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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 743 Engrossed Amendment House (EAH)]

                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:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Whistleblower Protection Enhancement 
Act of 2012''.

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

SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.

    (a) In General.--Section 2302(b)(8) of title 5, United States Code, 
is amended--
            (1) in subparagraph (A)(i), by striking ``a violation'' and 
        inserting ``any violation''; and
            (2) in subparagraph (B)(i), by striking ``a violation'' and 
        inserting ``any violation (other than a violation of this 
        section)''.
    (b) Prohibited Personnel Practices Under Section 2302(b)(9).--
            (1) Technical and conforming amendments.--Title 5, United 
        States Code, is amended--
                    (A) in subsections (a)(3), (b)(4)(A), and 
                (b)(4)(B)(i) of section 1214 and in subsections (a), 
                (e)(1), and (i) of section 1221, by inserting ``or 
                section 2302(b)(9) (A)(i), (B), (C), or (D)'' after 
                ``section 2302(b)(8)'' each place it appears; and
                    (B) in section 2302(a)(2)(C)(i), by inserting ``or 
                section 2302(b)(9) (A)(i), (B), (C), or (D)'' after 
                ``(b)(8)''.
            (2) Other references.--(A) Title 5, United States Code, is 
        amended in subsection (b)(4)(B)(i) of section 1214 and in 
        subsection (e)(1) of section 1221 by inserting ``or protected 
        activity'' after ``disclosure'' each place it appears.
            (B) Section 2302(b)(9) of title 5, United States Code, is 
        amended--
                    (i) by striking subparagraph (A) and inserting the 
                following:
                    ``(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
                            ``(ii) other than with regard to remedying 
                        a violation of paragraph (8);''; and
                    (ii) in subparagraph (B), by inserting ``(i) or 
                (ii)'' after ``subparagraph (A)''.
            (C) Section 2302 of title 5, United States Code, is amended 
        by adding at the end the following:
    ``(f)(1) A disclosure shall not be excluded from subsection (b)(8) 
because--
            ``(A) the disclosure was made to a supervisor or to a 
        person who participated in an activity that the employee or 
        applicant reasonably believed to be covered by subsection 
        (b)(8)(A)(i) and (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. 102. DEFINITIONAL AMENDMENTS.

    Section 2302(a)(2) of title 5, United States Code, is amended--
            (1) in subparagraph (B)(ii), by striking ``and'' at the 
        end;
            (2) in subparagraph (C)(iii), by striking the period at the 
        end and inserting ``; and''; and
            (3) by adding at the end the following:
            ``(D) `disclosure' means a formal or informal communication 
        or transmission, but does not include a communication 
        concerning policy decisions that lawfully exercise 
        discretionary authority unless the employee or applicant 
        providing the disclosure reasonably believes that the 
        disclosure evidences--
                    ``(i) any violation of any law, rule, or 
                regulation; or
                    ``(ii) gross mismanagement, a gross waste of funds, 
                an abuse of authority, or a substantial and specific 
                danger to public health or safety.''.

SEC. 103. REBUTTABLE PRESUMPTION.

    Section 2302(b) of title 5, United States Code, is amended by 
amending the matter following paragraph (12) to read as follows:
``This subsection shall not be construed to authorize the withholding 
of information from Congress or the taking of any personnel action 
against an employee who discloses information to Congress. For purposes 
of paragraph (8), (i) any presumption relating to the performance of a 
duty by an employee whose conduct is the subject of a disclosure as 
defined under subsection (a)(2)(D) may be rebutted by substantial 
evidence, and (ii) a determination as to whether an employee or 
applicant reasonably believes that such employee or applicant has 
disclosed information that evidences any violation of law, rule, 
regulation, gross mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to public health or 
safety shall be made by determining whether a disinterested observer 
with knowledge of the essential facts known to and readily 
ascertainable by the employee or applicant could reasonably conclude 
that the actions of the Government evidence such violations, 
mismanagement, waste, abuse, or danger.''.

SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL PRACTICES.

