II 

Calendar No. 358 

112TH CONGRESS 

2D SESSION S. 743 

[Report No. 112–155] 

To amend chapter 23 of title 5, United States Code, to clarify the disclosures 

of information protected from prohibited personnel practices, require 

a statement in nondisclosure policies, forms, and agreements that such 

policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 6 (legislative day, APRIL 5), 2011 

Mr. AKAKA (for himself, Ms. COLLINS, Mr. GRASSLEY, Mr. LIEBERMAN, Mr. 

LEVIN, Mr. CARPER, Mr. LEAHY, Mr. HARKIN, Mr. PRYOR, Ms. LANDRIEU, Mrs. MCCASKILL, Mr. TESTER, Mr. BEGICH, Mr. CARDIN, and 

Mr. COONS) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

APRIL 19, 2012 

Reported by Mr. LIEBERMAN, with amendments 

[Omit the part struck through and insert the part printed in italic] 

A BILL 

To amend chapter 23 of title 5, United States Code, to 

clarify the disclosures of information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain discloVerDate Mar 15 2010 01:28 Apr 20, 2012 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\S743.RS S743

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sure protections, provide certain authority for the Special 

Counsel, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Whistleblower Protec5 tion Enhancement Act of 2011 2012’’. 

6 TITLE I—PROTECTION OF CER7 TAIN DISCLOSURES OF IN8 FORMATION BY FEDERAL EM9 PLOYEES 

10 SEC. 101. CLARIFICATION OF DISCLOSURES COVERED. 

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

12 United States Code, is amended— 

13 (1) in subparagraph (A)(i), by striking ‘‘a viola14 tion’’ and inserting ‘‘any violation’’; and 

15 (2) in subparagraph (B)(i), by striking ‘‘a viola16 tion’’ and inserting ‘‘any violation (other than a vio17 lation of this section)’’. 

18 (b) PROHIBITED PERSONNEL PRACTICES UNDER

19 SECTION 2302(b)(9).— 

20 (1) TECHNICAL AND CONFORMING AMEND21 MENTS.—Title 5, United States Code, is amended in 

22 subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of 

23 section 1214, in subsections (a), (e)(1), and (i) of 

24 section 1221, and in subsection (a)(2)(C)(i) of secVerDate Mar 15 2010 01:28 Apr 20, 2012 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S743.RS S743

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1 tion 2302, by inserting ‘‘or section 2302(b)(9) 

2 (A)(i), (B), (C), or (D)’’ after ‘‘section 2302(b)(8)’’ 

3 or ‘‘(b)(8)’’ each place it appears. 

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

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

6 of section 1214 and in subsection (e)(1) of section 

7 1221, by inserting ‘‘or protected activity’’ after ‘‘dis8 closure’’ each place it appears. 

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

10 Code, is amended— 

11 (i) by striking subparagraph (A) and in12 serting the following: 

13 ‘‘(A) the exercise of any appeal, complaint, 

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

15 regulation— 

16 ‘‘(i) with regard to remedying a viola17 tion of paragraph (8); or 

18 ‘‘(ii) other than with regard to rem19 edying a violation of paragraph (8) any 

20 other law, rule, or regulation;’’; and 

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

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

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

24 is amended by adding at the end the following: 


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1 ‘‘(f)(1) A disclosure shall not be excluded from sub2 section (b)(8) because— 

3 ‘‘(A) the disclosure was made to a person, in4 cluding a supervisor, who participated in an activity 

5 that the employee or applicant reasonably believed to 

6 be covered by subsection (b)(8)(A)(ii); 

7 ‘‘(B) the disclosure revealed information that 

8 had been previously disclosed; 

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

10 making the disclosure; 

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

12 ‘‘(E) the disclosure was made while the em13 ployee was off duty; or 

14 ‘‘(F) of the amount of time which has passed 

15 since the occurrence of the events described in the 

16 disclosure. 

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

18 of duties of an employee, the disclosure shall not be ex19 cluded from subsection (b)(8) if any employee who has au20 thority to take, direct others to take, recommend, or ap21 prove any personnel action with respect to the employee 

22 making the disclosure, took, failed to take, or threatened 

23 to take or fail to take a personnel action with respect to 

24 that employee in reprisal for the disclosure.’’. 


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1 SEC. 102. DEFINITIONAL AMENDMENTS. 

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

3 amended— 

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

5 at the end; 

6 (2) in subparagraph (C)(iii), by striking the pe7 riod at the end and inserting ‘‘; and’’; and 

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

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

10 communication or transmission, but does not include 

11 a communication concerning policy decisions that 

12 lawfully exercise discretionary authority unless the 

13 employee or applicant providing the disclosure rea14 sonably believes that the disclosure evidences— 

15 ‘‘(i) any violation of any law, rule, or regu16 lation, and occurs during the conscientious car17 rying out of official duties; or 

18 ‘‘(ii) gross mismanagement, a gross waste 

19 of funds, an abuse of authority, or a substantial 

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

21 SEC. 103. REBUTTABLE PRESUMPTION. 

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

23 amended by amending the matter following paragraph 

24 (12) to read as follows: 

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

26 withholding of information from Congress or the taking 


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1 of any personnel action against an employee who discloses 

2 information to Congress. For purposes of paragraph (8), 

3 (i) any presumption relating to the performance of a duty 

4 by an employee whose conduct is the subject of a disclo5 sure as defined under subsection (a)(2)(D) may be rebut6 ted by substantial evidence, and (ii) . For purposes of 

7 paragraph (8), a determination as to whether an employee 

8 or applicant reasonably believes that such employee or ap9 plicant has disclosed information that evidences any viola10 tion of law, rule, regulation, gross mismanagement, a 

11 gross waste of funds, an abuse of authority, or a substan12 tial and specific danger to public health or safety shall 

13 be made by determining whether a disinterested observer 

14 with knowledge of the essential facts known to and readily 

15 ascertainable by the employee or applicant could reason16 ably conclude that the actions of the Government evidence 

17 such violations, mismanagement, waste, abuse, or dan18 ger.’’. 

19 SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PER20 SONNEL PRACTICES. 

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

22 title 5, United States Code, is amended— 

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

24 semicolon; and 


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

2 and inserting after clause (x) the following: 

3 ‘‘(xi) the implementation or enforce4 ment of any nondisclosure policy, form, or 

5 agreement; and’’. 

6 (b) PROHIBITED PERSONNEL PRACTICE.— 

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

8 United States Code, is amended— 

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

10 the end; 

11 (B) in paragraph (12), by striking the pe12 riod and inserting ‘‘; or’’; and 

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

14 following: 

15 ‘‘(13) implement or enforce any nondisclosure 

16 policy, form, or agreement, if such policy, form, or 

17 agreement does not contain the following statement: 

18 ‘These provisions are consistent with and do not su19 persede, conflict with, or otherwise alter the em20 ployee obligations, rights, or liabilities created by 

21 Executive Order 13526 (75 Fed. Reg. 707; relating 

22 to classified national security information), or any 

23 successor thereto; Executive Order 12968 (60 Fed. 

24 Reg. 40245; relating to access to classified informa25 tion), or any successor thereto; section 7211 of title 


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1 5, United States Code (governing disclosures to Con2 gress); section 1034 of title 10, United States Code 

3 (governing disclosure to Congress by members of the 

4 military); section 2302(b)(8) of title 5, United 

5 States Code (governing disclosures of illegality, 

6 waste, fraud, abuse, or public health or safety 

7 threats); the Intelligence Identities Protection Act of 

8 1982 (50 U.S.C. 421 et seq.) (governing disclosures 

9 that could expose confidential Government agents); 

10 and the statutes which protect against disclosures 

11 that could compromise national security, including 

12 sections 641, 793, 794, 798, and 952 of title 18, 

13 United States Code, and section 4(b) of the Subver14 sive Activities Control Act of 1950 (50 U.S.C. 

15 783(b)). The definitions, requirements, obligations, 

16 rights, sanctions, and liabilities created by such Ex17 ecutive order and such statutory provisions are in18 corporated into this agreement and are control19 ling.’ ’’. 

20 (2) NONDISCLOSURE POLICY, FORM, OR AGREE21 MENT IN EFFECT BEFORE THE DATE OF ENACT22 MENT.—A nondisclosure policy, form, or agreement 

23 that was in effect before the date of enactment of 

24 this Act, but that does not contain the statement re25 quired under section 2302(b)(13) of title 5, United 


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1 States Code, (as added by this Act) for implementa2 tion or enforcement— 

3 (A) may be enforced with regard to a cur4 rent employee if the agency gives such employee 

5 notice of the statement; and 

6 (B) may continue to be enforced after the 

7 effective date of this Act with regard to a 

8 former employee if the agency posts notice of 

9 the statement on the agency website for the 1- 

10 year period following that effective date. 

11 ‘‘(13) implement or enforce any nondisclosure 

12 policy, form, or agreement, if such policy, form, or 

13 agreement does not contain the following statement: 

14 ‘These provisions are consistent with and do not su15 persede, conflict with, or otherwise alter the employee 

16 obligations, rights, or liabilities created by existing 

17 statute or Executive order relating to (1) classified in18 formation, (2) communications to Congress, (3) the 

19 reporting to an Inspector General of a violation of 

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

21 gross waste of funds, an abuse of authority, or a sub22 stantial and specific danger to public health or safety, 

23 or (4) any other whistleblower protection. The defini24 tions, requirements, obligations, rights, sanctions, and 

25 liabilities created by controlling Executive orders and 


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1 statutory provisions are incorporated into this agree2 ment and are controlling.’.’’. 

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

4 any nondisclosure policy, form, or agreement shall 

5 also post the statement required under section 

6 2302(b)(13) of title 5, United States Code, (as added 

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

8 the specific list of controlling Executive orders and 

9 statutory provisions. 

