Whistleblower Protection Enhancement Act of 2012

Bill: 112-s-743
Sponsor: Sen. Akaka, Daniel K. [D-HI]
Introduced: 2011-04-06 in the Senate
Policy area: Government Operations and Politics
Subjects: Administrative law and regulatory procedures
Administrative remedies
Central Intelligence Agency (CIA)
Civil actions and liability
Congressional oversight
Department of Defense
Department of Homeland Security
Director of National Intelligence
Due process and equal protection
Employment discrimination and employee rights
Evidence and witnesses
Executive agency funding and structure
Government employee pay, benefits, personnel management
Government ethics and transparency, public corruption
Government information and archives
Government studies and investigations
Intelligence activities, surveillance, classified information
Judicial review and appeals
Legal fees and court costs
Merit Systems Protection Board
Office of Special Counsel
Transportation safety and security

Summary:
action_date: 2011-04-06
text: 
Whistleblower Protection Enhancement Act of 2011 - Expands the scope of whistleblower protections under federal law to provide that such protections shall apply to a disclosure of any violation of any law, rule, or regulation (currently, only to a violation of any law, rule, or regulation). Defines "disclosure" for purposes of this Act and expands the types of disclosures that are protected whistleblower disclosures.
 
Includes as a prohibited personnel practice the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement that its provisions are consistent with requirements that preserve the right of federal employees to make disclosures of illegality, waste, fraud, abuse, or public health or safety threats. 
 
Adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989.
 
Revises the standard of proof in disciplinary proceedings against an agency employee who takes an adverse personnel action against a whistleblower to require the Office of Special Counsel to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
 
Requires that, during the five-year period beginning on the effective date of this Act, a petition to review a final order or decision of the Merit Systems Protection Board (MSPB) that raises no challenge to the MSPB's disposition of allegations of a prohibited personnel practice be filed in any court of appeals of competent jurisdiction (rather than exclusively in the Federal Circuit Court of Appeals).
 
Extends whistleblower and other anti-discrimination protections to employees (and applicants for employment) of the Transportation Security Administration (TSA). 
 
Extends whistleblower protections to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information.
 
Extends whistleblower protections to intelligence community elements, including the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the National Geospatial Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office.
 
Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept secret in the interest of national defense or the conduct of foreign affairs.
 
Amends the Inspector General Act of 1978 to: (1) allow federal agency employees who intend to report a complaint or information with respect to an urgent concern to Congress to report such complaint or information to the Inspector General of their agencies, and (2) provide for the appointment of a Whistleblower Protection Ombudsman in the Office of Inspector General to educate agency personnel about whistleblower rights.
 
Amends the Intelligence Reform and Terrorism Prevention Act of 2004 to require: (1) the development of policies and procedures that permit individuals who, in good faith, challenge a security clearance determination to remain employed while the challenge is pending; and (2) the development and implementation of uniform and consistent policies and procedures to ensure protections during the process for denying, suspending, or revoking a security clearance or access to classified information.
 
Prohibits the revocation of a security clearance or access determination in retaliation for a protected whistleblower disclosure.
 
Amends the Inspector General Act of 1978 to provide for the direct transmission of a complaint or information under the Intelligence Community Whistleblower Protection Act to the Director of National Intelligence if the head of an establishment (i.e., cabinet level agency or department) determines that such complaint or information would create a conflict of interest for such head.

action_date: 2012-04-19
text: 
Whistleblower Protection Enhancement Act of 2012 - 
Title I: Protection of Certain Disclosures of Information by Federal Employees
 - (Sec. 101) Amends federal personnel law relating to whistleblower protections to provide that such protections shall apply to a disclosure of any violation of law (currently, a violation of law).
 
Provides that a disclosure shall not be excluded from whistleblower protections because: (1) the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant for employment reasonably believed to evidence gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety; (2) the disclosure revealed information that had been previously disclosed; (3) of the employee or applicant's motive for making the disclosure; (4) the disclosure was not made in writing; (5) the disclosure was made while the employee was off duty; or (6) of the amount of time which has passed since the occurrence of the events described in the disclosure.
 
Provides that a disclosure shall not be excluded from whistleblower protections if it is made during the normal course of duties of an employee with respect to whom another employee with authority took, failed to take, or threatened to take or fail to take a personnel action in reprisal for the disclosure.
 
(Sec. 102) Defines "disclosure" as a formal or informal communication or transmission, excluding a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant making the disclosure reasonably believes that it evidences: (1) any violation of any law, rule, or regulation; or (2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 103) Provides that any presumption regarding a public officer's performance of a duty may be rebutted by substantial evidence.
 
Establishes a "disinterested observer" standard for evaluating the validity of disclosures that evidence violations of law, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 104) Includes as a prohibited personnel practice the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement that its provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by an existing statute or executive order relating to: (1) classified information; (2) communications to Congress; (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4) any other whistleblower protection.
 
