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 Com-
mittee 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 com-
mittee concerned 
A BILL 
To amend title 5, United States Code, to provide clarification 
relating to disclosures of information protected from pro-
hibited 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 authori-
ties to the Office of Special Counsel; and for other pur-
poses. 
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Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Whistleblower Protection Enhancement Act of 2011’’. 
(b) TABLE OF CONTENTS.—The table of contents of 
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 in-
formation. 
Sec. 111. Clarification of whistleblower rights for critical infrastructure infor-
mation. 
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 Pro-
tection Act. 
Sec. 204. Regulations; reporting requirements; nonapplicability to certain ter-
minations. 
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TITLE III—EFFECTIVE DATE; SAVINGS PROVISION 
Sec. 301. Effective date. 
Sec. 302. Savings provision. 
TITLE I—PROTECTION OF CER-
TAIN DISCLOSURES OF IN-
FORMATION BY FEDERAL EM-
PLOYEES 
SEC. 101. CLARIFICATION OF DISCLOSURES COVERED. 
(a) IN GENERAL.—Section 2302(b)(8) of title 5, 
United States Code, is amended— 
(1) in subparagraph (A)(i), by striking ‘‘a viola-
tion’’ and inserting ‘‘any violation’’; and 
(2) in subparagraph (B)(i)— 
(A) by striking ‘‘a violation’’ and inserting 
‘‘any violation’’; and 
(B) by striking ‘‘regulation,’’ and inserting 
‘‘regulation (other than this section or any rule 
or regulation prescribed under this section)’’. 
(b) PROHIBITED PERSONNEL PRACTICES UNDER 
SECTION 2302(b)(9).— 
(1) TECHNICAL
AND
CONFORMING
AMEND-
MENTS.—Title 5, United States Code, is amended— 
(A) in subsections (a)(3), (b)(4)(A), and 
(b)(4)(B)(i) of section 1214 and subsections 
(a), (e)(1), and (i) of section 1221, by inserting 
‘‘or subparagraph (A)(i), (B), (C), or (D) of 
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‘‘(f)(1) A disclosure shall not be excluded from sub-
section (b)(8) because— 
‘‘(A) the disclosure was made to a person, in-
cluding a supervisor, who participated in an activity 
that the employee or applicant reasonably believed to 
be covered by subsection (b)(8)(A)(ii); 
‘‘(B) the disclosure revealed information that 
had been previously disclosed; 
‘‘(C) of the employee’s or applicant’s motive for 
making the disclosure; 
‘‘(D) the disclosure was not made in writing; 
‘‘(E) the disclosure was made while the em-
ployee was off duty; or 
‘‘(F) of the amount of time which has passed 
since the occurrence of the events described in the 
disclosure. 
‘‘(2) If a disclosure is made during the normal course 
of duties of an employee, the disclosure shall not be ex-
cluded from subsection (b)(8) if any employee who has au-
thority to take, direct others to take, recommend, or ap-
prove any personnel action with respect to the employee 
making the disclosure, took, failed to take, or threatened 
to take or fail to take a personnel action with respect to 
that employee in reprisal for the disclosure.’’. 
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SEC. 102. DISCLOSURE DEFINED. 
Section 2302(a)(2) of title 5, United States Code, is 
amended— 
(1) in subparagraph (B)(ii), by striking ‘‘and’’ 
at the end; 
(2) in subparagraph (C)(iii), by striking the pe-
riod at the end and inserting ‘‘; and’’; and 
(3) by adding at the end the following: 
‘‘(D) ‘disclosure’ means a formal or informal 
communication or transmission, but does not include 
a communication concerning policy decisions that 
lawfully exercise discretionary authority, unless the 
employee or applicant providing the disclosure rea-
sonably believes that the disclosure evidences— 
‘‘(i) any violation of any law, rule, or regu-
lation, and occurs during the conscientious car-
rying out of official duties; or 
‘‘(ii) gross mismanagement, a gross waste 
of funds, an abuse of authority, or a substantial 
and specific danger to public health or safety.’’. 