10 (3) NONDISCLOSURE POLICY, FORM, OR AGREE11 MENT IN EFFECT BEFORE THE EFFECTIVE DATE.— 

12 With respect to a nondisclosure policy, form, or agree13 ment that was in effect before the effective date of this 

14 Act, but that does not contain the statement required 

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

16 Code, (as added by this Act) for implementation or 

17 enforcement— 

18 (A) it shall not be a prohibited personnel 

19 practice to enforce that policy, form, or agree20 ment with regard to a current employee if the 

21 agency gives such employee notice of the state22 ment; and 

23 (B) it shall not be a prohibited personnel 

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1 gard to a former employee if the agency complies 

2 with paragraph (2). 

3 (c) RETALIATORY INVESTIGATIONS.— 

4 (1) AGENCY INVESTIGATION.—Section 1214 of 

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

6 at the end the following: 

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

8 to correct a prohibited personnel practice may include fees, 

9 costs, or damages reasonably incurred due to an agency 

10 investigation of the employee, if such investigation was 

11 commenced, expanded, or extended in retaliation for the 

12 disclosure or protected activity that formed the basis of 

13 the corrective action.’’. 

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

15 United States Code, is amended by adding at the 

16 end the following: 

17 ‘‘(4) Any corrective action ordered under this 

18 section to correct a prohibited personnel practice 

19 may include fees, costs, or damages reasonably in20 curred due to an agency investigation of the em21 ployee, if such investigation was commenced, ex22 panded, or extended in retaliation for the disclosure 

23 or protected activity that formed the basis of the 

24 corrective action.’’. 


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

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

3 is amended by striking clause (ii) and inserting the fol4 lowing: 

5 ‘‘(ii)(I) the Federal Bureau of Inves6 tigation, the Central Intelligence Agency, 

7 the Defense Intelligence Agency, the Na8 tional Geospatial-Intelligence Agency, the 

9 National Security Agency, the Office of the 

10 Director of National Intelligence, and the 

11 National Reconnaissance Office; and 

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

13 any executive agency or unit thereof the 

14 principal function of which is the conduct 

15 of foreign intelligence or counterintel16 ligence activities, provided that the deter17 mination be made prior to a personnel ac18 tion; or’’. 

19 SEC. 106. DISCIPLINARY ACTION. 

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

21 amended to read as follows: 

22 ‘‘(3)(A) A final order of the Board may im23 pose— 

24 ‘‘(i) disciplinary action consisting of re25 moval, reduction in grade, debarment from 


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1 Federal employment for a period not to exceed 

2 5 years, suspension, or reprimand; 

3 ‘‘(ii) an assessment of a civil penalty not to 

4 exceed $1,000; or 

5 ‘‘(iii) any combination of disciplinary ac6 tions described under clause (i) and an assess7 ment described under clause (ii). 

8 ‘‘(B) In any case brought under paragraph (1) 

9 in which the Board finds that an employee has com10 mitted a prohibited personnel practice under section 

11 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D), 

12 the Board may impose disciplinary action if the 

13 Board finds that the activity protected under section 

14 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) 

15 was a significant motivating factor, even if other fac16 tors also motivated the decision, for the employee’s 

17 decision to take, fail to take, or threaten to take or 

18 fail to take a personnel action, unless that employee 

19 demonstrates, by preponderance of evidence, that 

20 the employee would have taken, failed to take, or 

21 threatened to take or fail to take the same personnel 

22 action, in the absence of such protected activity.’’. 

23 SEC. 107. REMEDIES. 

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

25 United States Code, is amended by striking ‘‘agency inVerDate Mar 15 2010 01:28 Apr 20, 2012 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S743.RS S743

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1 volved’’ and inserting ‘‘agency where the prevailing party 

2 was employed or had applied for employment at the time 

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

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

5 1221(g)(1)(A)(ii) of title 5, United States Code, are 

6 amended by striking all after ‘‘travel expenses,’’ and in7 serting ‘‘any other reasonable and foreseeable consequen8 tial damages, and compensatory damages (including inter9 est, reasonable expert witness fees, and costs).’’ each place 

10 it appears. 

11 SEC. 108. JUDICIAL REVIEW. 

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

13 States Code, is amended by striking the matter preceding 

14 paragraph (2) and inserting the following: 

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

16 and paragraph (2) of this subsection, a petition to review 

17 a final order or final decision of the Board shall be filed 

18 in the United States Court of Appeals for the Federal Cir19 cuit. Notwithstanding any other provision of law, any peti20 tion for review shall be filed within 60 days after the 

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

22 Board. 

23 ‘‘(B) During the 5-year period beginning on the effec24 tive date of the Whistleblower Protection Enhancement 

25 Act of 2011 2012, a petition to review a final order or 


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1 final decision of the Board that raises no challenge to the 

2 Board’s disposition of allegations of a prohibited personnel 

3 practice described in section 2302(b) other than practices 

4 described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), 

5 (C), or (D) shall be filed in the United States Court of 

6 Appeals for the Federal Circuit or any court of appeals 

7 of competent jurisdiction as provided under paragraph 

8 (2).’’. 

9 (b) REVIEW OBTAINED BY OFFICE OF PERSONNEL

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

11 Code, is amended to read as follows: 

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

13 paragraph shall apply to any review obtained by the Direc14 tor of the Office of Personnel Management. The Director 

15 of the Office of Personnel Management may obtain review 

16 of any final order or decision of the Board by filing, within 

17 60 days after the Board issues notice of the final order 

18 or decision of the Board, a petition for judicial review in 

19 the United States Court of Appeals for the Federal Circuit 

20 if the Director determines, in the discretion of the Direc21 tor, that the Board erred in interpreting a civil service 

22 law, rule, or regulation affecting personnel management 

23 and that the Board’s decision will have a substantial im24 pact on a civil service law, rule, regulation, or policy direc25 tive. If the Director did not intervene in a matter before 


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

2 Board decision under this section unless the Director first 

3 petitions the Board for a reconsideration of its decision, 

4 and such petition is denied. In addition to the named re5 spondent, the Board and all other parties to the pro6 ceedings before the Board shall have the right to appear 

7 in the proceeding before the Court of Appeals. The grant8 ing of the petition for judicial review shall be at the discre9 tion of the Court of Appeals. 

10 ‘‘(2) During the 5-year period beginning on the effec11 tive date of the Whistleblower Protection Enhancement 

12 Act of 2011 2012, this paragraph shall apply to any review 

13 obtained by the Director of the Office of Personnel Man14 agement that raises no challenge to the Board’s disposi15 tion of allegations of a prohibited personnel practice de16 scribed in section 2302(b) other than practices described 

17 in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or 

18 (D). The Director of the Office of Personnel Management 

19 may obtain review of any final order or decision of the 

20 Board by filing, within 60 days after the Board issues no21 tice of the final order or decision of the Board, a petition 

22 for judicial review in the United States Court of Appeals 

23 for the Federal Circuit or any court of appeals of com24 petent jurisdiction as provided under subsection (b)(2) if 

25 the Director determines, in the discretion of the Director, 


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1 that the Board erred in interpreting a civil service law, 

2 rule, or regulation affecting personnel management and 

3 that the Board’s decision will have a substantial impact 

4 on a civil service law, rule, regulation, or policy directive. 

5 If the Director did not intervene in a matter before the 

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

7 decision under this section unless the Director first peti8 tions the Board for a reconsideration of its decision, and 

9 such petition is denied. In addition to the named respond10 ent, the Board and all other parties to the proceedings 

11 before the Board shall have the right to appear in the pro12 ceeding before the court of appeals. The granting of the 

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

14 court of appeals.’’. 

15 SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING 

16 THE TRANSPORTATION SECURITY ADMINIS17 TRATION. 

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

19 States Code, is amended— 

20 (1) by redesignating sections 2304 and 2305 as 

21 sections 2305 and 2306, respectively; and 

22 (2) by inserting after section 2303 the fol23 lowing: 


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1 ‘‘§ 2304. Prohibited personnel practices affecting the 

2 Transportation Security Administration 

3 ‘‘(a) IN GENERAL.—Notwithstanding any other pro4 vision of law, any individual holding or applying for a posi5 tion within the Transportation Security Administration 

6 shall be covered by— 

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

8 and (9); 

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

10 2302(b) (1), (8), or (9) by providing any right or 

11 remedy available to an employee or applicant for em12 ployment in the civil service; and 

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

14 any provision of law referred to in paragraph (1) or 

15 (2). 

16 ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sec17 tion shall be construed to affect any rights, apart from 

18 those described in subsection (a), to which an individual 

19 described in subsection (a) might otherwise be entitled 

20 under law.’’. 

21 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

22 The table of sections for chapter 23 of title 5, United 

23 States Code, is amended by striking the items relating to 

24 sections 2304 and 2305, respectively, and by inserting the 

25 following: 


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

‘‘2305. Responsibility of the Government Accountability Office. 

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

1 (c) EFFECTIVE DATE.—The amendments made by 

2 this section shall take effect on the date of enactment of 

3 this section. 

