I 

112TH CONGRESS 

1ST SESSION H. R. 3289 

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 

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

7 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. 

TITLE II—INTELLIGENCE COMMUNITY WHISTLEBLOWER 

PROTECTIONS 

Sec. 201. Protection of intelligence community whistleblowers. 

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. 


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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)’’. 

16 (b) PROHIBITED PERSONNEL PRACTICES UNDER

17 SECTION 2302(b)(9).— 

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

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

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

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

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


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

2 each place it appears; and 

3 (B) in section 2302(a)(2)(C)(i), by insert4 ing ‘‘or subsection (b)(9) (other than subpara5 graph (A)(ii) thereof)’’ after ‘‘(b)(8)’’. 

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

7 States Code, is amended, in sections 

8 1214(b)(4)(B)(i) and 1221(e), by inserting ‘‘or pro9 tected activity’’ after ‘‘disclosure’’ each place it ap10 pears. 

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

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

13 follows: 

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

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

16 regulation— 

17 ‘‘(i) with regard to remedying a viola18 tion of paragraph (8) or any rule or regu19 lation prescribed under such paragraph; or 

20 ‘‘(ii) with regard to remedying a viola21 tion of any law, rule, or regulation not de22 scribed in clause (i);’’. 

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

24 is amended by adding at the end the following: 


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

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

5 that the employee or applicant reasonably believed to 

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

7 ‘‘(B) the disclosure revealed information that 

8 had been previously disclosed; 

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

10 making the disclosure; 

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

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

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

15 since the occurrence of the events described in the 

16 disclosure. 

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

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

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

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

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


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1 SEC. 102. DISCLOSURE DEFINED. 

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

3 amended— 

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

5 at the end; 

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

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

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

10 communication or transmission, but does not include 

11 a communication concerning policy decisions that 

12 lawfully exercise discretionary authority, unless the 

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

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

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

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

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

21 SEC. 103. REBUTTABLE PRESUMPTION. 

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

23 amended by amending the matter following paragraph 

24 (12) to read as follows: 

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

26 withholding of information from Congress or the taking 


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1 of any personnel action against an employee who discloses 

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

3 any presumption relating to the performance of a duty by 

4 an employee whose conduct is the subject of a protected 

5 disclosure under this section may be rebutted by substan6 tial evidence. For purposes of paragraph (8), a determina7 tion as to whether an employee or applicant reasonably 

8 believes that such employee or applicant has disclosed in9 formation that evidences any violation of law, rule, regula10 tion, gross mismanagement, a gross waste of funds, an 

11 abuse of authority, or a substantial and specific danger 

12 to public health or safety shall be made by determining 

13 whether a disinterested observer with knowledge of the es14 sential facts known to or readily ascertainable by the em15 ployee could reasonably conclude that the actions of the 

16 Government evidence such a violation, mismanagement, 

17 waste, abuse, or danger.’’. 

18 SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PER19 SONNEL PRACTICES. 

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

21 title 5, United States Code, is amended— 

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

23 semicolon; 

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

25 and 


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

2 ‘‘(xi) the implementation or enforcement of 

3 any nondisclosure policy, form, or agreement 

4 that does not contain the statement required 

5 under subsection (b)(13); and’’. 

6 (b) PROHIBITED PERSONNEL PRACTICE.— 

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

8 United States Code, is amended— 

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

10 the end; 

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

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

14 following: 

15 ‘‘(13) implement or enforce any nondisclosure 

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

17 agreement does not contain the following statement: 

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

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

22 to classified national security information), or any 

23 successor thereto; Executive Order 12968 (60 Fed. 

24 Reg. 40245, relating to access to classified informa25 tion), or any successor thereto; section 7211 (govVerDate Mar 15 2010 00:24 Nov 09, 2011 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3289.IH H3289

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1 erning disclosures to Congress); section 1034 of title 

2 10 (governing disclosure to Congress by members of 

3 the military); subsection (b)(8) (governing disclo4 sures of illegality, waste, fraud, abuse, or public 

5 health or safety threats); the Intelligence Identities 

6 Protection Act of 1982 (50 U.S.C. 421 et seq., gov7 erning disclosures that could expose confidential 

8 Government agents); and the statutes which protect 

9 against disclosures that could compromise national 

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

11 952 of title 18 and section 4(b) of the Subversive 

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

13 The definitions, requirements, obligations, rights, 

14 sanctions, and liabilities created by such Executive 

15 orders and such statutory provisions are incor16 porated into this agreement and are controlling.’.’’. 

17 (2) NONDISCLOSURE POLICY, FORM, OR AGREE18 MENT IN EFFECT BEFORE THE DATE OF ENACT19 MENT.—A nondisclosure policy, form, or agreement 

20 that was in effect before the effective date of this 

21 Act, but that does not contain the statement re22 quired under section 2302(b)(13) of title 5, United 

23 States Code (as added by paragraph (1)(C)) for im24 plementation or enforcement— 


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1 (A) may be enforced with regard to a cur2 rent employee if the employing agency gives 

3 such employee notice of the statement before 

4 the employee makes the disclosure with respect 

5 to which the enforcement relates; and 

6 (B) may continue to be enforced after the 

7 effective date of this Act with regard to a 

8 former employee if the agency posts notice of 

9 the statement on the agency website for the 1- 

10 year period following that effective date, except 

11 that such notice shall not be required as a con12 dition for continued enforcement if the condi13 tion under subparagraph (A) has been satisfied 

14 with respect to such former employee. 

15 (c) RETALIATORY INVESTIGATIONS.— 

16 (1) AGENCY INVESTIGATION.—Section 1214 of 

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

18 at the end the following: 

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

20 to correct a prohibited personnel practice may include fees, 

21 costs, or damages reasonably incurred due to an agency 

22 investigation of the employee, if such investigation was 

23 commenced, expanded, or extended in retaliation for the 

24 disclosure or protected activity that formed the basis of 

25 the corrective action.’’. 


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

2 United States Code, is amended by adding at the 

3 end the following: 

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

5 to correct a prohibited personnel practice may include fees, 

6 costs, or damages reasonably incurred due to an agency 

7 investigation of the employee, if such investigation was 

8 commenced, expanded, or extended in retaliation for the 

9 disclosure or protected activity that formed the basis of 

10 the corrective action.’’. 

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

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

13 is amended by striking clause (ii) and inserting the fol14 lowing: 

15 ‘‘(ii)(I) the Federal Bureau of Inves16 tigation, the Central Intelligence Agency, 

17 the Defense Intelligence Agency, the Na18 tional Geospatial-Intelligence Agency, the 

19 National Security Agency, the Office of the 

20 Director of National Intelligence, and the 

21 National Reconnaissance Office; and 

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

23 any Executive agency or unit thereof the 

24 principal function of which is the conduct 

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1 ligence activities, provided that the deter2 mination be made prior to the personnel 

3 action involved; or’’. 

4 SEC. 106. DISCIPLINARY ACTION. 

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

6 amended to read as follows: 

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

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

9 reduction in grade, debarment from Federal employ10 ment for a period not to exceed 5 years, suspension, 

11 or reprimand; 

12 ‘‘(ii) an assessment of a civil penalty not to ex13 ceed $1,000; or 

14 ‘‘(iii) any combination of disciplinary actions 

15 described under clause (i) and an assessment de16 scribed under clause (ii). 

