II 

112TH CONGRESS 

1ST SESSION S. 743 

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, and Mr. 

CARDIN) introduced the following bill; which was read twice and referred 

to the Committee on Homeland Security and Governmental Affairs 

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 disclosure 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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Whistleblower Protec3 tion Enhancement Act of 2011’’. 

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

8 SEC. 101. CLARIFICATION OF DISCLOSURES COVERED. 

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

10 United States Code, is amended— 

11 (1) in subparagraph (A)(i), by striking ‘‘a viola12 tion’’ and inserting ‘‘any violation’’; and 

13 (2) in subparagraph (B)(i), by striking ‘‘a viola14 tion’’ and inserting ‘‘any violation (other than a vio15 lation of this section)’’. 

16 (b) PROHIBITED PERSONNEL PRACTICES UNDER

17 SECTION 2302(b)(9).— 

18 (1) TECHNICAL AND CONFORMING AMEND19 MENTS.—Title 5, United States Code, is amended in 

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

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

22 section 1221, and in subsection (a)(2)(C)(i) of sec23 tion 2302, by inserting ‘‘or section 2302(b)(9) 

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

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


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

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

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

4 1221, by inserting ‘‘or protected activity’’ after ‘‘dis5 closure’’ each place it appears. 

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

7 Code, is amended— 

8 (i) by striking subparagraph (A) and in9 serting the following: 

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

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

12 regulation— 

13 ‘‘(i) with regard to remedying a viola14 tion of paragraph (8); or 

15 ‘‘(ii) with regard to remedying a viola16 tion of any other law, rule, or regulation;’’; 

17 and 

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

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

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

21 is amended by adding at the end the following: 

22 ‘‘(f)(1) A disclosure shall not be excluded from sub23 section (b)(8) because— 

24 ‘‘(A) the disclosure was made to a person, in25 cluding a supervisor, who participated in an activity 


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1 that the employee or applicant reasonably believed to 

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

3 ‘‘(B) the disclosure revealed information that 

4 had been previously disclosed; 

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

6 making the disclosure; 

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

8 ‘‘(E) the disclosure was made while the em9 ployee was off duty; or 

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

11 since the occurrence of the events described in the 

12 disclosure. 

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

14 of duties of an employee, the disclosure shall not be ex15 cluded from subsection (b)(8) if any employee who has au16 thority to take, direct others to take, recommend, or ap17 prove any personnel action with respect to the employee 

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

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

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

21 SEC. 102. DEFINITIONAL AMENDMENTS. 

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

23 amended— 

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

25 at the end; 


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1 (2) in subparagraph (C)(iii), by striking the pe2 riod at the end and inserting ‘‘; and’’; and 

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

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

5 communication or transmission, but does not include 

6 a communication concerning policy decisions that 

7 lawfully exercise discretionary authority unless the 

8 employee or applicant providing the disclosure rea9 sonably believes that the disclosure evidences— 

10 ‘‘(i) any violation of any law, rule, or regu11 lation, and occurs during the conscientious car12 rying out of official duties; or 

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

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

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

16 SEC. 103. REBUTTABLE PRESUMPTION. 

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

18 amended by amending the matter following paragraph 

19 (12) to read as follows: 

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

21 withholding of information from Congress or the taking 

22 of any personnel action against an employee who discloses 

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

24 any presumption relating to the performance of a duty by 

25 an employee whose conduct is the subject of a disclosure 


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1 as defined under subsection (a)(2)(D) may be rebutted by 

2 substantial evidence. For purposes of paragraph (8), a de3 termination as to whether an employee or applicant rea4 sonably believes that such employee or applicant has dis5 closed information that evidences any violation of law, 

6 rule, regulation, gross mismanagement, a gross waste of 

7 funds, an abuse of authority, or a substantial and specific 

8 danger to public health or safety shall be made by deter9 mining whether a disinterested observer with knowledge 

10 of the essential facts known to and readily ascertainable 

11 by the employee could reasonably conclude that the actions 

12 of the Government evidence such violations, mismanage13 ment, waste, abuse, or danger.’’. 

14 SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PER15 SONNEL PRACTICES. 

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

17 title 5, United States Code, is amended— 

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

19 semicolon; and 

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

21 and inserting after clause (x) the following: 

22 ‘‘(xi) the implementation or enforce23 ment of any nondisclosure policy, form, or 

24 agreement; and’’. 

25 (b) PROHIBITED PERSONNEL PRACTICE.— 


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

2 United States Code, is amended— 

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

4 the end; 

5 (B) in paragraph (12), by striking the pe6 riod and inserting ‘‘; or’’; and 

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

8 following: 

9 ‘‘(13) implement or enforce any nondisclosure 

10 policy, form, or agreement, if such policy, form, or 

11 agreement does not contain the following statement: 

12 ‘These provisions are consistent with and do not su13 persede, conflict with, or otherwise alter the em14 ployee obligations, rights, or liabilities created by 

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

16 to classified national security information), or any 

17 successor thereto; Executive Order 12968 (60 Fed. 

18 Reg. 40245; relating to access to classified informa19 tion), or any successor thereto; section 7211 of title 

20 5, United States Code (governing disclosures to Con21 gress); section 1034 of title 10, United States Code 

22 (governing disclosure to Congress by members of the 

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

24 States Code (governing disclosures of illegality, 

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


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1 threats); the Intelligence Identities Protection Act of 

2 1982 (50 U.S.C. 421 et seq.) (governing disclosures 

3 that could expose confidential Government agents); 

4 and the statutes which protect against disclosures 

5 that could compromise national security, including 

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

7 United States Code, and section 4(b) of the Subver8 sive Activities Control Act of 1950 (50 U.S.C. 

9 783(b)). The definitions, requirements, obligations, 

10 rights, sanctions, and liabilities created by such Ex11 ecutive order and such statutory provisions are in12 corporated into this agreement and are control13 ling.’ ’’. 

