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[House Report 112-508]
[From the U.S. Government Printing Office]


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
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.
          (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.
          ``(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)''.

  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.
---------------------------------------------------------------------------
    \1\P.L. 101-12.
---------------------------------------------------------------------------
    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 independent 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.
---------------------------------------------------------------------------
    \2\P.L. 105-272.
---------------------------------------------------------------------------

                          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 policy decisions that lawfully 
exercise discretionary authority, unless 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.
    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.

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.

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.

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.

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.

                             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 compliance 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 administrative 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 authorize 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.
    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

           *       *       *       *       *       *       *



Sec. 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.
  [(3)] (4) Witnesses (whether appearing voluntarily or under 
subpoena) shall be paid the same fee and mileage allowances 
which are paid subpoenaed witnesses in the courts of the United 
States.

           *       *       *       *       *       *       *

  (m)(1) Except as provided in paragraph (2) of this 
subsection, the Board, or an administrative law judge or other 
employee of the Board designated to hear a case arising under 
section 1215, may require payment by the [agency involved] 
agency 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

           *       *       *       *       *       *       *


Sec. 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).

           *       *       *       *       *       *       *


Sec. 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) * * *

           *       *       *       *       *       *       *

  (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, [and any other reasonable and foreseeable 
        consequential damages.] any other reasonable and 
        foreseeable consequential damages, and compensatory 
        damages (including interest, reasonable expert witness 
        fees, and costs).
  (h) Any corrective action ordered under this section to 
correct a prohibited personnel practice may include fees, 
costs, or damages reasonably incurred due to an agency 
investigation of the employee, if such investigation was 
commenced, expanded, or extended in retaliation for the 
disclosure or protected activity that formed the basis of the 
corrective action.

Sec. 1215. Disciplinary action

  (a)(1) * * *

           *       *       *       *       *       *       *

  [(3) A final order of the Board may impose disciplinary 
action consisting of removal, reduction in grade, debarment 
from Federal employment for a period not to exceed 5 years, 
suspension, reprimand, or an assessment of a civil penalty not 
to exceed $1,000.]
  (3)(A) A final order of the Board may impose--
          (i) disciplinary action consisting of removal, 
        reduction in grade, debarment from Federal employment 
        for a period not to exceed 5 years, suspension, or 
        reprimand;
          (ii) an assessment of a civil penalty not to exceed 
        $1,000; or
          (iii) any combination of disciplinary actions 
        described under clause (i) and an assessment described 
        under clause (ii).
  (B) In any case brought under paragraph (1) in which the 
Board finds that an employee has committed a prohibited 
personnel practice under section 2302(b)(8), or 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

Sec. 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, [and any other reasonable 
        and foreseeable consequential changes.] any other 
        reasonable and foreseeable consequential damages, and 
        compensatory damages (including interest, reasonable 
        expert witness fees, and costs).

           *       *       *       *       *       *       *

  (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 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)(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 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

           *       *       *       *       *       *       *


                  CHAPTER 23--MERIT SYSTEM PRINCIPLES

Sec.
2301. Merit system principles.
     * * * * * * *
[2304. Responsibility of the Government Accountability Office.
[2305. 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.

