In the House of Representatives, U. S., 

September 28, 2012. 

Resolved, That the bill from the Senate (S. 743) entitled 

‘‘An Act to amend chapter 23 of title 5, United States Code, 

to clarify the disclosures of information protected from prohibited personnel practices; to require a statement in nondisclosure policies, forms, and agreements that such policies, 

forms, and agreements conform with certain disclosure protections; to provide certain authority for the Special Counsel; 

and for other purposes.’’, do pass with the following 

AMENDMENT: 

Strike out all after the enacting clause and insert: 

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Whistleblower Protection 

3 Enhancement Act of 2012’’. 

4 TITLE I—PROTECTION OF CER5 TAIN DISCLOSURES OF IN6 FORMATION BY FEDERAL EM7 PLOYEES 

8 SEC. 101. CLARIFICATION OF DISCLOSURES COVERED. 

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

10 United States Code, is amended— 

11 (1) in subparagraph (A)(i), by striking ‘‘a viola12 tion’’ and inserting ‘‘any violation’’; and 
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1 (2) in subparagraph (B)(i), by striking ‘‘a viola2 tion’’ and inserting ‘‘any violation (other than a vio3 lation of this section)’’. 

4 (b) PROHIBITED PERSONNEL PRACTICES UNDER SEC5 TION 2302(b)(9).— 

6 (1) TECHNICAL AND CONFORMING AMEND7 MENTS.—Title 5, United States Code, is amended— 

8 (A) in subsections (a)(3), (b)(4)(A), and 

9 (b)(4)(B)(i) of section 1214 and in subsections 

10 (a), (e)(1), and (i) of section 1221, by inserting 

11 ‘‘or section 2302(b)(9) (A)(i), (B), (C), or (D)’’ 

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

13 and 

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

15 ‘‘or section 2302(b)(9) (A)(i), (B), (C), or (D)’’ 

16 after ‘‘(b)(8)’’. 

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

18 States Code, is amended in subsection (b)(4)(B)(i) of 

19 section 1214 and in subsection (e)(1) of section 1221 

20 by inserting ‘‘or protected activity’’ after ‘‘disclosure’’ 

21 each place it appears. 

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

23 Code, is amended— 

24 (i) by striking subparagraph (A) and in25 serting the following: 
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1 ‘‘(A) the exercise of any appeal, complaint, 

2 or grievance right granted by any law, rule, or 

3 regulation— 

4 ‘‘(i) with regard to remedying a viola5 tion of paragraph (8); or 

6 ‘‘(ii) other than with regard to rem7 edying a violation of paragraph (8);’’; and 

8 (ii) in subparagraph (B), by inserting ‘‘(i) 

9 or (ii)’’ after ‘‘subparagraph (A)’’. 

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

11 is amended by adding at the end the following: 

12 ‘‘(f)(1) A disclosure shall not be excluded from sub13 section (b)(8) because— 

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

15 to a person who participated in an activity that the 

16 employee or applicant reasonably believed to be cov17 ered by subsection (b)(8)(A)(i) and (ii); 

18 ‘‘(B) the disclosure revealed information that had 

19 been previously disclosed; 

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

21 making the disclosure; 

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

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

24 was off duty; or 
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1 ‘‘(F) of the amount of time which has passed 

2 since the occurrence of the events described in the dis3 closure. 

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

5 of duties of an employee, the disclosure shall not be excluded 

6 from subsection (b)(8) if any employee who has authority 

7 to take, direct others to take, recommend, or approve any 

8 personnel action with respect to the employee making the 

9 disclosure, took, failed to take, or threatened to take or fail 

10 to take a personnel action with respect to that employee 

11 in reprisal for the disclosure.’’. 