14 (2) NONDISCLOSURE POLICY, FORM, OR AGREE15 MENT IN EFFECT BEFORE THE DATE OF ENACT16 MENT.—A nondisclosure policy, form, or agreement 

17 that was in effect before the date of enactment of 

18 this Act, but that does not contain the statement re19 quired under section 2302(b)(13) of title 5, United 

20 States Code, (as added by this Act) for implementa21 tion or enforcement— 

22 (A) may be enforced with regard to a cur23 rent employee if the agency gives such employee 

24 notice of the statement; and 


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1 (B) may continue to be enforced after the 

2 effective date of this Act with regard to a 

3 former employee if the agency posts notice of 

4 the statement on the agency website for the 1- 

5 year period following that effective date. 

6 (c) RETALIATORY INVESTIGATIONS.— 

7 (1) AGENCY INVESTIGATION.—Section 1214 of 

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

9 at the end the following: 

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

11 to correct a prohibited personnel practice may include fees, 

12 costs, or damages reasonably incurred due to an agency 

13 investigation of the employee, if such investigation was 

14 commenced, expanded, or extended in retaliation for the 

15 disclosure or protected activity that formed the basis of 

16 the corrective action.’’. 

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

18 United States Code, is amended by adding at the 

19 end the following: 

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

21 section to correct a prohibited personnel practice 

22 may include fees, costs, or damages reasonably in23 curred due to an agency investigation of the em24 ployee, if such investigation was commenced, ex25 panded, or extended in retaliation for the disclosure 


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1 or protected activity that formed the basis of the 

2 corrective action.’’. 

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

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

5 is amended by striking clause (ii) and inserting the fol6 lowing: 

7 ‘‘(ii)(I) the Federal Bureau of Inves8 tigation, the Central Intelligence Agency, 

9 the Defense Intelligence Agency, the Na10 tional Geospatial-Intelligence Agency, the 

11 National Security Agency, the Office of the 

12 Director of National Intelligence, and the 

13 National Reconnaissance Office; and 

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

15 any executive agency or unit thereof the 

16 principal function of which is the conduct 

17 of foreign intelligence or counterintel18 ligence activities, provided that the deter19 mination be made prior to a personnel ac20 tion; or’’. 

21 SEC. 106. DISCIPLINARY ACTION. 

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

23 amended to read as follows: 

24 ‘‘(3)(A) A final order of the Board may im25 pose— 


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1 ‘‘(i) disciplinary action consisting of re2 moval, reduction in grade, debarment from 

3 Federal employment for a period not to exceed 

4 5 years, suspension, or reprimand; 

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

6 exceed $1,000; or 

7 ‘‘(iii) any combination of disciplinary ac8 tions described under clause (i) and an assess9 ment described under clause (ii). 

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

11 in which the Board finds that an employee has com12 mitted a prohibited personnel practice under section 

13 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D), 

14 the Board may impose disciplinary action if the 

15 Board finds that the activity protected under section 

16 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) 

17 was a significant motivating factor, even if other fac18 tors also motivated the decision, for the employee’s 

19 decision to take, fail to take, or threaten to take or 

20 fail to take a personnel action, unless that employee 

21 demonstrates, by preponderance of evidence, that 

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

23 threatened to take or fail to take the same personnel 

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


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1 SEC. 107. REMEDIES. 

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

3 United States Code, is amended by striking ‘‘agency in4 volved’’ and inserting ‘‘agency where the prevailing party 

5 was employed or had applied for employment at the time 

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

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

8 1221(g)(1)(A)(ii) of title 5, United States Code, are 

9 amended by striking all after ‘‘travel expenses,’’ and in10 serting ‘‘any other reasonable and foreseeable consequen11 tial damages, and compensatory damages (including inter12 est, reasonable expert witness fees, and costs).’’ each place 

13 it appears. 

14 SEC. 108. JUDICIAL REVIEW. 

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

16 States Code, is amended by striking the matter preceding 

17 paragraph (2) and inserting the following: 

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

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

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

21 in the United States Court of Appeals for the Federal Cir22 cuit. Notwithstanding any other provision of law, any peti23 tion for review shall be filed within 60 days after the 

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

25 Board. 


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1 ‘‘(B) During the 5-year period beginning on the effec2 tive date of the Whistleblower Protection Enhancement 

3 Act of 2011, a petition to review a final order or final 

4 decision of the Board that raises no challenge to the 

5 Board’s disposition of allegations of a prohibited personnel 

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

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

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

9 Appeals for the Federal Circuit or any court of appeals 

10 of competent jurisdiction as provided under paragraph 

11 (2).’’. 

12 (b) REVIEW OBTAINED BY OFFICE OF PERSONNEL

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

14 Code, is amended to read as follows: 

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

16 paragraph shall apply to any review obtained by the Direc17 tor of the Office of Personnel Management. The Director 

18 of the Office of Personnel Management may obtain review 

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

20 60 days after the Board issues notice of the final order 

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

22 the United States Court of Appeals for the Federal Circuit 

23 if the Director determines, in the discretion of the Direc24 tor, that the Board erred in interpreting a civil service 

25 law, rule, or regulation affecting personnel management 


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1 and that the Board’s decision will have a substantial im2 pact on a civil service law, rule, regulation, or policy direc3 tive. If the Director did not intervene in a matter before 

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

5 Board decision under this section unless the Director first 

6 petitions the Board for a reconsideration of its decision, 

7 and such petition is denied. In addition to the named re8 spondent, the Board and all other parties to the pro9 ceedings before the Board shall have the right to appear 

10 in the proceeding before the Court of Appeals. The grant11 ing of the petition for judicial review shall be at the discre12 tion of the Court of Appeals. 

13 ‘‘(2) During the 5-year period beginning on the effec14 tive date of the Whistleblower Protection Enhancement 

15 Act of 2011, this paragraph shall apply to any review ob16 tained by the Director of the Office of Personnel Manage17 ment that raises no challenge to the Board’s disposition 

18 of allegations of a prohibited personnel practice described 

19 in section 2302(b) other than practices described in sec20 tion 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). 

