IB 

Union Calendar No. 504 

112TH CONGRESS 

2D SESSION H. R. 3289 

[Report No. 112–508, Part I] 

To amend title 5, United States Code, to provide clarification relating to 

disclosures of information protected from prohibited personnel practices; 

to require a statement in nondisclosure policies, forms, and agreements 

that such policies, forms, and agreements are in conformance with certain 

protections; to provide certain additional authorities to the Office of 

Special Counsel; and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 1, 2011 

Mr. ISSA (for himself, Mr. CUMMINGS, Mr. PLATTS, and Mr. VAN HOLLEN) 

introduced the following bill; which was referred to the Committee on 

Oversight and Government Reform, and in addition to the Select Committee on Intelligence (Permanent Select) and Homeland Security, for a 

period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

MAY 30, 2012 

Reported from the Committee on Oversight and Government Reform with 

amendments 

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

MAY 30, 2012 

Referral to the Select Committee on Intelligence (Permanent Select) and 

Homeland Security extended for a period ending not later than October 

1, 2012 


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OCTOBER 1, 2012 

Additional sponsors: Mr. GOSAR and Mr. PEARCE

OCTOBER 1, 2012 

The Committees on Select Committee on Intelligence (Permanent Select) and 

Homeland Security discharged; committed to the Committee of the Whole 

House on the State of the Union and ordered to be printed 

A BILL 

To amend title 5, United States Code, to provide clarification 

relating to disclosures of information protected from prohibited personnel practices; to require a statement in 

nondisclosure policies, forms, and agreements that such 

policies, forms, and agreements are in conformance with 

certain protections; to provide certain additional authorities to the Office of 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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Whistleblower Protection Enhancement Act of 2011 

6 Platts-Van Hollen Whistleblower Protection Enhancement 

7 Act of 2011’’. 

8 (b) TABLE OF CONTENTS.—The table of contents of 

9 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—PROTECTION OF CERTAIN DISCLOSURES OF 

INFORMATION BY FEDERAL EMPLOYEES 

Sec. 101. Clarification of disclosures covered. 

Sec. 102. Disclosure defined. 

Sec. 103. Rebuttable presumption. 

Sec. 104. Personnel actions and prohibited personnel practices. 

Sec. 105. Exclusion of agencies by the President. 

Sec. 106. Disciplinary action. 

Sec. 107. Remedies. 

Sec. 108. Judicial review. 

Sec. 109. Prohibited personnel practices affecting the Transportation Security 

Administration. 

Sec. 110. Disclosure of censorship related to research, analysis, or technical information. 

Sec. 111. Clarification of whistleblower rights for critical infrastructure information. 

Sec. 112. Advising employees of rights. 

Sec. 113. Special Counsel amicus curiae appearance. 

Sec. 114. Scope of due process. 

Sec. 115. Nondisclosure policies, forms, and agreements. 

Sec. 116. Reporting requirements. 

Sec. 117. Alternative review. 

Sec. 118. Merit Systems Protection Board summary judgment. 

Sec. 119. Disclosures of classified information. 

Sec. 120. Whistleblower protection ombudsman. 

Sec. 121. Pilot program for enhancement of contractor employee whistleblower 

protections. 

Sec. 122. Study. 

TITLE II—INTELLIGENCE COMMUNITY WHISTLEBLOWER 

PROTECTIONS 

Sec. 201. Protection of intelligence community whistleblowers. 


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Sec. 202. Review of security clearance or access determinations. 

Sec. 203. Revisions relating to the Intelligence Community Whistleblower Protection Act. 

Sec. 204. Regulations; reporting requirements; nonapplicability to certain terminations. 

TITLE III—EFFECTIVE DATE; SAVINGS PROVISION 

Sec. 301. Effective date. 

Sec. 302. Savings provision. 

1 TITLE I—PROTECTION OF CER2 TAIN DISCLOSURES OF IN3 FORMATION BY FEDERAL EM4 PLOYEES 

5 SEC. 101. CLARIFICATION OF DISCLOSURES COVERED. 

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

7 United States Code, is amended— 

8 (1) in subparagraph (A)(i), by striking ‘‘a viola9 tion’’ and inserting ‘‘any violation’’; and 

10 (2) in subparagraph (B)(i)— 

11 (A) by striking ‘‘a violation’’ and inserting 

12 ‘‘any violation’’; and 

13 (B) by striking ‘‘regulation,’’ and inserting 

14 ‘‘regulation (other than this section or any rule 

15 or regulation prescribed under this section) sec16 tion),’’. 

17 (b) PROHIBITED PERSONNEL PRACTICES UNDER

18 SECTION 2302(b)(9).— 

19 (1) TECHNICAL AND CONFORMING AMEND20 MENTS.—Title 5, United States Code, is amended— 


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

2 (b)(4)(B)(i) of section 1214 and subsections 

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

4 ‘‘or subparagraph (A)(i), (B), (C), or (D) of 

5 section 2302(b)(9)’’ after ‘‘section 2302(b)(8)’’ 

6 each place it appears; and 

7 (B) in section 2302(a)(2)(C)(i), by insert8 ing ‘‘or subsection (b)(9) (other than subpara9 graph (A)(ii) thereof)’’ after ‘‘(b)(8)’’. 

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

11 States Code, is amended, in sections 

12 1214(b)(4)(B)(i) and 1221(e), by inserting ‘‘or pro13 tected activity’’ after ‘‘disclosure’’ each place it ap14 pears. 

15 (B) Subparagraph (A) of section 2302(b)(9) of 

16 title 5, United States Code, is amended to read as 

17 follows: 

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

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

20 regulation— 

21 ‘‘(i) with regard to remedying a viola22 tion of paragraph (8) or any rule or regu23 lation prescribed under such paragraph; or 


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1 ‘‘(ii) with regard to remedying a viola2 tion of any law, rule, or regulation not de3 scribed in clause (i);’’. 

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

5 is amended by adding at the end the following: 

6 ‘‘(f)(1) A disclosure shall not be excluded from sub7 section (b)(8) because— 

8 ‘‘(A) the disclosure was made to a person, in9 cluding a supervisor, who participated in an activity 

10 that the employee or applicant reasonably believed to 

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

12 ‘‘(B) the disclosure revealed information that 

13 had been previously disclosed; 

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

15 making the disclosure; 

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

17 ‘‘(E) the disclosure was made while the em18 ployee was off duty; or 

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

20 since the occurrence of the events described in the 

21 disclosure. 

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

23 of duties of an employee, the disclosure shall not be ex24 cluded from subsection (b)(8) if any employee who has au25 thority to take, direct others to take, recommend, or apVerDate Mar 15 2010 21:59 Oct 10, 2012 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3289.RH H3289

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1 prove any personnel action with respect to the employee 

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

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

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

5 SEC. 102. DISCLOSURE DEFINED. 

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

7 amended— 

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

9 at the end; 

10 (2) in subparagraph (C)(iii), by striking the pe11 riod at the end and inserting ‘‘; and’’; and 

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

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

14 communication or transmission, but does not include 

15 a communication concerning policy decisions that 

16 lawfully exercise discretionary authority, unless the 

17 employee or applicant providing the disclosure rea18 sonably believes that the disclosure evidences— 

19 ‘‘(i) any violation of any law, rule, or regu20 lation, and occurs during the conscientious car21 rying out of official duties; or 

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

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

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


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1 SEC. 103. REBUTTABLE PRESUMPTION. 

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

3 amended by amending the matter following paragraph 

4 (12) to read as follows: 

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

6 withholding of information from Congress or the taking 

7 of any personnel action against an employee who discloses 

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

9 any presumption relating to the performance of a duty by 

10 an employee whose conduct is the subject of a protected 

11 disclosure under this section may be rebutted by substan12 tial evidence. For purposes of paragraph (8), a determina13 tion as to whether an employee or applicant reasonably 

14 believes that such employee or applicant has disclosed in15 formation that evidences any violation of law, rule, regula16 tion, gross mismanagement, a gross waste of funds, an 

17 abuse of authority, or a substantial and specific danger 

18 to public health or safety shall be made by determining 

19 whether a disinterested observer with knowledge of the es20 sential facts known to or readily ascertainable by the em21 ployee could reasonably conclude that the actions of the 

22 Government evidence such a violation, mismanagement, 

23 waste, abuse, or danger.’’. 


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1 SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PER2 SONNEL PRACTICES. 

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

4 title 5, United States Code, is amended— 

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

6 semicolon; 

7 (2) by redesignating clause (xi) as clause (xii); 

8 and 

9 (3) by inserting after clause (x) the following: 

10 ‘‘(xi) the implementation or enforcement of 

11 any nondisclosure policy, form, or agreement 

12 that does not contain the statement required 

13 under subsection (b)(13); and’’. 

14 (b) PROHIBITED PERSONNEL PRACTICE.— 

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

16 United States Code, is amended— 

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

18 the end; 

19 (B) in paragraph (12), by striking the pe20 riod and inserting ‘‘; or’’; and 

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

22 following: 

23 ‘‘(13) implement or enforce any nondisclosure 

24 policy, form, or agreement, if such policy, form, or 

25 agreement does not contain the following statement: 

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1 persede, conflict with, or otherwise alter the em2 ployee obligations, rights, or liabilities created by 

3 Executive Order 13526 (75 Fed. Reg. 707, relating 

4 to classified national security information), or any 

5 successor thereto; Executive Order 12968 (60 Fed. 

