112TH CONGRESS 

2D SESSION S. 743 

AN ACT 

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. 
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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 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 sec25 tion 2302, by inserting ‘‘or section 2302(b)(9) 
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1 (A)(i), (B), (C), or (D)’’ after ‘‘section 2302(b)(8)’’ 

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

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

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

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

6 1221, by inserting ‘‘or protected activity’’ after ‘‘dis7 closure’’ each place it appears. 

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

9 Code, is amended— 

10 (i) by striking subparagraph (A) and in11 serting the following: 

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

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

14 regulation— 

15 ‘‘(i) with regard to remedying a viola16 tion of paragraph (8); or 

17 ‘‘(ii) other than with regard to rem18 edying a violation of paragraph (8);’’; and 

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

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

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

22 is amended by adding at the end the following: 

23 ‘‘(f)(1) A disclosure shall not be excluded from sub24 section (b)(8) because— 
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1 ‘‘(A) the disclosure was made to a person, in2 cluding a supervisor, who participated in an activity 

3 that the employee or applicant reasonably believed to 

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

5 ‘‘(B) the disclosure revealed information that 

6 had been previously disclosed; 

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

8 making the disclosure; 

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

10 ‘‘(E) the disclosure was made while the em11 ployee was off duty; or 

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

13 since the occurrence of the events described in the 

14 disclosure. 

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

16 of duties of an employee, the disclosure shall not be ex17 cluded from subsection (b)(8) if any employee who has au18 thority to take, direct others to take, recommend, or ap19 prove any personnel action with respect to the employee 

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

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

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

23 SEC. 102. DEFINITIONAL AMENDMENTS. 

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

25 amended— 
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1 (1) in subparagraph (B)(ii), by striking ‘‘and’’ 

2 at the end; 

3 (2) in subparagraph (C)(iii), by striking the pe4 riod at the end and inserting ‘‘; and’’; and 

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

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

7 communication or transmission, but does not include 

8 a communication concerning policy decisions that 

9 lawfully exercise discretionary authority unless the 

10 employee or applicant providing the disclosure rea11 sonably believes that the disclosure evidences— 

12 ‘‘(i) any violation of any law, rule, or regu13 lation; or 

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

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

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

17 SEC. 103. REBUTTABLE PRESUMPTION. 

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

19 amended by amending the matter following paragraph 

20 (12) to read as follows: 

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

22 withholding of information from Congress or the taking 

23 of any personnel action against an employee who discloses 

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

25 (i) any presumption relating to the performance of a duty 
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1 by an employee whose conduct is the subject of a disclo2 sure as defined under subsection (a)(2)(D) may be rebut3 ted by substantial evidence, and (ii) a determination as 

4 to whether an employee or applicant reasonably believes 

5 that such employee or applicant has disclosed information 

6 that evidences any violation of law, rule, regulation, gross 

7 mismanagement, a gross waste of funds, an abuse of au8 thority, or a substantial and specific danger to public 

9 health or safety shall be made by determining whether a 

10 disinterested observer with knowledge of the essential 

11 facts known to and readily ascertainable by the employee 

12 or applicant could reasonably conclude that the actions of 

13 the Government evidence such violations, mismanagement, 

14 waste, abuse, or danger.’’. 

15 SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PER16 SONNEL PRACTICES. 

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

18 title 5, United States Code, is amended— 

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

20 semicolon; and 

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

22 and inserting after clause (x) the following: 

23 ‘‘(xi) the implementation or enforce24 ment of any nondisclosure policy, form, or 

25 agreement; and’’. 
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1 (b) PROHIBITED PERSONNEL PRACTICE.— 

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

3 United States Code, is amended— 

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

5 the end; 

6 (B) in paragraph (12), by striking the pe7 riod and inserting ‘‘; or’’; and 

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

9 following: 

10 ‘‘(13) implement or enforce any nondisclosure 

11 policy, form, or agreement, if such policy, form, or 

12 agreement does not contain the following statement: 

13 ‘These provisions are consistent with and do not su14 persede, conflict with, or otherwise alter the em15 ployee obligations, rights, or liabilities created by ex16 isting statute or Executive order relating to (1) clas17 sified information, (2) communications to Congress, 

18 (3) the reporting to an Inspector General of a viola19 tion of any law, rule, or regulation, or mismanage20 ment, a gross waste of funds, an abuse of authority, 

21 or a substantial and specific danger to public health 

22 or safety, or (4) any other whistleblower protection. 

23 The definitions, requirements, obligations, rights, 

24 sanctions, and liabilities created by controlling Exec-
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1 utive orders and statutory provisions are incor2 porated into this agreement and are controlling.’.’’. 

3 (2) AGENCY WEBSITES.—Agencies making use 

4 of 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 

7 added by this Act) on the agency website, accom8 panied by the specific list of controlling Executive 

9 orders and 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 

13 agreement that was in effect before the effective 

14 date of this Act, but that does not contain the state15 ment required under section 2302(b)(13) of title 5, 

16 United States Code, (as added by this Act) for im17 plementation or 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 

24 practice to enforce that policy, form, or agree25 ment after the effective date of this Act with re-
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1 gard to a former employee if the agency com2 plies 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 in-
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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 2012, a petition to review a final order or final 
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1 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 2012, this paragraph shall apply to any review ob13 tained by the Director of the Office of Personnel Manage14 ment that raises no challenge to the Board’s disposition 

15 of allegations of a prohibited personnel practice described 

16 in section 2302(b) other than practices described in sec17 tion 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). 