21 The Director of the Office of Personnel Management may 

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

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

24 the final order or decision of the Board, a petition for judi25 cial review in the United States Court of Appeals for the 


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1 Federal Circuit or any court of appeals of competent juris2 diction as provided under subsection (b)(2) if the Director 

3 determines, in the discretion of the Director, that the 

4 Board erred in interpreting a civil service law, rule, or reg5 ulation affecting personnel management and that the 

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

7 service law, rule, regulation, or policy directive. If the Di8 rector did not intervene in a matter before the Board, the 

9 Director may not petition for review of a Board decision 

10 under this section unless the Director first petitions the 

11 Board for a reconsideration of its decision, and such peti12 tion is denied. In addition to the named respondent, the 

13 Board and all other parties to the proceedings before the 

14 Board shall have the right to appear in the proceeding 

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

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

17 of appeals.’’. 

18 SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING 

19 THE TRANSPORTATION SECURITY ADMINIS20 TRATION. 

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

22 States Code, is amended— 

23 (1) by redesignating sections 2304 and 2305 as 

24 sections 2305 and 2306, respectively; and 


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1 (2) by inserting after section 2303 the fol2 lowing: 

3 ‘‘§ 2304. Prohibited personnel practices affecting the 

4 Transportation Security Administration 

5 ‘‘(a) IN GENERAL.—Notwithstanding any other pro6 vision of law, any individual holding or applying for a posi7 tion within the Transportation Security Administration 

8 shall be covered by— 

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

10 and (9); 

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

12 2302(b) (1), (8), or (9) by providing any right or 

13 remedy available to an employee or applicant for em14 ployment in the civil service; and 

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

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

17 (2). 

18 ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sec19 tion shall be construed to affect any rights, apart from 

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

21 described in subsection (a) might otherwise be entitled 

22 under law.’’. 

23 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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


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

2 following: 

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

‘‘2305. Responsibility of the Government Accountability Office. 

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

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

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

5 this section. 

6 SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RE7 SEARCH, ANALYSIS, OR TECHNICAL INFOR8 MATION. 

9 (a) DEFINITIONS.—In this subsection— 

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

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

12 Code; 

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

14 for a covered position; 

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

16 analysis, or technical information’’ means any effort 

17 to distort, misrepresent, or suppress research, anal18 ysis, or technical information; 

19 (4) the term ‘‘covered position’’ has the mean20 ing given under section 2302(a)(2)(B) of title 5, 

21 United States Code; 

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

23 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 

25 the head of the agency to receive such disVerDate Mar 15 2010 04:51 Apr 07, 2011 Jkt 099200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S743.IS S743

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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 (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 after 

10 the date of enactment of this Act, the Comptroller 

11 General shall submit a report to the Committee on 

12 Homeland Security and Governmental Affairs of the 

13 Senate and the Committee on Oversight and Govern14 ment Reform of the House of Representatives on the 

15 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 04:51 Apr 07, 2011 Jkt 099200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S743.IS 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 end 

8 of the fiscal year 2009. 

9 SEC. 117. ALTERNATIVE REVIEW. 

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

11 States Code, is amended by adding at the end the fol12 lowing: 

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

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

15 alleged prohibited personnel practice, means the United 

16 States district court for the judicial district in which— 

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

18 to have been committed; or 

19 ‘‘(B) the employee, former employee, or appli20 cant for employment allegedly affected by such prac21 tice resides. 

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

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

24 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 

2 7701(a)(1) alleging as an affirmative defense 

3 the commission of a prohibited personnel prac4 tice described in section 2302(b) (8) or (9) 

5 (A)(i), (B), (C), or (D) for which the associated 

6 personnel action is an action covered under sec7 tion 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; 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 standard applicable to the re2 view of motions to dismiss under rule 12(b)(6) 

3 of the Federal Rules of Civil Procedure, includ4 ing rule 12(d), the request for corrective action 

5 (including any allegations made with the motion 

6 under subparagraph (B)) would not be subject 

7 to dismissal; and 

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

9 of the case within 270 days after the date on 

10 which a request for that corrective action has 

11 been duly submitted; or 

12 ‘‘(II) the case— 

13 ‘‘(aa) consists of multiple claims; 

14 ‘‘(bb) requires complex or extensive 

15 discovery; 

16 ‘‘(cc) arises out of the same set of op17 erative facts as any civil action against the 

18 Government filed by the employee, former 

19 employee, or applicant pending in a Fed20 eral court; or 

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

22 ‘‘(5) The Board shall grant or deny any motion re23 questing a certification described under paragraph (4)(ii) 

24 within 90 days after the submission of such motion and 

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


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1 request for corrective action within 15 days after granting 

2 or denying a motion requesting certification. 

3 ‘‘(6)(A) Any decision of the Board, any administra4 tive law judge appointed by the Board under section 3105 

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

6 the Board designated by the Board and assigned to the 

7 case to grant or deny a certification described under para8 graph (4)(ii) shall be reviewed on appeal of a final order 

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

10 ‘‘(i) a motion requesting a certification was de11 nied; and 

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

13 the Board on the merits of the claim under the 

14 standards set forth in section 7703(c). 

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

16 overturned by the reviewing court, and an order granting 

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

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

19 of discretion. 

20 ‘‘(C) The reviewing court’s decision shall not be con21 sidered evidence of any determination by the Board, any 

22 administrative law judge appointed by the Board under 

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

24 designated by the Board on the merits of the underlying 

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


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1 for de novo review in the appropriate United States dis2 trict court in accordance with this subsection. 