           *       *       *       *       *       *       *


Sec. 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; [and]
                  (xi) the implementation or enforcement of any 
                nondisclosure policy, form, or agreement that 
                does not contain the statement required under 
                subsection (b)(13); and
                  [(xi)] (xii) any other significant change in 
                duties, responsibilities, or working 
                conditions;
        with respect to an employee in, or applicant for, a 
        covered position in an agency, and in the case of an 
        alleged prohibited personnel practice described in 
        subsection (b)(8), an employee or applicant for 
        employment in a Government corporation as defined in 
        section 9101 of title 31;
          (B) ``covered position'' means, with respect to any 
        personnel action, any position in the competitive 
        service, a career appointee position in the Senior 
        Executive Service, or a position in the excepted 
        service, but does not include any position which is, 
        prior to the personnel action--
                  (i) * * *
                  (ii) excluded from the coverage of this 
                section by the President based on a 
                determination by the President that it is 
                necessary and warranted by conditions of good 
                administration; [and]
          (C) ``agency'' means an Executive agency and the 
        Government Printing Office, but does not include--
                  (i) a Government corporation, except in the 
                case of an alleged prohibited personnel 
                practice described under subsection (b)(8) or 
                subsection (b)(9) (other than subparagraph 
                (A)(ii) thereof);
                  [(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]
                  (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 
                Office[.]; and
          (D) ``disclosure'' means a formal or informal 
        communication or transmission, but does not include a 
        communication concerning policy decisions that lawfully 
        exercise discretionary authority, unless the employee 
        or applicant providing the disclosure reasonably 
        believes that the disclosure evidences--
                  (i) any violation of any law, rule, or 
                regulation, 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) [a 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; [or]
                  (B) any disclosure to the Special Counsel, or 
                to the Inspector General of an agency or 
                another employee designated by the head of the 
                agency to receive such disclosures, of 
                information which the employee or applicant 
                reasonably believes evidences--
                          (i) [a violation] any violation of 
                        any law, rule, or [regulation,] 
                        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.);
          (9) take or fail to take, or threaten to take or fail 
        to take, any personnel action against any employee or 
        applicant for employment because of--
                  [(A) the exercise of any appeal, complaint, 
                or grievance right granted by any law, rule, or 
                regulation;]
                  (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; [or]
          (12) take or fail to take any other personnel action 
        if the taking of or failure to take such action 
        violates any law, rule, or regulation implementing, or 
        directly concerning, the merit system principles 
        contained in section 2301 of this title[.]; or
          (13) implement or enforce any nondisclosure policy, 
        form, or agreement, if such policy, form, or agreement 
        does not contain the following statement: ``These 
        provisions are consistent with and do not supersede, 
        conflict with, or otherwise alter the employee 
        obligations, rights, or liabilities created by 
        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.''.
[This subsection shall not be construed to authorize the 
withholding of information from the Congress or the taking of 
any personnel action against an employee who discloses 
information to the Congress.]
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 employee or applicant 
has disclosed information that evidences any violation of law, 
rule, regulation, gross mismanagement, a gross waste of funds, 
an abuse of authority, or a substantial and specific danger to 
public health or safety shall be made by determining whether a 
disinterested observer with knowledge of the essential facts 
known to or readily ascertainable by the employee 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.

           *       *       *       *       *       *       *


Sec. 2303a. Prohibited personnel practices in the intelligence 
                    community

  (a) Definitions.--In this section--
          (1) the term ``agency'' means an executive department 
        or independent establishment, as defined under sections 
        101 and 104, that contains an intelligence community 
        element, except the Federal Bureau of Investigation;
          (2) the term ``intelligence community element''--
                  (A) means--
                          (i) the Central Intelligence Agency, 
                        the Defense Intelligence Agency, the 
                        National Geospatial-Intelligence 
                        Agency, the National Security Agency, 
                        the Office of the Director of National 
                        Intelligence, and the National 
                        Reconnaissance Office; and
                          (ii) any executive agency or unit 
                        thereof determined by the President 
                        under section 2302(a)(2)(C)(ii) 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.

Sec. 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.

Sec. [2304.]  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.

Sec. [2305.]  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

           *       *       *       *       *       *       *


Sec. 7703. Judicial review of decisions of the Merit Systems Protection 
                    Board

  (a) * * *
  [(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

           *       *       *       *       *       *       *


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) * * *

           *       *       *       *       *       *       *

  [(d) Each Inspector General shall, in accordance with 
applicable laws and regulations governing the civil service--
          [(1) appoint an Assistant Inspector General for 
        Auditing who shall have the responsibility for 
        supervising the performance of auditing activities 
        relating to programs and operations of the 
        establishment, and
          [(2) appoint an Assistant Inspector General for 
        Investigations who shall have the responsibility for 
        supervising the performance of investigative activities 
        relating to such programs and operations.]
  (d)(1) Each Inspector General shall, in accordance with 
applicable laws and regulations governing the civil service--
          (A) appoint an Assistant Inspector General for 
        Auditing, who shall have the responsibility for 
        supervising the performance of auditing activities 
        relating to programs and operations of the 
        establishment;
          (B) appoint an Assistant Inspector General for 
        Investigations, who shall have the responsibility for 
        supervising the performance of investigative activities 
        relating to such programs and operations; and
          (C) designate a Whistleblower Protection Ombudsman, 
        who shall educate agency employees--
                  (i) about prohibitions on retaliation for 
                protected disclosures; and
                  (ii) who have made or are contemplating 
                making a protected disclosure about the rights 
                and remedies against retaliation for protected 
                disclosures.
  (2) The Whistleblower Protection Ombudsman shall not act as a 
legal representative, agent, or advocate of the employee or 
former employee.
  (3) For the purposes of this section, the requirement of the 
designation of a Whistleblower Protection Ombudsman under 
paragraph (1)(C) shall not apply to--
          (A) any agency that is an element of the intelligence 
        community (as defined in section 3(4) of the National 
        Security Act of 1947 (50 U.S.C. 401a(4))); or
          (B) as determined by the President, any executive 
        agency or unit thereof the principal function of which 
        is the conduct of foreign intelligence or counter 
        intelligence activities.