12 SEC. 102. DEFINITIONAL AMENDMENTS. 

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

14 amended— 

15 (1) in subparagraph (B)(ii), by striking ‘‘and’’ 

16 at the end; 

17 (2) in subparagraph (C)(iii), by striking the pe18 riod at the end and inserting ‘‘; and’’; and 

19 (3) by adding at the end the following: 

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

21 communication or transmission, but does not include 

22 a communication concerning policy decisions that 

23 lawfully exercise discretionary authority unless the 

24 employee or applicant providing the disclosure rea25 sonably believes that the disclosure evidences— 
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1 ‘‘(i) any violation of any law, rule, or regu2 lation; or 

3 ‘‘(ii) gross mismanagement, a gross waste of 

4 funds, an abuse of authority, or a substantial 

5 and specific danger to public health or safety.’’. 

6 SEC. 103. REBUTTABLE PRESUMPTION. 

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

8 amended by amending the matter following paragraph (12) 

9 to read as follows: 

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

11 withholding of information from Congress or the taking of 

12 any personnel action against an employee who discloses in13 formation to Congress. For purposes of paragraph (8), (i) 

14 any presumption relating to the performance of a duty by 

15 an employee whose conduct is the subject of a disclosure as 

16 defined under subsection (a)(2)(D) may be rebutted by sub17 stantial evidence, and (ii) a determination as to whether 

18 an employee or applicant reasonably believes that such em19 ployee or applicant has disclosed information that evidences 

20 any violation of law, rule, regulation, gross mismanage21 ment, a gross waste of funds, an abuse of authority, or a 

22 substantial and specific danger to public health or safety 

23 shall be made by determining whether a disinterested ob24 server with knowledge of the essential facts known to and 

25 readily ascertainable by the employee or applicant could 
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1 reasonably conclude that the actions of the Government evi2 dence such violations, mismanagement, waste, abuse, or 

3 danger.’’. 

4 SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PER5 SONNEL PRACTICES. 

6 (a) PERSONNEL ACTION.—Section 2302(a)(2)(A) of 

7 title 5, United States Code, is amended— 

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

9 semicolon; and 

10 (2) by redesignating clause (xi) as clause (xii) 

11 and inserting after clause (x) the following: 

12 ‘‘(xi) the implementation or enforcement of 

13 any nondisclosure policy, form, or agreement; 

14 and’’. 

15 (b) PROHIBITED PERSONNEL PRACTICE.— 

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

17 United States Code, is amended— 

18 (A) in paragraph (11), by striking ‘‘or’’ at 

19 the end; 

20 (B) in paragraph (12), by striking the pe21 riod and inserting ‘‘; or’’; and 

22 (C) by inserting after paragraph (12) the 

23 following: 

24 ‘‘(13) implement or enforce any nondisclosure 

25 policy, form, or agreement, if such policy, form, or 
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1 agreement does not contain the following statement: 

2 ‘These provisions are consistent with and do not su3 persede, conflict with, or otherwise alter the employee 

4 obligations, rights, or liabilities created by existing 

5 statute or Executive order relating to (1) classified in6 formation, (2) communications to Congress, (3) the 

7 reporting to an Inspector General of a violation of 

8 any law, rule, or regulation, or mismanagement, a 

9 gross waste of funds, an abuse of authority, or a sub10 stantial and specific danger to public health or safety, 

11 or (4) any other whistleblower protection. The defini12 tions, requirements, obligations, rights, sanctions, and 

13 liabilities created by controlling Executive orders and 

14 statutory provisions are incorporated into this agree15 ment and are controlling.’.’’. 

16 (2) AGENCY WEBSITES.—Agencies making use of 

17 any nondisclosure policy, form, or agreement shall 

18 also post the statement required under section 

19 2302(b)(13) of title 5, United States Code (as added 

20 by this Act) on the agency website, accompanied by 

21 the specific list of controlling Executive orders and 

22 statutory provisions. 