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

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

5 without regard to the amount in controversy; 

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

7 shall be tried by the court with a jury; 

8 ‘‘(C) the court— 

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

10 standards set forth in subsection (e); and 

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

12 considers appropriate under subsection (g), ex13 cept— 

14 ‘‘(I) relief for compensatory damages 

15 may not exceed $300,000; and 

16 ‘‘(II) relief may not include punitive 

17 damages; and 

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

19 may not order relief if the agency demonstrates 

20 by a preponderance of the evidence that the 

21 agency would have taken the same personnel 

22 action in the absence of such disclosure; and 

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

24 employee, former employee, or applicant for employ25 ment. 


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

2 court in an action under this subsection shall be taken 

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

4 court of appeals of competent jurisdiction. 

5 ‘‘(9) This subsection applies with respect to any ap6 peal, petition, or other request for corrective action duly 

7 submitted to the Board, whether under section 

8 1214(b)(2), the preceding provisions of this section, sec9 tion 7513(d), section 7701, or any otherwise applicable 

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

11 (b) SUNSET.— 

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

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

14 shall cease to have effect 5 years after the effective 

15 date of this Act. 

16 (2) PENDING CLAIMS.—The amendments made 

17 by this section shall continue to apply with respect 

18 to any claim pending before the Board on the last 

19 day of the 5-year period described under paragraph 

20 (1). 

21 SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY 

22 JUDGMENT. 

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

24 States Code, is amended— 


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1 (1) by redesignating paragraph (3) as para2 graph (4); 

3 (2) by inserting after paragraph (2) the fol4 lowing: 

5 ‘‘(3) With respect to a request for corrective ac6 tion based on an alleged prohibited personnel prac7 tice described in section 2302(b) (8) or (9) (A)(i), 

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

9 action is an action covered under section 7512 or 

10 7542, the Board, any administrative law judge ap11 pointed by the Board under section 3105 of this 

12 title, or any employee of the Board designated by 

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

14 motion for summary judgment when the Board or 

15 the administrative law judge determines that there is 

16 no genuine issue as to any material fact and that 

17 the moving party is entitled to a judgment as a mat18 ter of law.’’. 

19 (b) SUNSET.— 

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

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

22 shall cease to have effect 5 years after the effective 

23 date of this Act. 

24 (2) PENDING CLAIMS.—The amendments made 

25 by this section shall continue to apply with respect 


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1 to any claim pending before the Board on the last 

2 day of the 5-year period described under paragraph 

3 (1). 

4 SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION. 

5 (a) PROHIBITED PERSONNEL PRACTICES.—Section 

6 2302(b)(8) of title 5, United States Code, is amended— 

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

8 the semicolon; 

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

10 the semicolon; and 

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

12 ‘‘(C) any communication that complies 

13 with subsection (a)(1), (d), or (h) of section 8H 

14 of the Inspector General Act of 1978 (5 U.S.C. 

15 App.);’’. 

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

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

18 amended— 

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

20 the following: 

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

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

23 title 5, United States Code, who intends to re24 port to Congress a complaint or information 

25 with respect to an urgent concern may report 


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1 the complaint or information to the Inspector 

2 General (or designee) of the agency of which 

3 that employee is employed.’’; 

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

5 committees’’ and inserting ‘‘appropriate commit6 tees’’; 

7 (3) in subsection (d)— 

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

9 or both of the intelligence committees’’ and in10 serting ‘‘any of the appropriate committees’’; 

11 and 

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

13 ‘‘intelligence committees’’ each place that term 

14 appears and inserting ‘‘appropriate commit15 tees’’; 

16 (4) in subsection (h)— 

17 (A) in paragraph (1)— 

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

19 ‘‘intelligence’’; and 

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

21 ‘‘or an activity involving classified informa22 tion’’ after ‘‘an intelligence activity’’; and 

23 (B) by striking paragraph (2), and insert24 ing the following: 


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

2 the Permanent Select Committee on Intelligence of 

3 the House of Representatives and the Select Com4 mittee on Intelligence of the Senate, except that with 

5 respect to disclosures made by employees described 

6 in subsection (a)(1)(D), the term ‘appropriate com7 mittees’ means the committees of appropriate juris8 diction.’’. 

9 SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN. 

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

11 Act of 1978 (5 U.S.C. App.) is amended by striking sub12 section (d) and inserting the following: 

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

14 with applicable laws and regulations governing the civil 

15 service— 

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

17 Auditing who shall have the responsibility for super18 vising the performance of auditing activities relating 

19 to programs and operations of the establishment; 

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

21 Investigations who shall have the responsibility for 

22 supervising the performance of investigative activi23 ties relating to such programs and operations; and 

24 ‘‘(C) designate a Whistleblower Protection Om25 budsman who shall educate agency employees— 


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1 ‘‘(i) about prohibitions on retaliation for 

2 protected disclosures; and 

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

4 making a protected disclosure about the rights 

5 and remedies against retaliation for protected 

6 disclosures. 

7 ‘‘(2) The Whistleblower Protection Ombudsman shall 

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

9 employee or former employee. 

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

11 of the designation of a Whistleblower Protection Ombuds12 man under paragraph (1)(C) shall not apply to— 

13 ‘‘(A) any agency that is an element of the intel14 ligence community (as defined in section 3(4) of the 

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

16 or 

17 ‘‘(B) as determined by the President, any exec18 utive agency or unit thereof the principal function of 

19 which is the conduct of foreign intelligence or 

20 counter intelligence activities.’’. 

21 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

23 U.S.C. App.) is amended— 

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

25 ‘‘section 3(d)(1)(A)’’; and 


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

2 ‘‘section 3(d)(1)(B)’’. 