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

18 which the Board finds that an employee has committed 

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

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

21 2302(b)(9), the Board may impose disciplinary action if 

22 the Board finds that the activity protected under section 

23 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of 

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

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


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

2 take or fail to take a personnel action, unless that em3 ployee demonstrates, by a preponderance of the evidence, 

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

5 threatened to take or fail to take the same personnel ac6 tion, in the absence of such protected activity.’’. 

7 SEC. 107. REMEDIES. 

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

9 United States Code, is amended by striking ‘‘agency in10 volved’’ and inserting ‘‘agency in which the prevailing 

11 party was employed or with which the prevailing party had 

12 applied for employment at the time of the events giving 

13 rise to the case’’. 

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

15 1221(g)(1)(A)(ii) of title 5, United States Code, are 

16 amended by striking all after ‘‘travel expenses,’’ and in17 serting ‘‘any other reasonable and foreseeable consequen18 tial damages, and compensatory damages (including inter19 est, reasonable expert witness fees, and costs).’’ each place 

20 it appears. 

21 SEC. 108. JUDICIAL REVIEW. 

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

23 United States Code, is amended— 

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

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


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

2 or paragraph (2),’’; and 

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

4 ‘‘(B) A petition to review a final order or final deci5 sion of the Board that raises no challenge to the Board’s 

6 disposition of allegations of a prohibited personnel practice 

7 described in section 2302(b) other than practices de8 scribed in section 2302(b)(8) or subparagraph (A)(i), (B), 

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

10 United States Court of Appeals for the District of Colum11 bia Circuit. Notwithstanding any other provision of law, 

12 any petition for review under this subparagraph must be 

13 filed within 60 days after the date the petitioner received 

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

15 (b) REVIEW OBTAINED BY OFFICE OF PERSONNEL

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

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

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

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

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

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

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


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1 SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING 

2 THE TRANSPORTATION SECURITY ADMINIS3 TRATION. 

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

5 States Code, is amended— 

6 (1) by redesignating sections 2304 and 2305 as 

7 sections 2305 and 2306, respectively; and 

8 (2) by inserting after section 2303 the fol9 lowing: 

10 ‘‘§ 2304. Prohibited personnel practices affecting the 

11 Transportation Security Administration 

12 ‘‘(a) IN GENERAL.—Notwithstanding any other pro13 vision of law, any individual holding or applying for a posi14 tion within the Transportation Security Administration 

15 shall be covered by— 

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

17 of section 2302(b); 

18 ‘‘(2) any provision of law implementing para19 graph (1), (8), or (9) of section 2302(b) by making 

20 any right or remedy available to an employee or ap21 plicant for employment in the civil service; and 

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

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

24 (2). 

25 ‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sec26 tion shall be construed to affect any rights, apart from 


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

2 described in subsection (a) might otherwise be entitled 

3 under law.’’. 

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

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

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

7 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.’’. 

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

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

10 this Act. 

11 SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RE12 SEARCH, ANALYSIS, OR TECHNICAL INFOR13 MATION. 

14 (a) DEFINITIONS.—In this subsection— 

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

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

17 United States Code; 

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

19 for a covered position; 

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

21 analysis, or technical information’’ means any effort 

22 to distort, misrepresent, or suppress research, anal23 ysis, or technical information; 


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1 (4) the term ‘‘covered position’’ has the mean2 ing given such term under section 2302(a)(2)(B) of 

3 title 5, United States Code; 

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

5 a covered position in an agency; and 

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

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

8 5, United States Code (as amended by section 

9 102(3)). 

10 (b) PROTECTED DISCLOSURE.— 

11 (1) IN GENERAL.—Any disclosure of informa12 tion by an employee or applicant for employment 

13 that the employee or applicant reasonably believes is 

14 evidence of censorship related to research, analysis, 

15 or technical information— 

16 (A) shall come within the protections of 

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

18 Code, if— 

19 (i) the employee or applicant reason20 ably believes that such censorship is or will 

21 cause— 

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

23 regulation, and occurs during the con24 scientious carrying out of official du25 ties; or 


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1 (II) gross mismanagement, a 

2 gross waste of funds, an abuse of au3 thority, or a substantial and specific 

4 danger to public health or safety; and 

5 (ii) such disclosure is not specifically 

6 prohibited by law or such information is 

7 not specifically required by Executive order 

8 to be kept classified in the interest of na9 tional defense or the conduct of foreign af10 fairs; and 

11 (B) shall come within the protections of 

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

13 Code, if— 

14 (i) the employee or applicant reason15 ably believes that such censorship is or will 

16 cause— 

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

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

21 (II) gross mismanagement, a 

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

24 danger to public health or safety; and 


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1 (ii) the disclosure is made to the Spe2 cial Counsel, or to the Inspector General of 

3 an agency or another person designated by 

4 the head of the agency to receive such dis5 closures, consistent with the protection of 

6 sources and methods. 

7 (2) DISCLOSURES NOT EXCLUDED.—A disclo8 sure shall not be excluded from paragraph (1) for 

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

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

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

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

13 section shall be construed to imply any limitation on 

14 the protections of employees and applicants afforded 

15 by any other provision of law, including protections 

16 with respect to any disclosure of information be17 lieved to be evidence of censorship related to re18 search, analysis, or technical information. 

19 SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS 

20 FOR CRITICAL INFRASTRUCTURE INFORMA21 TION. 

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

23 (6 U.S.C. 133(c)) is amended by adding at the end the 

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

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1 sure of such information under section 2302(b)(8) of title 

2 5, United States Code.’’. 

3 SEC. 112. ADVISING EMPLOYEES OF RIGHTS. 

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

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

6 disclosure of information that is specifically required by 

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

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

9 Special Counsel, the Inspector General of an agency, Con10 gress, or other agency employee designated to receive such 

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

12 SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEAR13 ANCE. 

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

15 amended by adding at the end the following: 

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

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

18 States related to any civil action brought in connection 

19 with paragraph (8) or (9) of section 2302(b), or as other20 wise authorized by law. In any such action, the Special 

21 Counsel may present the views of the Special Counsel with 

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

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

24 would have on the enforcement of such provisions. 


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1 ‘‘(2) A court of the United States shall grant the ap2 plication of the Special Counsel to appear in any such ac3 tion for the purposes described under subsection (a).’’. 

4 SEC. 114. SCOPE OF DUE PROCESS. 

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

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

7 after a finding by the Board that a protected disclosure 

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

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

10 5, United States Code, is amended by inserting ‘‘, after 

11 a finding that a protected disclosure was a contributing 

12 factor,’’ after ‘‘ordered if’’. 

13 SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREE14 MENTS. 

15 (a) IN GENERAL.— 

16 (1) REQUIREMENT.—Each agreement in Stand17 ard Forms 312 and 4414 of the Government and 

18 any other nondisclosure policy, form, or agreement 

19 of the Government shall contain the following state20 ment: ‘‘These restrictions are consistent with and do 

21 not supersede, conflict with, or otherwise alter the 

22 employee obligations, rights, or liabilities created by 

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

24 to classified national security information), or any 

25 successor thereto; Executive Order 12968 (60 Fed. 