23 (3) NONDISCLOSURE POLICY, FORM, OR AGREE24 MENT IN EFFECT BEFORE THE EFFECTIVE DATE.— 

25 With respect to a nondisclosure policy, form, or agree-
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1 ment that was in effect before the effective date of this 

2 Act, but that does not contain the statement required 

3 under section 2302(b)(13) of title 5, United States 

4 Code (as added by this Act) for implementation or en5 forcement— 

6 (A) it shall not be a prohibited personnel 

7 practice to enforce that policy, form, or agree8 ment with regard to a current employee if the 

9 agency gives such employee notice of the state10 ment; and 

11 (B) it shall not be a prohibited personnel 

12 practice to enforce that policy, form, or agree13 ment after the effective date of this Act with re14 gard to a former employee if the agency complies 

15 with paragraph (2) of this subsection. 

16 (c) RETALIATORY INVESTIGATIONS.— 

17 (1) AGENCY INVESTIGATION.—Section 1214 of 

18 title 5, United States Code, is amended by adding at 

19 the end the following: 

20 ‘‘(h) Any corrective action ordered under this section 

21 to correct a prohibited personnel practice may include fees, 

22 costs, or damages reasonably incurred due to an agency in23 vestigation of the employee, if such investigation was com24 menced, expanded, or extended in retaliation for the disclo-
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1 sure or protected activity that formed the basis of the correc2 tive action.’’. 

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

4 United States Code, is amended by adding at the end 

5 the following: 

6 ‘‘(4) Any corrective action ordered under this section 

7 to correct a prohibited personnel practice may include fees, 

8 costs, or damages reasonably incurred due to an agency in9 vestigation of the employee, if such investigation was com10 menced, expanded, or extended in retaliation for the disclo11 sure or protected activity that formed the basis of the correc12 tive action.’’. 

13 SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT. 

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

15 is amended by striking clause (ii) and inserting the fol16 lowing: 

17 ‘‘(ii)(I) the Federal Bureau of Inves18 tigation, the Central Intelligence Agency, 

19 the Defense Intelligence Agency, the Na20 tional Geospatial-Intelligence Agency, the 

21 National Security Agency, the Office of the 

22 Director of National Intelligence, and the 

23 National Reconnaissance Office; and 

24 ‘‘(II) as determined by the President, 

25 any Executive agency or unit thereof the 
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1 principal function of which is the conduct 

2 of foreign intelligence or counterintelligence 

3 activities, provided that the determination 

4 be made prior to a personnel action; or’’. 

5 SEC. 106. DISCIPLINARY ACTION. 

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

7 amended to read as follows: 

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

9 ‘‘(i) disciplinary action consisting of removal, 

10 reduction in grade, debarment from Federal employ11 ment for a period not to exceed 5 years, suspension, 

12 or reprimand; 

13 ‘‘(ii) an assessment of a civil penalty not to ex14 ceed $1,000; or 

15 ‘‘(iii) any combination of disciplinary actions 

16 described under clause (i) and an assessment de17 scribed under clause (ii). 

18 ‘‘(B) In any case brought under paragraph (1) in 

19 which the Board finds that an employee has committed a 

20 prohibited personnel practice under section 2302(b)(8), or 

21 2302(b)(9) (A)(i), (B), (C), or (D), the Board may impose 

22 disciplinary action if the Board finds that the activity pro23 tected under section 2302(b)(8), or 2302(b)(9) (A)(i), (B), 

24 (C), or (D) was a significant motivating factor, even if 

25 other factors also motivated the decision, for the employee’s 
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1 decision to take, fail to take, or threaten to take or fail to 

2 take a personnel action, unless that employee demonstrates, 

3 by a preponderance of the evidence, that the employee would 

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

5 take the same personnel action, in the absence of such pro6 tected activity.’’. 

7 SEC. 107. REMEDIES. 

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

9 United States Code, is amended by striking ‘‘agency in10 volved’’ and inserting ‘‘agency where the prevailing party 

11 was employed or had applied for employment at the time 

12 of the events giving rise to the case’’. 