4 SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RE5 SEARCH, ANALYSIS, OR TECHNICAL INFOR6 MATION. 

7 (a) DEFINITIONS.—In this subsection— 

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

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

10 Code; 

11 (2) the term ‘‘applicant’’ means an applicant 

12 for a covered position; 

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

14 analysis, or technical information’’ means any effort 

15 to distort, misrepresent, or suppress research, anal16 ysis, or technical information; 

17 (4) the term ‘‘covered position’’ has the mean18 ing given under section 2302(a)(2)(B) of title 5, 

19 United States Code; 

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

21 a covered position in an agency; and 


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

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

3 States Code. 

4 (b) PROTECTED DISCLOSURE.— 

5 (1) IN GENERAL.—Any disclosure of informa6 tion by an employee or applicant for employment 

7 that the employee or applicant reasonably believes is 

8 evidence of censorship related to research, analysis, 

9 or technical information— 

10 (A) shall come within the protections of 

11 section 2302(b)(8)(A) of title 5, United States 

12 Code, if— 

13 (i) the employee or applicant reason14 ably believes that the censorship related to 

15 research, analysis, or technical information 

16 is or will cause— 

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

18 regulation, and occurs during the con19 scientious carrying out of official du20 ties; or 

21 (II) gross mismanagement, a 

22 gross waste of funds, an abuse of au23 thority, or a substantial and specific 

24 danger to public health or safety; and 


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1 (ii) such disclosure is not specifically 

2 prohibited by law or such information is 

3 not specifically required by Executive order 

4 to be kept classified in the interest of na5 tional defense or the conduct of foreign af6 fairs; and 

7 (B) shall come within the protections of 

8 section 2302(b)(8)(B) of title 5, United States 

9 Code, if— 

10 (i) the employee or applicant reason11 ably believes that the censorship related to 

12 research, analysis, or technical information 

13 is or will cause— 

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

15 regulation, and occurs during the con16 scientious carrying out of official du17 ties; or 

18 (II) gross mismanagement, a 

19 gross waste of funds, an abuse of au20 thority, or a substantial and specific 

21 danger to 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 

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1 closures, consistent with the protection of 

2 sources and methods. 

3 (2) DISCLOSURES NOT EXCLUDED.—A disclo4 sure shall not be excluded from paragraph (1) for 

5 any reason described under section 2302(f)(1) or (2) 

6 of title 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 be12 lieved to be evidence of censorship related to re13 search, analysis, or technical information. 

14 SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS 

15 FOR CRITICAL INFRASTRUCTURE INFORMA16 TION. 

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

18 (6 U.S.C. 133(c)) is amended by adding at the end the 

19 following: ‘‘For purposes of this section a permissible use 

20 of independently obtained information includes the disclo21 sure of such information under section 2302(b)(8) of title 

22 5, United States Code.’’. 

23 SEC. 112. ADVISING EMPLOYEES OF RIGHTS. 

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

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


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1 disclosure of information that is specifically required by 

2 law or Executive order to be kept classified in the interest 

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

4 Special Counsel, the Inspector General of an agency, Con5 gress, or other agency employee designated to receive such 

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

7 SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEAR8 ANCE. 

9 Section 1212 of title 5, United States Code, is 

10 amended by adding at the end the following: 

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

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

13 United States related to any civil action brought in con14 nection with section 2302(b) (8) or (9), or as otherwise 

15 authorized by law. In any such action, the Special Counsel 

16 is authorized to present the views of the Special Counsel 

17 with respect to compliance with section 2302(b) (8) or (9) 

18 and the impact court decisions would have on the enforce19 ment of such provisions of law. 

20 ‘‘(2) A court of the United States shall grant the ap21 plication of the Special Counsel to appear in any such ac22 tion for the purposes described under subsection (a).’’. 

23 SEC. 114. SCOPE OF DUE PROCESS. 

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

25 title 5, United States Code, is amended by inserting ‘‘, 


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1 after a finding that a protected disclosure was a contrib2 uting factor,’’ after ‘‘ordered if’’. 

3 (b) INDIVIDUAL ACTION.—Section 1221(e)(2) of title 

4 5, United States Code, is amended by inserting ‘‘, after 

5 a finding that a protected disclosure was a contributing 

6 factor,’’ after ‘‘ordered if’’. 

7 SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREE8 MENTS. 

9 (a) IN GENERAL.— 

10 (1) REQUIREMENT.—Each agreement in Stand11 ard Forms 312 and 4414 of the Government and 

12 any other nondisclosure policy, form, or agreement 

13 of the Government shall contain the following state14 ment: ‘‘These restrictions are consistent with and do 

15 not supersede, conflict with, or otherwise alter the 

16 employee obligations, rights, or liabilities created by 

17 Executive Order 13526 (75 Fed. Reg. 707; relating 

18 to classified national security information), or any 

19 successor thereto; Executive Order 12968 (60 Fed. 

20 Reg. 40245; relating to access to classified informa21 tion), or any successor thereto; section 7211 of title 

22 5, United States Code (governing disclosures to Con23 gress); section 1034 of title 10, United States Code 

24 (governing disclosure to Congress by members of the 

25 military); section 2302(b)(8) of title 5, United 


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1 States Code (governing disclosures of illegality, 

2 waste, fraud, abuse, or public health or safety 

3 threats); the Intelligence Identities Protection Act of 

4 1982 (50 U.S.C. 421 et seq.) (governing disclosures 

5 that could expose confidential Government agents); 

6 and the statutes which protect against disclosure 

7 that may compromise the national security, includ8 ing sections 641, 793, 794, 798, and 952 of title 18, 

9 United States Code, and section 4(b) of the Subver10 sive Activities Act of 1950 (50 U.S.C. 783(b)). The 

11 definitions, requirements, obligations, rights, sanc12 tions, and liabilities created by such Executive order 

13 and such statutory provisions are incorporated into 

14 this agreement and are controlling.’’. 

15 (2) ENFORCEABILITY.— 

16 (A) IN GENERAL.—Any nondisclosure pol17 icy, form, or agreement described under para18 graph (1) that does not contain the statement 

19 required under paragraph (1) may not be im20 plemented or enforced to the extent such policy, 

21 form, or agreement is inconsistent with that 

22 statement. 

23 (B) NONDISCLOSURE POLICY, FORM, OR

24 AGREEMENT IN EFFECT BEFORE THE DATE OF

25 ENACTMENT.—A nondisclosure policy, form, or 


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1 agreement that was in effect before the date of 

2 enactment of this Act, but that does not con3 tain the statement required under paragraph 

4 (1)— 

5 (i) may be enforced with regard to a 

6 current employee if the agency gives such 

7 employee notice of the statement; and 

8 (ii) may continue to be enforced after 

9 the effective date of this Act with regard 

10 to a former employee if the agency posts 

11 notice of the statement on the agency 

12 website for the 1-year period following that 

13 effective date. 

14 (a) IN GENERAL.— 

15 (1) REQUIREMENT.—Each agreement in Stand16 ard Forms 312 and 4414 of the Government and any 

17 other nondisclosure policy, form, or agreement of the 

18 Government shall contain the following statement: 

19 ‘‘These provisions are consistent with and do not su20 persede, conflict with, or otherwise alter the employee 

21 obligations, rights, or liabilities created by existing 

22 statute or Executive order relating to (1) classified in23 formation, (2) communications to Congress, (3) the 

24 reporting to an Inspector General of a violation of 

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


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1 gross waste of funds, an abuse of authority, or a sub2 stantial and specific danger to public health or safety, 

3 or (4) any other whistleblower protection. The defini4 tions, requirements, obligations, rights, sanctions, and 

5 liabilities created by controlling Executive orders and 

6 statutory provisions are incorporated into this agree7 ment and are controlling.’’. 

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

9 any nondisclosure policy, form, or agreement shall 

10 also post the statement required under paragraph (1) 

11 on the agency website, accompanied by the specific 

12 list of controlling Executive orders and statutory pro13 visions. 

14 (3) ENFORCEABILITY.— 

15 (A) IN GENERAL.—Any nondisclosure pol16 icy, form, or agreement described under para17 graph (1) that does not contain the statement re18 quired under paragraph (1) may not be imple19 mented or enforced to the extent such policy, 

20 form, or agreement is inconsistent with that 

21 statement. 

22 (B) NONDISCLOSURE POLICY, FORM, OR

23 AGREEMENT IN EFFECT BEFORE THE EFFECTIVE

24 DATE.—With respect to a nondisclosure policy, 

25 form, or agreement that was in effect before the 


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1 effective date of this Act, but that does not con2 tain the statement required under paragraph (1) 

3 for implementation or enforcement— 

4 (i) it shall not be a prohibited per5 sonnel practice to enforce that policy, form, 

6 or agreement with regard to a current em7 ployee if the agency gives such employee no8 tice of the statement; and 

9 (ii) it shall not be a prohibited per10 sonnel practice to enforce that policy, form, 

11 or agreement after the effective date of this 

12 Act with regard to a former employee if the 

13 agency complies with paragraph (2). 

14 (b) PERSONS OTHER THAN GOVERNMENT EMPLOY15 EES.—Notwithstanding subsection (a), a nondisclosure 

16 policy, form, or agreement that is to be executed by a per17 son connected with the conduct of an intelligence or intel18 ligence-related activity, other than an employee or officer 

19 of the United States Government, may contain provisions 

20 appropriate to the particular activity for which such docu21 ment is to be used. Such policy, form, or agreement shall, 

22 at a minimum, require that the person will not disclose 

23 any classified information received in the course of such 

24 activity unless specifically authorized to do so by the 

25 United States Government. Such nondisclosure policy, 


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1 form, or agreement shall also make it clear that such 

2 forms do not bar disclosures to Congress or to an author3 ized official of an executive agency or the Department of 

4 Justice that are essential to reporting a substantial viola5 tion of law, consistent with the protection of sources and 

6 methods. 

7 SEC. 116. REPORTING REQUIREMENTS. 

8 (a) GOVERNMENT ACCOUNTABILITY OFFICE.— 

9 (1) REPORT.—Not later than 40 months 48 

10 months after the date of enactment of this Act, the 

11 Comptroller General shall submit a report to the 

12 Committee on Homeland Security and Governmental 

13 Affairs of the Senate and the Committee on Over14 sight and Government Reform of the House of Rep15 resentatives on the implementation of this title. 