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1 Reg. 40245, relating to access to classified informa2 tion), or any successor thereto; section 7211 of title 

3 5, United States Code (governing disclosures to Con4 gress); section 1034 of title 10, United States Code 

5 (governing disclosure to Congress by members of the 

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

7 States Code (governing disclosures of illegality, 

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

9 threats); the Intelligence Identities Protection Act of 

10 1982 (50 U.S.C. 421 et seq., governing disclosures 

11 that could expose confidential Government agents); 

12 and the statutes which protect against disclosure 

13 that may compromise the national security, includ14 ing sections 641, 793, 794, 798, and 952 of title 18, 

15 United States Code, and section 4(b) of the Subver16 sive Activities Act of 1950 (50 U.S.C. 783(b)). The 

17 definitions, requirements, obligations, rights, sanc18 tions, and liabilities created by such Executive or19 ders and such statutory provisions are incorporated 

20 into this agreement and are controlling.’’. 

21 (2) ENFORCEABILITY.— 

22 (A) IN GENERAL.—Any nondisclosure pol23 icy, form, or agreement described under para24 graph (1) that does not contain the statement 

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1 plemented or enforced to the extent such policy, 

2 form, or agreement is inconsistent with that 

3 statement. 

4 (B) NONDISCLOSURE POLICY, FORM, OR

5 AGREEMENT IN EFFECT BEFORE THE DATE OF

6 ENACTMENT.—A nondisclosure policy, form, or 

7 agreement that was in effect before the date of 

8 enactment of this Act, but that does not con9 tain the statement required under paragraph 

10 (1)— 

11 (i) may be enforced with regard to a 

12 current employee if the agency gives such 

13 employee notice of the statement; and 

14 (ii) may continue to be enforced after 

15 the effective date of this Act with regard 

16 to a former employee if the agency posts 

17 notice of the statement on the agency 

18 website for the 1-year period following that 

19 effective date, except that such notice shall 

20 not be required as a condition for contin21 ued enforcement if the condition under 

22 clause (i) has been satisfied with respect to 

23 such former employee. 

24 (b) PERSONS OTHER THAN GOVERNMENT EMPLOY25 EES.—Notwithstanding subsection (a), a nondisclosure 


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1 policy, form, or agreement that is to be executed by a per2 son connected with the conduct of an intelligence or intel3 ligence-related activity, other than an employee or officer 

4 of the United States Government, may contain provisions 

5 appropriate to the particular activity for which such docu6 ment is to be used. Such policy, form, or agreement shall, 

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

8 any classified information received in the course of such 

9 activity unless specifically authorized to do so by the 

10 United States Government. Such nondisclosure policy, 

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

12 forms do not bar disclosures to Congress or to an author13 ized official of an Executive agency or the Department of 

14 Justice to report a substantial violation of law, consistent 

15 with the protection of sources and methods, pursuant to 

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

17 States Code. 

18 SEC. 116. REPORTING REQUIREMENTS. 

19 (a) GOVERNMENT ACCOUNTABILITY OFFICE.— 

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

21 the date of enactment of this Act, the Comptroller 

22 General shall submit a report to the Committee on 

23 Homeland Security and Governmental Affairs of the 

24 Senate and the Committee on Oversight and GovernVerDate Mar 15 2010 00:24 Nov 09, 2011 Jkt 019200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\H3289.IH H3289

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1 ment Reform of the House of Representatives on the 

2 implementation of this title. 

3 (2) CONTENTS.—The report under this sub4 section shall include— 

5 (A) an analysis of any changes in the num6 ber of cases filed with the Merit Systems Pro7 tection Board alleging violations of paragraph 

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

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

10 (B) the outcome of the cases described 

11 under subparagraph (A), including whether or 

12 not the Merit Systems Protection Board, the 

13 Federal Circuit Court of Appeals, or any other 

14 court determined the allegations to be frivolous 

15 or malicious; 

16 (C) an analysis of the outcome of cases de17 scribed under subparagraph (A) that were de18 cided by the United States Court of Appeals for 

19 the District of Columbia Circuit and the impact 

20 the process has on the Merit Systems Protec21 tion Board and the Federal court system; and 

22 (D) any other matter as determined by the 

23 Comptroller General. 

24 (b) MERIT SYSTEMS PROTECTION BOARD.— 


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

2 the Merit Systems Protection Board under section 

3 1116 of title 31, United States Code, shall, with re4 spect to the period covered by such report, include 

5 as an addendum the following: 

6 (A) Information relating to the outcome of 

7 cases decided during the applicable year of the 

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

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

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

11 Code, were alleged. 

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

13 regional and field offices, the number of peti14 tions for review filed in such cases, and the out15 comes of such cases. 

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

17 under paragraph (1) submitted after the date of en18 actment of this Act shall include an addendum re19 quired under that paragraph that covers the period 

20 beginning on the first day of the calendar year in 

21 which occurs the date of enactment of this Act and 

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

23 such date of enactment occurs. 


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1 SEC. 117. ALTERNATIVE REVIEW. 

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

3 amended by adding at the end the following: 

4 ‘‘(k)(1) For purposes of this subsection, the term ‘ap5 propriate United States district court’, as used with re6 spect to an alleged prohibited personnel practice, means 

7 the United States district court for the judicial district 

8 in which— 

9 ‘‘(A) such prohibited personnel practice is al10 leged to have been committed; or 

11 ‘‘(B) the employee, former employee, or appli12 cant for employment allegedly affected by such pro13 hibited personnel practice resides. 

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

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

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

17 review in the appropriate United States district court. 

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

19 (2), the Board shall stay any other claims of such em20 ployee, former employee, or applicant pending before the 

21 Board at that time which arise out of the same set of oper22 ative facts. Such claims shall be stayed pending completion 

23 of the action filed under paragraph (2) before the appro24 priate United States district court. 

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


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1 ‘‘(A) an employee, former employee, or appli2 cant for employment— 

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

4 Systems Protection Board under section 

5 1221(a) based on an alleged prohibited per6 sonnel practice, described in section 2302(b)(8) 

7 or subparagraph (A)(i), (B), (C), or (D) of sec8 tion 2302(b)(9), for which the associated per9 sonnel action is an action covered under section 

10 7512 or 7542; or 

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

12 alleging as an affirmative defense the commis13 sion of a prohibited personnel practice, de14 scribed in section 2302(b)(8) or subparagraph 

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

16 for which the associated personnel action is an 

17 action covered under section 7512 or 7542; 

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

19 Board within 270 days after the date on which a re20 quest for that corrective action or appeal has been 

21 duly submitted, unless the Board determines that 

22 the employee, former employee, or applicant for em23 ployment engaged in conduct intended to delay the 

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

25 and 


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1 ‘‘(C) such employee, former employee, or appli2 cant provides written notice to the Board of filing an 

3 action under this subsection before the filing of that 

4 action. 