    (a) Personnel Action.--Section 2302(a)(2)(A) of title 5, United 
States Code, is amended--
            (1) in clause (x), by striking ``and'' after the semicolon; 
        and
            (2) by redesignating clause (xi) as clause (xii) and 
        inserting after clause (x) the following:
                    ``(xi) the implementation or enforcement of any 
                nondisclosure policy, form, or agreement; and''.
    (b) Prohibited Personnel Practice.--
            (1) In general.--Section 2302(b) of title 5, United States 
        Code, is amended--
                    (A) in paragraph (11), by striking ``or'' at the 
                end;
                    (B) in paragraph (12), by striking the period and 
                inserting ``; or''; and
                    (C) by inserting after paragraph (12) the 
                following:
            ``(13) implement or enforce any nondisclosure policy, form, 
        or agreement, if such policy, form, or agreement does not 
        contain the following statement: `These provisions are 
        consistent with and do not supersede, conflict with, or 
        otherwise alter the employee obligations, rights, or 
        liabilities created by existing statute or Executive order 
        relating to (1) classified information, (2) communications to 
        Congress, (3) the reporting to an Inspector General of a 
        violation of any law, rule, or regulation, or mismanagement, a 
        gross waste of funds, an abuse of authority, or a substantial 
        and specific danger to public health or safety, or (4) any 
        other whistleblower protection. The definitions, requirements, 
        obligations, rights, sanctions, and liabilities created by 
        controlling Executive orders and statutory provisions are 
        incorporated into this agreement and are controlling.'.''.
            (2) Agency websites.--Agencies making use of any 
        nondisclosure policy, form, or agreement shall also post the 
        statement required under section 2302(b)(13) of title 5, United 
        States Code (as added by this Act) on the agency website, 
        accompanied by the specific list of controlling Executive 
        orders and statutory provisions.
            (3) Nondisclosure policy, form, or agreement in effect 
        before the effective date.--With respect to a nondisclosure 
        policy, form, or agreement that was in effect before the 
        effective date of this Act, but that does not contain the 
        statement required under section 2302(b)(13) of title 5, United 
        States Code (as added by this Act) for implementation or 
        enforcement--
                    (A) it shall not be a prohibited personnel practice 
                to enforce that policy, form, or agreement with regard 
                to a current employee if the agency gives such employee 
                notice of the statement; and
                    (B) it shall not be a prohibited personnel practice 
                to enforce that policy, form, or agreement after the 
                effective date of this Act with regard to a former 
                employee if the agency complies with paragraph (2) of 
                this subsection.
    (c) Retaliatory Investigations.--
            (1) Agency investigation.--Section 1214 of title 5, United 
        States Code, is amended by adding at the end the following:
    ``(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.''.
            (2) Damages.--Section 1221(g) of title 5, United States 
        Code, is amended by adding at the end the following:
    ``(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.''.

SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.

    Section 2302(a)(2)(C) of title 5, United States Code, is amended by 
striking clause (ii) and inserting the following:
                            ``(ii)(I) the Federal Bureau of 
                        Investigation, the Central Intelligence Agency, 
                        the Defense Intelligence Agency, the National 
                        Geospatial-Intelligence Agency, the National 
                        Security Agency, the Office of the Director of 
                        National Intelligence, and the National 
                        Reconnaissance Office; and
                            ``(II) as determined by the President, any 
                        Executive agency or unit thereof the principal 
                        function of which is the conduct of foreign 
                        intelligence or counterintelligence activities, 
                        provided that the determination be made prior 
                        to a personnel action; or''.

SEC. 106. DISCIPLINARY ACTION.

    Section 1215(a)(3) of title 5, United States Code, is amended to 
read as follows:
    ``(3)(A) A final order of the Board may impose--
            ``(i) disciplinary action consisting of removal, reduction 
        in grade, debarment from Federal employment for a period not to 
        exceed 5 years, suspension, or reprimand;
            ``(ii) an assessment of a civil penalty not to exceed 
        $1,000; or
            ``(iii) any combination of disciplinary actions described 
        under clause (i) and an assessment described under clause (ii).
    ``(B) In any case brought under paragraph (1) in which the Board 
finds that an employee has committed a prohibited personnel practice 
under section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D), the 
Board may impose disciplinary action if the Board finds that the 
activity protected under section 2302(b)(8), or 2302(b)(9) (A)(i), (B), 
(C), or (D) was a significant motivating factor, even if other factors 
also motivated the decision, for the employee's decision to take, fail 
to take, or threaten to take or fail to take a personnel action, unless 
that employee demonstrates, by 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.''.