18 The Director of the Office of Personnel Management may 

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

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

21 the final order or decision of the Board, a petition for judi22 cial review in the United States Court of Appeals for the 

23 Federal Circuit or any court of appeals of competent juris24 diction as provided under subsection (b)(2) if the Director 

25 determines, in the discretion of the Director, that the 
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1 Board erred in interpreting a civil service law, rule, or reg2 ulation affecting personnel management and that the 

3 Board’s decision will have a substantial impact on a civil 

4 service law, rule, regulation, or policy directive. If the Di5 rector did not intervene in a matter before the Board, the 

6 Director may not petition for review of a Board decision 

7 under this section unless the Director first petitions the 

8 Board for a reconsideration of its decision, and such peti9 tion is denied. In addition to the named respondent, the 

10 Board and all other parties to the proceedings before the 

11 Board shall have the right to appear in the proceeding 

12 before the court of appeals. The granting of the petition 

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

14 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; or 

19 (II) gross mismanagement, a 

20 gross waste of funds, an abuse of au21 thority, or a substantial and specific 

22 danger to public health or safety; and 

23 (ii) such disclosure is not specifically 

24 prohibited by law or such information is 

25 not specifically required by Executive order 
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1 to be kept classified in the interest of na2 tional defense or the conduct of foreign af3 fairs; and 

4 (B) shall come within the protections of 

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

6 Code, if— 

7 (i) the employee or applicant reason8 ably believes that the censorship related to 

9 research, analysis, or technical information 

10 is or will cause— 

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

12 regulation; or 

13 (II) gross mismanagement, a 

14 gross waste of funds, an abuse of au15 thority, or a substantial and specific 

16 danger to public health or safety; and 

17 (ii) the disclosure is made to the Spe18 cial Counsel, or to the Inspector General of 

19 an agency or another person designated by 

20 the head of the agency to receive such dis21 closures, consistent with the protection of 

22 sources and methods. 

23 (2) DISCLOSURES NOT EXCLUDED.—A disclo24 sure shall not be excluded from paragraph (1) for 
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1 any reason described under section 2302(f)(1) or (2) 

2 of title 5, United States Code. 

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

4 section shall be construed to imply any limitation on 

5 the protections of employees and applicants afforded 

6 by any other provision of law, including protections 

7 with respect to any disclosure of information be8 lieved to be evidence of censorship related to re9 search, analysis, or technical information. 

10 SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS 

11 FOR CRITICAL INFRASTRUCTURE INFORMA12 TION. 

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

14 (6 U.S.C. 133(c)) is amended by adding at the end the 

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

16 of independently obtained information includes the disclo17 sure of such information under section 2302(b)(8) of title 

18 5, United States Code.’’. 

19 SEC. 112. ADVISING EMPLOYEES OF RIGHTS. 

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

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

22 disclosure of information that is specifically required by 

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

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

25 Special Counsel, the Inspector General of an agency, Con-
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1 gress, or other agency employee designated to receive such 

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

3 SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEAR4 ANCE. 

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

6 amended by adding at the end the following: 

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

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

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

10 otherwise authorized by law. In any such action, the Spe11 cial Counsel is authorized to present the views of the Spe12 cial Counsel with respect to compliance with section 

13 2302(b) (8) or (9) and the impact court decisions would 

14 have on the enforcement of such provisions of law. 

15 ‘‘(2) A court of the United States shall grant the ap16 plication of the Special Counsel to appear in any such ac17 tion for the purposes described under subsection (a).’’. 

18 SEC. 114. SCOPE OF DUE PROCESS. 

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

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

21 after a finding that a protected disclosure was a contrib22 uting factor,’’ after ‘‘ordered if’’. 

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

24 5, United States Code, is amended by inserting ‘‘, after 
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1 a finding that a protected disclosure was a contributing 

2 factor,’’ after ‘‘ordered if’’. 

3 SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREE4 MENTS. 

5 (a) IN GENERAL.— 

6 (1) REQUIREMENT.—Each agreement in Stand7 ard Forms 312 and 4414 of the Government and 

8 any other nondisclosure policy, form, or agreement 

9 of the Government shall contain the following state10 ment: ‘‘These provisions are consistent with and do 

11 not supersede, conflict with, or otherwise alter the 

12 employee obligations, rights, or liabilities created by 

13 existing statute or Executive order relating to (1) 

14 classified information, (2) communications to Con15 gress, (3) the reporting to an Inspector General of 

16 a violation of any law, rule, or regulation, or mis17 management, a gross waste of funds, an abuse of 

18 authority, or a substantial and specific danger to 

19 public health or safety, or (4) any other whistle20 blower protection. The definitions, requirements, ob21 ligations, rights, sanctions, and liabilities created by 

22 controlling Executive orders and statutory provisions 

23 are incorporated into this agreement and are con24 trolling.’’. 
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1 (2) AGENCY WEBSITES.—Agencies making use 

2 of any nondisclosure policy, form, or agreement shall 

3 also post the statement required under paragraph 

4 (1) on the agency website, accompanied by the spe5 cific list of controlling Executive orders and statu6 tory provisions. 

7 (3) ENFORCEABILITY.— 

8 (A) IN GENERAL.—Any nondisclosure pol9 icy, form, or agreement described under para10 graph (1) that does not contain the statement 

11 required under paragraph (1) may not be im12 plemented or enforced to the extent such policy, 

13 form, or agreement is inconsistent with that 

14 statement. 

15 (B) NONDISCLOSURE POLICY, FORM, OR

16 AGREEMENT IN EFFECT BEFORE THE EFFEC17 TIVE DATE.—With respect to a nondisclosure 

18 policy, form, or agreement that was in effect 

19 before the effective date of this Act, but that 

20 does not contain the statement required under 

21 paragraph (1) for implementation or enforce22 ment— 

23 (i) it shall not be a prohibited per24 sonnel practice to enforce that policy, 

25 form, or agreement with regard to a cur-
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1 rent employee if the agency gives such em2 ployee notice of the statement; and 

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

5 form, or agreement after the effective date 

6 of this Act with regard to a former em7 ployee if the agency complies with para8 graph (2). 

9 (b) PERSONS OTHER THAN GOVERNMENT EMPLOY10 EES.—Notwithstanding subsection (a), a nondisclosure 

11 policy, form, or agreement that is to be executed by a per12 son connected with the conduct of an intelligence or intel13 ligence-related activity, other than an employee or officer 

14 of the United States Government, may contain provisions 

15 appropriate to the particular activity for which such docu16 ment is to be used. Such policy, form, or agreement shall, 

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

18 any classified information received in the course of such 

19 activity unless specifically authorized to do so by the 

20 United States Government. Such nondisclosure policy, 

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

22 forms do not bar disclosures to Congress or to an author23 ized official of an executive agency or the Department of 

24 Justice that are essential to reporting a substantial viola-
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1 tion of law, consistent with the protection of sources and 

2 methods. 

3 SEC. 116. REPORTING REQUIREMENTS. 

4 (a) GOVERNMENT ACCOUNTABILITY OFFICE.— 

5 (1) REPORT.—Not later than 48 months after 

6 the date of enactment of this Act, the Comptroller 

7 General shall submit a report to the Committee on 

8 Homeland Security and Governmental Affairs of the 

9 Senate and the Committee on Oversight and Govern10 ment Reform of the House of Representatives on the 

11 implementation of this title. 