5 ‘‘(5) This paragraph applies in any case in which— 

6 ‘‘(A) an employee, former employee, or appli7 cant for employment— 

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

9 Systems Protection Board under section 

10 1221(a) based on an alleged prohibited per11 sonnel practice, described in section 2302(b)(8) 

12 or subparagraph (A)(i), (B), (C), or (D) of sec13 tion 2302(b)(9), for which the associated per14 sonnel action is an action covered under section 

15 7512 or 7542; or 

16 ‘‘(ii) files an appeal under section 

17 7701(a)(1) alleging as an affirmative defense 

18 the commission of a prohibited personnel prac19 tice, described in section 2302(b)(8) or sub20 paragraph (A)(i), (B), (C), or (D) of section 

21 2302(b)(9), for which the associated personnel 

22 action is an action covered under section 7512 

23 or 7542; 

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

25 the request for corrective action or appeal was duly 


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1 submitted, such employee, former employee, or appli2 cant for employment files a motion requesting a cer3 tification consistent with subparagraph (C) to the 

4 Board or an administrative law judge or other em5 ployee of the Board designated to hear the case; and 

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

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

8 corrective action; and 

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

10 or other employee of the Board designated to hear 

11 the case certifies that— 

12 ‘‘(i) under standards applicable to the re13 view of motions to dismiss under rule 12(b)(6) 

14 of the Federal Rules of Civil Procedure, includ15 ing rule 12(d) thereof, the request for corrective 

16 action (including any allegations made with the 

17 motion under subparagraph (B)) would not be 

18 subject to dismissal; and 

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

20 of the case within 270 days after the date on 

21 which a request for that corrective action has 

22 been duly submitted; or 

23 ‘‘(II) the case— 

24 ‘‘(aa) consists of multiple claims; 


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1 ‘‘(bb) requires complex or extensive 

2 discovery; 

3 ‘‘(cc) arises out of the same set of op4 erative facts as any civil action against the 

5 Government filed by the employee, former 

6 employee, or applicant pending in a court 

7 of the United States; or 

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

9 which there is no controlling precedent. 

10 ‘‘(6) The Board shall grant or deny any motion re11 questing a certification described under paragraph 

12 (5)(C)(ii) within 90 days after the submission of such mo13 tion and the Board may not issue a decision on the merits 

14 of a request for corrective action within 15 days after 

15 granting or denying a motion requesting certification. 

16 ‘‘(7)(A) Any decision of the Board or an administra17 tive law judge or other employee of the Board designated 

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

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

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

21 only if— 

22 ‘‘(i) a motion requesting a certification was de23 nied; and 


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

2 the Board on the merits of the claim under the 

3 standards set forth in section 7703(c). 

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

5 overturned by the reviewing court, and an order granting 

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

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

8 of discretion. 

9 ‘‘(C) The reviewing court’s decision shall not be con10 sidered evidence of any determination by the Board, any 

11 administrative law judge appointed by the Board under 

12 section 3105, or any employee of the Board designated 

13 by the Board on the merits of the underlying allegations 

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

15 novo review in the appropriate United States district court 

16 in accordance with this subsection. 

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

18 ‘‘(A) the appropriate United States district 

19 court shall have jurisdiction without regard to the 

20 amount in controversy; 

21 ‘‘(B) the court— 

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

23 standards set forth in subsection (e); and 


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

2 considers appropriate under subsection (g), ex3 cept that— 

4 ‘‘(I) relief for compensatory damages 

5 may not exceed $300,000; and 

6 ‘‘(II) relief may not include punitive 

7 damages; and 

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

9 may not order relief if the agency demonstrates 

10 by clear and convincing evidence that the agen11 cy would have taken the same personnel action 

12 in the absence of such disclosure; and 

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

14 employee, former employee, or applicant for employ15 ment. 

16 ‘‘(9) A petition to review a final order or final deci17 sion of a United States district court under this subsection 

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

19 of allegations of a prohibited personnel practice described 

20 in section 2302(b) other than practices described in sec21 tion 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) 

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

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

24 other petitions to review any final order or final decision 

25 of a United States district court in an action brought 


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1 under this subsection shall be filed in the United States 

2 Court of Appeals for the Federal Circuit. Notwithstanding 

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

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

5 the petitioner received notice of the final order or final 

6 decision of the United States district court. 

7 ‘‘(10) This subsection applies with respect to any ap8 peal, petition, or other request for corrective action duly 

9 submitted to the Board, whether under section 

10 1214(b)(2), the preceding provisions of this section, sec11 tion 7513(d), section 7701, or any otherwise applicable 

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

13 SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY 

14 JUDGMENT. 

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

16 amended— 

17 (1) by redesignating paragraph (3) as para18 graph (4); 

19 (2) by inserting after paragraph (2) the fol20 lowing: 

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

22 based on an alleged prohibited personnel practice de23 scribed in section 2302(b)(8) or subparagraph (A)(i), (B), 

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

25 personnel action is an action covered under section 7512 


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1 or 7542, the Board, any administrative law judge ap2 pointed by the Board under section 3105TM, or any em3 ployee of the Board designated by the Board may, with 

4 respect to any party, grant a motion for summary judg5 ment.’’. 

6 SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION. 

7 (a) PROHIBITED PERSONNEL PRACTICES.—Section 

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

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

10 the semicolon; 

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

12 the semicolon; and 

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

14 ‘‘(C) any communication that complies 

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

16 8H of the Inspector General Act of 1978 (5 

17 U.S.C. App.);’’. 

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

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

20 amended— 

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

22 the following: 

23 ‘‘(D) An employee of any agency, as that term is de24 fined under section 2302(a)(2)(C) of title 5, United States 

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


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1 information with respect to an urgent concern may report 

2 the complaint or information to the Inspector General (or 

3 designee) of the agency of which that employee is em4 ployed.’’; 

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

6 committees’’ and inserting ‘‘appropriate commit7 tees’’; 

8 (3) in subsection (d)— 

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

10 or both of the intelligence committees’’ and in11 serting ‘‘any of the appropriate committees’’; 

12 and 

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

14 ‘‘intelligence committees’’ each place it appears 

15 and inserting ‘‘appropriate committees’’; and 

16 (4) in subsection (h)— 

17 (A) in paragraph (1)— 

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

19 ‘‘intelligence’’; and 

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

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

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


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

2 the Permanent Select Committee on Intelligence of 

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

5 with respect to disclosures made by employees de6 scribed in subsection (a)(1)(D), the term ‘appro7 priate committees’ means the committees of appro8 priate jurisdiction.’’. 

9 SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN. 

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

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

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

14 with applicable laws and regulations governing the civil 

15 service— 

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

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

19 to programs and operations of the establishment; 

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

21 Investigations, who shall have the responsibility for 

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

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


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1 ‘‘(i) about prohibitions on retaliation for 

2 protected disclosures; and 

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

4 making a protected disclosure about the rights 

5 and remedies against retaliation for protected 

6 disclosures. 

7 ‘‘(2) The Whistleblower Protection Ombudsman shall 

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

9 employee or former employee. 

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

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

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

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

16 or 

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

19 which is the conduct of foreign intelligence or 

20 counter intelligence activities.’’. 

21 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

23 U.S.C. App.) is amended— 

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

25 ‘‘section 3(d)(1)(A)’’; and 


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

2 ‘‘section 3(d)(1)(B)’’. 

3 SEC. 121. PILOT PROGRAM FOR ENHANCEMENT OF CON4 TRACTOR EMPLOYEE WHISTLEBLOWER PRO5 TECTIONS. 

6 (a) PILOT PROGRAM.— 

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

8 United States Code, is amended by inserting after 

9 section 4705 the following new section: 

10 ‘‘§ 4705a. Pilot program for enhancement of protec11 tion of contractor employees from re12 prisal for disclosure of certain informa13 tion 

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

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

16 contract awarded by the head of an executive agen17 cy. 

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

19 means a person awarded a contract or a grant with 

20 an executive agency. 

21 ‘‘(3) INSPECTOR GENERAL.—The term ‘Inspec22 tor General’ means an Inspector General appointed 

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

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1 ing from, or has oversight over contracts awarded 

2 for or on behalf of, an executive agency. 