16 (2) CONTENTS.—The report under this para17 graph shall include— 

18 (A) an analysis of any changes in the num19 ber of cases filed with the United States Merit 

20 Systems Protection Board alleging violations of 

21 section 2302(b) (8) or (9) of title 5, United 

22 States Code, since the effective date of this Act; 

23 (B) the outcome of the cases described 

24 under subparagraph (A), including whether or 

25 not the United States Merit Systems Protection 


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1 Board, the Federal Circuit Court of Appeals, or 

2 any other court determined the allegations to be 

3 frivolous or malicious; 

4 (C) an analysis of the outcome of cases de5 scribed under subparagraph (A) that were de6 cided by a United States District Court and the 

7 impact the process has on the Merit Systems 

8 Protection Board and the Federal court system; 

9 and 

10 (D) any other matter as determined by the 

11 Comptroller General. 

12 (b) MERIT SYSTEMS PROTECTION BOARD.— 

13 (1) IN GENERAL.—Each report submitted an14 nually by the Merit Systems Protection Board under 

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

16 with respect to the period covered by such report, in17 clude as an addendum the following: 

18 (A) Information relating to the outcome of 

19 cases decided during the applicable year of the 

20 report in which violations of section 2302(b) (8) 

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

22 United States Code, were alleged. 

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

24 regional and field offices, the number of petiVerDate Mar 15 2010 01:28 Apr 20, 2012 Jkt 019200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S743.RS S743

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1 tions for review filed in such cases, and the out2 comes of such cases. 

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

4 under paragraph (1) submitted after the date of en5 actment of this Act shall include an addendum re6 quired under that subparagraph that covers the pe7 riod beginning on January 1, 2009 through the effec8 tive date of this Act and ending at the end of the fis9 cal year 2009 in which such effective date occurs. 

10 SEC. 117. ALTERNATIVE REVIEW. 

11 (a) IN GENERAL.—Section 1221 of title 5, United 

12 States Code, is amended by adding at the end the fol13 lowing: 

14 ‘‘(k)(1) In this subsection, the term ‘appropriate 

15 United States district court’, as used with respect to an 

16 alleged prohibited personnel practice, means the United 

17 States district court for the judicial district in which— 

18 ‘‘(A) the prohibited personnel practice is alleged 

19 to have been committed; or 

20 ‘‘(B) the employee, former employee, or appli21 cant for employment allegedly affected by such prac22 tice resides. 

23 ‘‘(2)(A) An employee, former employee, or applicant 

24 for employment in any case to which paragraph (3) or (4) 

25 applies may file an action at law or equity for de novo 


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1 review in the appropriate United States district court in 

2 accordance with this subsection. 

3 ‘‘(B) Upon initiation of any action under subpara4 graph (A), the Board shall stay any other claims of such 

5 employee, former employee, or applicant pending before 

6 the Board at that time which arise out of the same set 

7 of operative facts. Such claims shall be stayed pending 

8 completion of the action filed under subparagraph (A) be9 fore the appropriate United States district court and any 

10 associated appellate review. 

11 ‘‘(3) This paragraph applies in any case in which— 

12 ‘‘(A) an employee, former employee, or appli13 cant for employment— 

14 ‘‘(i) seeks corrective action from the Merit 

15 Systems Protection Board under section 

16 1221(a) based on an alleged prohibited per17 sonnel practice described in section 2302(b) (8) 

18 or (9) (A)(i), (B), (C), or (D) for which the as19 sociated personnel action is an action covered 

20 under section 7512 or 7542; or 

21 ‘‘(ii) files an appeal under section 7701(a) 

22 alleging as an affirmative defense the commis23 sion of a prohibited personnel practice described 

24 in section 2302(b) (8) or (9) (A)(i), (B), (C), 

25 or (D) for which the associated personnel action 


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1 is an action covered under section 7512 or 

2 7542; 

3 ‘‘(B) no final order or decision is issued by the 

4 Board within 270 days after the date on which a re5 quest for that corrective action or appeal has been 

6 duly submitted, unless the Board determines that 

7 the employee, former employee, or applicant for em8 ployment engaged in conduct intended to delay the 

9 issuance of a final order or decision by the Board; 

10 and 

11 ‘‘(C) such employee, former employee, or appli12 cant provides written notice to the Board of filing an 

13 action under this subsection before the filing of that 

14 action. 

15 ‘‘(4) This paragraph applies in any case in which— 

16 ‘‘(A) an employee, former employee, or appli17 cant for employment— 

18 ‘‘(i) seeks corrective action from the Merit 

19 Systems Protection Board under section 

20 1221(a) based on an alleged prohibited per21 sonnel practice described in section 2302(b) (8) 

22 or (9) (A)(i), (B), (C), or (D) for which the as23 sociated personnel action is an action covered 

24 under section 7512 or 7542; or 


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1 ‘‘(ii) files an appeal under section 7701(a) 

2 (1) alleging as an affirmative defense the com3 mission of a prohibited personnel practice de4 scribed in section 2302(b) (8) or (9) (A)(i), 

5 (B), (C), or (D) for which the associated per6 sonnel action is an action covered under section 

7 7512 or 7542; 

8 ‘‘(B)(i) within 30 days after the date on which 

9 the request for corrective action or appeal was duly 

10 submitted, such employee, former employee, or appli11 cant for employment files a motion requesting a cer12 tification consistent with subparagraph (C) to the 

13 Board, any administrative law judge appointed by 

14 the Board under section 3105 of this title and as15 signed to the case, or any employee of the Board 

16 designated by the Board and assigned to the case; 

17 and 

18 ‘‘(ii) such employee has not previously filed a 

19 motion under clause (i) related to that request for 

20 corrective action or that appeal; and 

21 ‘‘(C) the Board, any administrative law judge 

22 appointed by the Board under section 3105 of this 

23 title and assigned to the case, or any employee of 

24 the Board designated by the Board and assigned to 

25 the case certifies that— 


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1 ‘‘(i) under the standards standard applica2 ble to the review of motions to dismiss under 

3 rule 12(b)(6) of the Federal Rules of Civil Pro4 cedure, including rule 12(d), the request for 

5 corrective action or the appeal (including any 

6 allegations made with the motion under sub7 paragraph (B)) would not be subject to dis8 missal; and 

9 ‘‘(ii)(I) the Board is not likely to dispose 

10 of the case within 270 days after the date on 

11 which athe request for that corrective action or 

12 the appeal has been duly submitted; or 

13 ‘‘(II) the case— 

14 ‘‘(aa) consists of multiple claims; 

15 ‘‘(bb) requires complex or extensive 

16 discovery; 

17 ‘‘(cc) arises out of the same set of op18 erative facts as any civil action against the 

19 Government filed by the employee, former 

20 employee, or applicant pending in a Fed21 eral court; or 

22 ‘‘(dd) involves a novel question of law. 

23 ‘‘(5) The Board shall grant or deny any motion re24 questing a certification described under paragraph (4)(ii) 

25 within 90 days after the submission of such motion and 


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1 the Board may not issue a decision on the merits of a 

2 request for corrective action within 15 days after granting 

3 or denying a motion requesting certification. 

4 ‘‘(6)(A) Any decision of the Board, any administra5 tive law judge appointed by the Board under section 3105 

6 of this title and assigned to the case, or any employee of 

7 the Board designated by the Board and assigned to the 

8 case to grant or deny a certification described under para9 graph (4)(ii) shall be reviewed on appeal of a final order 

10 or decision of the Board under section 7703 only if— 

11 ‘‘(i) a motion requesting a certification was de12 nied; and 

13 ‘‘(ii) the reviewing court vacates the decision of 

14 the Board on the merits of the claim under the 

15 standards set forth in section 7703(c). 

16 ‘‘(B) The decision to deny the certification shall be 

17 overturned by the reviewing court, and an order granting 

18 certification shall be issued by the reviewing court, if such 

19 decision is found to be arbitrary, capricious, or an abuse 

20 of discretion. 

21 ‘‘(C) The reviewing court’s decision shall not be con22 sidered evidence of any determination by the Board, any 

23 administrative law judge appointed by the Board under 

24 section 3105 of this title, or any employee of the Board 

25 designated by the Board on the merits of the underlying 


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1 allegations during the course of any action at law or equity 

2 for de novo review in the appropriate United States dis3 trict court in accordance with this subsection. 

4 ‘‘(7) In any action filed under this subsection— 

5 ‘‘(A) the district court shall have jurisdiction 

6 without regard to the amount in controversy; 

7 ‘‘(B) at the request of either party, such action 

8 shall be tried by the court with a jury; 

9 ‘‘(C) the court— 

10 ‘‘(i) subject to clause (iii), shall apply the 

11 standards set forth in subsection (e); and 

12 ‘‘(ii) may award any relief which the court 

13 considers appropriate under subsection (g), ex14 cept— 

15 ‘‘(I) relief for compensatory damages 

16 may not exceed $300,000; and 

17 ‘‘(II) relief may not include punitive 

18 damages; and 

19 ‘‘(iii) notwithstanding subsection (e)(2), 

20 may not order relief if the agency demonstrates 

21 by a preponderance of the evidence that the 

22 agency would have taken the same personnel 

23 action in the absence of such disclosure; and 


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1 ‘‘(D) the Special Counsel may not represent the 

2 employee, former employee, or applicant for employ3 ment. 

4 ‘‘(8) An appeal from a final decision of a district 

5 court in an action under this subsection shall be taken 

6 to the Court of Appeals for the Federal Circuit or any 

7 court of appeals of competent jurisdiction. 

8 ‘‘(9) This subsection applies with respect to any ap9 peal, petition, or other request for corrective action duly 

10 submitted to the Board, whether under section 

11 1214(b)(2), the preceding provisions of this section, sec12 tion 7513(d), section 7701, or any otherwise applicable 

13 provisions of law, rule, or regulation.’’. 