Allows the enforcement of a nondisclosure policy, form, or agreement that was in effect prior to the effective date of this Act if the agency gives an affected employee notice of the statement required by this section.
 
Allows any action ordered to correct a prohibited personnel practice to include fees, costs, or damages reasonably incurred due to an agency investigation of the employee that was commenced, expanded, or extended in retaliation for the disclosure of protected activity that formed the basis of the corrective action.
 
(Sec. 105) Adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989 (WPA). Provides that a whistleblower cannot be deprived of WPA coverage unless the President removes the whistleblower's agency from coverage prior to a challenged personnel action taken against the whistleblower.
 
(Sec. 106) Revises the standard of proof in disciplinary proceedings against an agency employee who takes an adverse personnel action against a whistleblower to require the Office of Special Counsel to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
 
(Sec. 107) Authorizes: (1) the Merit Systems Protection Board (MSPB), in disciplinary actions, to require payment of reasonable attorney fees by the agency where the prevailing party is employed, or has applied for employment, if specified conditions apply; and (2) reasonable and foreseeable consequential and compensatory damages (including interest, reasonable expert witness fees, and costs) if the MSPB orders corrective action.
 
(Sec. 108) Requires that, during the five-year period beginning on the effective date of this Act, a petition to review a final order or decision of the MSPB that raises no challenge to the MSPB's disposition of allegations of a prohibited personnel practice shall be filed in any court of appeals of competent jurisdiction (rather than exclusively in the Federal Circuit). Allows such court discretion to grant a petition for judicial review.
 
(Sec. 109) Extends whistleblower and other anti-discrimination protections to employees (and applicants for employment) of the Transportation Security Administration (TSA). 
 
(Sec. 110) Extends whistleblower protections to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information. 
 
(Sec. 111) Amends the Homeland Security Act of 2002 to provide that a permissible use of independently obtained infrastructure information includes the disclosure of such information for whistleblower purposes.
 
(Sec. 112) Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept classified in the interest of national defense or the conduct of foreign affairs.
 
(Sec. 113) Authorizes the Special Counsel to appear as amicus curiae in whistleblower actions.
 
(Sec. 114) Provides that corrective action relating to a prohibited personnel practice may not be ordered if, after a finding that a protected disclosure was a contributing factor in taking a personnel action, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.
 
(Sec. 115) Requires all government nondisclosure policies, forms, or agreements to contain a specific statement that its provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by an existing statute or executive order relating to: (1) classified information; (2) communications to Congress; (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4) any other whistleblower protection. Prohibits implementing or enforcing nondisclosure policies, forms, and agreements without such statement. 
 
Permits nondisclosure policies, forms, and agreements in effect before the enactment of this Act to continue to be enforced with respect to: (1) current employees if the agency provides notice of the statement to such employees, and (2) former employees if the agency posts notice of the statement on its website for a one-year period.
 
Provides that a nondisclosure policy, form, or agreement for a person who is not a federal employee, but who is connected with the conduct of intelligence or intelligence-related activity, shall contain appropriate provisions that: (1) require nondisclosure of classified information, and (2) make it clear that the forms do not bar disclosures to Congress or an authorized official that are essential to reporting a substantial violation of law.
 
(Sec. 116) Requires the Comptroller General (GAO), not later than 48 months after the enactment of this Act, to report to specified congressional committees on the implementation of this title, including an analysis of changes in the number of cases filed with the MSPB alleging violations, the outcome of such cases, and the impact the process has had on the MSPB and the federal court system.
 
Requires the MSPB to include in its annual program performance reports information on the number and outcome of whistleblower cases filed.
 
(Sec. 117) Establishes a five-year program to allow current and former federal employees, or applicants for employment, to seek de novo review in a U.S. district court if such an individual is seeking corrective action or has filed an appeal with the MSPB with respect to a personnel action. 
 
(Sec. 118) Authorizes the MSPB, an administrative law judge appointed by the MSPB, or any designated MSPB employee to grant summary judgment motions in cases involving alleged prohibited personnel practices. Terminates this authority five years after the enactment of this Act. 
 
(Sec. 119) Amends the Inspector General Act of 1978 to allow a federal agency employee who intends to report a complaint or information with respect to an urgent concern to Congress to report such complaint or information to the Inspector General of his or her agency.
 
(Sec. 120) Amends the Inspector General Act of 1978 to require each inspector general of a federal agency, except any agency that is an element of the intelligence community or whose principal function is the conduct of foreign intelligence or counter intelligence activities, to designate a Whistleblower Protection Ombudsman to educate agency employees about prohibitions on retaliation for protected disclosures and rights and remedies against such retaliation. Terminates the authority for such Ombudsman five years after the enactment of this Act.
 

Title II: Intelligence Community Whistleblower Protections
 - (Sec. 201) Prohibits a personnel action against an employee of an intelligence community element as a reprisal for a whistleblower disclosure to the Director of National Intelligence or to the head of an employing agency. Directs the President to enforce such prohibition.
 