6 Reg. 40245, relating to access to classified informa7 tion), or any successor thereto; section 7211 (gov8 erning disclosures to Congress); section 1034 of title 

9 10 (governing disclosure to Congress by members of 

10 the military); subsection (b)(8) (governing disclo11 sures of illegality, waste, fraud, abuse, or public 

12 health or safety threats); the Intelligence Identities 

13 Protection Act of 1982 (50 U.S.C. 421 et seq., gov14 erning disclosures that could expose confidential 

15 Government agents); and the statutes which protect 

16 against disclosures that could compromise national 

17 security, including sections 641, 793, 794, 798, and 

18 952 of title 18 and section 4(b) of the Subversive 

19 Activities Control Act of 1950 (50 U.S.C. 783(b)). 

20 The definitions, requirements, obligations, rights, 

21 sanctions, and liabilities created by such Executive 

22 orders and such statutory provisions are incor23 porated into this agreement and are controlling.’.’’. 

24 (2) NONDISCLOSURE POLICY, FORM, OR AGREE25 MENT IN EFFECT BEFORE THE DATE OF ENACTVerDate Mar 15 2010 21:59 Oct 10, 2012 Jkt 029200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3289.RH H3289

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1 MENT.—A nondisclosure policy, form, or agreement 

2 that was in effect before the effective date of this 

3 Act, but that does not contain the statement re4 quired under section 2302(b)(13) of title 5, United 

5 States Code (as added by paragraph (1)(C)) for im6 plementation or enforcement— 

7 (A) may be enforced with regard to a cur8 rent employee if the employing agency gives 

9 such employee notice of the statement before 

10 the employee makes the disclosure with respect 

11 to which the enforcement relates; and 

12 (B) may continue to be enforced after the 

13 effective date of this Act with regard to a 

14 former employee if the agency posts notice of 

15 the statement on the agency website for the 1- 

16 year period following that effective date, except 

17 that such notice shall not be required as a con18 dition for continued enforcement if the condi19 tion under subparagraph (A) has been satisfied 

20 with respect to such former employee. 

21 (c) RETALIATORY INVESTIGATIONS.— 

22 (1) AGENCY INVESTIGATION.—Section 1214 of 

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

24 at the end the following: 


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

2 to correct a prohibited personnel practice may include fees, 

3 costs, or damages reasonably incurred due to an agency 

4 investigation of the employee, if such investigation was 

5 commenced, expanded, or extended in retaliation for the 

6 disclosure or protected activity that formed the basis of 

7 the corrective action.’’. 

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

9 United States Code, is amended by adding at the 

10 end the following: 

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

12 to correct a prohibited personnel practice may include fees, 

13 costs, or damages reasonably incurred due to an agency 

14 investigation of the employee, if such investigation was 

15 commenced, expanded, or extended in retaliation for the 

16 disclosure or protected activity that formed the basis of 

17 the corrective action.’’. 

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

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

20 is amended by striking clause (ii) and inserting the fol21 lowing: 

22 ‘‘(ii)(I) the Federal Bureau of Investiga23 tion, the Central Intelligence Agency, the De24 fense Intelligence Agency, the National 

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1 curity Agency, the Office of the Director of Na2 tional Intelligence, and the National Reconnais3 sance Office; and 

4 ‘‘(II) as determined by the President, any 

5 Executive agency or unit thereof the principal 

6 function of which is the conduct of foreign in7 telligence or counterintelligence activities, pro8 vided that the determination be made prior to 

9 the personnel action involved; or’’. 

10 SEC. 106. DISCIPLINARY ACTION. 

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

12 amended to read as follows: 

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

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

15 reduction in grade, debarment from Federal employ16 ment for a period not to exceed 5 years, suspension, 

17 or reprimand; 

18 ‘‘(ii) an assessment of a civil penalty not to ex19 ceed $1,000; or 

20 ‘‘(iii) any combination of disciplinary actions 

21 described under clause (i) and an assessment de22 scribed under clause (ii). 

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

24 which the Board finds that an employee has committed 

25 a prohibited personnel practice under section 2302(b)(8), 


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1 or subparagraph (A)(i), (B), (C), or (D) of section 

2 2302(b)(9), the Board may impose disciplinary action if 

3 the Board finds that the activity protected under section 

4 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of 

5 section 2302(b)(9) was a significant motivating factor, 

6 even if other factors also motivated the decision, for the 

7 employee’s decision to take, fail to take, or threaten to 

8 take or fail to take a personnel action, unless that em9 ployee demonstrates, by a preponderance of the evidence, 

10 that the employee would have taken, failed to take, or 

11 threatened to take or fail to take the same personnel ac12 tion, in the absence of such protected activity.’’. 

13 SEC. 107. REMEDIES. 

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

15 United States Code, is amended by striking ‘‘agency in16 volved’’ and inserting ‘‘agency in which the prevailing 

17 party was employed or with which the prevailing party had 

18 applied for employment at the time of the events giving 

19 rise to the case’’. 

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

21 1221(g)(1)(A)(ii) of title 5, United States Code, are 

22 amended by striking all after ‘‘travel expenses,’’ and in23 serting ‘‘any other reasonable and foreseeable consequen24 tial damages, and compensatory damages (including interVerDate Mar 15 2010 21:59 Oct 10, 2012 Jkt 029200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H3289.RH H3289

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1 est, reasonable expert witness fees, and costs).’’ each place 

2 it appears. 

3 SEC. 108. JUDICIAL REVIEW. 

4 (a) IN GENERAL.—Section 7703(b)(1) of title 5, 

5 United States Code, is amended— 

6 (1) by striking ‘‘(b)(1) Except as provided in 

7 paragraph (2) of this subsection,’’ and inserting 

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

9 or paragraph (2),’’; and 

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

11 ‘‘(B) A petition to review a final order or final deci12 sion of the Board that raises no challenge to the Board’s 

13 disposition of allegations of a prohibited personnel practice 

14 described in section 2302(b) other than practices de15 scribed in section 2302(b)(8) or subparagraph (A)(i), (B), 

16 (C), or (D) of section 2302(b)(9) shall be filed in the 

17 United States Court of Appeals for the District of Colum18 bia Circuit. Notwithstanding any other provision of law, 

19 any petition for review under this subparagraph must be 

20 filed within 60 days after the date the petitioner received 

21 notice of the final order or decision of the Board.’’. 

22 (b) REVIEW OBTAINED BY OFFICE OF PERSONNEL

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

24 Code, is amended by inserting ‘‘or the United States Court 


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1 of Appeals for the District of Columbia Circuit’’ after ‘‘the 

2 United States Court of Appeals for the Federal Circuit’’. 

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

4 this section shall apply with respect to any final order or 

5 decision rendered on or after the effective date of this Act. 

6 SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING 

7 THE TRANSPORTATION SECURITY ADMINIS8 TRATION. 

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

10 States Code, is amended— 

11 (1) by redesignating sections 2304 and 2305 as 

12 sections 2305 and 2306, respectively; and 

13 (2) by inserting after section 2303 the fol14 lowing: 

15 ‘‘§ 2304. Prohibited personnel practices affecting the 

16 Transportation Security Administration 

17 ‘‘(a) IN GENERAL.—Notwithstanding any other pro18 vision of law, any individual holding or applying for a posi19 tion within the Transportation Security Administration 

20 shall be covered by— 

21 ‘‘(1) the provisions of paragraph (1), (8), or (9) 

22 of section 2302(b); 

23 ‘‘(2) any provision of law implementing para24 graph (1), (8), or (9) of section 2302(b) by making 


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1 any right or remedy available to an employee or ap2 plicant for employment in the civil service; and 

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

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

5 (2). 

6 ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sec7 tion shall be construed to affect any rights, apart from 

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

9 described in subsection (a) might otherwise be entitled 

10 under law.’’. 

11 (b) CLERICAL AMENDMENT.—The table of sections 

12 for chapter 23 of title 5, United States Code, is amended 

13 by striking the items relating to sections 2304 and 2305, 

14 respectively, and inserting the following: 

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

‘‘2305. Responsibility of the Government Accountability Office. 

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

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

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

17 this Act. 

18 SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RE19 SEARCH, ANALYSIS, OR TECHNICAL INFOR20 MATION. 

21 (a) DEFINITIONS.—In this subsection— 


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

2 such term under section 2302(a)(2)(C) of title 5, 

3 United States Code; 

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

5 for a covered position; 

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

7 analysis, or technical information’’ means any effort 

8 to distort, misrepresent, or suppress research, anal9 ysis, or technical information; 

10 (4) the term ‘‘covered position’’ has the mean11 ing given such term under section 2302(a)(2)(B) of 

12 title 5, United States Code; 

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

14 a covered position in an agency; and 

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

16 given such term under section 2302(a)(2)(D) of title 

17 5, United States Code (as amended by section 

18 102(3)). 