SEC. 107. REMEDIES.

    (a) Attorney Fees.--Section 1204(m)(1) of title 5, United States 
Code, is amended by striking ``agency involved'' and inserting ``agency 
where the prevailing party was employed or had applied for employment 
at the time of the events giving rise to the case''.
    (b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 5, 
United States Code, are amended by striking all after ``travel 
expenses,'' and inserting ``any other reasonable and foreseeable 
consequential damages, and compensatory damages (including interest, 
reasonable expert witness fees, and costs).'' each place it appears.

SEC. 108. JUDICIAL REVIEW.

    (a) In General.--Section 7703(b) of title 5, United States Code, is 
amended by striking the matter preceding paragraph (2) and inserting 
the following:
    ``(b)(1)(A) Except as provided in subparagraph (B) and paragraph 
(2) of this subsection, a petition to review a final order or final 
decision of the Board shall be filed in the United States Court of 
Appeals for the Federal Circuit. Notwithstanding any other provision of 
law, any petition for review shall be filed within 60 days after the 
Board issues notice of the final order or decision of the Board.
    ``(B) During the 2-year period beginning on the effective date of 
the Whistleblower Protection Enhancement Act of 2012, a petition to 
review a final order or final decision of the Board that raises no 
challenge to the Board's disposition of allegations of a prohibited 
personnel practice described in section 2302(b) other than practices 
described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) 
shall be filed in the United States Court of Appeals for the Federal 
Circuit or any court of appeals of competent jurisdiction. 
Notwithstanding any other provision of law, any petition for review 
shall be filed within 60 days after the Board issues notice of the 
final order or decision of the Board.''.
    (b) Review Obtained by Office of Personnel Management.--Section 
7703(d) of title 5, United States Code, is amended to read as follows:
    ``(d)(1) Except as provided under paragraph (2), this paragraph 
shall apply to any review obtained by the Director of the Office of 
Personnel Management. The Director may obtain review of any final order 
or decision of the Board by filing, within 60 days after the Board 
issues notice of the final order or decision of the Board, a petition 
for judicial review in the United States Court of Appeals for the 
Federal Circuit if the Director determines, in the discretion of the 
Director, that the Board erred in interpreting a civil service law, 
rule, or regulation affecting personnel management and that the Board's 
decision will have a substantial impact on a civil service law, rule, 
regulation, or policy directive. If the Director did not intervene in a 
matter before the Board, the Director may not petition for review of a 
Board decision under this section unless the Director first petitions 
the Board for a reconsideration of its decision, and such petition is 
denied. In addition to the named respondent, the Board and all other 
parties to the proceedings before the Board shall have the right to 
appear in the proceeding before the Court of Appeals. The granting of 
the petition for judicial review shall be at the discretion of the 
Court of Appeals.
    ``(2) During the 2-year period beginning on the effective date of 
the Whistleblower Protection Enhancement Act of 2012, this paragraph 
shall apply to any review obtained by the Director of the Office of 
Personnel Management that raises no challenge to the Board's 
disposition of allegations of a prohibited personnel practice described 
in section 2302(b) other than practices described in section 
2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). The Director may 
obtain review of any final order or decision of the Board by filing, 
within 60 days after the Board issues notice of the final order or 
decision of the Board, a petition for judicial review in the United 
States Court of Appeals for the Federal Circuit or any court of appeals 
of competent jurisdiction if the Director determines, in the discretion 
of the Director, that the Board erred in interpreting a civil service 
law, rule, or regulation affecting personnel management and that the 
Board's decision will have a substantial impact on a civil service law, 
rule, regulation, or policy directive. If the Director did not 
intervene in a matter before the Board, the Director may not petition 
for review of a Board decision under this section unless the Director 
first petitions the Board for a reconsideration of its decision, and 
such petition is denied. In addition to the named respondent, the Board 
and all other parties to the proceedings before the Board shall have 
the right to appear in the proceeding before the court of appeals. The 
granting of the petition for judicial review shall be at the discretion 
of the court of appeals.''.

SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION 
              SECURITY ADMINISTRATION.

    (a) In General.--Chapter 23 of title 5, United States Code, is 
amended--
            (1) by redesignating sections 2304 and 2305 as sections 
        2305 and 2306, respectively; and
            (2) by inserting after section 2303 the following:
``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 section 2302(b) (1), (8), and (9);
            ``(2) any provision of law implementing section 2302(b) 
        (1), (8), or (9) by providing any right or remedy available to 
        an employee or applicant for employment in the civil service; 
        and
            ``(3) any rule or regulation prescribed under any provision 
        of law referred to in paragraph (1) or (2).
    ``(b) Rule of Construction.--Nothing in this section shall be 
construed to affect any rights, apart from those described in 
subsection (a), to which an individual described in subsection (a) 
might otherwise be entitled under law.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 23 of title 5, United States Code, is amended by striking the 
items relating to sections 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.''.
    (c) Effective Date.--The amendments made by this section shall take 
effect on the date of enactment of this section.

SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR 
              TECHNICAL INFORMATION.

    (a) Definitions.--In this subsection--
            (1) the term ``agency'' has the meaning given under section 
        2302(a)(2)(C) of title 5, United States Code;
            (2) the term ``applicant'' means an applicant for a covered 
        position;
            (3) the term ``censorship related to research, analysis, or 
        technical information'' means any effort to distort, 
        misrepresent, or suppress research, analysis, or technical 
        information;
            (4) the term ``covered position'' has the meaning given 
        under section 2302(a)(2)(B) of title 5, United States Code;
            (5) the term ``employee'' means an employee in a covered 
        position in an agency; and
            (6) the term ``disclosure'' has the meaning given under 
        section 2302(a)(2)(D) of title 5, United States Code.
    (b) Protected Disclosure.--
            (1) In general.--Any disclosure of information by an 
        employee or applicant for employment that the employee or 
        applicant reasonably believes is evidence of censorship related 
        to research, analysis, or technical information--
                    (A) shall come within the protections of section 
                2302(b)(8)(A) of title 5, United States Code, if--
                            (i) the employee or applicant reasonably 
                        believes that the censorship related to 
                        research, analysis, or technical information is 
                        or will cause--
                                    (I) any violation of law, rule, or 
                                regulation; or
                                    (II) gross mismanagement, a gross 
                                waste of funds, an abuse of authority, 
                                or a substantial and specific danger to 
                                public health or safety; and
                            (ii) such disclosure is not specifically 
                        prohibited by law or such information is not 
                        specifically required by Executive order to be 
                        kept classified in the interest of national 
                        defense or the conduct of foreign affairs; and
                    (B) shall come within the protections of section 
                2302(b)(8)(B) of title 5, United States Code, if--
                            (i) the employee or applicant reasonably 
                        believes that the censorship related to 
                        research, analysis, or technical information is 
                        or will cause--
                                    (I) any violation of law, rule, or 
                                regulation; or
                                    (II) gross mismanagement, a gross 
                                waste of funds, an abuse of authority, 
                                or a substantial and specific danger to 
                                public health or safety; and
                            (ii) the disclosure is made to the Special 
                        Counsel, or to the Inspector General of an 
                        agency or another person designated by the head 
                        of the agency to receive such disclosures, 
                        consistent with the protection of sources and 
                        methods.
            (2) Disclosures not excluded.--A disclosure shall not be 
        excluded from paragraph (1) for any reason described under 
        section 2302(f)(1) or (2) of title 5, United States Code.
            (3) Rule of construction.--Nothing in this section shall be 
        construed to imply any limitation on the protections of 
        employees and applicants afforded by any other provision of 
        law, including protections with respect to any disclosure of 
        information believed to be evidence of censorship related to 
        research, analysis, or technical information.

SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL 
              INFRASTRUCTURE INFORMATION.

    Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C. 
133(c)) is amended by adding at the end the following: ``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.''.

SEC. 112. ADVISING EMPLOYEES OF RIGHTS.

    Section 2302(c) of title 5, United States Code, is amended by 
inserting ``, including how to make a lawful disclosure of information 
that is specifically required by law or Executive order to be kept 
classified in the interest of national defense or the conduct of 
foreign affairs to the Special Counsel, the Inspector General of an 
agency, Congress, or other agency employee designated to receive such 
disclosures'' after ``chapter 12 of this title''.

SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.

    Section 1212 of title 5, United States Code, is amended by adding 
at the end the following:
    ``(h)(1) The Special Counsel is authorized to appear as amicus 
curiae in any action brought in a court of the United States related to 
section 2302(b) (8) or (9), or as otherwise authorized by law. In any 
such action, the Special Counsel is authorized to present the views of 
the Special Counsel with respect to compliance with section 2302(b) (8) 
or (9) and the impact court decisions would have on the enforcement of 
such provisions of law.
    ``(2) A court of the United States shall grant the application of 
the Special Counsel to appear in any such action for the purposes 
described under subsection (a).''.

SEC. 114. SCOPE OF DUE PROCESS.

    (a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5, United 
States Code, is amended by inserting ``, after a finding that a 
protected disclosure was a contributing factor,'' after ``ordered if''.
    (b) Individual Action.--Section 1221(e)(2) of title 5, United 
States Code, is amended by inserting ``, after a finding that a 
protected disclosure was a contributing factor,'' after ``ordered if''.

SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

    (a) In General.--
            (1) Requirement.--Each agreement in Standard Forms 312 and 
        4414 of the Government and any other nondisclosure policy, 
        form, or agreement of the Government shall contain the 
        following statement: ``These provisions are consistent with and 
        do not supersede, conflict with, or otherwise alter the 
        employee obligations, rights, or liabilities created by 
        existing statute or Executive order relating to (1) classified 
        information, (2) communications to Congress, (3) the reporting 
        to an Inspector General of a violation of any law, rule, or 
        regulation, or mismanagement, a gross waste of funds, an abuse 
        of authority, or a substantial and specific danger to public 
        health or safety, or (4) any other whistleblower protection. 
        The definitions, requirements, obligations, rights, sanctions, 
        and liabilities created by controlling Executive orders and 
        statutory provisions are incorporated into this agreement and 
        are controlling.''.
            (2) Agency websites.--Agencies making use of any 
        nondisclosure policy, form, or agreement shall also post the 
        statement required under paragraph (1) on the agency website, 
        accompanied by the specific list of controlling Executive 
        orders and statutory provisions.
            (3) Enforceability.--
                    (A) In general.--Any nondisclosure policy, form, or 
                agreement described under paragraph (1) that does not 
                contain the statement required under paragraph (1) may 
                not be implemented or enforced to the extent such 
                policy, form, or agreement is inconsistent with that 
                statement.
                    (B) Nondisclosure policy, form, or agreement in 
                effect before the effective date.--With respect to a 
                nondisclosure policy, form, or agreement that was in 
                effect before the effective date of this Act, but that 
                does not contain the statement required under paragraph 
                (1) for implementation or enforcement--
                            (i) it shall not be a prohibited personnel 
                        practice to enforce that policy, form, or 
                        agreement with regard to a current employee if 
                        the agency gives such employee notice of the 
                        statement; and
                            (ii) it shall not be a prohibited personnel 
                        practice to enforce that policy, form, or 
                        agreement after the effective date of this Act 
                        with regard to a former employee if the agency 
                        complies with paragraph (2).
    (b) Persons Other Than Government Employees.--Notwithstanding 
subsection (a), a nondisclosure policy, form, or agreement that is to 
be executed by a person connected with the conduct of an intelligence 
or intelligence-related activity, other than an employee or officer of 
the United States Government, may contain provisions appropriate to the 
particular activity for which such document is to be used. Such policy, 
form, or agreement shall, at a minimum, require that the person will 
not disclose any classified information received in the course of such 
activity unless specifically authorized to do so by the United States 
Government. Such nondisclosure policy, form, or agreement shall also 
make it clear that such forms do not bar disclosures to Congress or to 
an authorized official of an executive agency or the Department of 
Justice that are essential to reporting a substantial violation of law, 
consistent with the protection of sources and methods.