12 (2) CONTENTS.—The report under this para13 graph shall include— 

14 (A) an analysis of any changes in the num15 ber of cases filed with the United States Merit 

16 Systems Protection Board alleging violations of 

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

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

19 (B) the outcome of the cases described 

20 under subparagraph (A), including whether or 

21 not the United States Merit Systems Protection 

22 Board, the Federal Circuit Court of Appeals, or 

23 any other court determined the allegations to be 

24 frivolous or malicious; 
26 

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1 (C) an analysis of the outcome of cases de2 scribed under subparagraph (A) that were de3 cided by a United States District Court and the 

4 impact the process has on the Merit Systems 

5 Protection Board and the Federal court system; 

6 and 

7 (D) any other matter as determined by the 

8 Comptroller General. 

9 (b) MERIT SYSTEMS PROTECTION BOARD.— 

10 (1) IN GENERAL.—Each report submitted an11 nually by the Merit Systems Protection Board under 

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

13 with respect to the period covered by such report, in14 clude as an addendum the following: 

15 (A) Information relating to the outcome of 

16 cases decided during the applicable year of the 

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

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

19 United States Code, were alleged. 

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

21 regional and field offices, the number of peti22 tions for review filed in such cases, and the out23 comes of such cases. 

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

25 under paragraph (1) submitted after the date of en-
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1 actment of this Act shall include an addendum re2 quired under that subparagraph that covers the pe3 riod beginning on the effective date of this Act and 

4 ending at the end of the fiscal year in which such 

5 effective date occurs. 

6 SEC. 117. ALTERNATIVE REVIEW. 

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

8 States Code, is amended by adding at the end the fol9 lowing: 

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

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

12 alleged prohibited personnel practice, means the United 

13 States district court for the judicial district in which— 

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

15 to have been committed; or 

16 ‘‘(B) the employee, former employee, or appli17 cant for employment allegedly affected by such prac18 tice resides. 

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

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

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

22 review in the appropriate United States district court in 

23 accordance with this subsection. 

24 ‘‘(B) Upon initiation of any action under subpara25 graph (A), the Board shall stay any other claims of such 
28 

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1 employee, former employee, or applicant pending before 

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

3 of operative facts. Such claims shall be stayed pending 

4 completion of the action filed under subparagraph (A) be5 fore the appropriate United States district court and any 

6 associated appellate review. 

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

8 ‘‘(A) an employee, former employee, or appli9 cant for employment— 

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

11 Systems Protection Board under section 

12 1221(a) based on an alleged prohibited per13 sonnel practice described in section 2302(b) (8) 

14 or (9) (A)(i), (B), (C), or (D) for which the as15 sociated personnel action is an action covered 

16 under section 7512 or 7542; or 

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

18 alleging as an affirmative defense the commis19 sion of a prohibited personnel practice described 

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

21 or (D) for which the associated personnel action 

22 is an action covered under section 7512 or 

23 7542; 

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

25 Board within 270 days after the date on which a re-
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1 quest for that corrective action or appeal has been 

2 duly submitted, unless the Board determines that 

3 the employee, former employee, or applicant for em4 ployment engaged in conduct intended to delay the 

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

6 and 

7 ‘‘(C) such employee, former employee, or appli8 cant provides written notice to the Board of filing an 

9 action under this subsection before the filing of that 

10 action. 

11 ‘‘(4) 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)(i) within 30 days after the date on which 

4 the request for corrective action or appeal was duly 

5 submitted, such employee, former employee, or appli6 cant for employment files a motion requesting a cer7 tification consistent with subparagraph (C) to the 

8 Board, any administrative law judge appointed by 

9 the Board under section 3105 of this title and as10 signed to the case, or any employee of the Board 

11 designated by the Board and assigned to the case; 

12 and 

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

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

15 corrective action or that appeal; and 

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

17 appointed by the Board under section 3105 of this 

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

19 the Board designated by the Board and assigned to 

20 the case certifies that— 

21 ‘‘(i) under the standards applicable to the 

22 review of motions to dismiss under rule 

23 12(b)(6) of the Federal Rules of Civil Proce24 dure, including rule 12(d), the request for cor25 rective action or the appeal (including any alle-
31 

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1 gations made with the motion under subpara2 graph (B)) would not be subject to dismissal; 

3 and 

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

5 of the case within 270 days after the date on 

6 which the request for corrective action or the 

7 appeal has been duly submitted; or 

8 ‘‘(II) the case— 

9 ‘‘(aa) consists of multiple claims; 

10 ‘‘(bb) requires complex or extensive 

11 discovery; 

12 ‘‘(cc) arises out of the same set of op13 erative facts as any civil action against the 

14 Government filed by the employee, former 

15 employee, or applicant pending in a Fed16 eral court; or 

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

18 ‘‘(5) The Board shall grant or deny any motion re19 questing a certification described under paragraph (4)(ii) 

20 within 90 days after the submission of such motion and 

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

22 request for corrective action within 15 days after granting 

23 or denying a motion requesting certification. 

24 ‘‘(6)(A) Any decision of the Board, any administra25 tive law judge appointed by the Board under section 3105 
32 

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

2 the Board designated by the Board and assigned to the 

3 case to grant or deny a certification described under para4 graph (4)(ii) shall be reviewed on appeal of a final order 

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

6 ‘‘(i) a motion requesting a certification was de7 nied; and 

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

9 the Board on the merits of the claim under the 

10 standards set forth in section 7703(c). 

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

12 overturned by the reviewing court, and an order granting 

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

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

15 of discretion. 

16 ‘‘(C) The reviewing court’s decision shall not be con17 sidered evidence of any determination by the Board, any 

18 administrative law judge appointed by the Board under 

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

20 designated by the Board on the merits of the underlying 

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

22 for de novo review in the appropriate United States dis23 trict court in accordance with this subsection. 

24 ‘‘(7) In any action filed under this subsection— 
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1 ‘‘(A) the district court shall have jurisdiction 

2 without regard to the amount in controversy; 

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

4 shall be tried by the court with a jury; 

5 ‘‘(C) the court— 

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

7 standards set forth in subsection (e); and 

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

9 considers appropriate under subsection (g), ex10 cept— 

11 ‘‘(I) relief for compensatory damages 

12 may not exceed $300,000; and 

13 ‘‘(II) relief may not include punitive 

14 damages; and 

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

16 may not order relief if the agency demonstrates 

17 by a preponderance of the evidence that the 

18 agency would have taken the same personnel 

19 action in the absence of such disclosure; and 

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

21 employee, former employee, or applicant for employ22 ment. 