3 (c) SUNSET.— 

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

5 this section shall cease to have effect on the date 

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

7 Act. 

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

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

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

11 (5 U.S.C. App.) shall read as such sections read on 

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

13 TITLE II—INTELLIGENCE COM14 MUNITY WHISTLEBLOWER 

15 PROTECTIONS 

16 SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY 

17 WHISTLEBLOWERS. 

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

19 States Code, is amended by inserting after section 2303 

20 the following: 

21 ‘‘§ 2303A. Prohibited personnel practices in the intel22 ligence community 

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

24 ‘‘(1) the term ‘agency’ means an executive de25 partment or independent establishment, as defined 


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1 under sections 101 and 104, that contains an intel2 ligence community element, except the Federal Bu3 reau of Investigation; 

4 ‘‘(2) the term ‘intelligence community ele5 ment’— 

6 ‘‘(A) means— 

7 ‘‘(i) the Central Intelligence Agency, 

8 the Defense Intelligence Agency, the Na9 tional Geospatial-Intelligence Agency, the 

10 National Security Agency, the Office of the 

11 Director of National Intelligence, and the 

12 National Reconnaissance Office; and 

13 ‘‘(ii) any executive agency or unit 

14 thereof determined by the President under 

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

16 States Code, to have as its principal func17 tion the conduct of foreign intelligence or 

18 counterintelligence activities; and 

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

20 of Investigation; and 

21 ‘‘(3) the term ‘personnel action’ means any ac22 tion described in clauses (i) through (x) of section 

23 2302(a)(2)(A) with respect to an employee in a posi24 tion in an intelligence community element (other 


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

2 policymaking, or policy-advocating character). 

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

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

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

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

7 with respect to any employee of an intelligence community 

8 element as a reprisal for a disclosure of information by 

9 the employee to the Director of National Intelligence (or 

10 an employee designated by the Director of National Intel11 ligence for such purpose), or to the head of the employing 

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

13 agency for such purpose), which the employee reasonably 

14 believes evidences— 

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

16 except for an alleged violation that occurs during the 

17 conscientious carrying out of official duties; or 

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

19 an abuse of authority, or a substantial and specific 

20 danger to public health or safety. 

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

22 for the enforcement of this section in a manner consistent 

23 with applicable provisions of sections 1214 and 1221. 

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

25 this section shall be construed to— 


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1 ‘‘(1) preempt or preclude any employee, or ap2 plicant for employment, at the Federal Bureau of 

3 Investigation from exercising rights currently pro4 vided under any other law, rule, or regulation, in5 cluding section 2303; 

6 ‘‘(2) repeal section 2303; or 

7 ‘‘(3) provide the President or Director of Na8 tional Intelligence the authority to revise regulations 

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

10 Code of Federal Regulations.’’. 

11 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

13 States Code, is amended by inserting after the item relat14 ing to section 2303 the following: 

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

15 SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS 

16 DETERMINATIONS. 

17 (a) IN GENERAL.—Section 3001(b) of the Intel18 ligence Reform and Terrorism Prevention Act of 2004 (50 

19 U.S.C. 435b(b)) is amended— 

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

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

22 provided, not’’; 

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

24 the semicolon; 


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

2 the end and inserting ‘‘; and’’; and 

3 (4) by inserting after paragraph (6) the fol4 lowing: 

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

6 enactment of the Whistleblower Protection Enhance7 ment Act of 2011— 

8 ‘‘(A) developing policies and procedures 

9 that permit, to the extent practicable, individ10 uals who challenge in good faith a determina11 tion to suspend or revoke a security clearance 

12 or access to classified information to retain 

13 their government employment status while such 

14 challenge is pending; and 

15 ‘‘(B) developing and implementing uniform 

16 and consistent policies and procedures to ensure 

17 proper protections during the process for deny18 ing, suspending, or revoking a security clear19 ance or access to classified information, includ20 ing the provision of a right to appeal such a de21 nial, suspension, or revocation, except that 

22 there shall be no appeal of an agency’s suspen23 sion of a security clearance or access determina24 tion for purposes of conducting an investiga25 tion, if that suspension lasts no longer than 1 


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1 year or the head of the agency certifies that a 

2 longer suspension is needed before a final deci3 sion on denial or revocation to prevent immi4 nent harm to the national security. 

5 ‘‘Any limitation period applicable to an agency 

6 appeal under paragraph (7) shall be tolled until the 

7 head of the agency (or in the case of any component 

8 of the Department of Defense, the Secretary of De9 fense) determines, with the concurrence of the Di10 rector of National Intelligence, that the policies and 

11 procedures described in paragraph (7) have been es12 tablished for the agency or the Director of National 

13 Intelligence promulgates the policies and procedures 

14 under paragraph (7). The policies and procedures 

15 for appeals developed under paragraph (7) shall be 

16 comparable to the policies and procedures pertaining 

17 to prohibited personnel practices defined under sec18 tion 2302(b)(8) of title 5, United States Code, and 

19 provide— 

20 ‘‘(A) for an independent and impartial 

21 fact-finder; 

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

23 heard, including the opportunity to present rel24 evant evidence, including witness testimony; 


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1 ‘‘(C) that the employee or former employee 

2 may be represented by counsel; 

3 ‘‘(D) that the employee or former employee 

4 has a right to a decision based on the record 

5 developed during the appeal; 

6 ‘‘(E) that not more than 180 days shall 

7 pass from the filing of the appeal to the report 

8 of the impartial fact-finder to the agency head 

9 or the designee of the agency head, unless— 

10 ‘‘(i) the employee and the agency con11 cerned agree to an extension; or 

12 ‘‘(ii) the impartial fact-finder deter13 mines in writing that a greater period of 

14 time is required in the interest of fairness 

15 or national security; 

16 ‘‘(F) for the use of information specifically 

17 required by Executive order to be kept classified 

18 in the interest of national defense or the con19 duct of foreign affairs in a manner consistent 

20 with the interests of national security, including 

21 ex parte submissions if the agency determines 

22 that the interests of national security so war23 rant; and 

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

25 shall have no right to compel the production of 


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1 information specifically required by Executive 

2 order to be kept classified in the interest of na3 tional defense or the conduct of foreign affairs, 

4 except evidence necessary to establish that the 

5 employee made the disclosure or communication 

6 such employee alleges was protected by sub7 paragraphs (A), (B), and (C) of subsection 

8 (j)(1).’’. 