(Sec. 202) Amends the Intelligence Reform and Terrorism Prevention Act of 2004 to: (1) require the development of policies and procedures that permit individuals who, in good faith, appeal an adverse security clearance determination to remain employed while the appeal is pending; (2) require the development and implementation of uniform and consistent policies and procedures to ensure protections during the process for denying, suspending, or revoking a security clearance or access to classified information; and (3) prohibit the revocation of a security clearance or access determination in retaliation for a protected whistleblower disclosure. 
 
Allows a defense intelligence employee to appeal an agency head's adverse final order or decision to the appellate review board established by this title. Grants the board authority to order corrective action if it determines that an adverse security clearance determination was retaliatory and to recommend the reinstatement of an employee and a security clearance.
 
Requires the board to notify specified congressional committees of any orders it issues. Requires an agency to notify such committees if it does not follow the board's recommendation to reinstate a security clearance.
 
(Sec. 203) Amends the Inspector General Act of 1978 to require the Inspector General to submit a complaint or information submitted under the Intelligence Community Whistleblower Protection Act or the Central Intelligence Agency Act of 1949 to the Director of National Intelligence or to the DOD Secretary, if the intelligence unit is within DOD, upon determining that submission of the complaint or information to the agency head would create a conflict of interest. Requires the Director to consult with members of the appellate review boardregarding all submissions. Allows an individual who has submitted a complaint or information to an Inspector General to notify any Member of Congress, or congressional staff members, of the submissions made and the date of such submissions. 
 
(Sec. 204) Defines: (1) "congressional oversight committees" to mean the Senate Committee on Homeland Security and Governmental Affairs, the Senate Select Committee on Intelligence, the House Committee on Oversight and Government Reform, and the House Permanent Select Committee on Intelligence; and (2) "intelligence community element" to mean the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the National Geospatial-Intelligence Agency, the National Security Agency (NSA), the Office of the Director of National Intelligence, the National Reconnaissance Office, and any executive agency determined by the President to have as its principal function the conduct of foreign intelligence or counterintelligence activities, excluding the Federal Bureau of Investigation (FBI).
 
Requires the Director of National Intelligence to: (1) prescribe regulations to ensure that a personnel action shall not be taken against an employee of an intelligence community element as a reprisal for any whistleblower disclosure relating to intelligence activities, (2) establish an appellate review board to hear whistleblower appeals related to security clearance access determinations, and (3) submit a report on the status of the implementation of such regulations to the congressional oversight committees. 
 
Renders whistleblower protections under this Act inapplicable to terminations of intelligence community whistleblowers who are personally terminated by the Secretary of DOD, the Director of National Intelligence, the CIA Director, or the head of any federal agency who determines the termination to be in the interest of the United States. Requires notification of any termination to the congressional oversight committees within five days of such termination. 
 

Title III: Savings Clause; Effective Date
 - (Sec. 301) Declares that nothing in this Act shall be construed to imply any limitation on any protections afforded to employees and applicants for employment by any other provision of law.
 


action_date: 2012-05-08
text: 

(This measure has not been amended since it was reported to the Senate on April 19, 2012. The summary of that version is repeated here.)

 
Whistleblower Protection Enhancement Act of 2012 - 
Title I: Protection of Certain Disclosures of Information by Federal Employees
 - (Sec. 101) Amends federal personnel law relating to whistleblower protections to provide that such protections shall apply to a disclosure of any violation of law (currently, a violation of law).
 
Provides that a disclosure shall not be excluded from whistleblower protections because: (1) the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant for employment reasonably believed to evidence gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety; (2) the disclosure revealed information that had been previously disclosed; (3) of the employee or applicant's motive for making the disclosure; (4) the disclosure was not made in writing; (5) the disclosure was made while the employee was off duty; or (6) of the amount of time which has passed since the occurrence of the events described in the disclosure.
 
Provides that a disclosure shall not be excluded from whistleblower protections if it is made during the normal course of duties of an employee with respect to whom another employee with authority took, failed to take, or threatened to take or fail to take a personnel action in reprisal for the disclosure.
 
(Sec. 102) Defines "disclosure" as a formal or informal communication or transmission, excluding a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant making the disclosure reasonably believes that it evidences: (1) any violation of any law, rule, or regulation; or (2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 103) Provides that any presumption regarding a public officer's performance of a duty may be rebutted by substantial evidence.
 
Establishes a "disinterested observer" standard for evaluating the validity of disclosures that evidence violations of law, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 104) Includes as a prohibited personnel practice the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement that its provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or executive order relating to: (1) classified information; (2) communications to Congress; (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4) any other whistleblower protection.
 
Allows the enforcement of a nondisclosure policy, form, or agreement that was in effect prior to the effective date of this Act if the agency gives an affected employee notice of the statement required by this section.
 