14 (b) SUNSET.— 

15 (1) IN GENERAL.—Except as provided under 

16 paragraph (2), the amendments made by this section 

17 shall cease to have effect 5 years after the effective 

18 date of this Act. 

19 (2) PENDING CLAIMS.—The amendments made 

20 by this section shall continue to apply with respect 

21 to any claim pending before the Board on the last 

22 day of the 5-year period described under paragraph 

23 (1). 


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1 SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY 

2 JUDGMENT. 

3 (a) IN GENERAL.—Section 1204(b) of title 5, United 

4 States Code, is amended— 

5 (1) by redesignating paragraph (3) as para6 graph (4); 

7 (2) by inserting after paragraph (2) the fol8 lowing: 

9 ‘‘(3) With respect to a request for corrective ac10 tion based on an alleged prohibited personnel prac11 tice described in section 2302(b) (8) or (9) (A)(i), 

12 (B), (C), or (D) for which the associated personnel 

13 action is an action covered under section 7512 or 

14 7542, the Board, any administrative law judge ap15 pointed by the Board under section 3105 of this 

16 title, or any employee of the Board designated by 

17 the Board may, with respect to any party, grant a 

18 motion for summary judgment when the Board or 

19 the administrative law judge determines that there is 

20 no genuine issue as to any material fact and that 

21 the moving party is entitled to a judgment as a mat22 ter of law.’’. 

23 (b) SUNSET.— 

24 (1) IN GENERAL.—Except as provided under 

25 paragraph (2), the amendments made by this section 


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1 shall cease to have effect 5 years after the effective 

2 date of this Act. 

3 (2) PENDING CLAIMS.—The amendments made 

4 by this section shall continue to apply with respect 

5 to any claim pending before the Board on the last 

6 day of the 5-year period described under paragraph 

7 (1). 

8 SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION. 

9 (a) PROHIBITED PERSONNEL PRACTICES.—Section 

10 2302(b)(8) of title 5, United States Code, is amended— 

11 (1) in subparagraph (A), by striking ‘‘or’’ after 

12 the semicolon; 

13 (2) in subparagraph (B), by adding ‘‘or’’ after 

14 the semicolon; and 

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

16 ‘‘(C) any communication that complies 

17 with subsection (a)(1), (d), or and (h) of sec18 tion 8H of the Inspector General Act of 1978 

19 (5 U.S.C. App.);’’. 

20 (b) INSPECTOR GENERAL ACT OF 1978.—Section 8H 

21 of the Inspector General Act of 1978 (5 U.S.C. App.) is 

22 amended— 

23 (1) in subsection (a)(1), by adding at the end 

24 the following: 


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1 ‘‘(D) An employee of any agency, as that 

2 term is defined under section 2302(a)(2)(C) of 

3 title 5, United States Code, who intends to re4 port to Congress a complaint or information 

5 with respect to an urgent concern may report 

6 the complaint or information to the Inspector 

7 General (or designee) of the agency of at which 

8 that employee is employed.’’; 

9 (2) in subsection (c), by striking ‘‘intelligence 

10 committees’’ and inserting ‘‘appropriate commit11 tees’’; 

12 (3) in subsection (d)— 

13 (A) in paragraph (1), by striking ‘‘either 

14 or both of the intelligence committees’’ and in15 serting ‘‘any of the appropriate committees’’; 

16 and 

17 (B) in paragraphs (2) and (3), by striking 

18 ‘‘intelligence committees’’ each place that term 

19 appears and inserting ‘‘appropriate commit20 tees’’; 

21 (4) in subsection (h)— 

22 (A) in paragraph (1)— 

23 (i) in subparagraph (A), by striking 

24 ‘‘intelligence’’; and 


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1 (ii) in subparagraph (B), by inserting 

2 ‘‘or an activity involving classified informa3 tion’’ after ‘‘an intelligence activity’’; and 

4 (B) by striking paragraph (2), and insert5 ing the following: 

6 ‘‘(2) The term ‘appropriate committees’ means 

7 the Permanent Select Committee on Intelligence of 

8 the House of Representatives and the Select Com9 mittee on Intelligence of the Senate, except that with 

10 respect to disclosures made by employees described 

11 in subsection (a)(1)(D), the term ‘appropriate com12 mittees’ means the committees of appropriate juris13 diction.’’. 

14 SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN. 

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

16 Act of 1978 (5 U.S.C. App.) is amended by striking sub17 section (d) and inserting the following: 

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

19 with applicable laws and regulations governing the civil 

20 service— 

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

22 Auditing who shall have the responsibility for super23 vising the performance of auditing activities relating 

24 to programs and operations of the establishment; 


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

2 Investigations who shall have the responsibility for 

3 supervising the performance of investigative activi4 ties relating to such programs and operations; and 

5 ‘‘(C) designate a Whistleblower Protection Om6 budsman who shall educate agency employees— 

7 ‘‘(i) about prohibitions on retaliation for 

8 protected disclosures; and 

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

10 making a protected disclosure about the rights 

11 and remedies against retaliation for protected 

12 disclosures. 

13 ‘‘(2) The Whistleblower Protection Ombudsman shall 

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

15 employee or former employee. 

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

17 of the designation of a Whistleblower Protection Ombuds18 man under paragraph (1)(C) shall not apply to— 

19 ‘‘(A) any agency that is an element of the intel20 ligence community (as defined in section 3(4) of the 

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

22 or 

23 ‘‘(B) as determined by the President, any exec24 utive agency or unit thereof the principal function of 


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1 which is the conduct of foreign intelligence or 

2 counter intelligence activities.’’. 

3 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

4 Section 8D(j) of the Inspector General Act of 1978 (5 

5 U.S.C. App.) is amended— 

6 (1) by striking ‘‘section 3(d)(1)’’ and inserting 

7 ‘‘section 3(d)(1)(A)’’; and 

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

9 ‘‘section 3(d)(1)(B)’’. 

10 (c) SUNSET.— 

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

12 this section shall cease to have effect on the date 

13 that is 5 years after the date of enactment of this 

14 Act. 

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

16 date described in paragraph (1), section 3(d) and 

17 section 8D(j) of the Inspector General Act of 1978 

18 (5 U.S.C. App.) shall read as such sections read on 

19 the day before the date of enactment of this Act. 


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1 TITLE II—INTELLIGENCE COM2 MUNITY WHISTLEBLOWER 

3 PROTECTIONS 

4 SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY 

5 WHISTLEBLOWERS. 

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

7 States Code, is amended by inserting after section 2303 

8 the following: 

9 ‘‘§ 2303A. Prohibited personnel practices in the intel10 ligence community 

11 ‘‘(a) DEFINITIONS.—In this section— 

12 ‘‘(1) the term ‘agency’ means an executive de13 partment or independent establishment, as defined 

14 under sections 101 and 104, that contains an intel15 ligence community element, except the Federal Bu16 reau of Investigation; 

17 ‘‘(2) the term ‘intelligence community ele18 ment’— 

19 ‘‘(A) means— 

20 ‘‘(i) the Central Intelligence Agency, 

21 the Defense Intelligence Agency, the Na22 tional Geospatial-Intelligence Agency, the 

23 National Security Agency, the Office of the 

24 Director of National Intelligence, and the 

25 National Reconnaissance Office; and 


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1 ‘‘(ii) any executive agency or unit 

2 thereof determined by the President under 

3 section 2302(a)(2)(C)(ii) of title 5, United 

4 States Code, to have as its principal func5 tion the conduct of foreign intelligence or 

6 counterintelligence activities; and 

7 ‘‘(B) does not include the Federal Bureau 

8 of Investigation; and 

9 ‘‘(3) the term ‘personnel action’ means any ac10 tion described in clauses (i) through (x) of section 

11 2302(a)(2)(A) with respect to an employee in a posi12 tion in an intelligence community element (other 

13 than a position of a confidential, policy-determining, 

14 policymaking, or policy-advocating character). 

15 ‘‘(b) IN GENERAL.—Any employee of an agency who 

16 has authority to take, direct others to take, recommend, 

17 or approve any personnel action, shall not, with respect 

18 to such authority, take or fail to take a personnel action 

19 with respect to any employee of an intelligence community 

20 element as a reprisal for a disclosure of information by 

21 the employee to the Director of National Intelligence (or 

22 an employee designated by the Director of National Intel23 ligence for such purpose), or to the head of the employing 

24 agency (or an employee designated by the head of that 


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1 agency for such purpose), which the employee reasonably 

2 believes evidences— 

3 ‘‘(1) a violation of any law, rule, or regulation, 

4 except for an alleged violation that occurs during the 

5 conscientious carrying out of official duties; or 

6 ‘‘(2) mismanagement, a gross waste of funds, 

7 an abuse of authority, or a substantial and specific 

8 danger to public health or safety. 

9 ‘‘(c) ENFORCEMENT.—The President shall provide 

10 for the enforcement of this section in a manner consistent 

11 with applicable provisions of sections 1214 and 1221. 

12 ‘‘(d) EXISTING RIGHTS PRESERVED.—Nothing in 

13 this section shall be construed to— 

14 ‘‘(1) preempt or preclude any employee, or ap15 plicant for employment, at the Federal Bureau of 

16 Investigation from exercising rights currently pro17 vided under any other law, rule, or regulation, in18 cluding section 2303; 

19 ‘‘(2) repeal section 2303; or 

20 ‘‘(3) provide the President or Director of Na21 tional Intelligence the authority to revise regulations 

22 related to section 2303, codified in part 27 of the 

23 Code of Federal Regulations.’’. 

24 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

25 The table of sections for chapter 23 of title 5, United 


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1 States Code, is amended by inserting after the item relat2 ing to section 2303 the following: 

‘‘2303A. Prohibited personnel practices in the intelligence community.’’. 