9 (b) RETALIATORY REVOCATION OF SECURITY

10 CLEARANCES AND ACCESS DETERMINATIONS.—Section 

11 3001 of the Intelligence Reform and Terrorism Prevention 

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

13 the end the following: 

14 ‘‘(j) RETALIATORY REVOCATION OF SECURITY

15 CLEARANCES AND ACCESS DETERMINATIONS.— 

16 ‘‘(1) IN GENERAL.—Agency personnel with au17 thority over personnel security clearance or access 

18 determinations shall not take or fail to take, or 

19 threaten to take or fail to take, any action with re20 spect to any employee’s security clearance or access 

21 determination because of— 

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

23 Director of National Intelligence (or an em24 ployee designated by the Director of National 

25 Intelligence for such purpose) or the head of 


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1 the employing agency (or employee designated 

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

3 an employee that the employee reasonably be4 lieves evidences— 

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

6 regulation, and occurs during the conscien7 tious carrying out of official duties; 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 ‘‘(B) any disclosure to the Inspector Gen13 eral of an agency or another employee des14 ignated by the head of the agency to receive 

15 such disclosures, of information which the em16 ployee reasonably believes evidences— 

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

18 regulation, and occurs during the conscien19 tious carrying out of official duties; or 

20 ‘‘(ii) gross mismanagement, a gross 

21 waste of funds, an abuse of authority, or 

22 a substantial and specific danger to public 

23 health or safety; 

24 ‘‘(C) any communication that complies 

25 with— 


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1 ‘‘(i) subsection (a)(1), (d), or (h) of 

2 section 8H of the Inspector General Act of 

3 1978 (5 U.S.C. App.); 

4 ‘‘(ii) subsection (d)(5)(A), (D), or (G) 

5 of section 17 of the Central Intelligence 

6 Agency Act of 1949 (50 U.S.C. 403q); or 

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

8 (G), of section 103H of the National Secu9 rity Act of 1947 (50 U.S.C. 403–3h); 

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

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

12 regulation; 

13 ‘‘(E) testifying for or otherwise lawfully as14 sisting any individual in the exercise of any 

15 right referred to in subparagraph (D); or 

16 ‘‘(F) cooperating with or disclosing infor17 mation to the Inspector General of an agency, 

18 in accordance with applicable provisions of law 

19 in connection with an audit, inspection, or in20 vestigation conducted by the Inspector General, 

21 if the actions described under subparagraphs (D) 

22 through (F) do not result in the employee or appli23 cant unlawfully disclosing information specifically re24 quired by Executive order to be kept classified in the 


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1 interest of national defense or the conduct of foreign 

2 affairs. 

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

4 with the protection of sources and methods, nothing 

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

6 withholding of information from the Congress or the 

7 taking of any personnel action against an employee 

8 who discloses information to the Congress. 

9 ‘‘(3) DISCLOSURES.— 

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

11 be excluded from paragraph (1) because— 

12 ‘‘(i) the disclosure was made to a per13 son, including a supervisor, who partici14 pated in an activity that the employee rea15 sonably believed to be covered by para16 graph (1)(A)(ii); 

17 ‘‘(ii) the disclosure revealed informa18 tion that had been previously disclosed; 

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

20 making the disclosure; 

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

22 writing; 

23 ‘‘(v) the disclosure was made while 

24 the employee was off duty; or 


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

2 passed since the occurrence of the events 

3 described in the disclosure. 

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

5 during the normal course of duties of an em6 ployee, the disclosure shall not be excluded from 

7 paragraph (1) if any employee who has author8 ity to take, direct others to take, recommend, or 

9 approve any personnel action with respect to 

10 the employee making the disclosure, took, failed 

11 to take, or threatened to take or fail to take a 

12 personnel action with respect to that employee 

13 in reprisal for the disclosure. 

14 ‘‘(4) AGENCY ADJUDICATION.— 

15 ‘‘(A) REMEDIAL PROCEDURE.—An em16 ployee or former employee who believes that he 

17 or she has been subjected to a reprisal prohib18 ited by paragraph (1) of this subsection may, 

19 within 90 days after the issuance of notice of 

20 such decision, appeal that decision within the 

21 agency of that employee or former employee 

22 through proceedings authorized by paragraph 

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

24 no appeal of an agency’s suspension of a secu25 rity clearance or access determination for purVerDate Mar 15 2010 00:42 Apr 08, 2011 Jkt 099200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\S743.IS S743

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1 poses of conducting an investigation, if that 

2 suspension lasts not longer than 1 year (or a 

3 longer period in accordance with a certification 

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

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

6 course of proceedings authorized under sub7 paragraph (A), it is determined that the ad8 verse security clearance or access determination 

9 violated paragraph (1) of this subsection, the 

10 agency shall take specific corrective action to 

11 return the employee or former employee, as 

12 nearly as practicable and reasonable, to the po13 sition such employee or former employee would 

14 have held had the violation not occurred. Such 

15 corrective action shall include reasonable attor16 ney’s fees and any other reasonable costs in17 curred, and may include back pay and related 

18 benefits, travel expenses, and compensatory 

19 damages not to exceed $300,000. 

20 ‘‘(C) CONTRIBUTING FACTOR.—In deter21 mining whether the adverse security clearance 

22 or access determination violated paragraph (1) 

23 of this subsection, the agency shall find that 

24 paragraph (1) of this subsection was violated if 

25 a disclosure described in paragraph (1) was a 


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1 contributing factor in the adverse security clear2 ance or access determination taken against the 

3 individual, unless the agency demonstrates by a 

4 preponderance of the evidence that it would 

5 have taken the same action in the absence of 

6 such disclosure, giving the utmost deference to 

7 the agency’s assessment of the particular threat 

8 to the national security interests of the United 

9 States in the instant matter. 

10 ‘‘(5) APPELLATE REVIEW OF SECURITY CLEAR11 ANCE ACCESS DETERMINATIONS BY DIRECTOR OF

12 NATIONAL INTELLIGENCE.— 

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

14 term ‘Board’ means the appellate review board 

15 established under section 204 of the Whistle16 blower Protection Enhancement Act of 2011. 