Allows any action ordered to correct a prohibited personnel practice to include fees, costs, or damages reasonably incurred due to an agency investigation of the employee that was commenced, expanded, or extended in retaliation for the disclosure of protected activity that formed the basis of the corrective action.
 
(Sec. 105) Adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989 (WPA). Provides that a whistleblower cannot be deprived of WPA coverage unless the President removes the whistleblower's agency from coverage prior to a challenged personnel action taken against the whistleblower.
 
(Sec. 106) Revises the standard of proof in disciplinary proceedings against an agency employee who takes an adverse personnel action against a whistleblower to require the Office of Special Counsel to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
 
(Sec. 107) Authorizes: (1) the Merit Systems Protection Board (MSPB), in disciplinary actions, to require payment of reasonable attorney fees by the agency where the prevailing party is employed, or has applied for employment, if specified conditions apply; and (2) reasonable and foreseeable consequential and compensatory damages (including interest, reasonable expert witness fees, and costs) if the MSPB orders corrective action.
 
(Sec. 108) Requires that, during the five-year period beginning on the effective date of this Act, a petition to review a final order or decision of the MSPB that raises no challenge to the MSPB's disposition of allegations of a prohibited personnel practice shall be filed in any court of appeals of competent jurisdiction (rather than exclusively in the Federal Circuit). Allows such court discretion to grant a petition for judicial review.
 
(Sec. 109) Extends whistleblower and other anti-discrimination protections to employees (and applicants for employment) of the Transportation Security Administration (TSA). 
 
(Sec. 110) Extends whistleblower protections to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information. 
 
(Sec. 111) Amends the Homeland Security Act of 2002 to provide that a permissible use of independently obtained infrastructure information includes the disclosure of such information for whistleblower purposes.
 
(Sec. 112) Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept classified in the interest of national defense or the conduct of foreign affairs.
 
(Sec. 113) Authorizes the Special Counsel to appear as amicus curiae in whistleblower actions.
 
(Sec. 114) Provides that corrective action relating to a prohibited personnel practice may not be ordered if, after a finding that a protected disclosure was a contributing factor in taking a personnel action, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.
 
(Sec. 115) Requires all government nondisclosure policies, forms, or agreements to contain a specific statement that its provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or executive order relating to: (1) classified information; (2) communications to Congress; (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4) any other whistleblower protection. Prohibits implementing or enforcing nondisclosure policies, forms, and agreements without such statement. 
 
Permits nondisclosure policies, forms, and agreements in effect before the enactment of this Act to continue to be enforced with respect to: (1) current employees if the agency provides notice of the statement to such employees, and (2) former employees if the agency posts notice of the statement on its website for a one-year period.
 
Provides that a nondisclosure policy, form, or agreement for a person who is not a federal employee, but who is connected with the conduct of intelligence or intelligence-related activity, shall contain appropriate provisions that: (1) require nondisclosure of classified information, and (2) make it clear that the forms do not bar disclosures to Congress or an authorized official that are essential to reporting a substantial violation of law.
 
(Sec. 116) Requires the Comptroller General (GAO), not later than 48 months after the enactment of this Act, to report to specified congressional committees on the implementation of this title, including an analysis of changes in the number of cases filed with the MSPB alleging violations, the outcome of such cases, and the impact the process has had on the MSPB and the federal court system.
 
Requires the MSPB to include in its annual program performance reports information on the number and outcome of whistleblower cases filed.
 
(Sec. 117) Establishes a five-year program to allow current and former federal employees, or applicants for employment, to seek de novo review in a U.S. district court if such an individual is seeking corrective action or has filed an appeal with the MSPB with respect to a personnel action. 
 
(Sec. 118) Authorizes the MSPB, an administrative law judge appointed by the MSPB, or any designated MSPB employee to grant summary judgment motions in cases involving alleged prohibited personnel practices. Terminates this authority five years after the enactment of this Act. 
 
(Sec. 119) Amends the Inspector General Act of 1978 to allow a federal agency employee who intends to report a complaint or information with respect to an urgent concern to Congress to report such complaint or information to the Inspector General of his or her agency.
 
(Sec. 120) Amends the Inspector General Act of 1978 to require each inspector general of a federal agency, except any agency that is an element of the intelligence community or whose principal function is the conduct of foreign intelligence or counter intelligence activities, to designate a Whistleblower Protection Ombudsman to educate agency employees about prohibitions on retaliation for protected disclosures and rights and remedies against such retaliation. Terminates the authority for such Ombudsman five years after the enactment of this Act.
 

Title II: Intelligence Community Whistleblower Protections
 - (Sec. 201) Prohibits a personnel action against an employee of an intelligence community element as a reprisal for a whistleblower disclosure to the Director of National Intelligence or to the head of an employing agency. Directs the President to enforce such prohibition.
 