19 (b) PROTECTED DISCLOSURE.— 

20 (1) IN GENERAL.—Any disclosure of informa21 tion by an employee or applicant for employment 

22 that the employee or applicant reasonably believes is 

23 evidence of censorship related to research, analysis, 

24 or technical information— 


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1 (A) shall come within the protections of 

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

3 Code, if— 

4 (i) the employee or applicant reason5 ably believes that such censorship is or will 

6 cause— 

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

8 regulation, and occurs during the con9 scientious carrying out of official du10 ties; or 

11 (II) gross mismanagement, a 

12 gross waste of funds, an abuse of au13 thority, or a substantial and specific 

14 danger to public health or safety; and 

15 (ii) such disclosure is not specifically 

16 prohibited by law or such information is 

17 not specifically required by Executive order 

18 to be kept classified in the interest of na19 tional defense or the conduct of foreign af20 fairs; and 

21 (B) shall come within the protections of 

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

23 Code, if— 


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1 (i) the employee or applicant reason2 ably believes that such censorship is or will 

3 cause— 

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

5 regulation, and occurs during the con6 scientious carrying out of official du7 ties; or 

8 (II) gross mismanagement, a 

9 gross waste of funds, an abuse of au10 thority, or a substantial and specific 

11 danger to public health or safety; and 

12 (ii) the disclosure is made to the Spe13 cial Counsel, or to the Inspector General of 

14 an agency or another person designated by 

15 the head of the agency to receive such dis16 closures, consistent with the protection of 

17 sources and methods. 

18 (2) DISCLOSURES NOT EXCLUDED.—A disclo19 sure shall not be excluded from paragraph (1) for 

20 any reason described under paragraph (1) or (2) of 

21 section 2302(f) of title 5, United States Code (as 

22 amended by section 101(b)(2)(C)). 

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

24 section shall be construed to imply any limitation on 

25 the protections of employees and applicants afforded 


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1 by any other provision of law, including protections 

2 with respect to any disclosure of information be3 lieved to be evidence of censorship related to re4 search, analysis, or technical information. 

5 SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS 

6 FOR CRITICAL INFRASTRUCTURE INFORMA7 TION. 

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

9 (6 U.S.C. 133(c)) is amended by adding at the end the 

10 following: ‘‘For purposes of this section, a permissible use 

11 of independently obtained information includes the disclo12 sure of such information under section 2302(b)(8) of title 

13 5, United States Code.’’. 

14 SEC. 112. ADVISING EMPLOYEES OF RIGHTS. 

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

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

17 disclosure of information that is specifically required by 

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

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

20 Special Counsel, the Inspector General of an agency, Con21 gress, or other agency employee designated to receive such 

22 a disclosure’’ after ‘‘chapter 12 of this title’’. 


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1 SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEAR2 ANCE. 

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

4 amended by adding at the end the following: 

5 ‘‘(h)(1) The Special Counsel may appear as amicus 

6 curiae in any action brought in a court of the United 

7 States related to any civil action brought in connection 

8 with paragraph (8) or (9) of section 2302(b), or as other9 wise authorized by law. In any such action, the Special 

10 Counsel may present the views of the Special Counsel with 

11 respect to compliance with the provisions of paragraph (8) 

12 or (9) of section 2302(b) and the impact court decisions 

13 would have on the enforcement of such provisions. 

14 ‘‘(2) A court of the United States shall grant the ap15 plication of the Special Counsel to appear in any such ac16 tion for the purposes described under subsection (a).’’. 

17 SEC. 114. SCOPE OF DUE PROCESS. 

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

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

20 after a finding by the Board that a protected disclosure 

21 was a contributing factor,’’ after ‘‘ordered if’’. 

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

23 5, United States Code, is amended by inserting ‘‘, after 

24 a finding that a protected disclosure or protected activity 

25 was a contributing factor,’’ after ‘‘ordered if’’. 


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1 SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREE2 MENTS. 

3 (a) IN GENERAL.— 

4 (1) REQUIREMENT.—Each agreement in Stand5 ard Forms 312 and 4414 of the Government and 

6 any other nondisclosure policy, form, or agreement 

7 of the Government shall contain the following state8 ment: ‘‘These restrictions are consistent with and do 

9 not supersede, conflict with, or otherwise alter the 

10 employee obligations, rights, or liabilities created by 

11 Executive Order 13526 (75 Fed. Reg. 707, relating 

12 to classified national security information), or any 

13 successor thereto; Executive Order 12968 (60 Fed. 

14 Reg. 40245, relating to access to classified informa15 tion), or any successor thereto; section 7211 of title 

16 5, United States Code (governing disclosures to Con17 gress); section 1034 of title 10, United States Code 

18 (governing disclosure to Congress by members of the 

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

20 States Code (governing disclosures of illegality, 

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

22 threats); the Intelligence Identities Protection Act of 

23 1982 (50 U.S.C. 421 et seq., governing disclosures 

24 that could expose confidential Government agents); 

25 and the statutes which protect against disclosure 

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1 ing sections 641, 793, 794, 798, and 952 of title 18, 

2 United States Code, and section 4(b) of the Subver3 sive Activities Act of 1950 (50 U.S.C. 783(b)). The 

4 definitions, requirements, obligations, rights, sanc5 tions, and liabilities created by such Executive or6 ders and such statutory provisions are incorporated 

7 into this agreement and are controlling.’’. 

8 (2) ENFORCEABILITY.— 

9 (A) IN GENERAL.—Any nondisclosure pol10 icy, form, or agreement described under para11 graph (1) that does not contain the statement 

12 required under paragraph (1) may not be im13 plemented or enforced to the extent such policy, 

14 form, or agreement is inconsistent with that 

15 statement. 

16 (B) NONDISCLOSURE POLICY, FORM, OR

17 AGREEMENT IN EFFECT BEFORE THE DATE OF

18 ENACTMENT.—A nondisclosure policy, form, or 

19 agreement that was in effect before the date of 

20 enactment of this Act, but that does not con21 tain the statement required under paragraph 

22 (1)— 

23 (i) may be enforced with regard to a 

24 current employee if the agency gives such 

25 employee notice of the statement; and 


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1 (ii) may continue to be enforced after 

2 the effective date of this Act with regard 

3 to a former employee if the agency posts 

4 notice of the statement on the agency 

5 website for the 1-year period following that 

6 effective date, except that such notice shall 

7 not be required as a condition for contin8 ued enforcement if the condition under 

9 clause (i) has been satisfied with respect to 

10 such former employee. 

11 (b) PERSONS OTHER THAN GOVERNMENT EMPLOY12 EES.—Notwithstanding subsection (a), a nondisclosure 

13 policy, form, or agreement that is to be executed by a per14 son connected with the conduct of an intelligence or intel15 ligence-related activity, other than an employee or officer 

16 of the United States Government, may contain provisions 

17 appropriate to the particular activity for which such docu18 ment is to be used. Such policy, form, or agreement shall, 

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

20 any classified information received in the course of such 

21 activity unless specifically authorized to do so by the 

22 United States Government. Such nondisclosure policy, 

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

24 forms do not bar disclosures to Congress or to an author25 ized official of an Executive agency or the Department of 


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1 Justice to report a substantial violation of law, consistent 

2 with the protection of sources and methods, pursuant to 

3 the requirements of section 2302(b)(8) of title 5, United 

4 States Code. 

5 SEC. 116. REPORTING REQUIREMENTS. 

6 (a) GOVERNMENT ACCOUNTABILITY OFFICE.— 

7 (1) REPORT.—Not later than 40 months after 

8 the date of enactment of this Act, the Comptroller 

9 General shall submit a report to the Committee on 

10 Homeland Security and Governmental Affairs of the 

11 Senate and the Committee on Oversight and Govern12 ment Reform of the House of Representatives on the 

13 implementation of this title. 

14 (2) CONTENTS.—The report under this sub15 section shall include— 

16 (A) an analysis of any changes in the num17 ber of cases filed with the Merit Systems Pro18 tection Board alleging violations of paragraph 

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

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

21 (B) the outcome of the cases described 

22 under subparagraph (A), including whether or 

23 not the Merit Systems Protection Board, the 

24 Federal Circuit Court of Appeals, or any other 


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1 court determined the allegations to be frivolous 

2 or malicious; 

3 (C) an analysis of the outcome of cases de4 scribed under subparagraph (A) that were de5 cided by the United States Court of Appeals for 

6 the District of Columbia Circuit and the impact 

7 the process has on the Merit Systems Protec8 tion Board and the Federal court system; and 

9 (D) any other matter as determined by the 

10 Comptroller General. 

11 (b) MERIT SYSTEMS PROTECTION BOARD.— 

12 (1) IN GENERAL.—Each report submitted by 

13 the Merit Systems Protection Board under section 

14 1116 of title 31, United States Code, shall, with re15 spect to the period covered by such report, include 

16 as an addendum the following: 

17 (A) Information relating to the outcome of 

18 cases decided during the applicable year of the 

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

20 or subparagraph (A)(i), (B)(i), (C), or (D) of 

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

22 Code, were alleged. 

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

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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 paragraph that covers the period 

7 beginning on the first day of the calendar year in 

8 which occurs the date of enactment of this Act and 

9 ending on the last day of the fiscal year in which 

10 such date of enactment occurs. 