13 (b) DAMAGES.—Sections 1214(g)(2) and 

14 1221(g)(1)(A)(ii) of title 5, United States Code, are amend15 ed by striking all after ‘‘travel expenses,’’ and inserting 

16 ‘‘any other reasonable and foreseeable consequential dam17 ages, and compensatory damages (including interest, rea18 sonable expert witness fees, and costs).’’ each place it ap19 pears. 

20 SEC. 108. JUDICIAL REVIEW. 

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

22 States Code, is amended by striking the matter preceding 

23 paragraph (2) and inserting the following: 

24 ‘‘(b)(1)(A) Except as provided in subparagraph (B) 

25 and paragraph (2) of this subsection, a petition to review 
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1 a final order or final decision of the Board shall be filed 

2 in the United States Court of Appeals for the Federal Cir3 cuit. Notwithstanding any other provision of law, any peti4 tion for review shall be filed within 60 days after the Board 

5 issues notice of the final order or decision of the Board. 

6 ‘‘(B) During the 2-year period beginning on the effec7 tive date of the Whistleblower Protection Enhancement Act 

8 of 2012, a petition to review a final order or final decision 

9 of the Board that raises no challenge to the Board’s disposi10 tion of allegations of a prohibited personnel practice de11 scribed in section 2302(b) other than practices described in 

12 section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) 

13 shall be filed in the United States Court of Appeals for the 

14 Federal Circuit or any court of appeals of competent juris15 diction. Notwithstanding any other provision of law, any 

16 petition for review shall be filed within 60 days after the 

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

18 Board.’’. 

19 (b) REVIEW OBTAINED BY OFFICE OF PERSONNEL

20 MANAGEMENT.—Section 7703(d) of title 5, United States 

21 Code, is amended to read as follows: 

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

23 paragraph shall apply to any review obtained by the Direc24 tor of the Office of Personnel Management. The Director 

25 may obtain review of any final order or decision of the 
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1 Board by filing, within 60 days after the Board issues no2 tice of the final order or decision of the Board, a petition 

3 for judicial review in the United States Court of Appeals 

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

5 discretion of the Director, that the Board erred in inter6 preting a civil service law, rule, or regulation affecting per7 sonnel management and that the Board’s decision will have 

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

9 or policy directive. If the Director did not intervene in a 

10 matter before the Board, the Director may not petition for 

11 review of a Board decision under this section unless the Di12 rector first petitions the Board for a reconsideration of its 

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

14 named respondent, the Board and all other parties to the 

15 proceedings before the Board shall have the right to appear 

16 in the proceeding before the Court of Appeals. The granting 

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

18 of the Court of Appeals. 

19 ‘‘(2) During the 2-year period beginning on the effec20 tive date of the Whistleblower Protection Enhancement Act 

21 of 2012, this paragraph shall apply to any review obtained 

22 by the Director of the Office of Personnel Management that 

23 raises no challenge to the Board’s disposition of allegations 

24 of a prohibited personnel practice described in section 

25 2302(b) other than practices described in section 2302(b)(8), 
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1 or 2302(b)(9) (A)(i), (B), (C), or (D). The Director may 

2 obtain review of any final order or decision of the Board 

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

4 the final order or decision of the Board, a petition for judi5 cial review in the United States Court of Appeals for the 

6 Federal Circuit or any court of appeals of competent juris7 diction if the Director determines, in the discretion of the 

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

9 law, rule, or regulation affecting personnel management 

10 and that the Board’s decision will have a substantial im11 pact on a civil service law, rule, regulation, or policy direc12 tive. If the Director did not intervene in a matter before 

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

14 Board decision under this section unless the Director first 

15 petitions the Board for a reconsideration of its decision, and 

16 such petition is denied. In addition to the named respond17 ent, the Board and all other parties to the proceedings before 

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

19 before the court of appeals. The granting of the petition for 

20 judicial review shall be at the discretion of the court of ap21 peals.’’. 
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1 SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING 