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

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

5 discriminated against as a reprisal for disclosing to a 

6 Member of Congress, a representative of a committee of 

7 Congress, an Inspector General, the Government Account8 ability Office, an agency employee responsible for contract 

9 oversight or management, an authorized official of an ex10 ecutive agency or the Department of Justice information 

11 that the employee reasonably believes is evidence of gross 

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

13 agency funds, a substantial and specific danger to public 

14 health or safety, or a violation of a law related to a con15 tract (including the competition for or negotiation of a 

16 contract) or grant. 

17 ‘‘(c) INVESTIGATION OF COMPLAINTS.— 

18 ‘‘(1) INVESTIGATION.—An individual who be19 lieves that the individual has been subjected to a re20 prisal prohibited by subsection (b) may submit a 

21 complaint to the Inspector General of the executive 

22 agency. Unless the Inspector General determines 

23 that the complaint is frivolous, the Inspector General 

24 shall investigate the complaint and, on completion of 

25 the investigation, submit a report of the findings of 


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1 the investigation to the individual, the contractor 

2 concerned, and the head of the agency. If the execu3 tive agency does not have an Inspector General, the 

4 duties of the Inspector General under this section 

5 shall be performed by an official designated by the 

6 head of the executive agency. 

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

8 under subparagraph (B), the Inspector General shall 

9 make a determination that a complaint is frivolous 

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

11 days after receiving the complaint. 

12 ‘‘(B) If the Inspector General is unable to com13 plete an investigation in time to submit a report 

14 within the 180-day period specified in subparagraph 

15 (A) and the person submitting the complaint agrees 

16 to an extension of time, the Inspector General shall 

17 submit a report under paragraph (1) within such ad18 ditional period of time as shall be agreed upon be19 tween the Inspector General and the person submit20 ting the complaint. 

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

22 ‘‘(1) ACTIONS CONTRACTOR MAY BE ORDERED

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

24 Inspector General report pursuant to subsection (c), 

25 the head of the agency concerned shall determine 


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1 whether there is sufficient basis to conclude that the 

2 contractor concerned has subjected the complainant 

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

4 either issue an order denying relief or shall take one 

5 or more of the following actions: 

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

7 to take affirmative action to abate the reprisal. 

8 ‘‘(B) REINSTATEMENT.—Order the con9 tractor to reinstate the individual to the posi10 tion that the individual held before the reprisal, 

11 together with the compensation (including back 

12 pay), employment benefits, and other terms and 

13 conditions of employment that would apply to 

14 the individual in that position if the reprisal 

15 had not been taken. 

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

17 pay the complainant an amount equal to the 

18 aggregate amount of all costs and expenses (in19 cluding attorneys’ fees and expert witnesses’ 

20 fees) that the complainant reasonably incurred 

21 for, or in connection with, bringing the com22 plaint regarding the reprisal, as determined by 

23 the head of the executive agency. 

24 ‘‘(2) DE NOVO ACTION.—If the head of an exec25 utive agency issues an order denying relief under 


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

2 days after the submission of a complaint under sub3 section (c), or in the case of an extension of time 

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

5 after the expiration of the extension of time, and 

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

7 faith of the complainant, the complainant shall be 

8 deemed to have exhausted all administrative rem9 edies with respect to the complaint, and the com10 plainant may bring a de novo action at law or equity 

11 against the contractor to seek compensatory dam12 ages and other relief available under this section in 

13 the appropriate district court of the United States, 

14 which shall have jurisdiction over such an action 

15 without regard to the amount in controversy. Such 

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

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

18 ‘‘(3) EVIDENCE.—An Inspector General deter19 mination and an agency head order denying relief 

20 under paragraph (2) shall be admissible in evidence 

21 in any de novo action at law or equity brought pur22 suant to this subsection. 

23 ‘‘(4) ENFORCEMENT ORDER.—When a con24 tractor fails to comply with an order issued under 

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


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1 shall file an action for enforcement of the order in 

2 the United States district court for a district in 

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

4 action brought under this paragraph, the court may 

5 grant appropriate relief, including injunctive relief 

6 and compensatory and exemplary damages. 

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

8 person adversely affected or aggrieved by an order 

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

10 order’s conformance with this subsection, and regu11 lations issued to carry out this section, in the United 

12 States court of appeals for a circuit in which the re13 prisal is alleged in the order to have occurred. A pe14 tition seeking review must be filed no more than 60 

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

16 Review shall conform to chapter 7 of title 5. 

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

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

19 discrimination against an employee for a disclosure 

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

21 or 

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

23 otherwise available to the employee. 

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

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


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1 the enactment of the Whistleblower Protection Enhance2 ment Act of 2011.’’. 

3 (2) CLERICAL AMENDMENT.—The table of sec4 tions at the beginning of chapter 47 of title 41, 

5 United States Code, is amended by inserting after 

6 the item relating to section 4705 the following new 

7 item: 

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

from reprisal for disclosure of certain information.’’. 

8 (b) SUSPENSION OF EFFECTIVENESS OF SECTION

9 4705 WHILE PILOT PROGRAM IN EFFECT.—Section 4705 

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

11 the end the following new subsection: 

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

13 WHILE PILOT PROGRAM IN EFFECT.—While section 

14 4705a of this title is in effect, this section shall not be 

15 in effect.’’. 

16 (c) GOVERNMENT ACCOUNTABILITY OFFICE STUDY

17 AND REPORT.— 

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

19 date of the enactment of this Act, the Comptroller 

20 General shall begin conducting a study to evaluate 

21 the implementation of section 4705a of title 41, 

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

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

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1 troller General shall submit to Congress a report on 

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

3 with such findings and recommendations as the 

4 Comptroller General considers appropriate. 

5 TITLE II—INTELLIGENCE COM6 MUNITY WHISTLEBLOWER 

7 PROTECTIONS 

8 SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY 

9 WHISTLEBLOWERS. 

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

11 States Code, is amended by inserting after section 2303 

12 the following: 

13 ‘‘§ 2303a. Prohibited personnel practices in the intel14 ligence community 

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

16 ‘‘(1) the term ‘agency’ means an executive de17 partment or independent establishment, as defined 

18 under sections 101 and 104, that contains an intel19 ligence community element, except the Federal Bu20 reau of Investigation; 

21 ‘‘(2) the term ‘intelligence community ele22 ment’— 

23 ‘‘(A) means— 

24 ‘‘(i) the Central Intelligence Agency, 

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1 tional Geospatial-Intelligence Agency, the 

2 National Security Agency, the Office of the 

3 Director of National Intelligence, and the 

4 National Reconnaissance Office; and 

5 ‘‘(ii) any executive agency or unit 

6 thereof determined by the President under 

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

8 States Code, to have as its principal func9 tion the conduct of foreign intelligence or 

10 counterintelligence activities; and 

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

12 of Investigation; and 

13 ‘‘(3) the term ‘personnel action’ means any ac14 tion described in clauses (i) through (x) of section 

15 2302(a)(2)(A) with respect to an employee in a posi16 tion in an intelligence community element (other 

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

18 policymaking, or policy-advocating character). 

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

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

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

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

23 with respect to any employee of an intelligence community 

24 element as a reprisal for a disclosure of information by 

25 the employee to the Director of National Intelligence (or 


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1 an employee designated by the Director of National Intel2 ligence for such purpose), or to the head of the employing 

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

4 agency for such purpose), which the employee reasonably 

5 believes evidences— 

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

7 except for an alleged violation that occurs during the 

8 conscientious carrying out of official duties; or 

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

10 an abuse of authority, or a substantial and specific 

11 danger to public health or safety. 