11 SEC. 117. ALTERNATIVE REVIEW. 

12 Section 1221 of title 5, United States Code, is 

13 amended by adding at the end the following: 

14 ‘‘(k)(1) For purposes of this subsection, the term ‘ap15 propriate United States district court’, as used with re16 spect to an alleged prohibited personnel practice, means 

17 the United States district court for the judicial district 

18 in which— 

19 ‘‘(A) such prohibited personnel practice is al20 leged to have been committed; or 

21 ‘‘(B) the employee, former employee, or appli22 cant for employment allegedly affected by such pro23 hibited personnel practice resides. 

24 ‘‘(2) An employee, former employee, or applicant for 

25 employment in any case to which paragraph (4) or (5) 


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

2 review in the appropriate United States district court. 

3 ‘‘(3) Upon initiation of any action under paragraph 

4 (2), the Board shall stay any other claims of such em5 ployee, former employee, or applicant pending before the 

6 Board at that time which arise out of the same set of oper7 ative facts. Such claims shall be stayed pending completion 

8 of the action filed under paragraph (2) before the appro9 priate United States district court. 

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

11 ‘‘(A) an employee, former employee, or appli12 cant for employment— 

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

14 Systems Protection Board under section 

15 1221(a) based on an alleged prohibited per16 sonnel practice, described in section 2302(b)(8) 

17 or subparagraph (A)(i), (B), (C), or (D) of sec18 tion 2302(b)(9), for which the associated per19 sonnel action is an action covered under section 

20 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, de24 scribed in section 2302(b)(8) or subparagraph 

25 (A)(i), (B), (C), or (D) of section 2302(b)(9), 


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1 for which the associated personnel action is an 

2 action covered under section 7512 or 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 ‘‘(5) 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 subparagraph (A)(i), (B), (C), or (D) of sec23 tion 2302(b)(9), for which the associated per24 sonnel action is an action covered under section 

25 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 sub5 paragraph (A)(i), (B), (C), or (D) of section 

6 2302(b)(9), for which the associated personnel 

7 action is an action covered under section 7512 

8 or 7542; 

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

10 the request for corrective action or appeal was duly 

11 submitted, such employee, former employee, or appli12 cant for employment files a motion requesting a cer13 tification consistent with subparagraph (C) to the 

14 Board or an administrative law judge or other em15 ployee of the Board designated to hear the case; and 

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

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

18 corrective action; and 

19 ‘‘(C) the Board or an administrative law judge 

20 or other employee of the Board designated to hear 

21 the case certifies that— 

22 ‘‘(i) under standards applicable to the re23 view of motions to dismiss under rule 12(b)(6) 

24 of the Federal Rules of Civil Procedure, includ25 ing rule 12(d) thereof, the request for corrective 


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1 action (including any allegations made with the 

2 motion under subparagraph (B)) would not be 

3 subject to dismissal; and 

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

5 of the case within 270 days after the date on 

6 which a request for that corrective action has 

7 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 court 

16 of the United States; or 

17 ‘‘(dd) involves a question of law for 

18 which there is no controlling precedent. 

19 ‘‘(6) The Board shall grant or deny any motion re20 questing a certification described under paragraph 

21 (5)(C)(ii) within 90 days after the submission of such mo22 tion and the Board may not issue a decision on the merits 

23 of a request for corrective action within 15 days after 

24 granting or denying a motion requesting certification. 


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1 ‘‘(7)(A) Any decision of the Board or an administra2 tive law judge or other employee of the Board designated 

3 to hear the case to grant or deny a certification described 

4 under paragraph (5)(C)(ii) shall be reviewed on appeal of 

5 a final order or decision of the Board under section 7703 

6 only if— 

7 ‘‘(i) a motion requesting a certification was de8 nied; and 

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

10 the Board on the merits of the claim under the 

11 standards set forth in section 7703(c). 

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

13 overturned by the reviewing court, and an order granting 

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

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

16 of discretion. 

17 ‘‘(C) The reviewing court’s decision shall not be con18 sidered evidence of any determination by the Board, any 

19 administrative law judge appointed by the Board under 

20 section 3105, or any employee of the Board designated 

21 by the Board on the merits of the underlying allegations 

22 during the course of any action at law or equity for de 

23 novo review in the appropriate United States district court 

24 in accordance with this subsection. 

25 ‘‘(8) In any action filed under this subsection— 


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1 ‘‘(A) the appropriate United States district 

2 court shall have jurisdiction without regard to the 

3 amount in controversy; 

4 ‘‘(B) the court— 

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

6 standards set forth in subsection (e); and 

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

8 considers appropriate under subsection (g), ex9 cept that— 

10 ‘‘(I) relief for compensatory damages 

11 may not exceed $300,000; and 

12 ‘‘(II) relief may not include punitive 

13 damages; and 

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

15 may not order relief if the agency demonstrates 

16 by clear and convincing evidence that the agen17 cy would have taken the same personnel action 

18 in the absence of such disclosure; and 

19 ‘‘(C) the Special Counsel may not represent the 

20 employee, former employee, or applicant for employ21 ment. 

22 ‘‘(9) A petition to review a final order or final deci23 sion of a United States district court under this subsection 

24 that raises no challenge to the district court’s disposition 

25 of allegations of a prohibited personnel practice described 


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1 in section 2302(b) other than practices described in sec2 tion 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) 

3 of section 2302(b)(9) shall be filed in the United States 

4 Court of Appeals for the District of Columbia Circuit. All 

5 other petitions to review any final order or final decision 

6 of a United States district court in an action brought 

7 under this subsection shall be filed in the United States 

8 Court of Appeals for the Federal Circuit. Notwithstanding 

9 any other provision of law, any petition for review under 

10 this paragraph must be filed within 60 days after the date 

11 the petitioner received notice of the final order or final 

12 decision of the United States district court. 

13 ‘‘(10) This subsection applies with respect to any ap14 peal, petition, or other request for corrective action duly 

15 submitted to the Board, whether under section 

16 1214(b)(2), the preceding provisions of this section, sec17 tion 7513(d), section 7701, or any otherwise applicable 

18 provision of law, rule, or regulation.’’. 

19 SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY 

20 JUDGMENT. 

21 Section 1204(b) of title 5, United States Code, is 

22 amended— 

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


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

3 ‘‘(3) With respect to a request for corrective action 

4 based on an alleged prohibited personnel practice de5 scribed in section 2302(b)(8) or subparagraph (A)(i), (B), 

6 (C), or (D) of section 2302(b)(9) for which the associated 

7 personnel action is an action covered under section 7512 

8 or 7542, the Board, any administrative law judge ap9 pointed by the Board under section 3105 TM, section 

10 3105, or any employee of the Board designated by the 

11 Board may, with respect to any party, grant a motion for 

12 summary judgment.’’. 

13 SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION. 

14 (a) PROHIBITED PERSONNEL PRACTICES.—Section 

15 2302(b)(8) of title 5, United States Code, is amended— 

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

17 the semicolon at the end; 

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

19 the semicolon at the end; and 

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

21 ‘‘(C) any communication that complies 

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

23 8H of the Inspector General Act of 1978 (5 

24 U.S.C. App.);’’. 


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

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

3 amended— 

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

5 the following: 

6 ‘‘(D) An employee of any agency, as that term is de7 fined under section 2302(a)(2)(C) of title 5, United States 

8 Code, who intends to report to Congress a complaint or 

9 information with respect to an urgent concern may report 

10 the complaint or information to the Inspector General (or 

11 designee) of the agency of which that employee is em12 ployed.’’; 

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

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

16 (3) in subsection (d)— 

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

18 or both of the intelligence committees’’ and in19 serting ‘‘any of the appropriate committees’’; 

20 and 

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

22 ‘‘intelligence committees’’ each place it appears 

23 and inserting ‘‘appropriate committees’’; and 

24 (4) in subsection (h)— 

25 (A) in paragraph (1)— 


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

2 ‘‘intelligence’’; and 

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

4 ‘‘or an activity involving classified informa5 tion’’ after ‘‘an intelligence activity’’; and 

6 (B) by striking paragraph (2) and insert7 ing the following: 

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

9 the Permanent Select Committee on Intelligence of 

10 the House of Representatives and the Select Com11 mittee on Intelligence of the Senate, except that, 

12 with respect to disclosures made by employees de13 scribed in subsection (a)(1)(D), the term ‘appro14 priate committees’ means the committees of appro15 priate jurisdiction.’’. 

16 SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN. 

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

18 Act of 1978 (5 U.S.C. App.) is amended by striking sub19 section (d) and inserting the following: 

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

21 with applicable laws and regulations governing the civil 

22 service— 

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

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1 vising the performance of auditing activities relating 

2 to programs and operations of the establishment; 

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

4 Investigations, who shall have the responsibility for 

5 supervising the performance of investigative activi6 ties relating to such programs and operations; and 

7 ‘‘(C) designate a Whistleblower Protection Om8 budsman, who shall educate agency employees— 

9 ‘‘(i) about prohibitions on retaliation for 

10 protected disclosures; and 

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

12 making a protected disclosure about the rights 

13 and remedies against retaliation for protected 

14 disclosures. 