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

24 court in an action under this subsection shall be taken 
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1 to the Court of Appeals for the Federal Circuit or any 

2 court of appeals of competent jurisdiction. 

3 ‘‘(9) This subsection applies with respect to any ap4 peal, petition, or other request for corrective action duly 

5 submitted to the Board, whether under section 

6 1214(b)(2), the preceding provisions of this section, sec7 tion 7513(d), section 7701, or any otherwise applicable 

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

9 (b) SUNSET.— 

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

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

12 shall cease to have effect 5 years after the effective 

13 date of this Act. 

14 (2) PENDING CLAIMS.—The amendments made 

15 by this section shall continue to apply with respect 

16 to any claim pending before the Board on the last 

17 day of the 5-year period described under paragraph 

18 (1). 

19 SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY 

20 JUDGMENT. 

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

22 States Code, is amended— 

23 (1) by redesignating paragraph (3) as para24 graph (4); 
35 

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1 (2) by inserting after paragraph (2) the fol2 lowing: 

3 ‘‘(3) With respect to a request for corrective ac4 tion based on an alleged prohibited personnel prac5 tice described in section 2302(b) (8) or (9) (A)(i), 

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

7 action is an action covered under section 7512 or 

8 7542, the Board, any administrative law judge ap9 pointed by the Board under section 3105 of this 

10 title, or any employee of the Board designated by 

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

12 motion for summary judgment when the Board or 

13 the administrative law judge determines that there is 

14 no genuine issue as to any material fact and that 

15 the moving party is entitled to a judgment as a mat16 ter of law.’’. 

17 (b) SUNSET.— 

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

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

20 shall cease to have effect 5 years after the effective 

21 date of this Act. 

22 (2) PENDING CLAIMS.—The amendments made 

23 by this section shall continue to apply with respect 

24 to any claim pending before the Board on the last 
36 

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1 day of the 5-year period described under paragraph 

2 (1). 

3 SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION. 

4 (a) PROHIBITED PERSONNEL PRACTICES.—Section 

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

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

7 the semicolon; 

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

9 the semicolon; and 

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

11 ‘‘(C) any communication that complies 

12 with subsection (a)(1), (d), and (h) of section 

13 8H of the Inspector General Act of 1978 (5 

14 U.S.C. App.);’’. 

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

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

17 amended— 

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

19 the following: 

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

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

22 title 5, United States Code, who intends to re23 port to Congress a complaint or information 

24 with respect to an urgent concern may report 

25 the complaint or information to the Inspector 
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1 General (or designee) of the agency at which 

2 that employee is employed.’’; 

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

4 committees’’ and inserting ‘‘appropriate commit5 tees’’; 

6 (3) in subsection (d)— 

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

8 or both of the intelligence committees’’ and in9 serting ‘‘any of the appropriate committees’’; 

10 and 

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

12 ‘‘intelligence committees’’ each place that term 

13 appears and inserting ‘‘appropriate commit14 tees’’; 

15 (4) in subsection (h)— 

16 (A) in paragraph (1)— 

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

18 ‘‘intelligence’’; and 

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

20 ‘‘or an activity involving classified informa21 tion’’ after ‘‘an intelligence activity’’; and 

22 (B) by striking paragraph (2), and insert23 ing the following: 

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

25 the Permanent Select Committee on Intelligence of 
38 

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1 the House of Representatives and the Select Com2 mittee on Intelligence of the Senate, except that with 

3 respect to disclosures made by employees described 

4 in subsection (a)(1)(D), the term ‘appropriate com5 mittees’ means the committees of appropriate juris6 diction.’’. 

7 SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN. 

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

9 Act of 1978 (5 U.S.C. App.) is amended by striking sub10 section (d) and inserting the following: 

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

12 with applicable laws and regulations governing the civil 

13 service— 

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

15 Auditing who shall have the responsibility for super16 vising the performance of auditing activities relating 

17 to programs and operations of the establishment; 

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

19 Investigations who shall have the responsibility for 

20 supervising the performance of investigative activi21 ties relating to such programs and operations; and 

22 ‘‘(C) designate a Whistleblower Protection Om23 budsman who shall educate agency employees— 

24 ‘‘(i) about prohibitions on retaliation for 

25 protected disclosures; and 
39 

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

2 making a protected disclosure about the rights 

3 and remedies against retaliation for protected 

4 disclosures. 

5 ‘‘(2) The Whistleblower Protection Ombudsman shall 

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

7 employee or former employee. 

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

9 of the designation of a Whistleblower Protection Ombuds10 man under paragraph (1)(C) shall not apply to— 

11 ‘‘(A) any agency that is an element of the intel12 ligence community (as defined in section 3(4) of the 

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

14 or 

15 ‘‘(B) as determined by the President, any exec16 utive agency or unit thereof the principal function of 

17 which is the conduct of foreign intelligence or 

18 counter intelligence activities.’’. 

19 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

21 U.S.C. App.) is amended— 

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

23 ‘‘section 3(d)(1)(A)’’; and 

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

25 ‘‘section 3(d)(1)(B)’’. 
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1 (c) SUNSET.— 

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

3 this section shall cease to have effect on the date 

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

5 Act. 

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

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

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

9 (5 U.S.C. App.) shall read as such sections read on 

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

11 TITLE II—INTELLIGENCE COM12 MUNITY WHISTLEBLOWER 

13 PROTECTIONS 

14 SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY 

15 WHISTLEBLOWERS. 

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

17 States Code, is amended by inserting after section 2303 

18 the following: 

19 ‘‘§ 2303A. Prohibited personnel practices in the intel20 ligence community 

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

22 ‘‘(1) the term ‘agency’ means an executive de23 partment or independent establishment, as defined 

24 under sections 101 and 104, that contains an intel-
41 

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1 ligence community element, except the Federal Bu2 reau of Investigation; 

3 ‘‘(2) the term ‘intelligence community ele4 ment’— 

5 ‘‘(A) means— 

6 ‘‘(i) 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) any executive agency or unit 

13 thereof determined by the President under 

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

15 States Code, to have as its principal func16 tion the conduct of foreign intelligence or 

17 counterintelligence activities; and 

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

19 of Investigation; and 

20 ‘‘(3) the term ‘personnel action’ means any ac21 tion described in clauses (i) through (x) of section 

22 2302(a)(2)(A) with respect to an employee in a posi23 tion in an intelligence community element (other 

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

25 policymaking, or policy-advocating character). 
42 

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

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

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

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

5 with respect to any employee of an intelligence community 

6 element as a reprisal for a disclosure of information by 

7 the employee to the Director of National Intelligence (or 

8 an employee designated by the Director of National Intel9 ligence for such purpose), or to the head of the employing 

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

11 agency for such purpose), which the employee reasonably 

12 believes evidences— 

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

14 or 

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

16 an abuse of authority, or a substantial and specific 

17 danger to public health or safety. 