2 THE TRANSPORTATION SECURITY ADMINIS3 TRATION. 

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

5 Code, is amended— 

6 (1) by redesignating sections 2304 and 2305 as 

7 sections 2305 and 2306, respectively; and 

8 (2) by inserting after section 2303 the following: 

9 ‘‘§ 2304. Prohibited personnel practices affecting the 

10 Transportation Security Administration 

11 ‘‘(a) IN GENERAL.—Notwithstanding any other provi12 sion of law, any individual holding or applying for a posi13 tion within the Transportation Security Administration 

14 shall be covered by— 

15 ‘‘(1) the provisions of section 2302(b) (1), (8), 

16 and (9); 

17 ‘‘(2) any provision of law implementing section 

18 2302(b) (1), (8), or (9) by providing any right or 

19 remedy available to an employee or applicant for em20 ployment in the civil service; and 

21 ‘‘(3) any rule or regulation prescribed under any 

22 provision of law referred to in paragraph (1) or (2). 

23 ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sec24 tion shall be construed to affect any rights, apart from those 

25 described in subsection (a), to which an individual de-
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1 scribed in subsection (a) might otherwise be entitled under 

2 law.’’. 

3 (b) TECHNICAL AND CONFORMING AMENDMENT.—The 

4 table of sections for chapter 23 of title 5, United States 

5 Code, is amended by striking the items relating to sections 

6 2304 and 2305, respectively, and inserting the following: 

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

‘‘2305. Responsibility of the Government Accountability Office. 

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

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

8 section shall take effect on the date of enactment of this sec9 tion. 

10 SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RE11 SEARCH, ANALYSIS, OR TECHNICAL INFORMA12 TION. 

13 (a) DEFINITIONS.—In this subsection— 

14 (1) the term ‘‘agency’’ has the meaning given 

15 under section 2302(a)(2)(C) of title 5, United States 

16 Code; 

17 (2) the term ‘‘applicant’’ means an applicant for 

18 a covered position; 

19 (3) the term ‘‘censorship related to research, 

20 analysis, or technical information’’ means any effort 

21 to distort, misrepresent, or suppress research, anal22 ysis, or technical information; 
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1 (4) the term ‘‘covered position’’ has the meaning 

2 given under section 2302(a)(2)(B) of title 5, United 

3 States Code; 

4 (5) the term ‘‘employee’’ means an employee in 

5 a covered position in an agency; and 

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

7 under section 2302(a)(2)(D) of title 5, United States 

8 Code. 

9 (b) PROTECTED DISCLOSURE.— 

10 (1) IN GENERAL.—Any disclosure of information 

11 by an employee or applicant for employment that the 

12 employee or applicant reasonably believes is evidence 

13 of censorship related to research, analysis, or tech14 nical information— 

15 (A) shall come within the protections of sec16 tion 2302(b)(8)(A) of title 5, United States Code, 

17 if— 

18 (i) the employee or applicant reason19 ably believes that the censorship related to 

20 research, analysis, or technical information 

21 is or will cause— 

22 (I) any violation of law, rule, or 

23 regulation; or 

24 (II) gross mismanagement, a gross 

25 waste of funds, an abuse of authority, 
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1 or a substantial and specific danger to 

2 public health or safety; and 

3 (ii) such disclosure is not specifically 

4 prohibited by law or such information is 

5 not specifically required by Executive order 

6 to be kept classified in the interest of na7 tional defense or the conduct of foreign af8 fairs; and 

9 (B) shall come within the protections of sec10 tion 2302(b)(8)(B) of title 5, United States Code, 

11 if— 

12 (i) the employee or applicant reason13 ably believes that the censorship related to 

14 research, analysis, or technical information 

15 is or will cause— 

16 (I) any violation of law, rule, or 

17 regulation; or 

18 (II) gross mismanagement, a gross 

19 waste of funds, an abuse of authority, 

20 or a substantial and specific danger to 

21 public health or safety; and 

22 (ii) the disclosure is made to the Spe23 cial Counsel, or to the Inspector General of 

24 an agency or another person designated by 

25 the head of the agency to receive such disclo-
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1 sures, consistent with the protection of 

2 sources and methods. 