15 ‘‘(2) The Whistleblower Protection Ombudsman shall 

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

17 employee or former employee. 

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

19 of the designation of a Whistleblower Protection Ombuds20 man under paragraph (1)(C) shall not apply to— 

21 ‘‘(A) any agency that is an element of the intel22 ligence community (as defined in section 3(4) of the 

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

24 or 


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1 ‘‘(B) as determined by the President, any exec2 utive agency or unit thereof the principal function of 

3 which is the conduct of foreign intelligence or 

4 counter intelligence activities.’’. 

5 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

7 U.S.C. App.) is amended— 

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

9 ‘‘section 3(d)(1)(A)’’; and 

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

11 ‘‘section 3(d)(1)(B)’’. 

12 SEC. 121. PILOT PROGRAM FOR ENHANCEMENT OF CON13 TRACTOR EMPLOYEE WHISTLEBLOWER PRO14 TECTIONS. 

15 (a) PILOT PROGRAM.— 

16 (1) IN GENERAL.—Chapter 47 of title 41, 

17 United States Code, is amended by inserting after 

18 section 4705 the following new section: 

19 ‘‘§ 4705a. Pilot program for enhancement of protec20 tion of contractor employees from re21 prisal for disclosure of certain informa22 tion 

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


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1 ‘‘(1) CONTRACT.—The term ‘contract’ means a 

2 contract awarded by the head of an executive agen3 cy. 

4 ‘‘(2) CONTRACTOR.—The term ‘contractor’ 

5 means a person awarded a contract or a grant with 

6 an executive agency. 

7 ‘‘(3) INSPECTOR GENERAL.—The term ‘Inspec8 tor General’ means an Inspector General appointed 

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

10 App.) and any Inspector General that receives fund11 ing from, or has oversight over contracts awarded 

12 for or on behalf of, an executive agency. 

13 ‘‘(b) PROHIBITION OF REPRISALS.—An employee of 

14 a contractor may not be discharged, demoted, or otherwise 

15 discriminated against as a reprisal for disclosing to a 

16 Member of Congress, a representative of a committee of 

17 Congress, an Inspector General, the Government Account18 ability Office, an agency employee responsible for contract 

19 oversight or management, an authorized official of an ex20 ecutive agency or the Department of Justice information 

21 that the employee reasonably believes is evidence of gross 

22 mismanagement of a contract or grant, a gross waste of 

23 agency funds, a substantial and specific danger to public 

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1 tract (including the competition for or negotiation of a 

2 contract) or grant. 

3 ‘‘(c) INVESTIGATION OF COMPLAINTS.— 

4 ‘‘(1) INVESTIGATION.—An individual who be5 lieves that the individual has been subjected to a re6 prisal prohibited by subsection (b) may submit a 

7 complaint to the Inspector General of the executive 

8 agency. Unless the Inspector General determines 

9 that the complaint is frivolous, the Inspector General 

10 shall investigate the complaint and, on completion of 

11 the investigation, submit a report of the findings of 

12 the investigation to the individual, the contractor 

13 concerned, and the head of the agency. If the execu14 tive agency does not have an Inspector General, the 

15 duties of the Inspector General under this section 

16 shall be performed by an official designated by the 

17 head of the executive agency. 

18 ‘‘(2) DEADLINE.—(A) Except as provided 

19 under subparagraph (B), the Inspector General shall 

20 make a determination that a complaint is frivolous 

21 or submit a report under paragraph (1) within 180 

22 days after receiving the complaint. 

23 ‘‘(B) If the Inspector General is unable to com24 plete an investigation in time to submit a report 

25 within the 180-day period specified in subparagraph 


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1 (A) and the person submitting the complaint agrees 

2 to an extension of time, the Inspector General shall 

3 submit a report under paragraph (1) within such ad4 ditional period of time as shall be agreed upon be5 tween the Inspector General and the person submit6 ting the complaint. 

7 ‘‘(d) REMEDY AND ENFORCEMENT AUTHORITY.— 

8 ‘‘(1) ACTIONS CONTRACTOR MAY BE ORDERED

9 TO TAKE.—Not later than 30 days after receiving an 

10 Inspector General report pursuant to subsection (c), 

11 the head of the agency concerned shall determine 

12 whether there is sufficient basis to conclude that the 

13 contractor concerned has subjected the complainant 

14 to a reprisal prohibited by subsection (b) and shall 

15 either issue an order denying relief or shall take one 

16 or more of the following actions: 

17 ‘‘(A) ABATEMENT.—Order the contractor 

18 to take affirmative action to abate the reprisal. 

19 ‘‘(B) REINSTATEMENT.—Order the con20 tractor to reinstate the individual to the posi21 tion that the individual held before the reprisal, 

22 together with the compensation (including back 

23 pay), employment benefits, and other terms and 

24 conditions of employment that would apply to 


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1 the individual in that position if the reprisal 

2 had not been taken. 

3 ‘‘(C) PAYMENT.—Order the contractor to 

4 pay the complainant an amount equal to the 

5 aggregate amount of all costs and expenses (in6 cluding attorneys’ fees and expert witnesses’ 

7 fees) that the complainant reasonably incurred 

8 for, or in connection with, bringing the com9 plaint regarding the reprisal, as determined by 

10 the head of the executive agency. 

11 ‘‘(2) DE NOVO ACTION.—If the head of an exec12 utive agency issues an order denying relief under 

13 paragraph (1) or has not issued an order within 210 

14 days after the submission of a complaint under sub15 section (c), or in the case of an extension of time 

16 under paragraph (c)(2)(B), not later than 30 days 

17 after the expiration of the extension of time, and 

18 there is no showing that such delay is due to the bad 

19 faith of the complainant, the complainant shall be 

20 deemed to have exhausted all administrative rem21 edies with respect to the complaint, and the com22 plainant may bring a de novo action at law or equity 

23 against the contractor to seek compensatory dam24 ages and other relief available under this section in 

25 the appropriate district court of the United States, 


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1 which shall have jurisdiction over such an action 

2 without regard to the amount in controversy. Such 

3 an action shall, at the request of either party to the 

4 action, be tried by the court with a jury. 

5 ‘‘(3) EVIDENCE.—An Inspector General deter6 mination and an agency head order denying relief 

7 under paragraph (2) shall be admissible in evidence 

8 in any de novo action at law or equity brought pur9 suant to this subsection. 

10 ‘‘(4) ENFORCEMENT ORDER.—When a con11 tractor fails to comply with an order issued under 

12 paragraph (1), the head of the executive agency 

13 shall file an action for enforcement of the order in 

14 the United States district court for a district in 

15 which the reprisal was found to have occurred. In an 

16 action brought under this paragraph, the court may 

17 grant appropriate relief, including injunctive relief 

18 and compensatory and exemplary damages. 

19 ‘‘(5) REVIEW OF ENFORCEMENT ORDER.—A 

20 person adversely affected or aggrieved by an order 

21 issued under paragraph (1) may obtain review of the 

22 order’s conformance with this subsection, and regu23 lations issued to carry out this section, in the United 

24 States court of appeals for a circuit in which the re25 prisal is alleged in the order to have occurred. A peVerDate Mar 15 2010 21:59 Oct 10, 2012 Jkt 029200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\H3289.RH H3289

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1 tition seeking review must be filed no more than 60 

2 days after the head of the agency issues the order. 

3 Review shall conform to chapter 7 of title 5. 

4 ‘‘(e) SCOPE OF SECTION.—This section does not— 

5 ‘‘(1) authorize the discharge of, demotion of, or 

6 discrimination against an employee for a disclosure 

7 other than a disclosure protected by subsection (b); 

8 or 

9 ‘‘(2) modify or derogate from a right or remedy 

10 otherwise available to the employee. 

11 ‘‘(f) DURATION OF SECTION.—This section shall be 

12 in effect for the two-year period beginning on the date of 

13 the enactment of the Whistleblower Protection Enhance14 ment Act of 2011 Platts-Van Hollen Whistleblower Protec15 tion Enhancement Act of 2011.’’. 

16 (2) CLERICAL AMENDMENT.—The table of sec17 tions at the beginning of chapter 47 of title 41, 

18 United States Code, is amended by inserting after 

19 the item relating to section 4705 the following new 

20 item: 

‘‘4705a. Pilot program for enhancement of protection of contractor employees 

from reprisal for disclosure of certain information.’’. 

21 (b) SUSPENSION OF EFFECTIVENESS OF SECTION

22 4705 WHILE PILOT PROGRAM IN EFFECT.—Section 4705 

23 of title 41, United States Code, is amended by adding at 

24 the end the following new subsection: 


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1 ‘‘(f) TWO-YEAR SUSPENSION OF EFFECTIVENESS

2 WHILE PILOT PROGRAM IN EFFECT.—While section 

3 4705a of this title is in effect, this section shall not be 

4 in effect.’’. 