3 SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS 

4 DETERMINATIONS. 

5 (a) IN GENERAL.—Section 3001(b) of the Intel6 ligence Reform and Terrorism Prevention Act of 2004 (50 

7 U.S.C. 435b(b)) is amended— 

8 (1) in the matter preceding paragraph (1), by 

9 striking ‘‘Not’’ and inserting ‘‘Except as otherwise 

10 provided, not’’; 

11 (2) in paragraph (5), by striking ‘‘and’’ after 

12 the semicolon; 

13 (3) in paragraph (6), by striking the period at 

14 the end and inserting ‘‘; and’’; and 

15 (4) by inserting after paragraph (6) the fol16 lowing: 

17 ‘‘(7) not later than 180 days after the date of 

18 enactment of the Whistleblower Protection Enhance19 ment Act of 2011— 

20 ‘‘(A) developing policies and procedures 

21 that permit, to the extent practicable, individ22 uals who challenge in good faith appeal a deter23 mination to suspend or revoke a security clear24 ance or access to classified information to reVerDate Mar 15 2010 01:28 Apr 20, 2012 Jkt 019200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\S743.RS S743

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1 tain their government employment status while 

2 such challenge is pending; and 

3 ‘‘(B) developing and implementing uniform 

4 and consistent policies and procedures to ensure 

5 proper protections during the process for deny6 ing, suspending, or revoking a security clear7 ance or access to classified information, includ8 ing the provision of a right to appeal such a de9 nial, suspension, or revocation, except that 

10 there shall be no appeal of an agency’s suspen11 sion of a security clearance or access determina12 tion for purposes of conducting an investiga13 tion, if that suspension lasts no longer than 1 

14 year or the head of the agency certifies that a 

15 longer suspension is needed before a final deci16 sion on denial or revocation to prevent immi17 nent harm to the national security. 

18 ‘‘Any limitation period applicable to an agency appeal 

19 under paragraph (7) shall be tolled until the head of the 

20 agency (or in the case of any component of the Depart21 ment of Defense, the Secretary of Defense) determines, 

22 with the concurrence of the Director of National Intel23 ligence, that the policies and procedures described in para24 graph (7) have been established for the agency or the Di25 rector of National Intelligence promulgates the policies 


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1 and procedures under paragraph (7). The policies and pro2 cedures for appeals developed under paragraph (7) shall 

3 be comparable to the policies and procedures pertaining 

4 to prohibited personnel practices defined under section 

5 2302(b)(8) of title 5, United States Code, and provide— 

6 ‘‘(A) for an independent and impartial fact7 finder; 

8 ‘‘(B) for notice and the opportunity to be 

9 heard, including the opportunity to present relevant 

10 evidence, including witness testimony; 

11 ‘‘(C) that the employee or former employee may 

12 be represented by counsel; 

13 ‘‘(D) that the employee or former employee has 

14 a right to a decision based on the record developed 

15 during the appeal; 

16 ‘‘(E) that not more than 180 days shall pass 

17 from the filing of the appeal to the report of the im18 partial fact-finder to the agency head or the des19 ignee of the agency head, unless— 

20 ‘‘(i) the employee and the agency con21 cerned agree to an extension; or 

22 ‘‘(ii) the impartial fact-finder determines in 

23 writing that a greater period of time is required 

24 in the interest of fairness or national security; 


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1 ‘‘(F) for the use of information specifically re2 quired by Executive order to be kept classified in the 

3 interest of national defense or the conduct of foreign 

4 affairs in a manner consistent with the interests of 

5 national security, including ex parte submissions if 

6 the agency determines that the interests of national 

7 security so warrant; and 

8 ‘‘(G) that the employee or former employee 

9 shall have no right to compel the production of in10 formation specifically required by Executive order to 

11 be kept classified in the interest of national defense 

12 or the conduct of foreign affairs, except evidence 

13 necessary to establish that the employee made the 

14 disclosure or communication such employee alleges 

15 was protected by subparagraphs (A), (B), and (C) of 

16 subsection (j)(1).’’. 

17 (b) RETALIATORY REVOCATION OF SECURITY

18 CLEARANCES AND ACCESS DETERMINATIONS.—Section 

19 3001 of the Intelligence Reform and Terrorism Prevention 

20 Act of 2004 (50 U.S.C. 435b) is amended by adding at 

21 the end the following: 

22 ‘‘(j) RETALIATORY REVOCATION OF SECURITY

23 CLEARANCES AND ACCESS DETERMINATIONS.— 

24 ‘‘(1) IN GENERAL.—Agency personnel with au25 thority over personnel security clearance or access 


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1 determinations shall not take or fail to take, or 

2 threaten to take or fail to take, any action with re3 spect to any employee’s security clearance or access 

4 determination because of— 

5 ‘‘(A) any disclosure of information to the 

6 Director of National Intelligence (or an em7 ployee designated by the Director of National 

8 Intelligence for such purpose) or the head of 

9 the employing agency (or employee designated 

10 by the head of that agency for such purpose) by 

11 an employee that the employee reasonably be12 lieves evidences— 

13 ‘‘(i) a violation of any law, rule, or 

14 regulation, and occurs during the conscien15 tious carrying out of official duties; or 

16 ‘‘(ii) gross mismanagement, a gross 

17 waste of funds, an abuse of authority, or 

18 a substantial and specific danger to public 

19 health or safety; 

20 ‘‘(B) any disclosure to the Inspector Gen21 eral of an agency or another employee des22 ignated by the head of the agency to receive 

23 such disclosures, of information which the em24 ployee reasonably believes evidences— 


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1 ‘‘(i) a violation of any law, rule, or 

2 regulation, and occurs during the conscien3 tious carrying out of official duties; or 

4 ‘‘(ii) gross mismanagement, a gross 

5 waste of funds, an abuse of authority, or 

6 a substantial and specific danger to public 

7 health or safety; 

8 ‘‘(C) any communication that complies 

9 with— 

10 ‘‘(i) subsection (a)(1), (d), or and (h) 

11 of section 8H of the Inspector General Act 

12 of 1978 (5 U.S.C. App.); 

13 ‘‘(ii) subsection (d)(5)(A), (D), or and 

14 (G) of section 17 of the Central Intel15 ligence Agency Act of 1949 (50 U.S.C. 

16 403q); or 

17 ‘‘(iii) subsection (k)(5)(A), (D), or 

18 and (G), of section 103H of the National 

19 Security Act of 1947 (50 U.S.C. 403–3h); 

20 ‘‘(D) the exercise of any appeal, complaint, 

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

22 regulation; 

23 ‘‘(E) testifying for or otherwise lawfully as24 sisting any individual in the exercise of any 

25 right referred to in subparagraph (D); or 


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1 ‘‘(F) cooperating with or disclosing infor2 mation to the Inspector General of an agency, 

3 in accordance with applicable provisions of law 

4 in connection with an audit, inspection, or in5 vestigation conducted by the Inspector General, 

6 if the actions described under subparagraphs (D) 

7 through (F) do not result in the employee or appli8 cant unlawfully disclosing information specifically re9 quired by Executive order to be kept classified in the 

10 interest of national defense or the conduct of foreign 

11 affairs. 

12 ‘‘(2) RULE OF CONSTRUCTION.—Consistent 

13 with the protection of sources and methods, nothing 

14 in paragraph (1) shall be construed to authorize the 

15 withholding of information from the Congress or the 

16 taking of any personnel action against an employee 

17 who discloses information to the Congress. 

18 ‘‘(3) DISCLOSURES.— 

19 ‘‘(A) IN GENERAL.—A disclosure shall not 

20 be excluded from paragraph (1) because— 

21 ‘‘(i) the disclosure was made to a per22 son, including a supervisor, who partici23 pated in an activity that the employee rea24 sonably believed to be covered by para25 graph (1)(A)(ii); 


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1 ‘‘(ii) the disclosure revealed informa2 tion that had been previously disclosed; 

3 ‘‘(iii) of the employee’s motive for 

4 making the disclosure; 

5 ‘‘(iv) the disclosure was not made in 

6 writing; 

7 ‘‘(v) the disclosure was made while 

8 the employee was off duty; or 

9 ‘‘(vi) of the amount of time which has 

10 passed since the occurrence of the events 

11 described in the disclosure. 

12 ‘‘(B) REPRISALS.—If a disclosure is made 

13 during the normal course of duties of an em14 ployee, the disclosure shall not be excluded from 

15 paragraph (1) if any employee who has author16 ity to take, direct others to take, recommend, or 

17 approve any personnel action with respect to 

18 the employee making the disclosure, took, failed 

19 to take, or threatened to take or fail to take a 

20 personnel action with respect to that employee 

21 in reprisal for the disclosure. 

22 ‘‘(4) AGENCY ADJUDICATION.— 

23 ‘‘(A) REMEDIAL PROCEDURE.—An em24 ployee or former employee who believes that he 

25 or she has been subjected to a reprisal prohibVerDate Mar 15 2010 01:28 Apr 20, 2012 Jkt 019200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 E:\BILLS\S743.RS S743

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1 ited by paragraph (1) of this subsection may, 

2 within 90 days after the issuance of notice of 

3 such decision, appeal that decision within the 

4 agency of that employee or former employee 

5 through proceedings authorized by paragraph 

6 (7) of subsection (a), except that there shall be 

7 no appeal of an agency’s suspension of a secu8 rity clearance or access determination for pur9 poses of conducting an investigation, if that 

10 suspension lasts not longer than 1 year (or a 

11 longer period in accordance with a certification 

12 made under subsection (b)(7)). 