17 ‘‘(B) APPEAL.—Within 60 days after re18 ceiving notice of an adverse final agency deter19 mination under a proceeding under paragraph 

20 (4), an employee or former employee may ap21 peal that determination to the Board. 

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

23 Board, in consultation with the Attorney Gen24 eral, Director of National Intelligence, and the 

25 Secretary of Defense, shall develop and impleVerDate Mar 15 2010 04:51 Apr 07, 2011 Jkt 099200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\S743.IS S743

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1 ment policies and procedures for adjudicating 

2 the appeals authorized by subparagraph (B). 

3 The Director of National Intelligence and Sec4 retary of Defense shall jointly approve any 

5 rules, regulations, or guidance issued by the 

6 Board concerning the procedures for the use or 

7 handling of classified information. 

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

9 be on the complete agency record, which shall 

10 be made available to the Board. The Board may 

11 not hear witnesses or admit additional evidence. 

12 Any portions of the record that were submitted 

13 ex parte during the agency proceedings shall be 

14 submitted ex parte to the Board. 

15 ‘‘(E) FURTHER FACT-FINDING OR IM16 PROPER DENIAL.—If the Board concludes that 

17 further fact-finding is necessary or finds that 

18 the agency improperly denied the employee or 

19 former employee the opportunity to present evi20 dence that, if admitted, would have a substan21 tial likelihood of altering the outcome, the 

22 Board shall remand the matter to the agency 

23 from which it originated for additional pro24 ceedings in accordance with the rules of proce25 dure issued by the Board. 


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1 ‘‘(F) DE NOVO DETERMINATION.—The 

2 Board shall make a de novo determination, 

3 based on the entire record and under the stand4 ards specified in paragraph (4), of whether the 

5 employee or former employee received an ad6 verse security clearance or access determination 

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

8 record, the Board may weigh the evidence, 

9 judge the credibility of witnesses, and determine 

10 controverted questions of fact. In doing so, the 

11 Board may consider the prior fact-finder’s op12 portunity to see and hear the witnesses. 

13 ‘‘(G) ADVERSE SECURITY CLEARANCE OR

14 ACCESS DETERMINATION.—If the Board finds 

15 that the adverse security clearance or access de16 termination violated paragraph (1), it shall then 

17 separately determine whether reinstating the se18 curity clearance or access determination is 

19 clearly consistent with the interests of national 

20 security, with any doubt resolved in favor of na21 tional security, under Executive Order 12968 

22 (60 Fed. Reg. 40245; relating to access to clas23 sified information) or any successor thereto (in24 cluding any adjudicative guidelines promulgated 

25 under such orders) or any subsequent Executive 


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1 order, regulation, or policy concerning access to 

2 classified information. 

3 ‘‘(H) REMEDIES.— 

4 ‘‘(i) CORRECTIVE ACTION.—If the 

5 Board finds that the adverse security 

6 clearance or access determination violated 

7 paragraph (1), it shall order the agency 

8 head to take specific corrective action to 

9 return the employee or former employee, 

10 as nearly as practicable and reasonable, to 

11 the position such employee or former em12 ployee would have held had the violation 

13 not occurred. Such corrective action shall 

14 include reasonable attorney’s fees and any 

15 other reasonable costs incurred, and may 

16 include back pay and related benefits, trav17 el expenses, and compensatory damages 

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

19 recommend, but may not order, reinstate20 ment or hiring of a former employee. The 

21 Board may order that the former employee 

22 be treated as though the employee were 

23 transferring from the most recent position 

24 held when seeking other positions within 

25 the executive branch. Any corrective action 


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1 shall not include the reinstating of any se2 curity clearance or access determination. 

3 The agency head shall take the actions so 

4 ordered within 90 days, unless the Director 

5 of National Intelligence, the Secretary of 

6 Energy, or the Secretary of Defense, in the 

7 case of any component of the Department 

8 of Defense, determines that doing so would 

9 endanger national security. 

10 ‘‘(ii) RECOMMENDED ACTION.—If the 

11 Board finds that reinstating the employee 

12 or former employee’s security clearance or 

13 access determination is clearly consistent 

14 with the interests of national security, it 

15 shall recommend such action to the head of 

16 the entity selected under subsection (b) 

17 and the head of the affected agency. 

18 ‘‘(I) CONGRESSIONAL NOTIFICATION.— 

19 ‘‘(i) ORDERS.—Consistent with the 

20 protection of sources and methods, at the 

21 time the Board issues an order, the Chair22 person of the Board shall notify— 

23 ‘‘(I) the Committee on Homeland 

24 Security and Government Affairs of 

25 the Senate; 


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1 ‘‘(II) the Select Committee on In2 telligence of the Senate; 

3 ‘‘(III) the Committee on Over4 sight and Government Reform of the 

5 House of Representatives; 

6 ‘‘(IV) the Permanent Select Com7 mittee on Intelligence of the House of 

8 Representatives; and 

9 ‘‘(V) the committees of the Sen10 ate and the House of Representatives 

11 that have jurisdiction over the employ12 ing agency, including in the case of a 

13 final order or decision of the Defense 

14 Intelligence Agency, the National 

15 Geospatial-Intelligence Agency, the 

16 National Security Agency, or the Na17 tional Reconnaissance Office, the 

18 Committee on Armed Services of the 

19 Senate and the Committee on Armed 

20 Services of the House of Representa21 tives. 

22 ‘‘(ii) RECOMMENDATIONS.—If the 

23 agency head and the head of the entity se24 lected under subsection (b) do not follow 

25 the Board’s recommendation to reinstate a 


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1 clearance, the head of the entity selected 

2 under subsection (b) shall notify the com3 mittees described in subclauses (I) through 

4 (V) of clause (i). 

