowers play 

a critical role in exposing wrongdoing within the government. This 

bill responds to decisions by the U.S. Court of Appeals for the Federal Circuit that have limited when whistleblower disclosures are 

protected. The bill would establish a pilot program to afford whistleblower protections to civilian contractor employees, which would 

increase the accountability of federal contractors by protecting contract employees who expose fraud and other wrongdoing. 

Unfortunately, the Committee failed to adopt the amendment 

offered by Representative Braley that would have provided whistleblowers with the right to request a jury trial. Providing whistleblowers with a jury trial would provide a check on the Merit System Protection Board and would bring the Whistleblower Protection Act in line with other whistleblower and discrimination laws. 

ELIJAH E. CUMMINGS. 

Æ 

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