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

19 for the enforcement of this section in a manner consistent 

20 with applicable provisions of sections 1214 and 1221. 

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

22 this section shall be construed to— 

23 ‘‘(1) preempt or preclude any employee, or ap24 plicant for employment, at the Federal Bureau of 

25 Investigation from exercising rights currently pro-
43 

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1 vided under any other law, rule, or regulation, in2 cluding section 2303; 

3 ‘‘(2) repeal section 2303; or 

4 ‘‘(3) provide the President or Director of Na5 tional Intelligence the authority to revise regulations 

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

7 Code of Federal Regulations.’’. 

8 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

10 States Code, is amended by inserting after the item relat11 ing to section 2303 the following: 

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

12 SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS 

13 DETERMINATIONS. 

14 (a) IN GENERAL.—Section 3001(b) of the Intel15 ligence Reform and Terrorism Prevention Act of 2004 (50 

16 U.S.C. 435b(b)) is amended— 

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

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

19 provided, not’’; 

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

21 the semicolon; 

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

23 the end and inserting ‘‘; and’’; and 

24 (4) by inserting after paragraph (6) the fol25 lowing: 
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1 ‘‘(7) not later than 180 days after the date of 

2 enactment of the Whistleblower Protection Enhance3 ment Act of 2011— 

4 ‘‘(A) developing policies and procedures 

5 that permit, to the extent practicable, individ6 uals who in good faith appeal a determination 

7 to suspend or revoke a security clearance or ac8 cess to classified information to retain their 

9 government employment status while such chal10 lenge is pending; and 

11 ‘‘(B) developing and implementing uniform 

12 and consistent policies and procedures to ensure 

13 proper protections during the process for deny14 ing, suspending, or revoking a security clear15 ance or access to classified information, includ16 ing the provision of a right to appeal such a de17 nial, suspension, or revocation, except that 

18 there shall be no appeal of an agency’s suspen19 sion of a security clearance or access determina20 tion for purposes of conducting an investiga21 tion, if that suspension lasts no longer than 1 

22 year or the head of the agency certifies that a 

23 longer suspension is needed before a final deci24 sion on denial or revocation to prevent immi25 nent harm to the national security. 
45 

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1 ‘‘Any limitation period applicable to an agency appeal 

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

3 agency (or in the case of any component of the Depart4 ment of Defense, the Secretary of Defense) determines, 

5 with the concurrence of the Director of National Intel6 ligence, that the policies and procedures described in para7 graph (7) have been established for the agency or the Di8 rector of National Intelligence promulgates the policies 

9 and procedures under paragraph (7). The policies and pro10 cedures for appeals developed under paragraph (7) shall 

11 be comparable to the policies and procedures pertaining 

12 to prohibited personnel practices defined under section 

13 2302(b)(8) of title 5, United States Code, and provide— 

14 ‘‘(A) for an independent and impartial fact15 finder; 

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

17 heard, including the opportunity to present relevant 

18 evidence, including witness testimony; 

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

20 be represented by counsel; 

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

22 a right to a decision based on the record developed 

23 during the appeal; 

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

25 from the filing of the appeal to the report of the im-
46 

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1 partial fact-finder to the agency head or the des2 ignee of the agency head, unless— 

3 ‘‘(i) the employee and the agency con4 cerned agree to an extension; or 

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

6 writing that a greater period of time is required 

7 in the interest of fairness or national security; 

8 ‘‘(F) for the use of 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 in a manner consistent with the interests of 

12 national security, including ex parte submissions if 

13 the agency determines that the interests of national 

14 security so warrant; and 

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

16 shall have no right to compel the production of in17 formation specifically required by Executive order to 

18 be kept classified in the interest of national defense 

19 or the conduct of foreign affairs, except evidence 

20 necessary to establish that the employee made the 

21 disclosure or communication such employee alleges 

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

23 subsection (j)(1).’’. 

24 (b) RETALIATORY REVOCATION OF SECURITY

25 CLEARANCES AND ACCESS DETERMINATIONS.—Section 
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1 3001 of the Intelligence Reform and Terrorism Prevention 

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

3 the end the following: 

4 ‘‘(j) RETALIATORY REVOCATION OF SECURITY

5 CLEARANCES AND ACCESS DETERMINATIONS.— 

6 ‘‘(1) IN GENERAL.—Agency personnel with au7 thority over personnel security clearance or access 

8 determinations shall not take or fail to take, or 

9 threaten to take or fail to take, any action with re10 spect to any employee’s security clearance or access 

11 determination because of— 

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

13 Director of National Intelligence (or an em14 ployee designated by the Director of National 

15 Intelligence for such purpose) or the head of 

16 the employing agency (or employee designated 

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

18 an employee that the employee reasonably be19 lieves evidences— 

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

21 regulation; or 

22 ‘‘(ii) gross mismanagement, a gross 

23 waste of funds, an abuse of authority, or 

24 a substantial and specific danger to public 

25 health or safety; 
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1 ‘‘(B) any disclosure to the Inspector Gen2 eral of an agency or another employee des3 ignated by the head of the agency to receive 

4 such disclosures, of information which the em5 ployee reasonably believes evidences— 

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

7 regulation; or 

8 ‘‘(ii) gross mismanagement, a gross 

9 waste of funds, an abuse of authority, or 

10 a substantial and specific danger to public 

11 health or safety; 

12 ‘‘(C) any communication that complies 

13 with— 

14 ‘‘(i) subsection (a)(1), (d), and (h) of 

15 section 8H of the Inspector General Act of 

16 1978 (5 U.S.C. App.); 

17 ‘‘(ii) subsection (d)(5)(A), (D), and 

18 (G) of section 17 of the Central Intel19 ligence Agency Act of 1949 (50 U.S.C. 