5 ‘‘(6) JUDICIAL REVIEW.—Nothing in this sec6 tion shall be construed to permit or require judicial 

7 review of any— 

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

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

10 established under section 204 of the Whistle11 blower Protection Enhancement Act of 2011. 

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

13 this section shall be construed to permit, authorize, 

14 or require a private cause of action to challenge the 

15 merits of a security clearance determination.’’. 

16 (c) ACCESS DETERMINATION DEFINED.—Section 

17 3001(a) of the Intelligence Reform and Terrorism Preven18 tion Act of 2004 (50 U.S.C. 435b(a)) is amended by add19 ing at the end the following: 

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

21 process for determining whether an employee— 

22 ‘‘(A) is eligible for access to classified in23 formation in accordance with Executive Order 

24 12968 (60 Fed. Reg. 40245; relating to access 

25 to classified information), or any successor 


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1 thereto, and Executive Order 10865 (25 Fed. 

2 Reg. 1583; relating to safeguarding classified 

3 information with industry); and 

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

5 Order.’’. 

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

7 3001 of the Intelligence Reform and Terrorism Prevention 

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

9 shall be construed to require the repeal or replacement of 

10 agency appeal procedures implementing Executive Order 

11 12968 (60 Fed. Reg. 40245; relating to classified national 

12 security information), or any successor thereto, and Exec13 utive Order 10865 (25 Fed. Reg. 1583; relating to safe14 guarding classified information with industry), or any suc15 cessor thereto, that meet the requirements of section 

16 3001(b)(7) of such Act, as so amended. 

17 SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE 

18 COMMUNITY WHISTLEBLOWER PROTECTION 

19 ACT. 

20 (a) IN GENERAL.—Section 8H of the Inspector Gen21 eral Act of 1978 (5 U.S.C. App.) is amended— 

22 (1) in subsection (b)— 

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

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


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

2 a complaint or information transmitted under paragraph 

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

4 establishment, the head of the establishment shall return 

5 the complaint or information to the Inspector General with 

6 that determination and the Inspector General shall make 

7 the transmission to the Director of National Intelligence. 

8 In such a case, the requirements of this section for the 

9 head of the establishment apply to the recipient of the In10 spector General’s transmission. The Director of National 

11 Intelligence shall consult with the members of the appel12 late review board established under section 204 of the 

13 Whistleblower Protection Enhancement Review Act of 

14 2011 regarding all transmissions under this paragraph.’’; 

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

16 (i); and 

17 (3) by inserting after subsection (g), the fol18 lowing: 

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

20 information to an Inspector General under this section 

21 may notify any member of Congress or congressional staff 

22 member of the fact that such individual has made a sub23 mission to that particular Inspector General, and of the 

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


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1 (b) CENTRAL INTELLIGENCE AGENCY.—Section 

2 17(d)(5) of the Central Intelligence Agency Act of 1949 

3 (50 U.S.C. 403q) is amended— 

4 (1) in subparagraph (B)— 

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

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

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

8 information transmitted under paragraph (1) would create 

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

10 return the complaint or information to the Inspector Gen11 eral with that determination and the Inspector General 

12 shall make the transmission to the Director of National 

13 Intelligence. In such a case the requirements of this sub14 section for the Director apply to the recipient of the In15 spector General’s submission; and’’; and 

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

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

18 or information to the Inspector General under this section 

19 may notify any member of Congress or congressional staff 

20 member of the fact that such individual has made a sub21 mission to the Inspector General, and of the date on which 

22 such submission was made.’’. 


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1 SEC. 204. REGULATIONS; REPORTING REQUIREMENTS; 

2 NONAPPLICABILITY TO CERTAIN TERMI3 NATIONS. 

4 (a) DEFINITIONS.—In this section— 

5 (1) the term ‘‘congressional oversight commit6 tees’’ means— 

7 (A) the Committee on Homeland Security 

8 and Government Affairs of the Senate; 

9 (B) the Select Committee on Intelligence 

10 of the Senate; 

11 (C) the Committee on Oversight and Gov12 ernment Reform of the House of Representa13 tives; and 

14 (D) the Permanent Select Committee on 

15 Intelligence of the House of Representatives; 

16 and 

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 of 

8 Investigation. 

9 (b) REGULATIONS.— 

10 (1) IN GENERAL.—The Director of National In11 telligence shall prescribe regulations to ensure that 

12 a personnel action shall not be taken against an em13 ployee of an intelligence community element as a re14 prisal for any disclosure of information described in 

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

16 added by this Act. 

17 (2) APPELLATE REVIEW BOARD.—Not later 

18 than 180 days after the date of enactment of this 

19 Act, the Director of National Intelligence, in con20 sultation with the Secretary of Defense, the Attor21 ney General, and the heads of appropriate agencies, 

22 shall establish an appellate review board that is 

23 broadly representative of affected Departments and 

24 agencies and is made up of individuals with expertise 


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1 in merit systems principles and national security 

2 issues— 

3 (A) to hear whistleblower appeals related 

4 to security clearance access determinations de5 scribed in section 3001(j) of the Intelligence 

6 Reform and Terrorism Prevention Act of 2004 

7 (50 U.S.C. 435b), as added by this Act; and 

8 (B) that shall include a subpanel that re9 flects the composition of the intelligence com10 mittee, which shall be composed of intelligence 

11 community elements and inspectors general 

12 from intelligence community elements, for the 

13 purpose of hearing cases that arise in elements 

14 of the intelligence community. 

15 (c) REPORT ON THE STATUS OF IMPLEMENTATION

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

17 of enactment of this Act, the Director of National Intel18 ligence shall submit a report on the status of the imple19 mentation of the regulations promulgated under sub20 section (b) to the congressional oversight committees. 

21 (d) NONAPPLICABILITY TO CERTAIN TERMI22 NATIONS.—Section 2303A of title 5, United States Code, 

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

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

25 435b), as amended by this Act, shall not apply to adverse 


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1 security clearance or access determinations if the affected 

2 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. 

Æ 


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