SEC. 116. REPORTING REQUIREMENTS.

    (a) Government Accountability Office.--
            (1) Report.--Not later than 4 years after the date of 
        enactment of this Act, the Comptroller General shall submit a 
        report to the Committee on Homeland Security and Governmental 
        Affairs of the Senate and the Committee on Oversight and 
        Government Reform of the House of Representatives on the 
        implementation of this title.
            (2) Contents.--The report under this subsection shall 
        include--
                    (A) an analysis of any changes in the number of 
                cases filed with the Merit Systems Protection Board 
                alleging violations of section 2302(b)(8) or (9) of 
                title 5, United States Code, since the effective date 
                of this Act;
                    (B) the outcome of the cases described under 
                subparagraph (A), including whether or not the Merit 
                Systems Protection Board, the United States Court of 
                Appeals for the Federal Circuit, or any other court 
                determined the allegations to be frivolous or malicious 
                as well as a recommendation whether Congress should 
                grant the Merit Systems Protection Board summary 
                judgment authority for cases described under 
                subparagraph (A);
                    (C) a recommendation regarding whether Congress 
                should grant jurisdiction for some subset of cases 
                described under subparagraph (A) to be decided by a 
                district court of the United States and an evaluation 
                of the impact that would have on the Merit Systems 
                Protection Board and the Federal court system; and
                    (D) any other matter as determined by the 
                Comptroller General.
    (b) Merit Systems Protection Board.--
            (1) In general.--Each report submitted annually by the 
        Merit Systems Protection Board under section 1116 of title 31, 
        United States Code, shall, with respect to the period covered 
        by such report, include as an addendum the following:
                    (A) Information relating to the outcome of cases 
                decided by the Merit Systems Protection Board during 
                the period covered by such report in which violations 
                of section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) 
                of title 5, United States Code, were alleged.
                    (B) The number of such cases filed in the regional 
                and field offices, and the number of petitions for 
                review filed in such cases, during the period covered 
                by such report, and the outcomes of any such cases or 
                petitions for review (irrespective of when filed) 
                decided during such period.
            (2) First report.--The first report described under 
        paragraph (1) submitted after the date of enactment of this Act 
        shall include an addendum required under that paragraph that 
        covers the period beginning on the effective date of this Act 
        and ending at the end of the fiscal year in which such 
        effective date occurs.

SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN.

    (a) In General.--Section 3 of the Inspector General Act of 1978 (5 
U.S.C. App.) is amended by striking subsection (d) and inserting the 
following:
    ``(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.''.
    (b) Technical and Conforming Amendment.--Section 8D(j) of the 
Inspector General Act of 1978 (5 U.S.C. App.) is amended--
            (1) by striking ``section 3(d)(1)'' and inserting ``section 
        3(d)(1)(A)''; and
            (2) by striking ``section 3(d)(2)'' and inserting ``section 
        3(d)(1)(B)''.
    (c) Sunset.--
            (1) In general.--The amendments made by this section shall 
        cease to have effect on the date that is 5 years after the date 
        of enactment of this Act.
            (2) Return to prior authority.--Upon the date described in 
        paragraph (1), section 3(d) and section 8D(j) of the Inspector 
        General Act of 1978 (5 U.S.C. App.) shall read as such sections 
        read on the day before the date of enactment of this Act.

                TITLE II--SAVINGS CLAUSE; EFFECTIVE DATE

SEC. 201. SAVINGS CLAUSE.

    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.

SEC. 202. EFFECTIVE DATE.

    Except as otherwise provided in section 109, this Act shall take 
effect 30 days after the date of enactment of this Act.

            Attest:

                                                                 Clerk.
112th CONGRESS

  2d Session

                                 S. 743

_______________________________________________________________________

                               AMENDMENT
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