SEC. 103. REBUTTABLE PRESUMPTION. 
Section 2302(b) of title 5, United States Code, is 
amended by amending the matter following paragraph 
(12) to read as follows: 
‘‘This subsection shall not be construed to authorize the 
withholding of information from Congress or the taking 
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of any personnel action against an employee who discloses 
information to Congress. For purposes of paragraph (8), 
any presumption relating to the performance of a duty by 
an employee whose conduct is the subject of a protected 
disclosure under this section may be rebutted by substan-
tial evidence. For purposes of paragraph (8), a determina-
tion as to whether an employee or applicant reasonably 
believes that such employee or applicant has disclosed in-
formation that evidences any violation of law, rule, regula-
tion, gross mismanagement, a gross waste of funds, an 
abuse of authority, or a substantial and specific danger 
to public health or safety shall be made by determining 
whether a disinterested observer with knowledge of the es-
sential facts known to or readily ascertainable by the em-
ployee could reasonably conclude that the actions of the 
Government evidence such a violation, mismanagement, 
waste, abuse, or danger.’’. 
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PER-
SONNEL PRACTICES. 
(a) PERSONNEL ACTION.—Section 2302(a)(2)(A) of 
title 5, United States Code, is amended— 
(1) in clause (x), by striking ‘‘and’’ after the 
semicolon; 
(2) by redesignating clause (xi) as clause (xii); 
and 
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(3) by inserting after clause (x) the following: 
‘‘(xi) the implementation or enforcement of 
any nondisclosure policy, form, or agreement 
that does not contain the statement required 
under subsection (b)(13); and’’. 
(b) PROHIBITED PERSONNEL PRACTICE.— 
(1) IN GENERAL.—Section 2302(b) of title 5, 
United States Code, is amended— 
(A) in paragraph (11), by striking ‘‘or’’ at 
the end; 
(B) in paragraph (12), by striking the pe-
riod and inserting ‘‘; or’’; and 
(C) by inserting after paragraph (12) the 
following: 
‘‘(13) implement or enforce any nondisclosure 
policy, form, or agreement, if such policy, form, or 
agreement does not contain the following statement: 
‘These provisions are consistent with and do not su-
persede, conflict with, or otherwise alter the em-
ployee obligations, rights, or liabilities created by 
Executive Order 13526 (75 Fed. Reg. 707, relating 
to classified national security information), or any 
successor thereto; Executive Order 12968 (60 Fed. 
Reg. 40245, relating to access to classified informa-
tion), or any successor thereto; section 7211 (gov-
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erning disclosures to Congress); section 1034 of title 
10 (governing disclosure to Congress by members of 
the military); subsection (b)(8) (governing disclo-
sures of illegality, waste, fraud, abuse, or public 
health or safety threats); the Intelligence Identities 
Protection Act of 1982 (50 U.S.C. 421 et seq., gov-
erning disclosures that could expose confidential 
Government agents); and the statutes which protect 
against disclosures that could compromise national 
security, including sections 641, 793, 794, 798, and 
952 of title 18 and section 4(b) of the Subversive 
Activities Control Act of 1950 (50 U.S.C. 783(b)). 
The definitions, requirements, obligations, rights, 
sanctions, and liabilities created by such Executive 
orders and such statutory provisions are incor-
porated into this agreement and are controlling.’.’’. 
(2) NONDISCLOSURE POLICY, FORM, OR AGREE-
MENT IN EFFECT BEFORE THE DATE OF ENACT-
MENT.—A nondisclosure policy, form, or agreement 
that was in effect before the effective date of this 
Act, but that does not contain the statement re-
quired under section 2302(b)(13) of title 5, United 
States Code (as added by paragraph (1)(C)) for im-
plementation or enforcement— 
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