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

13 for the enforcement of this section in a manner consistent 

14 with applicable provisions of sections 1214 and 1221. 

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

16 this section shall be construed to— 

17 ‘‘(1) preempt or preclude any employee, or ap18 plicant for employment, at the Federal Bureau of 

19 Investigation from exercising rights currently pro20 vided under any other law, rule, or regulation, in21 cluding section 2303; 

22 ‘‘(2) repeal section 2303; or 

23 ‘‘(3) provide the President or Director of Na24 tional Intelligence the authority to revise regulations 


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

2 Code of Federal Regulations.’’. 

3 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

5 States Code, is amended by inserting after the item relat6 ing to section 2303 the following: 

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

7 SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS 

8 DETERMINATIONS. 

9 (a) IN GENERAL.—Section 3001(b) of the Intel10 ligence Reform and Terrorism Prevention Act of 2004 (50 

11 U.S.C. 435b(b)) is amended— 

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

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

14 provided, not’’; 

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

16 the semicolon; 

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

18 the end and inserting ‘‘; and’’; and 

19 (4) by inserting after paragraph (6) the fol20 lowing: 

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

22 enactment of the Whistleblower Protection Enhance23 ment Act of 2011— 

24 ‘‘(A) developing policies and procedures 

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1 uals who challenge in good faith a determina2 tion to suspend or revoke a security clearance 

3 or access to classified information to retain 

4 their government employment status while such 

5 challenge is pending; and 

6 ‘‘(B) developing and implementing uniform 

7 and consistent policies and procedures to ensure 

8 proper protections during the process for deny9 ing, suspending, or revoking a security clear10 ance or access to classified information, includ11 ing the provision of a right to appeal such a de12 nial, suspension, or revocation, except that 

13 there shall be no appeal of an agency’s suspen14 sion of a security clearance or access determina15 tion for purposes of conducting an investiga16 tion, if that suspension lasts no longer than 1 

17 year or the head of the agency certifies that a 

18 longer suspension is needed before a final deci19 sion on denial or revocation to prevent immi20 nent harm to the national security. 

21 Any limitation period applicable to an agency appeal under 

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

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

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

25 concurrence of the Director of National Intelligence, that 


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1 the policies and procedures described in paragraph (7) 

2 have been established for the agency or the Director of 

3 National Intelligence promulgates the policies and proce4 dures under paragraph (7). The policies and procedures 

5 for appeals developed under paragraph (7) shall be com6 parable to the policies and procedures pertaining to pro7 hibited personnel practices defined under section 

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

9 ‘‘(i) for an independent and impartial fact-find10 er; 

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

12 including the opportunity to present relevant evi13 dence, including witness testimony; 

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

15 may be represented by counsel; 

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

17 a right to a decision based on the record developed 

18 during the appeal; 

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

20 from the filing of the appeal to the report of the im21 partial fact-finder to the agency head or the des22 ignee of the agency head, unless— 

23 ‘‘(I) the employee and the agency con24 cerned agree to an extension; or 


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

2 in writing that a greater period of time is re3 quired in the interest of fairness or national se4 curity; 

5 ‘‘(vi) for the use of information specifically re6 quired by Executive order to be kept classified in the 

7 interest of national defense or the conduct of foreign 

8 affairs in a manner consistent with the interests of 

9 national security, including ex parte submissions if 

10 the agency determines that the interests of national 

11 security so warrant; and 

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

13 shall have no right to compel the production of in14 formation specifically required by Executive order to 

15 be kept classified in the interest of national defense 

16 or the conduct of foreign affairs, except evidence 

17 necessary to establish that the employee made the 

18 disclosure or communication such employee alleges 

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

20 subsection (j)(1).’’ 

21 (b) RETALIATORY REVOCATION OF SECURITY

22 CLEARANCES AND ACCESS DETERMINATIONS.—Section 

23 3001 of the Intelligence Reform and Terrorism Prevention 

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

25 the end the following: 


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1 ‘‘(j) RETALIATORY REVOCATION OF SECURITY

2 CLEARANCES AND ACCESS DETERMINATIONS.— 

3 ‘‘(1) IN GENERAL.—Agency personnel with au4 thority over personnel security clearance or access 

5 determinations shall not take or fail to take, or 

6 threaten to take or fail to take, any action with re7 spect to any employee’s security clearance or access 

8 determination because of— 

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

10 Director of National Intelligence (or an em11 ployee designated by the Director of National 

12 Intelligence for such purpose) or the head of 

13 the employing agency (or employee designated 

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

15 an employee that the employee reasonably be16 lieves 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; 

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1 ignated by the head of the agency to receive 

2 such disclosures, of information which the em3 ployee reasonably believes evidences— 

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

5 regulation, and occurs during the conscien6 tious carrying out of official duties; or 

7 ‘‘(ii) gross mismanagement, a gross 

8 waste of funds, an abuse of authority, or 

9 a substantial and specific danger to public 

10 health or safety; 

11 ‘‘(C) any communication that complies 

12 with— 

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

14 section 8H of the Inspector General Act of 

15 1978 (5 U.S.C. App.); 

16 ‘‘(ii) subsection (d)(5) (A), (D), or 

17 (G) of section 17 of the Central Intel18 ligence Agency Act of 1949 (50 U.S.C. 

19 403q); or 

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

21 (G), of section 103H of the National Secu22 rity Act of 1947 (50 U.S.C. 403–3h); 

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

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

25 regulation; 


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1 ‘‘(E) testifying for or otherwise lawfully as2 sisting any individual in the exercise of any 

3 right referred to in subparagraph (D); or 

4 ‘‘(F) cooperating with or disclosing infor5 mation to the Inspector General of an agency, 

6 in accordance with applicable provisions of law 

7 in connection with an audit, inspection, or in8 vestigation conducted by the Inspector General, 

9 if the actions described under subparagraphs (D) 

10 through (F) do not result in the employee or appli11 cant unlawfully disclosing information specifically re12 quired by Executive order to be kept classified in the 

13 interest of national defense or the conduct of foreign 

14 affairs. 

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

16 with the protection of sources and methods, nothing 

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

18 withholding of information from the Congress or the 

19 taking of any personnel action against an employee 

20 who discloses information to the Congress. 

21 ‘‘(3) DISCLOSURES.— 

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

23 be excluded from paragraph (1) because— 

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1 pated in an activity that the employee rea2 sonably believed to be covered by para3 graph (1)(A)(ii); 

4 ‘‘(ii) the disclosure revealed informa5 tion that had been previously disclosed; 

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

7 making the disclosure; 

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

9 writing; 

10 ‘‘(v) the disclosure was made while 

11 the employee was off duty; or 

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

13 passed since the occurrence of the events 

14 described in the disclosure. 

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

16 during the normal course of duties of an em17 ployee, the disclosure shall not be excluded from 

18 paragraph (1) if any employee who has author19 ity to take, direct others to take, recommend, or 

20 approve any personnel action with respect to 

21 the employee making the disclosure, took, failed 

22 to take, or threatened to take or fail to take a 

23 personnel action with respect to that employee 

24 in reprisal for the disclosure. 