3 (2) DISCLOSURES NOT EXCLUDED.—A disclosure 

4 shall not be excluded from paragraph (1) for any rea5 son described under section 2302(f)(1) or (2) of title 

6 5, United States Code. 

7 (3) RULE OF CONSTRUCTION.—Nothing in this 

8 section shall be construed to imply any limitation on 

9 the protections of employees and applicants afforded 

10 by any other provision of law, including protections 

11 with respect to any disclosure of information believed 

12 to be evidence of censorship related to research, anal13 ysis, or technical information. 

14 SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR 

15 CRITICAL INFRASTRUCTURE INFORMATION. 

16 Section 214(c) of the Homeland Security Act of 2002 

17 (6 U.S.C. 133(c)) is amended by adding at the end the fol18 lowing: ‘‘For purposes of this section a permissible use of 

19 independently obtained information includes the disclosure 

20 of such information under section 2302(b)(8) of title 5, 

21 United States Code.’’. 

22 SEC. 112. ADVISING EMPLOYEES OF RIGHTS. 

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

24 amended by inserting ‘‘, including how to make a lawful 

25 disclosure of information that is specifically required by 
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1 law or Executive order to be kept classified in the interest 

2 of national defense or the conduct of foreign affairs to the 

3 Special Counsel, the Inspector General of an agency, Con4 gress, or other agency employee designated to receive such 

5 disclosures’’ after ‘‘chapter 12 of this title’’. 

6 SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE. 

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

8 by adding at the end the following: 

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

10 as amicus curiae in any action brought in a court of the 

11 United States related to section 2302(b) (8) or (9), or as 

12 otherwise authorized by law. In any such action, the Spe13 cial Counsel is authorized to present the views of the Special 

14 Counsel with respect to compliance with section 2302(b) (8) 

15 or (9) and the impact court decisions would have on the 

16 enforcement of such provisions of law. 

17 ‘‘(2) A court of the United States shall grant the appli18 cation of the Special Counsel to appear in any such action 

19 for the purposes described under subsection (a).’’. 

20 SEC. 114. SCOPE OF DUE PROCESS. 

21 (a) SPECIAL COUNSEL.—Section 1214(b)(4)(B)(ii) of 

22 title 5, United States Code, is amended by inserting ‘‘, after 

23 a finding that a protected disclosure was a contributing fac24 tor,’’ after ‘‘ordered if’’. 
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1 (b) INDIVIDUAL ACTION.—Section 1221(e)(2) of title 5, 

2 United States Code, is amended by inserting ‘‘, after a find3 ing that a protected disclosure was a contributing factor,’’ 

4 after ‘‘ordered if’’. 

5 SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREE6 MENTS. 

7 (a) IN GENERAL.— 

8 (1) REQUIREMENT.—Each agreement in Stand9 ard Forms 312 and 4414 of the Government and any 

10 other nondisclosure policy, form, or agreement of the 

11 Government shall contain the following statement: 

12 ‘‘These provisions are consistent with and do not su13 persede, conflict with, or otherwise alter the employee 

14 obligations, rights, or liabilities created by existing 

15 statute or Executive order relating to (1) classified in16 formation, (2) communications to Congress, (3) the 

17 reporting to an Inspector General of a violation of 

18 any law, rule, or regulation, or mismanagement, a 

19 gross waste of funds, an abuse of authority, or a sub20 stantial and specific danger to public health or safety, 

21 or (4) any other whistleblower protection. The defini22 tions, requirements, obligations, rights, sanctions, and 

23 liabilities created by controlling Executive orders and 

24 statutory provisions are incorporated into this agree25 ment and are controlling.’’. 
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1 (2) AGENCY WEBSITES.—Agencies making use of 

2 any nondisclosure policy, form, or agreement shall 

3 also post the statement required under paragraph (1) 

4 on the agency website, accompanied by the specific 

5 list of controlling Executive orders and statutory pro6 visions. 