(Sec. 202) Amends the Intelligence Reform and Terrorism Prevention Act of 2004 to: (1) require the development of policies and procedures that permit individuals who, in good faith, appeal an adverse security clearance determination to remain employed while the appeal is pending; (2) require the development and implementation of uniform and consistent policies and procedures to ensure protections during the process for denying, suspending, or revoking a security clearance or access to classified information; and (3) prohibit the revocation of a security clearance or access determination in retaliation for a protected whistleblower disclosure. 
 
Allows a defense intelligence employee to appeal an agency head's adverse final order or decision to the Appellate Review Board (Board) established by this title. Grants the Board authority to order corrective action if it determines that an adverse security clearance determination was retaliatory and to recommend the reinstatement of an employee and a security clearance.
 
Requires the Board to notify specified congressional committees of any orders it issues. Requires an agency to notify such committees if it does not follow the Board's recommendation to reinstate a security clearance.
 
(Sec. 203) Amends the Inspector General Act of 1978 to require the Inspector General to submit a complaint or information submitted under the Intelligence Community Whistleblower Protection Act or the Central Intelligence Agency Act of 1949 to the Director of National Intelligence or to the DOD Secretary, if the intelligence unit is within DOD, upon determining that submission of the complaint or information to the agency head would create a conflict of interest. Requires the Director to consult with members of the appellate review board established by this Act regarding all submissions. Allows an individual who has submitted a complaint or information to an Inspector General to notify any Member of Congress, or congressional staff members, of the submissions made and the date of such submissions. 
 
(Sec. 204) Defines: (1) "congressional oversight committees" to mean the Senate Committee on Homeland Security and Governmental Affairs, the Senate Select Committee on Intelligence, the House Committee on Oversight and Government Reform, and the House Permanent Select Committee on Intelligence; and (2) "intelligence community element" to mean the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the National Geospatial-Intelligence Agency, the National Security Agency (NSA), the Office of the Director of National Intelligence, the National Reconnaissance Office, and any executive agency determined by the President to have as its principal function the conduct of foreign intelligence or counterintelligence activities, but does not include the Federal Bureau of Investigation (FBI).
 
Requires the Director of National Intelligence to: (1) prescribe regulations to ensure that a personnel action shall not be taken against an employee of an intelligence community element as a reprisal for any whistleblower disclosure relating to intelligence activities, (2) establish an appellate review board to hear whistleblower appeals related to security clearance access determinations, and (3) submit a report on the status of the implementation of such regulations to the congressional oversight committees. 
 
Renders whistleblower protections under this Act inapplicable to terminations of intelligence community whistleblowers who are personally terminated by the Secretary of DOD, the Director of National Intelligence, the CIA Director, or the head of any federal agency who determines the termination to be in the interest of the United States. Requires notification of any termination to the congressional oversight committees within five days of such termination. 
 

Title III: Savings Clause; Effective Date
 - (Sec. 301) Declares that nothing in this Act shall be construed to imply any limitation on any protections afforded to employees and applicants for employment by any other provision of law.
 
(Sec. 302) Makes this Act effective 30 days after its enactment.


action_date: 2012-09-28
text: 
Whistleblower Protection Enhancement Act of 2012 - 
Title I: Protection of Certain Disclosures of Information by Federal Employees
 - (Sec. 101) Amends federal personnel law relating to whistleblower protections to provide that such protections shall apply to a disclosure of any violation of law (currently, a violation of law).
 
Provides that a disclosure shall not be excluded from whistleblower protections because: (1) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant for employment reasonably believed to evidence gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety; (2) the disclosure revealed information that had been previously disclosed; (3) of the employee or applicant's motive for making the disclosure; (4) the disclosure was not made in writing; (5) the disclosure was made while the employee was off duty; or (6) of the amount of time which has passed since the occurrence of the events described in the disclosure.
 
Provides that a disclosure shall not be excluded from whistleblower protections if it is made during the normal course of duties of an employee with respect to whom another employee with authority took, failed to take, or threatened to take or fail to take a personnel action in reprisal for the disclosure.
 
(Sec. 102) Defines "disclosure" as a formal or informal communication or transmission, excluding a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant making the disclosure reasonably believes that it evidences: (1) any violation of any law, rule, or regulation; or (2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 103) Provides that any presumption regarding a public officer's performance of a duty may be rebutted by substantial evidence.
 
Establishes a "disinterested observer" standard for evaluating the validity of disclosures that evidence violations of law, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 104) Includes as a prohibited personnel practice the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement that its provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or executive order relating to: (1) classified information; (2) communications to Congress; (3) the reporting to an Inspector General of a violation of any law, rule, or regulation or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4) any other whistleblower protection.
 
Allows the enforcement of a nondisclosure policy, form, or agreement that was in effect prior to the effective date of this Act if the agency gives an affected employee notice of the statement required by this section.
 