5 (c) GOVERNMENT ACCOUNTABILITY OFFICE STUDY

6 AND REPORT.— 

7 (1) STUDY.—Not later than one year after the 

8 date of the enactment of this Act, the Comptroller 

9 General shall begin conducting a study to evaluate 

10 the implementation of section 4705a of title 41, 

11 United States Code, as added by subsection (a). 

12 (2) REPORT.—Not later than 18 months after 

13 the date of the enactment of this Act, the Comp14 troller General shall submit to Congress a report on 

15 the results of the study required by paragraph (1), 

16 with such findings and recommendations as the 

17 Comptroller General considers appropriate. 

18 SEC. 122. STUDY. 

19 (a) IN GENERAL.—The Government Accountability 

20 Office shall study and, not later than 1 year after the date 

21 of enactment of this Act, submit to the appropriate commit22 tees of Congress a report on whistleblower hotlines of Fed23 eral agencies. Such study and report shall address the fol24 lowing: 


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1 (1) The days and hours the hotline is staffed by 

2 trained personnel. 

3 (2) The level of training which operators who are 

4 designated to receive calls for the hotline possess, in5 cluding academic credentials and additional training. 

6 (3) Whether the hotline is staffed by sufficient 

7 personnel. 

8 (4) Whether the hotline is operated in a manner 

9 consistent with the requirements established by the 

10 Sarbanes-Oxley Act of 2002 relating to whistleblower 

11 protections which apply with respect to publicly trad12 ed companies. 

13 (5) Whether the hotline is operated independent 

14 of conflicts of interest. 

15 (6) Whether the hotline is accessible through mul16 tiple methods of communication, such as electronic 

17 mail, personal interview, and confidential mail de18 posit. 

19 (7) Whether sufficient protections from retalia20 tion are provided for employees reporting illegal or 

21 unethical conduct or behavior. 

22 (8) Whether the hotline is operated in a manner 

23 that ensures sufficient confidentiality of disclosures 

24 made using such hotline. 


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1 (9) Whether employees of the agency are encour2 aged and made aware of their ability to submit dis3 closures of perceived misconduct that they reasonably 

4 believe evidence a violation of law, rule, or regulation, 

5 gross waste, gross mismanagement, abuse of author6 ity, or a substantial and specific violation of public 

7 health or safety. 

8 (10) Any other issues which the Government Ac9 countability Office may determine. 

10 (b) DEFINITIONS.—For purposes of this section— 

11 (1) the term ‘‘appropriate committees of Con12 gress’’ means the Committee on Oversight and Gov13 ernment Reform of the House of Representatives and 

14 the Committee on Homeland Security and Govern15 mental Affairs of the Senate; and 

16 (2) the term ‘‘Federal agency’’ means an agency, 

17 as defined by section 2302(a)(2)(C) of title 5, United 

18 States Code. 


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1 TITLE II—INTELLIGENCE COM2 MUNITY WHISTLEBLOWER 

3 PROTECTIONS 

4 SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY 

5 WHISTLEBLOWERS. 

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

7 States Code, is amended by inserting after section 2303 

8 the following: 

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

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

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

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

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

19 ‘‘(A) means— 

20 ‘‘(i) the Central Intelligence Agency, 

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

23 National Security Agency, the Office of the 

24 Director of National Intelligence, and the 

25 National Reconnaissance Office; and 


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1 ‘‘(ii) any executive agency or unit 

2 thereof determined by the President under 

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

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

6 counterintelligence activities; and 

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

8 of Investigation; and 

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

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

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

14 policymaking, or policy-advocating character). 

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

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

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

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

19 with respect to any employee of an intelligence community 

20 element as a reprisal for a disclosure of information by 

21 the employee to the Director of National Intelligence (or 

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

24 the employing agency (or an employee designated by the 

25 head of that agency for such purpose), or to a supervisor 


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1 in the chain of authority of such employee who is authorized 

2 to access such information which the employee reasonably 

3 believes evidences— 

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

5 except for an alleged violation that occurs during the 

6 conscientious carrying out of official duties; or 

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

8 an abuse of authority, or a substantial and specific 

9 danger to public health or safety. 

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

11 for the enforcement of this section in a manner consistent 

12 with applicable provisions of sections 1214 and 1221. 

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

14 this section shall be construed to— 

15 ‘‘(1) preempt or preclude any employee, or ap16 plicant for employment, at the Federal Bureau of 

17 Investigation from exercising rights currently pro18 vided under any other law, rule, or regulation, in19 cluding section 2303; 

20 ‘‘(2) repeal section 2303; or 

21 ‘‘(3) provide the President or Director of Na22 tional Intelligence the authority to revise regulations 

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

24 Code of Federal Regulations.’’. 


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1 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

3 States Code, is amended by inserting after the item relat4 ing to section 2303 the following: 

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

5 SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS 

6 DETERMINATIONS. 

7 (a) IN GENERAL.—Section 3001(b) of the Intel8 ligence Reform and Terrorism Prevention Act of 2004 (50 

9 U.S.C. 435b(b)) is amended— 

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

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

12 provided, not’’; 

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

14 the semicolon; 

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

16 the end and inserting ‘‘; and’’; and 

17 (4) by inserting after paragraph (6) the fol18 lowing: 

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

20 enactment of the Whistleblower Protection Enhance21 ment Act of 2011— 

22 ‘‘(A) developing policies and procedures 

23 that permit, to the extent practicable, individ24 uals who challenge in good faith a determina25 tion to suspend or revoke a security clearance 


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1 or access to classified information to retain 

2 their government employment status while such 

3 challenge is pending; and 

4 ‘‘(B) developing and implementing uniform 

5 and consistent policies and procedures to ensure 

6 proper protections during the process for deny7 ing, suspending, or revoking a security clear8 ance or access to classified information, includ9 ing the provision of a right to appeal such a de10 nial, suspension, or revocation, except that 

11 there shall be no appeal of an agency’s suspen12 sion of a security clearance or access determina13 tion for purposes of conducting an investiga14 tion, if that suspension lasts no longer than 1 

15 year or the head of the agency certifies that a 

16 longer suspension is needed before a final deci17 sion on denial or revocation to prevent immi18 nent harm to the national security. 

19 Any limitation period applicable to an agency appeal under 

20 paragraph (7) shall be tolled until the head of the agency 

21 (or in the case of any component of the Department of 

22 Defense, the Secretary of Defense) determines, with the 

23 concurrence of the Director of National Intelligence, that 

24 the policies and procedures described in paragraph (7) 

25 have been established for the agency or the Director of 


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1 National Intelligence promulgates the policies and proce2 dures under paragraph (7). The policies and procedures 

3 for appeals developed under paragraph (7) shall be com4 parable to the policies and procedures pertaining to pro5 hibited personnel practices defined under section 

6 2302(b)(8) of title 5, United States Code, and provide— 

7 ‘‘(i) for an independent and impartial fact-find8 er; 

9 ‘‘(ii) for notice and the opportunity to be heard, 

10 including the opportunity to present relevant evi11 dence, including witness testimony; 

12 ‘‘(iii) that the employee or former employee 

13 may be represented by counsel; 

14 ‘‘(iv) that the employee or former employee has 

15 a right to a decision based on the record developed 

16 during the appeal; 

17 ‘‘(v) that not more than 180 days shall pass 

18 from the filing of the appeal to the report of the im19 partial fact-finder to the agency head or the des20 ignee of the agency head, unless— 

21 ‘‘(I) the employee and the agency con22 cerned agree to an extension; or 

23 ‘‘(II) the impartial fact-finder determines 

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1 quired in the interest of fairness or national se2 curity; 

3 ‘‘(vi) for the use of information specifically re4 quired by Executive order to be kept classified in the 

5 interest of national defense or the conduct of foreign 

6 affairs in a manner consistent with the interests of 

7 national security, including ex parte submissions if 

8 the agency determines that the interests of national 

9 security so warrant; and 

10 ‘‘(vii) that the employee or former employee 

11 shall have no right to compel the production of in12 formation specifically required by Executive order to 

13 be kept classified in the interest of national defense 

14 or the conduct of foreign affairs, except evidence 

15 necessary to establish that the employee made the 

16 disclosure or communication such employee alleges 

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

18 subsection (j)(1).’’. 

19 (a) IN GENERAL.—Section 3001 of the Intelligence Re20 form and Terrorism Prevention Act of 2004 (50 U.S.C. 

21 435b) is amended— 

22 (1) by redesignating subsection (i) as subsection 

23 (k); and 

24 (2) by inserting after subsection (h) the following 

25 new subsection: 


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1 ‘‘(i) REVIEW OF SECURITY CLEARANCE OR ACCESS

2 DETERMINATIONS.— 

3 ‘‘(1) IN GENERAL.—Not later than 180 days 

4 after the date of enactment of the Platts-Van Hollen 

5 Whistleblower Protection Enhancement Act of 2011, 

6 the head of the entity selected pursuant to subsection 

7 (b) shall— 

8 ‘‘(A) develop policies and procedures that 

9 permit, to the extent practicable, individuals who 

10 challenge in good faith a determination to sus11 pend or revoke a security clearance or access to 

12 classified information to retain their government 

13 employment status while such challenge is pend14 ing; and 

15 ‘‘(B) develop and implement uniform and 

16 consistent policies and procedures to ensure 

17 proper protections during the process for deny18 ing, suspending, or revoking a security clearance 

19 or access to classified information, including the 

20 provision of a right to appeal such a denial, sus21 pension, or revocation, except that there shall be 

22 no appeal of an agency’s suspension of a security 

23 clearance or access determination for purposes of 

24 conducting an investigation, if that suspension 

25 lasts no longer than 1 year or the head of the 


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1 agency certifies that a longer suspension is need2 ed before a final decision on denial or revocation 

3 to prevent imminent harm to the national secu4 rity. 