25 ‘‘(4) AGENCY ADJUDICATION.— 


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1 ‘‘(A) REMEDIAL PROCEDURE.—An em2 ployee or former employee who believes that he 

3 or she has been subjected to a reprisal prohib4 ited by paragraph (1) of this subsection may, 

5 within 90 days after the issuance of notice of 

6 such decision, appeal that decision within the 

7 agency of that employee or former employee 

8 through proceedings authorized by paragraph 

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

10 no appeal of an agency’s suspension of a secu11 rity clearance or access determination for pur12 poses of conducting an investigation, if that 

13 suspension lasts not longer than 1 year (or a 

14 longer period in accordance with a certification 

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

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

17 course of proceedings authorized under sub18 paragraph (A), it is determined that the ad19 verse security clearance or access determination 

20 violated paragraph (1) of this subsection, the 

21 agency shall take specific corrective action to 

22 return the employee or former employee, as 

23 nearly as practicable and reasonable, to the po24 sition such employee or former employee would 

25 have held had the violation not occurred. Such 


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1 corrective action shall include reasonable attor2 ney’s fees and any other reasonable costs in3 curred, and may include compensatory damages 

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

5 benefits, and travel expenses. 

6 ‘‘(C) CONTRIBUTING FACTOR.—In deter7 mining whether the adverse security clearance 

8 or access determination violated paragraph (1) 

9 of this subsection, the agency shall find that 

10 paragraph (1) of this subsection was violated if 

11 a disclosure described in paragraph (1) was a 

12 contributing factor in the adverse security clear13 ance or access determination taken against the 

14 individual, unless the agency demonstrates by 

15 clear and convincing evidence that it would have 

16 taken the same action in the absence of such 

17 disclosure, giving the utmost deference to the 

18 agency’s assessment of the particular threat to 

19 the national security interests of the United 

20 States in the instant matter. 

21 ‘‘(5) APPELLATE REVIEW OF SECURITY CLEAR22 ANCE ACCESS DETERMINATIONS BY DIRECTOR OF

23 NATIONAL INTELLIGENCE.— 

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

25 term ‘Board’ means the appellate review board 


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1 established under section 204 of the Whistle2 blower Protection Enhancement Act of 2011. 

3 ‘‘(B) APPEAL.—Within 60 days after re4 ceiving notice of an adverse final agency deter5 mination under a proceeding under paragraph 

6 (4), an employee or former employee may ap7 peal that determination to the Board. 

8 ‘‘(C) POLICIES AND PROCEDURES.—The 

9 Board, in consultation with the Attorney Gen10 eral, Director of National Intelligence, and the 

11 Secretary of Defense, shall develop and imple12 ment policies and procedures for adjudicating 

13 the appeals authorized by subparagraph (B). 

14 The Director of National Intelligence and Sec15 retary of Defense shall jointly approve any 

16 rules, regulations, or guidance issued by the 

17 Board concerning the procedures for the use or 

18 handling of classified information. 

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

20 be on the complete agency record, which shall 

21 be made available to the Board. The Board may 

22 not hear witnesses or admit additional evidence. 

23 Any portions of the record that were submitted 

24 ex parte during the agency proceedings shall be 

25 submitted ex parte to the Board. 


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1 ‘‘(E) FURTHER FACT-FINDING OR IM2 PROPER DENIAL.—If the Board concludes that 

3 further fact-finding is necessary or finds that 

4 the agency improperly denied the employee or 

5 former employee the opportunity to present evi6 dence that, if admitted, would have a substan7 tial likelihood of altering the outcome, the 

8 Board shall remand the matter to the agency 

9 from which it originated for additional pro10 ceedings in accordance with the rules of proce11 dure issued by the Board. 

12 ‘‘(F) DE NOVO DETERMINATION.—The 

13 Board shall make a de novo determination, 

14 based on the entire record and under the stand15 ards specified in paragraph (4), of whether the 

16 employee or former employee received an ad17 verse security clearance or access determination 

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

19 record, the Board may weigh the evidence, 

20 judge the credibility of witnesses, and determine 

21 controverted questions of fact. In doing so, the 

22 Board may consider the prior fact-finder’s op23 portunity to see and hear the witnesses. 

24 ‘‘(G) ADVERSE SECURITY CLEARANCE OR

25 ACCESS DETERMINATION.—If the Board finds 


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1 that the adverse security clearance or access de2 termination violated paragraph (1), it shall then 

3 separately determine whether reinstating the se4 curity clearance or access determination is 

5 clearly consistent with the interests of national 

6 security, with any doubt resolved in favor of na7 tional security, under Executive Order 12968 

8 (60 Fed. Reg. 40245; relating to access to clas9 sified information) or any successor thereto (in10 cluding any adjudicative guidelines promulgated 

11 under such orders) or any subsequent Executive 

12 order, regulation, or policy concerning access to 

13 classified information. 

14 ‘‘(H) REMEDIES.— 

15 ‘‘(i) CORRECTIVE ACTION.—If the 

16 Board finds that the adverse security 

17 clearance or access determination violated 

18 paragraph (1), it shall order the agency 

19 head to take specific corrective action to 

20 return the employee or former employee, 

21 as nearly as practicable and reasonable, to 

22 the position such employee or former em23 ployee would have held had the violation 

24 not occurred. Such corrective action shall 

25 include reasonable attorney’s fees and any 


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1 other reasonable costs incurred, and may 

2 include compensatory damages not to ex3 ceed $300,000 and back pay and related 

4 benefits. The Board may recommend, but 

5 may not order, reinstatement or hiring of 

6 a former employee. The Board may order 

7 that the former employee be treated as 

8 though the employee were transferring 

9 from the most recent position held when 

10 seeking other positions within the executive 

11 branch. Any corrective action shall not in12 clude the reinstating of any security clear13 ance or access determination. The agency 

14 head shall take the actions so ordered 

15 within 90 days, unless the Director of Na16 tional Intelligence, the Secretary of En17 ergy, or the Secretary of Defense, in the 

18 case of any component of the Department 

19 of Defense, determines that doing so would 

20 endanger national security. 

21 ‘‘(ii) RECOMMENDED ACTION.—If the 

22 Board finds that reinstating the employee 

23 or former employee’s security clearance or 

24 access determination is clearly consistent 

25 with the interests of national security, it 


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1 shall recommend such action to the head of 

2 the entity selected under subsection (b) 

3 and the head of the affected agency. 

4 ‘‘(I) CONGRESSIONAL NOTIFICATION.— 

5 ‘‘(i) ORDERS.—Consistent with the 

6 protection of sources and methods, at the 

7 time the Board issues an order, the Chair8 person of the Board shall notify— 

9 ‘‘(I) the Committee on Homeland 

10 Security and Government Affairs of 

11 the Senate; 

12 ‘‘(II) the Select Committee on In13 telligence of the Senate; 

14 ‘‘(III) the Committee on Over15 sight and Government Reform of the 

16 House of Representatives; 

17 ‘‘(IV) the Permanent Select Com18 mittee on Intelligence of the House of 

19 Representatives; and 

20 ‘‘(V) the committees of the Sen21 ate and the House of Representatives 

22 that have jurisdiction over the employ23 ing agency, including in the case of a 

24 final order or decision of the Defense 

25 Intelligence Agency, the National 


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1 Geospatial-Intelligence Agency, the 

2 National Security Agency, or the Na3 tional Reconnaissance Office, the 

4 Committee on Armed Services of the 

5 Senate and the Committee on Armed 

6 Services of the House of Representa7 tives. 

8 ‘‘(ii) RECOMMENDATIONS.—If the 

9 agency head and the head of the entity se10 lected under subsection (b) do not follow 

11 the Board’s recommendation to reinstate a 

12 clearance, the head of the entity selected 

13 under subsection (b) shall notify the com14 mittees described in subclauses (I) through 

15 (V) of clause (i). 