13 ‘‘(B) CORRECTIVE ACTION.—If, in the 

14 course of proceedings authorized under sub15 paragraph (A), it is determined that the ad16 verse security clearance or access determination 

17 violated paragraph (1) of this subsection, the 

18 agency shall take specific corrective action to 

19 return the employee or former employee, as 

20 nearly as practicable and reasonable, to the po21 sition such employee or former employee would 

22 have held had the violation not occurred. Such 

23 corrective action shall include reasonable attor24 ney’s fees and any other reasonable costs in25 curred, and may include back pay and related 


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1 benefits, travel expenses, and compensatory 

2 damages not to exceed $300,000. 

3 ‘‘(C) CONTRIBUTING FACTOR.—In deter4 mining whether the adverse security clearance 

5 or access determination violated paragraph (1) 

6 of this subsection, the agency shall find that 

7 paragraph (1) of this subsection was violated if 

8 a disclosure described in paragraph (1) was a 

9 contributing factor in the adverse security clear10 ance or access determination taken against the 

11 individual, unless the agency demonstrates by a 

12 preponderance of the evidence that it would 

13 have taken the same action in the absence of 

14 such disclosure, giving the utmost deference to 

15 the agency’s assessment of the particular threat 

16 to the national security interests of the United 

17 States in the instant matter. 

18 ‘‘(5) APPELLATE REVIEW OF SECURITY CLEAR19 ANCE ACCESS DETERMINATIONS BY DIRECTOR OF

20 NATIONAL INTELLIGENCE.— 

21 ‘‘(A) DEFINITION.—In this paragraph, the 

22 term ‘Board’ means the appellate review board 

23 established under section 204 of the Whistle24 blower Protection Enhancement Act of 2011 

25 2012. 


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1 ‘‘(B) APPEAL.—Within 60 days after re2 ceiving notice of an adverse final agency deter3 mination under a proceeding under paragraph 

4 (4), an employee or former employee may ap5 peal that determination to the Board. 

6 ‘‘(C) POLICIES AND PROCEDURES.—The 

7 Board, in consultation with the Attorney Gen8 eral, Director of National Intelligence, and the 

9 Secretary of Defense, shall develop and imple10 ment policies and procedures for adjudicating 

11 the appeals authorized by subparagraph (B). 

12 The Director of National Intelligence and Sec13 retary of Defense shall jointly approve any 

14 rules, regulations, or guidance issued by the 

15 Board concerning the procedures for the use or 

16 handling of classified information. 

17 ‘‘(D) REVIEW.—The Board’s review shall 

18 be on the complete agency record, which shall 

19 be made available to the Board. The Board may 

20 not hear witnesses or admit additional evidence. 

21 Any portions of the record that were submitted 

22 ex parte during the agency proceedings shall be 

23 submitted ex parte to the Board. 

24 ‘‘(E) FURTHER FACT-FINDING OR IM25 PROPER DENIAL.—If the Board concludes that 


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1 further fact-finding is necessary or finds that 

2 the agency improperly denied the employee or 

3 former employee the opportunity to present evi4 dence that, if admitted, would have a substan5 tial likelihood of altering the outcome, the 

6 Board shall remand the matter to the agency 

7 from which it originated for additional pro8 ceedings in accordance with the rules of proce9 dure issued by the Board. 

10 ‘‘(F) DE NOVO DETERMINATION.—The 

11 Board shall make a de novo determination, 

12 based on the entire record and under the stand13 ards specified in paragraph (4), of whether the 

14 employee or former employee received an ad15 verse security clearance or access determination 

16 in violation of paragraph (1). In considering the 

17 record, the Board may weigh the evidence, 

18 judge the credibility of witnesses, and determine 

19 controverted questions of fact. In doing so, the 

20 Board may consider the prior fact-finder’s op21 portunity to see and hear the witnesses. 

22 ‘‘(G) ADVERSE SECURITY CLEARANCE OR

23 ACCESS DETERMINATION.—If the Board finds 

24 that the adverse security clearance or access de25 termination violated paragraph (1), it shall then 


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1 separately determine whether reinstating the se2 curity clearance or access determination is 

3 clearly consistent with the interests of national 

4 security, with any doubt resolved in favor of na5 tional security, under Executive Order 12968 

6 (60 Fed. Reg. 40245; relating to access to clas7 sified information) or any successor thereto (in8 cluding any adjudicative guidelines promulgated 

9 under such orders) or any subsequent Executive 

10 order, regulation, or policy concerning access to 

11 classified information. 

12 ‘‘(H) REMEDIES.— 

13 ‘‘(i) CORRECTIVE ACTION.—If the 

14 Board finds that the adverse security 

15 clearance or access determination violated 

16 paragraph (1), it shall order the agency 

17 head to take specific corrective action to 

18 return the employee or former employee, 

19 as nearly as practicable and reasonable, to 

20 the position such employee or former em21 ployee would have held had the violation 

22 not occurred. Such corrective action shall 

23 include reasonable attorney’s fees and any 

24 other reasonable costs incurred, and may 

25 include back pay and related benefits, travVerDate Mar 15 2010 01:28 Apr 20, 2012 Jkt 019200 PO 00000 Frm 00060 Fmt 6652 Sfmt 6201 E:\BILLS\S743.RS S743

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1 el expenses, and compensatory damages 

2 not to exceed $300,000. The Board may 

3 recommend, but may not order, reinstate4 ment or hiring of a former employee. The 

5 Board may order that the former employee 

6 be treated as though the employee were 

7 transferring from the most recent position 

8 held when seeking other positions within 

9 the executive branch. Any corrective action 

10 shall not include the reinstating of any se11 curity clearance or access determination. 

12 The agency head shall take the actions so 

13 ordered within 90 days, unless the Director 

14 of National Intelligence, the Secretary of 

15 Energy, or the Secretary of Defense, in the 

16 case of any component of the Department 

17 of Defense, determines that doing so would 

18 endanger national security. 

19 ‘‘(ii) RECOMMENDED ACTION.—If the 

20 Board finds that reinstating the employee 

21 or former employee’s security clearance or 

22 access determination is clearly consistent 

23 with the interests of national security, it 

24 shall recommend such action to the head of 


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1 the entity selected under subsection (b) 

2 and the head of the affected agency. 

3 ‘‘(I) CONGRESSIONAL NOTIFICATION.— 

4 ‘‘(i) ORDERS.—Consistent with the 

5 protection of sources and methods, at the 

6 time the Board issues an order, the Chair7 person of the Board shall notify— 

8 ‘‘(I) the Committee on Homeland 

9 Security and Government Affairs of 

10 the Senate; 

11 ‘‘(II) the Select Committee on In12 telligence of the Senate; 

13 ‘‘(III) the Committee on Over14 sight and Government Reform of the 

15 House of Representatives; 

16 ‘‘(IV) the Permanent Select Com17 mittee on Intelligence of the House of 

18 Representatives; and 

19 ‘‘(V) the committees of the Sen20 ate and the House of Representatives 

21 that have jurisdiction over the employ22 ing agency, including in the case of a 

23 final order or decision of the Defense 

24 Intelligence Agency, the National 

25 Geospatial-Intelligence Agency, the 


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1 National Security Agency, or the Na2 tional Reconnaissance Office, the 

3 Committee on Armed Services of the 

4 Senate and the Committee on Armed 

5 Services of the House of Representa6 tives. 

7 ‘‘(ii) RECOMMENDATIONS.—If the 

8 agency head and the head of the entity se9 lected under subsection (b) do not follow 

10 the Board’s recommendation to reinstate a 

11 clearance, the head of the entity selected 

12 under subsection (b) shall notify the com13 mittees described in subclauses (I) through 

14 (V) of clause (i). 

15 ‘‘(6) JUDICIAL REVIEW.—Nothing in this sec16 tion shall be construed to permit or require judicial 

17 review of any— 

18 ‘‘(A) agency action under this section; or 

19 ‘‘(B) action of the appellate review board 

20 established under section 204 of the Whistle21 blower Protection Enhancement Act of 2011 

22 2012. 

23 ‘‘(7) PRIVATE CAUSE OF ACTION.—Nothing in 

24 this section shall be construed to permit, authorize, 


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1 or require a private cause of action to challenge the 

2 merits of a security clearance determination.’’. 

3 (c) ACCESS DETERMINATION DEFINED.—Section 

4 3001(a) of the Intelligence Reform and Terrorism Preven5 tion Act of 2004 (50 U.S.C. 435b(a)) is amended by add6 ing at the end the following: 

7 ‘‘(9) The term ‘access determination’ means the 

8 process for determining determination regarding 

9 whether an employee— 

10 ‘‘(A) is eligible for access to classified in11 formation in accordance with Executive Order 

12 12968 (60 Fed. Reg. 40245; relating to access 

13 to classified information), or any successor 

14 thereto, and Executive Order 10865 (25 Fed. 

15 Reg. 1583; relating to safeguarding classified 

16 information with industry); and 

17 ‘‘(B) possesses a need to know under that 

18 Order.’’. 

19 (d) RULE OF CONSTRUCTION.—Nothing in section 

20 3001 of the Intelligence Reform and Terrorism Prevention 

21 Act of 2004 (50 U.S.C. 435b), as amended by this Act, 

22 shall be construed to require the repeal or replacement of 

23 agency appeal procedures implementing Executive Order 

24 12968 (60 Fed. Reg. 40245; relating to classified national 

25 security information), or any successor thereto, and ExecVerDate Mar 15 2010 01:28 Apr 20, 2012 Jkt 019200 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 E:\BILLS\S743.RS S743

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1 utive Order 10865 (25 Fed. Reg. 1583; relating to safe2 guarding classified information with industry), or any suc3 cessor thereto, that meet the requirements of section 

4 3001(b)(7) of such Act, as so amended. 