5 ‘‘(2) LIMITATION PERIOD.—Any limitation pe6 riod applicable to an agency appeal under paragraph 

7 (1) shall be tolled until the head of the agency (or in 

8 the case of any component of the Department of De9 fense, the Secretary of Defense) determines, with the 

10 concurrence of the Director of National Intelligence, 

11 that the policies and procedures described in para12 graph (1) have been established for the agency or the 

13 Director of National Intelligence promulgates the 

14 policies and procedures under paragraph (1). The 

15 policies and procedures for appeals developed under 

16 paragraph (1) shall be comparable to the policies and 

17 procedures pertaining to prohibited personnel prac18 tices defined under section 2302(b)(8) of title 5, 

19 United States Code, and 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 de5 veloped 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 or 

9 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 conduct 

19 of foreign affairs in a manner consistent with 

20 the interests of national security, including ex 

21 parte submissions if the agency determines that 

22 the interests of national security so warrant; and 

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

24 shall have no right to compel the production of 

25 information specifically required by Executive 


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1 order to be kept classified in the interest of na2 tional defense or the conduct of foreign affairs, 

3 except evidence necessary to establish that the 

4 employee made the disclosure or communication 

5 such employee alleges was protected by subpara6 graphs (A), (B), and (C) of subsection (j)(1).’’. 

7 (b) RETALIATORY REVOCATION OF SECURITY

8 CLEARANCES AND ACCESS DETERMINATIONS.—Section 

9 3001 of the Intelligence Reform and Terrorism Prevention 

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

11 the end, as amended by subsection (a) of this section, is 

12 further amended by inserting after subsection (i) the fol13 lowing: 

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 

5 (G) of section 17 of the Central Intel6 ligence Agency Act of 1949 (50 U.S.C. 

7 403q); or 

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

9 (G), of section 103H of the National Secu10 rity Act of 1947 (50 U.S.C. 403–3h); 

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

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

13 regulation; 

14 ‘‘(E) testifying for or otherwise lawfully as15 sisting any individual in the exercise of any 

16 right referred to in subparagraph (D); or 

17 ‘‘(F) cooperating with or disclosing infor18 mation to the Inspector General of an agency, 

19 in accordance with applicable provisions of law 

20 in connection with an audit, inspection, or in21 vestigation conducted by the Inspector General, 

22 if the actions described under subparagraphs (D) 

23 through (F) do not result in the employee or appli24 cant unlawfully disclosing information specifically re25 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 

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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 compensatory damages 

18 not to exceed $300,000, back pay and related 

19 benefits, and travel expenses. 

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 

4 clear and convincing evidence that it would have 

5 taken the same action in the absence of such 

6 disclosure, giving the utmost deference to the 

7 agency’s assessment of the particular threat to 

8 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 Platts-Van Hollen Whistleblower Protection En18 hancement Act of 2011. 

19 ‘‘(B) APPEAL.—Within 60 days after re20 ceiving notice of an adverse final agency deter21 mination under a proceeding under paragraph 

22 (4), an employee or former employee may ap23 peal that determination to the Board. 

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

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1 eral, Director of National Intelligence, and the 

2 Secretary of Defense, shall develop and imple3 ment policies and procedures for adjudicating 

4 the appeals authorized by subparagraph (B). 

5 The Director of National Intelligence and Sec6 retary of Defense shall jointly approve any 

7 rules, regulations, or guidance issued by the 

8 Board concerning the procedures for the use or 

9 handling of classified information. 

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

11 be on the complete agency record, which shall 

12 be made available to the Board. The Board may 

13 not hear witnesses or admit additional evidence. 

14 Any portions of the record that were submitted 

15 ex parte during the agency proceedings shall be 

16 submitted ex parte to the Board. 

17 ‘‘(E) FURTHER FACT-FINDING OR IM18 PROPER DENIAL.—If the Board concludes that 

19 further fact-finding is necessary or finds that 

20 the agency improperly denied the employee or 

21 former employee the opportunity to present evi22 dence that, if admitted, would have a substan23 tial likelihood of altering the outcome, the 

24 Board shall remand the matter to the agency 

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1 ceedings in accordance with the rules of proce2 dure issued by the Board. 

3 ‘‘(F) DE NOVO DETERMINATION.—The 

4 Board shall make a de novo determination, 

5 based on the entire record and under the stand6 ards specified in paragraph (4), of whether the 

7 employee or former employee received an ad8 verse security clearance or access determination 

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

10 record, the Board may weigh the evidence, 

11 judge the credibility of witnesses, and determine 

12 controverted questions of fact. In doing so, the 

13 Board may consider the prior fact-finder’s op14 portunity to see and hear the witnesses. 

15 ‘‘(G) ADVERSE SECURITY CLEARANCE OR

16 ACCESS DETERMINATION.—If the Board finds 

17 that the adverse security clearance or access de18 termination violated paragraph (1), it shall then 

19 separately determine whether reinstating the se20 curity clearance or access determination is 

21 clearly consistent with the interests of national 

22 security, with any doubt resolved in favor of na23 tional security, under Executive Order 12968 

24 (60 Fed. Reg. 40245; relating to access to clas25 sified information) or any successor thereto (inVerDate Mar 15 2010 21:59 Oct 10, 2012 Jkt 029200 PO 00000 Frm 00068 Fmt 6652 Sfmt 6201 E:\BILLS\H3289.RH H3289

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1 cluding any adjudicative guidelines promulgated 

2 under such orders) or any subsequent Executive 

3 order, regulation, or policy concerning access to 

4 classified information. 

5 ‘‘(H) REMEDIES.— 

6 ‘‘(i) CORRECTIVE ACTION.—If the 

7 Board finds that the adverse security 

8 clearance or access determination violated 

9 paragraph (1), it shall order the agency 

10 head to take specific corrective action to 

11 return the employee or former employee, 

12 as nearly as practicable and reasonable, to 

13 the position such employee or former em14 ployee would have held had the violation 

15 not occurred. Such corrective action shall 

16 include reasonable attorney’s fees and any 

17 other reasonable costs incurred, and may 

18 include compensatory damages not to ex19 ceed $300,000 and back pay and related 

20 benefits. The Board may recommend, but 

21 may not order, reinstatement or hiring of 

22 a former employee. The Board may order 

23 that the former employee be treated as 

24 though the employee were transferring 

25 from the most recent position held when 


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1 seeking other positions within the executive 

2 branch. Any corrective action shall not in3 clude the reinstating of any security clear4 ance or access determination. The agency 

5 head shall take the actions so ordered 

6 within 90 days, unless the Director of Na7 tional Intelligence, the Secretary of En8 ergy, or the Secretary of Defense, in the 

9 case of any component of the Department 

10 of Defense, determines that doing so would 

11 endanger national security. 

12 ‘‘(ii) RECOMMENDED ACTION.—If the 

13 Board finds that reinstating the employee 

14 or former employee’s security clearance or 

15 access determination is clearly consistent 

16 with the interests of national security, it 

17 shall recommend such action to the head of 

18 the entity selected under subsection (b) 

19 and the head of the affected agency. 

20 ‘‘(I) CONGRESSIONAL NOTIFICATION.— 

21 ‘‘(i) ORDERS.—Consistent with the 

22 protection of sources and methods, at the 

23 time the Board issues an order, the Chair24 person of the Board shall notify— 


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1 ‘‘(I) the Committee on Homeland 

2 Security and Government Affairs of 

3 the Senate; 

4 ‘‘(II) the Select Committee on In5 telligence of the Senate; 

6 ‘‘(III) the Committee on Over7 sight and Government Reform of the 

8 House of Representatives; 

9 ‘‘(IV) the Permanent Select Com10 mittee on Intelligence of the House of 

11 Representatives; and 

12 ‘‘(V) the committees of the Sen13 ate and the House of Representatives 

14 that have jurisdiction over the employ15 ing agency, including in the case of a 

16 final order or decision of the Defense 

17 Intelligence Agency, the National 

18 Geospatial-Intelligence Agency, the 

19 National Security Agency, or the Na20 tional Reconnaissance Office, the 

21 Committee on Armed Services of the 

22 Senate and the Committee on Armed 

23 Services of the House of Representa24 tives. 


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1 ‘‘(ii) RECOMMENDATIONS.—If the 

2 agency head and the head of the entity se3 lected under subsection (b) do not follow 

4 the Board’s recommendation to reinstate a 

5 clearance, the head of the entity selected 

6 under subsection (b) shall notify the com7 mittees described in subclauses (I) through 

8 (V) of clause (i). 