Allows any action ordered to correct a prohibited personnel practice to include fees, costs, or damages reasonably incurred due to an agency investigation of an employee that was commenced, expanded, or extended in retaliation for the disclosure of protected activity that formed the basis of the corrective action.
 
(Sec. 105) Adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989 (WPA). Provides that a whistleblower cannot be deprived of WPA coverage unless the President removes the whistleblower's agency from coverage prior to a challenged personnel action taken against the whistleblower.
 
(Sec. 106) Revises the standard of proof in disciplinary proceedings against an agency employee who takes an adverse personnel action against a whistleblower to require the Office of Special Counsel to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
 
(Sec. 107) Authorizes: (1) the Merit Systems Protection Board (MSPB), in disciplinary actions, to require payment of reasonable attorney fees by the agency where the prevailing party is employed, or has applied for employment, if specified conditions apply; and (2) reasonable and foreseeable consequential and compensatory damages (including interest, reasonable expert witness fees, and costs) if MSPB orders corrective action.
 
(Sec. 108) Requires that, during the two-year period beginning on the effective date of this Act, a petition to review a final order or decision of the MSPB that raises no challenge to the MSPB's disposition of allegations of a prohibited personnel practice shall be filed in any court of appeals of competent jurisdiction (rather than exclusively in the Federal Circuit). Allows such court discretion to grant a petition for judicial review.
 
(Sec. 109) Extends whistleblower and other anti-discrimination protections to employees (and applicants for employment) of the Transportation Security Administration (TSA). 
 
(Sec. 110) Extends whistleblower protections to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information. 
 
(Sec. 111) Amends the Homeland Security Act of 2002 to provide that a permissible use of independently obtained infrastructure information includes the disclosure of such information for whistleblower purposes.
 
(Sec. 112) Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept classified in the interest of national defense or the conduct of foreign affairs.
 
(Sec. 113) Authorizes the Special Counsel to appear as amicus curiae in whistleblower actions.
 
(Sec. 114) Provides that corrective action relating to a prohibited personnel practice may not be ordered if, after a finding that a protected disclosure was a contributing factor in taking a personnel action, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.
 
(Sec. 115) Requires each government nondisclosure policy, form, or agreement to contain a specific statement that its provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or executive order relating to: (1) classified information; (2) communications to Congress; (3) the reporting to an Inspector General of a violation of any law, rule, or regulation or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4) any other whistleblower protection. Prohibits implementing or enforcing any nondisclosure policy, form, or agreementthat does not contain such statement to the extent such policy, form, or agreement is inconsistent with such statement
.
. 
 
Permits nondisclosure policies, forms, and agreements in effect before the enactment of this Act to continue to be enforced with respect to: (1) current employees if the agency provides notice of the statement to such employees, and (2) former employees if the agency posts notice of the statement on its website.
 
Provides that a nondisclosure policy, form, or agreement for a person who is not a federal employee, but who is connected with the conduct of intelligence or intelligence-related activity, shall contain appropriate provisions that: (1) require nondisclosure of classified information, and (2) make it clear that the forms do not bar disclosures to Congress or an authorized official that are essential to reporting a substantial violation of law.
 
(Sec. 116) Requires the Comptroller General (GAO), not later than four years after the enactment of this Act, to report to specified congressional committees on the implementation of this title, including an analysis of changes in the number of cases filed with MSPB alleging violations, the outcome of such cases, and the impact the process has had on MSPB and the federal court system.
 
Requires MSPB to include in its annual program performance reports information on the number and outcome of whistleblower cases filed.
 
(Sec. 117) Amends the Inspector General Act of 1978 to require each inspector general of a federal agency, except any agency that is an element of the intelligence community or whose principal function is the conduct of foreign intelligence or counter intelligence activities, to designate a Whistleblower Protection Ombudsman to educate agency employees about prohibitions on retaliation for protected disclosures and rights and remedies against such retaliation. Terminates the authority for such Ombudsman five years after the enactment of this Act.
 

Title II: Savings Clause; Effective Date 
- (Sec. 201) Declares that nothing in this Act shall be construed to imply any limitation on any protections afforded to employees and applicants for employment by any other provision of law.
 
(Sec. 202) Makes this Act effective 30 days after its enactment, except for provisions relating to TSA employees or applicants for employment, which shall be effective on the enactment date of this Act. 
 

 

action_date: 2012-11-27
text: 

(This measure has not been amended since it was passed by the House on September 28, 2012. The summary of that version is repeated here.)

 
Whistleblower Protection Enhancement Act of 2012 - 
Title I: Protection of Certain Disclosures of Information by Federal Employees
 - (Sec. 101) Amends federal personnel law relating to whistleblower protections to provide that such protections shall apply to a disclosure of any violation of law (currently, a violation of law).
 