20 403q); or 

21 ‘‘(iii) subsection (k)(5)(A), (D), and 

22 (G), of section 103H of the National Secu23 rity Act of 1947 (50 U.S.C. 403–3h); 
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1 ‘‘(D) the exercise of any appeal, complaint, 

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

3 regulation; 

4 ‘‘(E) testifying for or otherwise lawfully as5 sisting any individual in the exercise of any 

6 right referred to in subparagraph (D); or 

7 ‘‘(F) cooperating with or disclosing infor8 mation to the Inspector General of an agency, 

9 in accordance with applicable provisions of law 

10 in connection with an audit, inspection, or in11 vestigation conducted by the Inspector General, 

12 if the actions described under subparagraphs (D) 

13 through (F) do not result in the employee or appli14 cant unlawfully disclosing information specifically re15 quired by Executive order to be kept classified in the 

16 interest of national defense or the conduct of foreign 

17 affairs. 

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

19 with the protection of sources and methods, nothing 

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

21 withholding of information from the Congress or the 

22 taking of any personnel action against an employee 

23 who discloses information to the Congress. 

24 ‘‘(3) DISCLOSURES.— 
50 

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

2 be excluded from paragraph (1) because— 

3 ‘‘(i) the disclosure was made to a per4 son, including a supervisor, who partici5 pated in an activity that the employee rea6 sonably believed to be covered by para7 graph (1)(A)(ii); 

8 ‘‘(ii) the disclosure revealed informa9 tion that had been previously disclosed; 

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

11 making the disclosure; 

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

13 writing; 

14 ‘‘(v) the disclosure was made while 

15 the employee was off duty; or 

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

17 passed since the occurrence of the events 

18 described in the disclosure. 

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

20 during the normal course of duties of an em21 ployee, the disclosure shall not be excluded from 

22 paragraph (1) if any employee who has author23 ity to take, direct others to take, recommend, or 

24 approve any personnel action with respect to 

25 the employee making the disclosure, took, failed 
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1 to take, or threatened to take or fail to take a 

2 personnel action with respect to that employee 

3 in reprisal for the disclosure. 

4 ‘‘(4) AGENCY ADJUDICATION.— 

5 ‘‘(A) REMEDIAL PROCEDURE.—An em6 ployee or former employee who believes that he 

7 or she has been subjected to a reprisal prohib8 ited by paragraph (1) of this subsection may, 

9 within 90 days after the issuance of notice of 

10 such decision, appeal that decision within the 

11 agency of that employee or former employee 

12 through proceedings authorized by paragraph 

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

14 no appeal of an agency’s suspension of a secu15 rity clearance or access determination for pur16 poses of conducting an investigation, if that 

17 suspension lasts not longer than 1 year (or a 

18 longer period in accordance with a certification 

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

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

21 course of proceedings authorized under sub22 paragraph (A), it is determined that the ad23 verse security clearance or access determination 

24 violated paragraph (1) of this subsection, the 

25 agency shall take specific corrective action to 
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1 return the employee or former employee, as 

2 nearly as practicable and reasonable, to the po3 sition such employee or former employee would 

4 have held had the violation not occurred. Such 

5 corrective action shall include reasonable attor6 ney’s fees and any other reasonable costs in7 curred, and may include back pay and related 

8 benefits, travel expenses, and compensatory 

9 damages not to exceed $300,000. 

10 ‘‘(C) CONTRIBUTING FACTOR.—In deter11 mining whether the adverse security clearance 

12 or access determination violated paragraph (1) 

13 of this subsection, the agency shall find that 

14 paragraph (1) of this subsection was violated if 

15 a disclosure described in paragraph (1) was a 

16 contributing factor in the adverse security clear17 ance or access determination taken against the 

18 individual, unless the agency demonstrates by a 

19 preponderance of the evidence that it would 

20 have taken the same action in the absence of 

21 such disclosure, giving the utmost deference to 

22 the agency’s assessment of the particular threat 

23 to the national security interests of the United 

24 States in the instant matter. 
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1 ‘‘(5) APPELLATE REVIEW OF SECURITY CLEAR2 ANCE ACCESS DETERMINATIONS BY DIRECTOR OF

3 NATIONAL INTELLIGENCE.— 

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

5 term ‘Board’ means the appellate review board 

6 established under section 204 of the Whistle7 blower Protection Enhancement Act of 2012. 

8 ‘‘(B) APPEAL.—Within 60 days after re9 ceiving notice of an adverse final agency deter10 mination under a proceeding under paragraph 

11 (4), an employee or former employee may ap12 peal that determination to the Board. 

13 ‘‘(C) POLICIES AND PROCEDURES.—The 

14 Board, in consultation with the Attorney Gen15 eral, Director of National Intelligence, and the 

16 Secretary of Defense, shall develop and imple17 ment policies and procedures for adjudicating 

18 the appeals authorized by subparagraph (B). 

19 The Director of National Intelligence and Sec20 retary of Defense shall jointly approve any 

21 rules, regulations, or guidance issued by the 

22 Board concerning the procedures for the use or 

23 handling of classified information. 

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

25 be on the complete agency record, which shall 
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1 be made available to the Board. The Board may 

2 not hear witnesses or admit additional evidence. 

3 Any portions of the record that were submitted 

4 ex parte during the agency proceedings shall be 

5 submitted ex parte to the Board. 

6 ‘‘(E) FURTHER FACT-FINDING OR IM7 PROPER DENIAL.—If the Board concludes that 

8 further fact-finding is necessary or finds that 

9 the agency improperly denied the employee or 

10 former employee the opportunity to present evi11 dence that, if admitted, would have a substan12 tial likelihood of altering the outcome, the 

13 Board shall remand the matter to the agency 

14 from which it originated for additional pro15 ceedings in accordance with the rules of proce16 dure issued by the Board. 