9 ‘‘(6) JUDICIAL REVIEW.—Nothing in this sec10 tion shall be construed to permit or require judicial 

11 review of any— 

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

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

14 established under section 204 of the Whistle15 blower Protection Enhancement Act of 2011 

16 Platts-Van Hollen Whistleblower Protection En17 hancement Act of 2011. 

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

19 this section shall be construed to permit, authorize, 

20 or require a private cause of action to challenge the 

21 merits of a security clearance determination.’’. 

22 (c) ACCESS DETERMINATION DEFINED.—Section 

23 3001(a) of the Intelligence Reform and Terrorism Preven24 tion Act of 2004 (50 U.S.C. 435b(a)) is amended by add25 ing at the end the following: 


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

2 process for determining whether an employee— 

3 ‘‘(A) is eligible for access to classified in4 formation in accordance with Executive Order 

5 12968 (60 Fed. Reg. 40245; relating to access 

6 to classified information), or any successor 

7 thereto, and Executive Order 10865 (25 Fed. 

8 Reg. 1583; relating to safeguarding classified 

9 information with industry); and 

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

11 Order.’’. 

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

13 3001 of the Intelligence Reform and Terrorism Prevention 

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

15 shall be construed to require the repeal or replacement of 

16 agency appeal procedures implementing Executive Order 

17 12968 (60 Fed. Reg. 40245; relating to classified national 

18 security information), or any successor thereto, and Exec19 utive Order 10865 (25 Fed. Reg. 1583; relating to safe20 guarding classified information with industry), or any suc21 cessor thereto, that meet the requirements of section 

22 3001(b)(7) of such Act, as so amended. 


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1 SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE 

2 COMMUNITY WHISTLEBLOWER PROTECTION 

3 ACT. 

4 (a) IN GENERAL.—Section 8H of the Inspector Gen5 eral Act of 1978 (5 U.S.C. App.) is amended— 

6 (1) in subsection (b)— 

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

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

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

10 a complaint or information transmitted under paragraph 

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

12 establishment, the head of the establishment shall return 

13 the complaint or information to the Inspector General with 

14 that determination and the Inspector General shall make 

15 the transmission to the Director of National Intelligence. 

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

17 head of the establishment apply to the recipient of the In18 spector General’s transmission. The Director of National 

19 Intelligence shall consult with the members of the appel20 late review board established under section 204 of the 

21 Whistleblower Protection Enhancement Review Platts-Van 

22 Hollen Whistleblower Protection Enhancement Act of 2011 

23 regarding all transmissions under this paragraph.’’; 

24 (2) by designating redesignating subsection (h) 

25 as subsection (i); and 


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1 (3) by inserting after subsection (g), the fol2 lowing: 

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

4 information to an Inspector General under this section 

5 may notify any member of Congress or congressional staff 

6 member of the fact that such individual has made a sub7 mission to that particular Inspector General, and of the 

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

9 (b) CENTRAL INTELLIGENCE AGENCY.—Section 

10 17(d)(5) of the Central Intelligence Agency Act of 1949 

11 (50 U.S.C. 403q) is amended— 

12 (1) in subparagraph (B)— 

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

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

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

16 information transmitted under paragraph (1) would create 

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

18 return the complaint or information to the Inspector Gen19 eral with that determination and the Inspector General 

20 shall make the transmission to the Director of National 

21 Intelligence. In such a case the requirements of this sub22 section for the Director apply to the recipient of the In23 spector General’s submission; and submission.’’; and 

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


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

2 or information to the Inspector General under this section 

3 may notify any member of Congress or congressional staff 

4 member of the fact that such individual has made a sub5 mission to the Inspector General, and of the date on which 

6 such submission was made.’’. 

7 SEC. 204. REGULATIONS; REPORTING REQUIREMENTS; 

8 NONAPPLICABILITY TO CERTAIN TERMI9 NATIONS. 

10 (a) DEFINITIONS.—In this section— 

11 (1) the term ‘‘congressional oversight commit12 tees’’ means— 

13 (A) the Committee on Homeland Security 

14 and Government Affairs of the Senate; 

15 (B) the Select Committee on Intelligence 

16 of the Senate; 

17 (C) the Committee on Oversight and Gov18 ernment Reform of the House of Representa19 tives; and 

20 (D) the Permanent Select Committee on 

21 Intelligence of the House of Representatives; 

22 and 

23 (2) the term ‘‘intelligence community ele24 ment’’— 

25 (A) means— 


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1 (i) the Central Intelligence Agency, 

2 the Defense Intelligence Agency, the Na3 tional Geospatial-Intelligence Agency, the 

4 National Security Agency, the Office of the 

5 Director of National Intelligence, and the 

6 National Reconnaissance Office; and 

7 (ii) any executive agency or unit 

8 thereof determined by the President under 

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

10 States Code, to have as its principal func11 tion the conduct of foreign intelligence or 

12 counterintelligence activities; and 

13 (B) does not include the Federal Bureau of 

14 Investigation. 

15 (b) REGULATIONS.— 

16 (1) IN GENERAL.—The Director of National In17 telligence shall prescribe regulations to ensure that 

18 a personnel action shall not be taken against an em19 ployee of an intelligence community element as a re20 prisal for any disclosure of information described in 

21 section 2303a(b) of title 5, United States Code, as 

22 added by this Act. 

23 (2) APPELLATE REVIEW BOARD.—Not later 

24 than 180 days after the date of enactment of this 

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1 sultation with the Secretary of Defense, the Attor2 ney General, and the heads of appropriate agencies, 

3 shall establish an appellate review board that is 

4 broadly representative of affected Departments and 

5 agencies and is made up of individuals with expertise 

6 in merit systems principles and national security 

7 issues— 

8 (A) to hear whistleblower appeals related 

9 to security clearance access determinations de10 scribed in section 3001(j) of the Intelligence 

11 Reform and Terrorism Prevention Act of 2004 

12 (50 U.S.C. 435b), as added by this Act; and 

13 (B) that shall include a subpanel that re14 flects the composition of the intelligence com15 mittee, which shall be composed of intelligence 

16 community elements and inspectors general 

17 from intelligence community elements, for the 

18 purpose of hearing cases that arise in elements 

19 of the intelligence community. 

20 (c) REPORT ON THE STATUS OF IMPLEMENTATION

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

22 of enactment of this Act, the Director of National Intel23 ligence shall submit a report on the status of the imple24 mentation of the regulations promulgated under sub25 section (b) to the congressional oversight committees. 


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

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

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

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

6 security clearance or access determinations if the affected 

7 employee is concurrently terminated under— 

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

9 Code; 

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

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

15 (B) the Director— 

16 (i) determines the termination to be in 

17 the interest of the United States; 

18 (ii) determines that the procedures 

19 prescribed in other provisions of law that 

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

22 in a manner consistent with the national 

23 security; and 


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1 (iii) not later than 5 days after such 

2 termination, notifies the congressional 

3 oversight committees of the termination; 

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

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

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

7 4a(e)), if— 

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

10 (B) the Director— 

11 (i) determines the termination to be in 

12 the interest of the United States; 

13 (ii) determines that the procedures 

14 prescribed in other provisions of law that 

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

17 in a manner consistent with the national 

18 security; and 

19 (iii) not later than 5 days after such 

20 termination, notifies the congressional 

21 oversight committees of the termination; or 

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

23 if— 

24 (A) the agency head personally terminates 

25 the individual; and 


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1 (B) the agency head— 

2 (i) determines the termination to be in 

3 the interest of the United States; 

4 (ii) determines that the procedures 

5 prescribed in other provisions of law that 

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

8 in a manner consistent with the national 

9 security; and 

10 (iii) not later than 5 days after such 

11 termination, notifies the congressional 

12 oversight committees of the termination. 

13 TITLE III—EFFECTIVE DATE; 

14 SAVINGS PROVISION 

15 SEC. 301. EFFECTIVE DATE. 

16 Except as otherwise provided in this Act, this Act 

17 shall take effect 30 days after the date of enactment of 

18 this Act. 

19 SEC. 302. SAVINGS PROVISION. 

20 Nothing in this Act shall be construed to imply any 

21 limitation on any protections afforded by any other provi22 sion of law to employees and applicants. 


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Union Calendar No. 504 

112TH CONGRESS 

2D SESSION H. R. 3289 

[Report No. 112–508, Part I] 

A BILL 

To amend title 5, United States Code, to provide 

other purposes. ties to the Office of Special Counsel; and for protections; to provide certain additional authoriand agreements are in conformance with certain forms, and agreements that such policies, forms, require a statement in nondisclosure policies, protected from prohibited personnel practices; to clarification relating to disclosures of information 

OCTOBER 1, 2012 

The Committees on Select Committee on Intelligence 

printed House on the State of the Union and ordered to be charged; committed to the Committee of the Whole (Permanent Select) and Homeland Security disVerDate Mar 15 2010 21:59 Oct 10, 2012 Jkt 029200 PO 00000 Frm 00082 Fmt 6651 Sfmt 6651 E:\BILLS\H3289.RH H3289

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