Provides that a disclosure shall not be excluded from whistleblower protections because: (1) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant for employment reasonably believed to evidence gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety; (2) the disclosure revealed information that had been previously disclosed; (3) of the employee or applicant's motive for making the disclosure; (4) the disclosure was not made in writing; (5) the disclosure was made while the employee was off duty; or (6) of the amount of time which has passed since the occurrence of the events described in the disclosure.
 
Provides that a disclosure shall not be excluded from whistleblower protections if it is made during the normal course of duties of an employee with respect to whom another employee with authority took, failed to take, or threatened to take or fail to take a personnel action in reprisal for the disclosure.
 
(Sec. 102) Defines "disclosure" as a formal or informal communication or transmission, excluding a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant making the disclosure reasonably believes that it evidences: (1) any violation of any law, rule, or regulation; or (2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 103) Provides that any presumption regarding a public officer's performance of a duty may be rebutted by substantial evidence.
 
Establishes a "disinterested observer" standard for evaluating the validity of disclosures that evidence violations of law, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 104) Includes as a prohibited personnel practice the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement that its provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or executive order relating to: (1) classified information; (2) communications to Congress; (3) the reporting to an Inspector General of a violation of any law, rule, or regulation or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4) any other whistleblower protection.
 
Allows the enforcement of a nondisclosure policy, form, or agreement that was in effect prior to the effective date of this Act if the agency gives an affected employee notice of the statement required by this section.
 
Allows any action ordered to correct a prohibited personnel practice to include fees, costs, or damages reasonably incurred due to an agency investigation of an employee that was commenced, expanded, or extended in retaliation for the disclosure of protected activity that formed the basis of the corrective action.
 
(Sec. 105) Adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989 (WPA). Provides that a whistleblower cannot be deprived of WPA coverage unless the President removes the whistleblower's agency from coverage prior to a challenged personnel action taken against the whistleblower.
 
(Sec. 106) Revises the standard of proof in disciplinary proceedings against an agency employee who takes an adverse personnel action against a whistleblower to require the Office of Special Counsel to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
 
(Sec. 107) Authorizes: (1) the Merit Systems Protection Board (MSPB), in disciplinary actions, to require payment of reasonable attorney fees by the agency where the prevailing party is employed, or has applied for employment, if specified conditions apply; and (2) reasonable and foreseeable consequential and compensatory damages (including interest, reasonable expert witness fees, and costs) if MSPB orders corrective action.
 
(Sec. 108) Requires that, during the two-year period beginning on the effective date of this Act, a petition to review a final order or decision of the MSPB that raises no challenge to the MSPB's disposition of allegations of a prohibited personnel practice shall be filed in any court of appeals of competent jurisdiction (rather than exclusively in the Federal Circuit). Allows such court discretion to grant a petition for judicial review.
 
(Sec. 109) Extends whistleblower and other anti-discrimination protections to employees (and applicants for employment) of the Transportation Security Administration (TSA). 
 
(Sec. 110) Extends whistleblower protections to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information. 
 
(Sec. 111) Amends the Homeland Security Act of 2002 to provide that a permissible use of independently obtained infrastructure information includes the disclosure of such information for whistleblower purposes.
 
(Sec. 112) Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept classified in the interest of national defense or the conduct of foreign affairs.
 
(Sec. 113) Authorizes the Special Counsel to appear as amicus curiae in whistleblower actions.
 
(Sec. 114) Provides that corrective action relating to a prohibited personnel practice may not be ordered if, after a finding that a protected disclosure was a contributing factor in taking a personnel action, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.
 
(Sec. 115) Requires each government nondisclosure policy, form, or agreement to contain a specific statement that its provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or executive order relating to: (1) classified information; (2) communications to Congress; (3) the reporting to an Inspector General of a violation of any law, rule, or regulation or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4) any other whistleblower protection. Prohibits implementing or enforcing any nondisclosure policy, form, or agreementthat does not contain such statement to the extent such policy, form, or agreement is inconsistent with such statement
.
. 
 
Permits nondisclosure policies, forms, and agreements in effect before the enactment of this Act to continue to be enforced with respect to: (1) current employees if the agency provides notice of the statement to such employees, and (2) former employees if the agency posts notice of the statement on its website.
 
Provides that a nondisclosure policy, form, or agreement for a person who is not a federal employee, but who is connected with the conduct of intelligence or intelligence-related activity, shall contain appropriate provisions that: (1) require nondisclosure of classified information, and (2) make it clear that the forms do not bar disclosures to Congress or an authorized official that are essential to reporting a substantial violation of law.
 
(Sec. 116) Requires the Comptroller General (GAO), not later than four years after the enactment of this Act, to report to specified congressional committees on the implementation of this title, including an analysis of changes in the number of cases filed with MSPB alleging violations, the outcome of such cases, and the impact the process has had on MSPB and the federal court system.
 
Requires MSPB to include in its annual program performance reports information on the number and outcome of whistleblower cases filed.
 