7 (3) ENFORCEABILITY.— 

8 (A) IN GENERAL.—Any nondisclosure pol9 icy, form, or agreement described under para10 graph (1) that does not contain the statement re11 quired under paragraph (1) may not be imple12 mented or enforced to the extent such policy, 

13 form, or agreement is inconsistent with that 

14 statement. 

15 (B) NONDISCLOSURE POLICY, FORM, OR

16 AGREEMENT IN EFFECT BEFORE THE EFFECTIVE

17 DATE.—With respect to a nondisclosure policy, 

18 form, or agreement that was in effect before the 

19 effective date of this Act, but that does not con20 tain the statement required under paragraph (1) 

21 for implementation or enforcement— 

22 (i) it shall not be a prohibited per23 sonnel practice to enforce that policy, form, 

24 or agreement with regard to a current em-
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1 ployee if the agency gives such employee no2 tice of the statement; and 

3 (ii) it shall not be a prohibited per4 sonnel practice to enforce that policy, form, 

5 or agreement after the effective date of this 

6 Act with regard to a former employee if the 

7 agency complies with paragraph (2). 

8 (b) PERSONS OTHER THAN GOVERNMENT EMPLOY9 EES.—Notwithstanding subsection (a), a nondisclosure pol10 icy, form, or agreement that is to be executed by a person 

11 connected with the conduct of an intelligence or intelligence12 related activity, other than an employee or officer of the 

13 United States Government, may contain provisions appro14 priate to the particular activity for which such document 

15 is to be used. Such policy, form, or agreement shall, at a 

16 minimum, require that the person will not disclose any 

17 classified information received in the course of such activity 

18 unless specifically authorized to do so by the United States 

19 Government. Such nondisclosure policy, form, or agreement 

20 shall also make it clear that such forms do not bar disclo21 sures to Congress or to an authorized official of an executive 

22 agency or the Department of Justice that are essential to 

23 reporting a substantial violation of law, consistent with the 

24 protection of sources and methods. 
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1 SEC. 116. REPORTING REQUIREMENTS. 

2 (a) GOVERNMENT ACCOUNTABILITY OFFICE.— 

3 (1) REPORT.—Not later than 4 years after the 

4 date of enactment of this Act, the Comptroller General 

5 shall submit a report to the Committee on Homeland 

6 Security and Governmental Affairs of the Senate and 

7 the Committee on Oversight and Government Reform 

8 of the House of Representatives on the implementa9 tion of this title. 

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

11 shall include— 

12 (A) an analysis of any changes in the num13 ber of cases filed with the Merit Systems Protec14 tion Board alleging violations of section 

15 2302(b)(8) or (9) of title 5, United States Code, 

16 since the effective date of this Act; 

17 (B) the outcome of the cases described under 

18 subparagraph (A), including whether or not the 

19 Merit Systems Protection Board, the United 

20 States Court of Appeals for the Federal Circuit, 

21 or any other court determined the allegations to 

22 be frivolous or malicious as well as a rec23 ommendation whether Congress should grant the 

24 Merit Systems Protection Board summary judg25 ment authority for cases described under sub26 paragraph (A); 
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1 (C) a recommendation regarding whether 

2 Congress should grant jurisdiction for some sub3 set of cases described under subparagraph (A) to 

4 be decided by a district court of the United 

5 States and an evaluation of the impact that 

6 would have on the Merit Systems Protection 

7 Board and the Federal court system; and 

8 (D) any other matter as determined by the 

9 Comptroller General. 

10 (b) MERIT SYSTEMS PROTECTION BOARD.— 

11 (1) IN GENERAL.—Each report submitted annu12 ally by the Merit Systems Protection Board under 