17 ‘‘(F) DE NOVO DETERMINATION.—The 

18 Board shall make a de novo determination, 

19 based on the entire record and under the stand20 ards specified in paragraph (4), of whether the 

21 employee or former employee received an ad22 verse security clearance or access determination 

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

24 record, the Board may weigh the evidence, 

25 judge the credibility of witnesses, and determine 
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1 controverted questions of fact. In doing so, the 

2 Board may consider the prior fact-finder’s op3 portunity to see and hear the witnesses. 

4 ‘‘(G) ADVERSE SECURITY CLEARANCE OR

5 ACCESS DETERMINATION.—If the Board finds 

6 that the adverse security clearance or access de7 termination violated paragraph (1), it shall then 

8 separately determine whether reinstating the se9 curity clearance or access determination is 

10 clearly consistent with the interests of national 

11 security, with any doubt resolved in favor of na12 tional security, under Executive Order 12968 

13 (60 Fed. Reg. 40245; relating to access to clas14 sified information) or any successor thereto (in15 cluding any adjudicative guidelines promulgated 

16 under such orders) or any subsequent Executive 

17 order, regulation, or policy concerning access to 

18 classified information. 

19 ‘‘(H) REMEDIES.— 

20 ‘‘(i) CORRECTIVE ACTION.—If the 

21 Board finds that the adverse security 

22 clearance or access determination violated 

23 paragraph (1), it shall order the agency 

24 head to take specific corrective action to 

25 return the employee or former employee, 
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1 as nearly as practicable and reasonable, to 

2 the position such employee or former em3 ployee would have held had the violation 

4 not occurred. Such corrective action shall 

5 include reasonable attorney’s fees and any 

6 other reasonable costs incurred, and may 

7 include back pay and related benefits, trav8 el expenses, and compensatory damages 

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

10 recommend, but may not order, reinstate11 ment or hiring of a former employee. The 

12 Board may order that the former employee 

13 be treated as though the employee were 

14 transferring from the most recent position 

15 held when seeking other positions within 

16 the executive branch. Any corrective action 

17 shall not include the reinstating of any se18 curity clearance or access determination. 

19 The agency head shall take the actions so 

20 ordered within 90 days, unless the Director 

21 of National Intelligence, the Secretary of 

22 Energy, or the Secretary of Defense, in the 

23 case of any component of the Department 

24 of Defense, determines that doing so would 

25 endanger national security. 
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1 ‘‘(ii) RECOMMENDED ACTION.—If the 

2 Board finds that reinstating the employee 

3 or former employee’s security clearance or 

4 access determination is clearly consistent 

5 with the interests of national security, it 

6 shall recommend such action to the head of 

7 the entity selected under subsection (b) 

8 and the head of the affected agency. 

9 ‘‘(I) CONGRESSIONAL NOTIFICATION.— 

10 ‘‘(i) ORDERS.—Consistent with the 

11 protection of sources and methods, at the 

12 time the Board issues an order, the Chair13 person of the Board shall notify— 

14 ‘‘(I) the Committee on Homeland 

15 Security and Government Affairs of 

16 the Senate; 

17 ‘‘(II) the Select Committee on In18 telligence of the Senate; 

19 ‘‘(III) the Committee on Over20 sight and Government Reform of the 

21 House of Representatives; 

22 ‘‘(IV) the Permanent Select Com23 mittee on Intelligence of the House of 

24 Representatives; and 
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1 ‘‘(V) the committees of the Sen2 ate and the House of Representatives 

3 that have jurisdiction over the employ4 ing agency, including in the case of a 

5 final order or decision of the Defense 

6 Intelligence Agency, the National 

7 Geospatial-Intelligence Agency, the 

8 National Security Agency, or the Na9 tional Reconnaissance Office, the 

10 Committee on Armed Services of the 

11 Senate and the Committee on Armed 

12 Services of the House of Representa13 tives. 

14 ‘‘(ii) RECOMMENDATIONS.—If the 

15 agency head and the head of the entity se16 lected under subsection (b) do not follow 

17 the Board’s recommendation to reinstate a 

18 clearance, the head of the entity selected 

19 under subsection (b) shall notify the com20 mittees described in subclauses (I) through 

21 (V) of clause (i). 

22 ‘‘(6) JUDICIAL REVIEW.—Nothing in this sec23 tion shall be construed to permit or require judicial 

24 review of any— 

25 ‘‘(A) agency action under this section; or 
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1 ‘‘(B) action of the appellate review board 

2 established under section 204 of the Whistle3 blower Protection Enhancement Act of 2012. 

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

5 this section shall be construed to permit, authorize, 

6 or require a private cause of action to challenge the 

7 merits of a security clearance determination.’’. 

8 (c) ACCESS DETERMINATION DEFINED.—Section 

9 3001(a) of the Intelligence Reform and Terrorism Preven10 tion Act of 2004 (50 U.S.C. 435b(a)) is amended by add11 ing at the end the following: 

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

13 determination regarding whether an employee— 

14 ‘‘(A) is eligible for access to classified in15 formation in accordance with Executive Order 

16 12968 (60 Fed. Reg. 40245; relating to access 

17 to classified information), or any successor 

18 thereto, and Executive Order 10865 (25 Fed. 

19 Reg. 1583; relating to safeguarding classified 

20 information with industry); and 

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

22 Order.’’. 

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

24 3001 of the Intelligence Reform and Terrorism Prevention 

25 Act of 2004 (50 U.S.C. 435b), as amended by this Act, 
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1 shall be construed to require the repeal or replacement of 

2 agency appeal procedures implementing Executive Order 

3 12968 (60 Fed. Reg. 40245; relating to classified national 

4 security information), or any successor thereto, and Exec5 utive Order 10865 (25 Fed. Reg. 1583; relating to safe6 guarding classified information with industry), or any suc7 cessor thereto, that meet the requirements of section 

8 3001(b)(7) of such Act, as so amended. 