5 SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE 

6 COMMUNITY WHISTLEBLOWER PROTECTION 

7 ACT. 

8 (a) IN GENERAL.—Section 8H of the Inspector Gen9 eral Act of 1978 (5 U.S.C. App.) is amended— 

10 (1) in subsection (b)— 

11 (A) by inserting ‘‘(1)’’ after ‘‘(b)’’; and 

12 (B) by adding at the end the following: 

13 ‘‘(2) If the head of an establishment determines that 

14 a complaint or information transmitted under paragraph 

15 (1) would create a conflict of interest for the head of the 

16 establishment, the head of the establishment shall return 

17 the complaint or information to the Inspector General with 

18 that determination and the Inspector General shall make 

19 the transmission to the Director of National Intelligence 

20 and, if the establishment is within the Department of De21 fense, to the Secretary of Defense. In such a case, the re22 quirements of this section for the head of the establish23 ment apply to the recipient each recipient of the Inspector 

24 General’s transmission. The Director of National Intel25 ligence Each recipient of the Inspector General’s transVerDate Mar 15 2010 01:28 Apr 20, 2012 Jkt 019200 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 E:\BILLS\S743.RS S743

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1 mission shall consult with the members of the appellate 

2 review board established under section 204 of the Whistle3 blower Protection Enhancement Review Act of 2011 2012 

4 regarding all transmissions under this paragraph.’’; 

5 (2) by designating subsection (h) as subsection 

6 (i); and 

7 (3) by inserting after subsection (g), the fol8 lowing: 

9 ‘‘(h) An individual who has submitted a complaint or 

10 information to an Inspector General under this section 

11 may notify any member of Congress or congressional staff 

12 member of the fact that such individual has made a sub13 mission to that particular Inspector General, and of the 

14 date on which such submission was made.’’. 

15 (b) CENTRAL INTELLIGENCE AGENCY.—Section 

16 17(d)(5) of the Central Intelligence Agency Act of 1949 

17 (50 U.S.C. 403q) is amended— 

18 (1) in subparagraph (B)— 

19 (A) by inserting ‘‘(i)’’ after ‘‘(B)’’; and 

20 (B) by adding at the end the following: 

21 ‘‘(ii) If the Director determines that a complaint or 

22 information transmitted under paragraph (1) would create 

23 a conflict of interest for the Director, the Director shall 

24 return the complaint or information to the Inspector Gen25 eral with that determination and the Inspector General 


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1 shall make the transmission to the Director of National 

2 Intelligence. In such a case, the requirements of this sub3 section for the Director apply to the recipient of the In4 spector General’s submission; and Director of National In5 telligence. The Director of National Intelligence shall con6 sult with the members of the appellate review board estab7 lished under section 204 of the Whistleblower Protection En8 hancement Act of 2012 regarding all transmissions under 

9 this clause.’’; and 

10 (2) by adding at the end the following: 

11 ‘‘(H) An individual who has submitted a complaint 

12 or information to the Inspector General under this section 

13 may notify any member of Congress or congressional staff 

14 member of the fact that such individual has made a sub15 mission to the Inspector General, and of the date on which 

16 such submission was made.’’. 

17 SEC. 204. REGULATIONS; REPORTING REQUIREMENTS; 

18 NONAPPLICABILITY TO CERTAIN TERMI19 NATIONS. 

20 (a) DEFINITIONS.—In this section— 

21 (1) the term ‘‘congressional oversight commit22 tees’’ means— 

23 (A) the Committee on Homeland Security 

24 and Government Affairs of the Senate; 


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1 (B) the Select Committee on Intelligence 

2 of the Senate; 

3 (C) the Committee on Oversight and Gov4 ernment Reform of the House of Representa5 tives; and 

6 (D) the Permanent Select Committee on 

7 Intelligence of the House of Representatives; 

8 and 

9 (2) the term ‘‘intelligence community ele10 ment’’— 

11 (A) means— 

12 (i) the Central Intelligence Agency, 

13 the Defense Intelligence Agency, the Na14 tional Geospatial-Intelligence Agency, the 

15 National Security Agency, the Office of the 

16 Director of National Intelligence, and the 

17 National Reconnaissance Office; and 

18 (ii) any executive agency or unit 

19 thereof determined by the President under 

20 section 2302(a)(2)(C)(ii) of title 5, United 

21 States Code, to have as its principal func22 tion the conduct of foreign intelligence or 

23 counterintelligence activities; and 

24 (B) does not include the Federal Bureau of 

25 Investigation. 


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1 (b) REGULATIONS.— 

2 (1) IN GENERAL.—The In consultation with the 

3 Secretary of Defense, the Director of National Intel4 ligence shall prescribe regulations to ensure that a 

5 personnel action shall not be taken against an em6 ployee of an intelligence community element as a re7 prisal for any disclosure of information described in 

8 section 2303A(b) of title 5, United States Code, as 

9 added by this Act. 

10 (2) APPELLATE REVIEW BOARD.—Not later 

11 than 180 days after the date of enactment of this 

12 Act, the Director of National Intelligence, in con13 sultation with the Secretary of Defense, the Attor14 ney General, and the heads of appropriate agencies, 

15 shall establish an appellate review board that is 

16 broadly representative of affected Departments and 

17 agencies and is made up of individuals with expertise 

18 in merit systems principles and national security 

19 issues— 

20 (A) to hear whistleblower appeals related 

21 to security clearance access determinations de22 scribed in section 3001(j) of the Intelligence 

23 Reform and Terrorism Prevention Act of 2004 

24 (50 U.S.C. 435b), as added by this Act; and 


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1 (B) that shall include a subpanel that re2 flects the composition of the intelligence com3 mittee, which shall be composed of intelligence 

4 community elements and inspectors general 

5 from intelligence community elements, for the 

6 purpose of hearing cases that arise in elements 

7 of the intelligence community. 

8 (B) that shall include a subpanel that re9 flects the composition of the intelligence commu10 nity, which shall— 

11 (i) be composed of intelligence commu12 nity elements and inspectors general from 

13 intelligence community elements, for the 

14 purpose of hearing cases that arise in ele15 ments of the intelligence community; and 

16 (ii) include the Inspector General of 

17 the Intelligence Community and the Inspec18 tor General of the Department of Defense. 

19 (c) REPORT ON THE STATUS OF IMPLEMENTATION

20 OF REGULATIONS.—Not later than 2 years after the date 

21 of enactment of this Act, the Director of National Intel22 ligence shall submit a report on the status of the imple23 mentation of the regulations promulgated under sub24 section (b) to the congressional oversight committees. 


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1 (d) NONAPPLICABILITY TO CERTAIN TERMI2 NATIONS.—Section 2303A of title 5, United States Code, 

3 as added by this Act, and section 3001 of the Intelligence 

4 Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 

5 435b), as amended by this Act, shall not apply to adverse 

6 security clearance or access determinations if the affected 

7 employee is concurrently terminated under— 

8 (1) section 1609 of title 10, United States 

9 Code; 

10 (2) the authority of the Director of National In11 telligence under section 102A(m) of the National Se12 curity Act of 1947 (50 U.S.C. 403–1(m)), if— 

13 (A) the Director personally summarily ter14 minates the individual; and 

15 (B) the Director— 

16 (i) determines the termination to be in 

17 the interest of the United States; 

18 (ii) determines that the procedures 

19 prescribed in other provisions of law that 

20 authorize the termination of the employ21 ment of such employee cannot be invoked 

22 in a manner consistent with the national 

23 security; and 


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1 (iii) not later than 5 days after such 

2 termination, notifies the congressional 

3 oversight committees of the termination; 

4 (3) the authority of the Director of the Central 

5 Intelligence Agency under section 104A(e) of the 

6 National Security Act of 1947 (50 U.S.C. 403– 

7 4a(e)), if— 

8 (A) the Director personally summarily ter9 minates the individual; and 

10 (B) the Director— 

11 (i) determines the termination to be in 

12 the interest of the United States; 

13 (ii) determines that the procedures 

14 prescribed in other provisions of law that 

15 authorize the termination of the employ16 ment of such employee cannot be invoked 

17 in a manner consistent with the national 

18 security; and 

19 (iii) not later than 5 days after such 

20 termination, notifies the congressional 

21 oversight committees of the termination; or 

22 (4) section 7532 of title 5, United States Code, 

23 if— 

24 (A) the agency head personally terminates 

25 the individual; and 


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1 (B) the agency head— 

2 (i) determines the termination to be in 

3 the interest of the United States; 

4 (ii) determines that the procedures 

5 prescribed in other provisions of law that 

6 authorize the termination of the employ7 ment of such employee cannot be invoked 

8 in a manner consistent with the national 

9 security; and 

10 (iii) not later than 5 days after such 

11 termination, notifies the congressional 

12 oversight committees of the termination. 

13 TITLE III—SAVINGS CLAUSE; 

14 EFFECTIVE DATE 

15 SEC. 301. SAVINGS CLAUSE. 

16 Nothing in this Act shall be construed to imply any 

17 limitation on any protections afforded by any other provi18 sion of law to employees and applicants. 

19 SEC. 302. EFFECTIVE DATE. 

20 This Act shall take effect 30 days after the date of 

21 enactment of this Act. 


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Calendar No. 358 

112TH CONGRESS 

2D SESSION S. 743 

[Report No. 112–155] 

A BILL 

To amend chapter 23 of title 5, United States 

Special Counsel, and for other purposes. protections, provide certain authority for the and agreements conform with certain disclosure forms, and agreements that such policies, forms, quire a statement in nondisclosure policies, protected from prohibited personnel practices, reCode, to clarify the disclosures of information 

APRIL 19, 2012 

Reported with amendments 


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