13 section 1116 of title 31, United States Code, shall, 

14 with respect to the period covered by such report, in15 clude as an addendum the following: 

16 (A) Information relating to the outcome of 

17 cases decided by the Merit Systems Protection 

18 Board during the period covered by such report 

19 in which violations of section 2302(b)(8) or 

20 (9)(A)(i), (B)(i), (C), or (D) of title 5, United 

21 States Code, were alleged. 

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

23 regional and field offices, and the number of pe24 titions for review filed in such cases, during the 

25 period covered by such report, and the outcomes 
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1 of any such cases or petitions for review (irre2 spective of when filed) decided during such pe3 riod. 

4 (2) FIRST REPORT.—The first report described 

5 under paragraph (1) submitted after the date of en6 actment of this Act shall include an addendum re7 quired under that paragraph that covers the period 

8 beginning on the effective date of this Act and ending 

9 at the end of the fiscal year in which such effective 

10 date occurs. 

11 SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN. 

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

13 Act of 1978 (5 U.S.C. App.) is amended by striking sub14 section (d) and inserting the following: 

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

16 with applicable laws and regulations governing the civil 

17 service— 

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

19 Auditing who shall have the responsibility for super20 vising the performance of auditing activities relating 

21 to programs and operations of the establishment; 

22 ‘‘(B) appoint an Assistant Inspector General for 

23 Investigations who shall have the responsibility for 

24 supervising the performance of investigative activities 

25 relating to such programs and operations; and 
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1 ‘‘(C) designate a Whistleblower Protection Om2 budsman who shall educate agency employees— 

3 ‘‘(i) about prohibitions on retaliation for 

4 protected disclosures; and 

5 ‘‘(ii) who have made or are contemplating 

6 making a protected disclosure about the rights 

7 and remedies against retaliation for protected 

8 disclosures. 

9 ‘‘(2) The Whistleblower Protection Ombudsman shall 

10 not act as a legal representative, agent, or advocate of the 

11 employee or former employee. 

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

13 of the designation of a Whistleblower Protection Ombuds14 man under paragraph (1)(C) shall not apply to— 

15 ‘‘(A) any agency that is an element of the intel16 ligence community (as defined in section 3(4) of the 

17 National Security Act of 1947 (50 U.S.C. 401a(4))); 

18 or 

19 ‘‘(B) as determined by the President, any execu20 tive agency or unit thereof the principal function of 

21 which is the conduct of foreign intelligence or counter 

22 intelligence activities.’’. 

23 (b) TECHNICAL AND CONFORMING AMENDMENT.—Sec24 tion 8D(j) of the Inspector General Act of 1978 (5 U.S.C. 

25 App.) is amended— 
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1 (1) by striking ‘‘section 3(d)(1)’’ and inserting 

2 ‘‘section 3(d)(1)(A)’’; and 

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

4 ‘‘section 3(d)(1)(B)’’. 

5 (c) SUNSET.— 

6 (1) IN GENERAL.—The amendments made by 

7 this section shall cease to have effect on the date that 

8 is 5 years after the date of enactment of this Act. 

9 (2) RETURN TO PRIOR AUTHORITY.—Upon the 

10 date described in paragraph (1), section 3(d) and sec11 tion 8D(j) of the Inspector General Act of 1978 (5 

12 U.S.C. App.) shall read as such sections read on the 

13 day before the date of enactment of this Act. 

14 TITLE II—SAVINGS CLAUSE; 

15 EFFECTIVE DATE 

16 SEC. 201. SAVINGS CLAUSE. 

17 Nothing in this Act shall be construed to imply any 

18 limitation on any protections afforded by any other provi19 sion of law to employees and applicants. 
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1 SEC. 202. EFFECTIVE DATE. 

2 Except as otherwise provided in section 109, this Act 

3 shall take effect 30 days after the date of enactment of this 

4 Act. 

Attest: 

Clerk. 
112TH CONGRESS 

2D SESSION S. 743 

AMENDMENT