16 ‘‘(6) JUDICIAL REVIEW.—Nothing in this sec17 tion shall be construed to permit or require judicial 

18 review of any— 

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

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

21 established under section 204 of the Whistle22 blower Protection Enhancement Act of 2011. 

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

24 this section shall be construed to permit, authorize, 


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1 or require a private cause of action to challenge the 

2 merits of a security clearance determination.’’. 

3 (c) ACCESS DETERMINATION DEFINED.—Section 

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

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

8 process for determining whether an employee— 

9 ‘‘(A) is eligible for access to classified in10 formation in accordance with Executive Order 

11 12968 (60 Fed. Reg. 40245; relating to access 

12 to classified information), or any successor 

13 thereto, and Executive Order 10865 (25 Fed. 

14 Reg. 1583; relating to safeguarding classified 

15 information with industry); and 

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

17 Order.’’. 

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

19 3001 of the Intelligence Reform and Terrorism Prevention 

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

21 shall be construed to require the repeal or replacement of 

22 agency appeal procedures implementing Executive Order 

23 12968 (60 Fed. Reg. 40245; relating to classified national 

24 security information), or any successor thereto, and Exec25 utive Order 10865 (25 Fed. Reg. 1583; relating to safeVerDate Mar 15 2010 00:24 Nov 09, 2011 Jkt 019200 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 E:\BILLS\H3289.IH H3289

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1 guarding classified information with industry), or any suc2 cessor thereto, that meet the requirements of section 

3 3001(b)(7) of such Act, as so amended. 

4 SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE 

5 COMMUNITY WHISTLEBLOWER PROTECTION 

6 ACT. 

7 (a) IN GENERAL.—Section 8H of the Inspector Gen8 eral Act of 1978 (5 U.S.C. App.) is amended— 

9 (1) in subsection (b)— 

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

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

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

13 a complaint or information transmitted under paragraph 

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

15 establishment, the head of the establishment shall return 

16 the complaint or information to the Inspector General with 

17 that determination and the Inspector General shall make 

18 the transmission to the Director of National Intelligence. 

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

20 head of the establishment apply to the recipient of the In21 spector General’s transmission. The Director of National 

22 Intelligence shall consult with the members of the appel23 late review board established under section 204 of the 

24 Whistleblower Protection Enhancement Review Act of 

25 2011 regarding all transmissions under this paragraph.’’; 


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

2 (i); and 

3 (3) by inserting after subsection (g), the fol4 lowing: 

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

6 information to an Inspector General under this section 

7 may notify any member of Congress or congressional staff 

8 member of the fact that such individual has made a sub9 mission to that particular Inspector General, and of the 

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

11 (b) CENTRAL INTELLIGENCE AGENCY.—Section 

12 17(d)(5) of the Central Intelligence Agency Act of 1949 

13 (50 U.S.C. 403q) is amended— 

14 (1) in subparagraph (B)— 

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

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

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

18 information transmitted under paragraph (1) would create 

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

20 return the complaint or information to the Inspector Gen21 eral with that determination and the Inspector General 

22 shall make the transmission to the Director of National 

23 Intelligence. In such a case the requirements of this sub24 section for the Director apply to the recipient of the In25 spector General’s submission; and’’; and 


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

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

3 or information to the Inspector General under this section 

4 may notify any member of Congress or congressional staff 

5 member of the fact that such individual has made a sub6 mission to the Inspector General, and of the date on which 

7 such submission was made.’’. 

8 SEC. 204. REGULATIONS; REPORTING REQUIREMENTS; 

9 NONAPPLICABILITY TO CERTAIN TERMI10 NATIONS. 

11 (a) DEFINITIONS.—In this section— 

12 (1) the term ‘‘congressional oversight commit13 tees’’ means— 

14 (A) the Committee on Homeland Security 

15 and Government Affairs of the Senate; 

16 (B) the Select Committee on Intelligence 

17 of the Senate; 

18 (C) the Committee on Oversight and Gov19 ernment Reform of the House of Representa20 tives; and 

21 (D) the Permanent Select Committee on 

22 Intelligence of the House of Representatives; 

23 and 

24 (2) the term ‘‘intelligence community ele25 ment’’— 


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1 (A) means— 

2 (i) the Central Intelligence Agency, 

3 the Defense Intelligence Agency, the Na4 tional Geospatial-Intelligence Agency, the 

5 National Security Agency, the Office of the 

6 Director of National Intelligence, and the 

7 National Reconnaissance Office; and 

8 (ii) any executive agency or unit 

9 thereof determined by the President under 

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

11 States Code, to have as its principal func12 tion the conduct of foreign intelligence or 

13 counterintelligence activities; and 

14 (B) does not include the Federal Bureau of 

15 Investigation. 

16 (b) REGULATIONS.— 

17 (1) IN GENERAL.—The Director of National In18 telligence shall prescribe regulations to ensure that 

19 a personnel action shall not be taken against an em20 ployee of an intelligence community element as a re21 prisal for any disclosure of information described in 

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

23 added by this Act. 

24 (2) APPELLATE REVIEW BOARD.—Not later 

25 than 180 days after the date of enactment of this 


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1 Act, the Director of National Intelligence, in con2 sultation with the Secretary of Defense, the Attor3 ney General, and the heads of appropriate agencies, 

4 shall establish an appellate review board that is 

5 broadly representative of affected Departments and 

6 agencies and is made up of individuals with expertise 

7 in merit systems principles and national security 

8 issues— 

9 (A) to hear whistleblower appeals related 

10 to security clearance access determinations de11 scribed in section 3001(j) of the Intelligence 

12 Reform and Terrorism Prevention Act of 2004 

13 (50 U.S.C. 435b), as added by this Act; and 

14 (B) that shall include a subpanel that re15 flects the composition of the intelligence com16 mittee, which shall be composed of intelligence 

17 community elements and inspectors general 

18 from intelligence community elements, for the 

19 purpose of hearing cases that arise in elements 

20 of the intelligence community. 

21 (c) REPORT ON THE STATUS OF IMPLEMENTATION

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

23 of enactment of this Act, the Director of National Intel24 ligence shall submit a report on the status of the impleVerDate Mar 15 2010 00:24 Nov 09, 2011 Jkt 019200 PO 00000 Frm 00070 Fmt 6652 Sfmt 6201 E:\BILLS\H3289.IH H3289

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1 mentation of the regulations promulgated under sub2 section (b) to the congressional oversight committees. 

3 (d) NONAPPLICABILITY TO CERTAIN TERMI4 NATIONS.—Section 2303a of title 5, United States Code, 

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

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

7 435b), as amended by this Act, shall not apply to adverse 

8 security clearance or access determinations if the affected 

9 employee is concurrently terminated under— 

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

11 Code; 

12 (2) the authority of the Director of National In13 telligence under section 102A(m) of the National Se14 curity Act of 1947 (50 U.S.C. 403–1(m)), if— 

15 (A) the Director personally summarily ter16 minates the individual; and 

17 (B) the Director— 

18 (i) determines the termination to be in 

19 the interest of the United States; 

20 (ii) determines that the procedures 

21 prescribed in other provisions of law that 

22 authorize the termination of the employ23 ment of such employee cannot be invoked 

24 in a manner consistent with the national 

25 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. 

Æ 


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