9 SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE 

10 COMMUNITY WHISTLEBLOWER PROTECTION 

11 ACT. 

12 (a) IN GENERAL.—Section 8H of the Inspector Gen13 eral Act of 1978 (5 U.S.C. App.) is amended— 

14 (1) in subsection (b)— 

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

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

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

18 a complaint or information transmitted under paragraph 

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

20 establishment, the head of the establishment shall return 

21 the complaint or information to the Inspector General with 

22 that determination and the Inspector General shall make 

23 the transmission to the Director of National Intelligence 

24 and, if the establishment is within the Department of De25 fense, to the Secretary of Defense. In such a case, the 
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1 requirements of this section for the head of the establish2 ment apply to each recipient of the Inspector General’s 

3 transmission. Each recipient of the Inspector General’s 

4 transmission shall consult with the members of the appel5 late review board established under section 204 of the 

6 Whistleblower Protection Enhancement Act of 2012 re7 garding all transmissions under this paragraph.’’; 

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

9 (i); and 

10 (3) by inserting after subsection (g), the fol11 lowing: 

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

13 information to an Inspector General under this section 

14 may notify any member of Congress or congressional staff 

15 member of the fact that such individual has made a sub16 mission to that particular Inspector General, and of the 

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

18 (b) CENTRAL INTELLIGENCE AGENCY.—Section 

19 17(d)(5) of the Central Intelligence Agency Act of 1949 

20 (50 U.S.C. 403q) is amended— 

21 (1) in subparagraph (B)— 

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

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

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

25 information transmitted under paragraph (1) would create 
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1 a conflict of interest for the Director, the Director shall 

2 return the complaint or information to the Inspector Gen3 eral with that determination and the Inspector General 

4 shall make the transmission to the Director of National 

5 Intelligence. In such a case, the requirements of this sub6 section for the Director apply to the Director of National 

7 Intelligence. The Director of National Intelligence shall 

8 consult with the members of the appellate review board 

9 established under section 204 of the Whistleblower Protec10 tion Enhancement Act of 2012 regarding all transmissions 

11 under this clause.’’; and 

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

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

14 or information to the Inspector General under this section 

15 may notify any member of Congress or congressional staff 

16 member of the fact that such individual has made a sub17 mission to the Inspector General, and of the date on which 

18 such submission was made.’’. 

19 SEC. 204. REGULATIONS; REPORTING REQUIREMENTS; 

20 NONAPPLICABILITY TO CERTAIN TERMI21 NATIONS. 

22 (a) DEFINITIONS.—In this section— 

23 (1) the term ‘‘congressional oversight commit24 tees’’ means— 
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1 (A) the Committee on Homeland Security 

2 and Government Affairs of the Senate; 

3 (B) the Select Committee on Intelligence 

4 of the Senate; 

5 (C) the Committee on Oversight and Gov6 ernment Reform of the House of Representa7 tives; and 

8 (D) the Permanent Select Committee on 

9 Intelligence of the House of Representatives; 

10 and 

11 (2) the term ‘‘intelligence community ele12 ment’’— 

13 (A) means— 

14 (i) the Central Intelligence Agency, 

15 the Defense Intelligence Agency, the Na16 tional Geospatial-Intelligence Agency, the 

17 National Security Agency, the Office of the 

18 Director of National Intelligence, and the 

19 National Reconnaissance Office; and 

20 (ii) any executive agency or unit 

21 thereof determined by the President under 

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

23 States Code, to have as its principal func24 tion the conduct of foreign intelligence or 

25 counterintelligence activities; and 
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1 (B) does not include the Federal Bureau of 

2 Investigation. 

3 (b) REGULATIONS.— 

4 (1) IN GENERAL.—In consultation with the Sec5 retary of Defense, the Director of National Intel6 ligence shall prescribe regulations to ensure that a 

7 personnel action shall not be taken against an em8 ployee of an intelligence community element as a re9 prisal for any disclosure of information described in 

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

11 added by this Act. 

12 (2) APPELLATE REVIEW BOARD.—Not later 

13 than 180 days after the date of enactment of this 

14 Act, the Director of National Intelligence, in con15 sultation with the Secretary of Defense, the Attor16 ney General, and the heads of appropriate agencies, 

17 shall establish an appellate review board that is 

18 broadly representative of affected Departments and 

19 agencies and is made up of individuals with expertise 

20 in merit systems principles and national security 

21 issues— 

22 (A) to hear whistleblower appeals related 

23 to security clearance access determinations de24 scribed in section 3001(j) of the Intelligence 
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1 Reform and Terrorism Prevention Act of 2004 

2 (50 U.S.C. 435b), as added by this Act; and 

3 (B) that shall include a subpanel that re4 flects the composition of the intelligence com5 munity, which shall— 

6 (i) be composed of intelligence com7 munity elements and inspectors general 

8 from intelligence community elements, for 

9 the purpose of hearing cases that arise in 

10 elements of the intelligence community; 

11 and 

12 (ii) include the Inspector General of 

13 the Intelligence Community and the In14 spector General of the Department of De15 fense. 

16 (c) REPORT ON THE STATUS OF IMPLEMENTATION

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

18 of enactment of this Act, the Director of National Intel19 ligence shall submit a report on the status of the imple20 mentation of the regulations promulgated under sub21 section (b) to the congressional oversight committees. 

22 (d) NONAPPLICABILITY TO CERTAIN TERMI23 NATIONS.—Section 2303A of title 5, United States Code, 

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

25 Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 
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1 435b), as amended by this Act, shall not apply if the af2 fected employee is concurrently terminated under— 

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

4 Code; 

5 (2) the authority of the Director of National In6 telligence under section 102A(m) of the National Se7 curity Act of 1947 (50 U.S.C. 403–1(m)), 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; 

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

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

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

25 4a(e)), if— 
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1 (A) the Director personally summarily ter2 minates the individual; and 

3 (B) the Director— 

4 (i) determines the termination to be in 

5 the interest of the United States; 

6 (ii) determines that the procedures 

7 prescribed in other provisions of law that 

8 authorize the termination of the employ9 ment of such employee cannot be invoked 

10 in a manner consistent with the national 

11 security; and 

12 (iii) not later than 5 days after such 

13 termination, notifies the congressional 

14 oversight committees of the termination; or 

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

16 if— 

17 (A) the agency head personally terminates 

18 the individual; and 

19 (B) the agency head— 

20 (i) determines the termination to be in 

21 the interest of the United States; 

22 (ii) determines that the procedures 

23 prescribed in other provisions of law that 

24 authorize the termination of the employ25 ment of such employee cannot be invoked 
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1 in a manner consistent with the national 

2 security; and 

3 (iii) not later than 5 days after such 

4 termination, notifies the congressional 

5 oversight committees of the termination. 

6 TITLE III—SAVINGS CLAUSE; 

7 EFFECTIVE DATE 

8 SEC. 301. SAVINGS CLAUSE. 

9 Nothing in this Act shall be construed to imply any 

10 limitation on any protections afforded by any other provi11 sion of law to employees and applicants. 

12 SEC. 302. EFFECTIVE DATE. 

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

14 enactment of this Act. 

Passed the Senate May 8, 2012. 

Attest: 

Secretary. 

112TH CONGRESS 

2D SESSION S. 743 

AN ACT 

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