           *       *       *       *       *       *       *


      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 [section 
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 [section 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 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 [intelligence committees] appropriate 
committees, together with any comments the head of the 
establishment considers appropriate.
  (d)(1) If the Inspector General does not find credible under 
subsection (b) a complaint or information submitted to the 
Inspector General under subsection (a), or does not transmit 
the complaint or information to the head of the establishment 
in accurate form under subsection (b), the employee (subject to 
paragraph (2)) may submit the complaint or information to 
Congress by contacting [either or both of the intelligence 
committees] any of the appropriate committees directly.
  (2) The employee may contact the [intelligence committees] 
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 [intelligence committees] appropriate 
        committees directly; and
          (B) obtains and follows from the head of the 
        establishment, through the Inspector General, direction 
        on how to contact the [intelligence committees] 
        appropriate committees in accordance with appropriate 
        security practices.
  (3) A member or employee of one of the [intelligence 
committees] appropriate committees who receives a complaint or 
information under paragraph (1) does so in that member or 
employee's official capacity as a member or employee of that 
committee.

           *       *       *       *       *       *       *

  (h) An individual who has submitted a complaint or 
information to an Inspector General under this section may 
notify any member of Congress or congressional staff member of 
the fact that such individual has made a submission to that 
particular Inspector General, and of the date on which such 
submission was made.
  [(h)] (i) In this section:
          (1) The term ``urgent concern'' means any of the 
        following:
                  (A) A serious or flagrant problem, abuse, 
                violation of law or Executive order, or 
                deficiency relating to the funding, 
                administration, or operations of an 
                [intelligence] activity involving classified 
                information, but does not include differences 
                of opinions concerning public policy matters.
                  (B) A false statement to Congress, or a 
                willful withholding from Congress, on an issue 
                of material fact relating to the funding, 
                administration, or operation of an intelligence 
                activity or an activity involving classified 
                information.

           *       *       *       *       *       *       *

          [(2) The term ``intelligence committees'' means the 
        Permanent Select Committee on Intelligence of the House 
        of Representatives and the Select Committee on 
        Intelligence of the Senate.]
          (2) The term ``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.

           *       *       *       *       *       *       *


Sec. 4705. Protection of contractor employees from reprisal for 
                    disclosure of certain information

  (a) * * *

           *       *       *       *       *       *       *

  (f) Two-Year Suspension of Effectiveness While Pilot Program 
in Effect.--While section 4705a of this title is in effect, 
this section shall not be in effect.

Sec. 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.
  (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 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 Platts-Van 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; 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--
                          (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
                          (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 access determination for 
                purposes of conducting an investigation, if 
                that suspension lasts not longer than 1 year 
                (or a longer period in accordance with a 
                certification made under subsection (b)(7)).
                  (B) Corrective action.--If, in the course of 
                proceedings authorized under subparagraph (A), 
                it is determined that the adverse security 
                clearance or access determination violated 
                paragraph (1) of this subsection, the agency 
                shall take specific corrective action to return 
                the employee or former employee, as nearly as 
                practicable and reasonable, to the position 
                such employee or former employee would have 
                held had the violation not occurred. Such 
                corrective action shall include reasonable 
                attorney's fees and any other reasonable costs 
                incurred, and may include 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 
        determinations by director of national intelligence.--
                  (A) Definition.--In this paragraph, the term 
                ``Board'' means the appellate review board 
                established under section 204 of the 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 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.
                          (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.
  [(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

           *       *       *       *       *       *       *


SEC. 17. INSPECTOR GENERAL FOR THE AGENCY.

  (a) * * *

           *       *       *       *       *       *       *

  (d) Semiannual Reports; Immediate Reports of Serious or 
Flagrant Problems; Reports of Functional Problems; Reports 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.

           *       *       *       *       *       *       *


                            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.

                                  
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```