(Sec. 117) Amends the Inspector General Act of 1978 to require each inspector general of a federal agency, except any agency that is an element of the intelligence community or whose principal function is the conduct of foreign intelligence or counter intelligence activities, to designate a Whistleblower Protection Ombudsman to educate agency employees about prohibitions on retaliation for protected disclosures and rights and remedies against such retaliation. Terminates the authority for such Ombudsman five years after the enactment of this Act.
 

Title II: Savings Clause; Effective Date 
- (Sec. 201) Declares that nothing in this Act shall be construed to imply any limitation on any protections afforded to employees and applicants for employment by any other provision of law.
 
(Sec. 202) Makes this Act effective 30 days after its enactment, except for provisions relating to TSA employees or applicants for employment, which shall be effective on the enactment date of this Act. 
 

 


Legislative actions:
action_date: 2012-11-27
text: Became Public Law No: 112-199.
action_date: 2012-11-27
text: Became Public Law No: 112-199.
action_date: 2012-11-27
text: Signed by President.
action_date: 2012-11-27
text: Signed by President.
action_date: 2012-11-16
text: Presented to President.
action_date: 2012-11-16
text: Presented to President.
action_date: 2012-11-14
text: Message on Senate action sent to the House.
action_date: 2012-11-13
text: Senate agreed to House amendment to the bill (S.743) by Unanimous Consent. (consideration: CR S6761; text as Senate agreed to House amendment: CR S6761)
action_date: 2012-11-13
text: Resolving differences -- Senate actions: Senate agreed to House amendment to the bill (S.743) by Unanimous Consent.(consideration: CR S6761; text as Senate agreed to House amendment: CR S6761)
action_date: 2012-11-13
text: Message on House action received in Senate and at desk: House amendment to Senate bill.
action_date: 2012-09-28
text: Motion to reconsider laid on the table Agreed to without objection.
action_date: 2012-09-28
text: On passage Passed without objection.
action_date: 2012-09-28
text: Passed/agreed to in House: On passage Passed without objection.
action_date: 2012-09-28
text: Considered by unanimous consent. (consideration: CR H6286-6296; text as received in House: CR H6286-6293)
action_date: 2012-09-28
text: Committee on Homeland Security discharged.
action_date: 2012-09-28
text: Committee on Homeland Security discharged.
action_date: 2012-09-28
text: Committee on Intelligence (Permanent) discharged.
action_date: 2012-09-28
text: Committee on Intelligence (Permanent) discharged.
action_date: 2012-09-28
text: Committee on Oversight and Government discharged.
action_date: 2012-09-28
text: Committee on Oversight and Government discharged.
action_date: 2012-09-28
text: RESERVATION OF OBJECTION - Mr. Van Hollen reserved the right to object to the unanimous consent request. Subsequently, the reservation was withdrawn.
action_date: 2012-09-28
text: Mr. Lewis (CA) asked unanimous consent to discharge from committee and consider.
action_date: 2012-06-14
text: Referred to the Subcommittee on Counterterrorism and Intelligence.
action_date: 2012-06-14
text: Referred to the Subcommittee on Oversight, Investigations, and Management.
action_date: 2012-05-09
text: Referred to the Committee on Oversight and Government Reform, and in addition to the Committees 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.
action_date: 2012-05-09
text: Referred to the Committee on Oversight and Government Reform, and in addition to the Committees 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.
action_date: 2012-05-09
text: Referred to the Committee on Oversight and Government Reform, and in addition to the Committees 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.
action_date: 2012-05-09
text: Received in the House.
action_date: 2012-05-09
text: Message on Senate action sent to the House.
action_date: 2012-05-08
text: Passed Senate with amendments by Unanimous Consent. (consideration: CR S2978-2985; text as passed Senate: CR S2978-2985)
action_date: 2012-05-08
text: Passed/agreed to in Senate: Passed Senate with amendments by Unanimous Consent.(consideration: CR S2978-2985; text as passed Senate: CR S2978-2985)
action_date: 2012-04-19
text: Placed on Senate Legislative Calendar under General Orders. Calendar No. 358.
action_date: 2012-04-19
text: Committee on Homeland Security and Governmental Affairs. Reported by Senator Lieberman with amendments. With written report No. 112-155.
action_date: 2012-04-19
text: Committee on Homeland Security and Governmental Affairs. Reported by Senator Lieberman with amendments. With written report No. 112-155.
action_date: 2011-10-19
text: Committee on Homeland Security and Governmental Affairs. Ordered to be reported with an amendment favorably.
action_date: 2011-05-09
text: Committee on Homeland Security and Governmental Affairs referred to Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia.
action_date: 2011-04-06
text: Read twice and referred to the Committee on Homeland Security and Governmental Affairs. (text of measure as introduced: CR S2194-2201)
action_date: 2011-04-06
text: Sponsor introductory remarks on measure. (CR S2194)
action_date: 2011-04-06
text: Introduced in Senate

Enacted as: number: 112-199