[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 743 Reported in Senate (RS)]

                                                       Calendar No. 358
112th CONGRESS
  2d Session
                                 S. 743

                          [Report No. 112-155]

  To amend chapter 23 of title 5, United States Code, to clarify the 
    disclosures of information protected from prohibited personnel 
 practices, require a statement in nondisclosure policies, forms, and 
   agreements that such policies, forms, and agreements conform with 
   certain disclosure protections, provide certain authority for the 
                Special Counsel, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                April 6 (legislative day, April 5), 2011

 Mr. Akaka (for himself, Ms. Collins, Mr. Grassley, Mr. Lieberman, Mr. 
Levin, Mr. Carper, Mr. Leahy, Mr. Harkin, Mr. Pryor, Ms. Landrieu, Mrs. 
     McCaskill, Mr. Tester, Mr. Begich, Mr. Cardin, and Mr. Coons) 
introduced the following bill; which was read twice and referred to the 
        Committee on Homeland Security and Governmental Affairs

                             April 19, 2012

               Reported by Mr. Lieberman, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
  To amend chapter 23 of title 5, United States Code, to clarify the 
    disclosures of information protected from prohibited personnel 
 practices, require a statement in nondisclosure policies, forms, and 
   agreements that such policies, forms, and agreements conform with 
   certain disclosure protections, provide certain authority for the 
                Special Counsel, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Whistleblower Protection Enhancement 
Act of <DELETED>2011</DELETED> 2012''.

 TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL 
                               EMPLOYEES

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 violation'' and 
        inserting ``any violation''; and
            (2) in subparagraph (B)(i), by striking ``a violation'' and 
        inserting ``any violation (other than a violation of this 
        section)''.
    (b) Prohibited Personnel Practices Under Section 2302(b)(9).--
            (1) Technical and conforming amendments.--Title 5, United 
        States Code, is amended in subsections (a)(3), (b)(4)(A), and 
        (b)(4)(B)(i) of section 1214, in subsections (a), (e)(1), and 
        (i) of section 1221, and in subsection (a)(2)(C)(i) of section 
        2302, by inserting ``or section 2302(b)(9) (A)(i), (B), (C), or 
        (D)'' after ``section 2302(b)(8)'' or ``(b)(8)'' each place it 
        appears.
            (2) Other references.--(A) Title 5, United States Code, is 
        amended in subsection (b)(4)(B)(i) of section 1214 and in 
        subsection (e)(1) of section 1221, by inserting ``or protected 
        activity'' after ``disclosure'' each place it appears.
            (B) Section 2302(b)(9) of title 5, United States Code, is 
        amended--
                    (i) by striking subparagraph (A) and inserting the 
                following:
                    ``(A) the exercise of any appeal, complaint, or 
                grievance right granted by any law, rule, or 
                regulation--
                            ``(i) with regard to remedying a violation 
                        of paragraph (8); or
                            ``(ii) other than with regard to remedying 
                        a violation of paragraph (8) <DELETED>any other 
                        law, rule, or regulation</DELETED>;''; and
                    (ii) in subparagraph (B), by inserting ``(i) or 
                (ii)'' after ``subparagraph (A)''.
            (C) Section 2302 of title 5, United States Code, is amended 
        by adding at the end the following:
    ``(f)(1) A disclosure shall not be excluded from subsection (b)(8) 
because--
            ``(A) the disclosure was made to a person, including 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 employee 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 excluded from subsection 
(b)(8) if any employee who has authority to take, direct others to 
take, recommend, or approve 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.''.

SEC. 102. DEFINITIONAL AMENDMENTS.

    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 period 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 reasonably believes that the 
        disclosure evidences--
                    ``(i) any violation of any law, rule, or 
                regulation<DELETED>, and occurs during the 
                conscientious carrying out of official 
                duties</DELETED>; 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 of any personnel action 
against an employee who discloses information to Congress. For purposes 
of paragraph (8), (i)  any presumption relating to the performance of a 
duty by an employee whose conduct is the subject of a disclosure as 
defined under subsection (a)(2)(D) may be rebutted by substantial 
evidence, and (ii) <DELETED>. For purposes of paragraph (8),</DELETED> 
a determination as to whether an employee or applicant reasonably 
believes that such employee or applicant has disclosed information that 
evidences any violation of law, rule, regulation, 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 essential facts 
known to and readily ascertainable by the employee or applicant could 
reasonably conclude that the actions of the Government evidence such 
violations, mismanagement, waste, abuse, or danger.''.

SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL 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; 
        and
            (2) by redesignating clause (xi) as clause (xii) and 
        inserting after clause (x) the following:
                            ``(xi) the implementation or enforcement of 
                        any nondisclosure policy, form, or agreement; 
                        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 period and 
                inserting ``; or''; and
                    (C) by inserting after paragraph (12) the 
                following:
        <DELETED>    ``(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 supersede, conflict with, or 
        otherwise alter the employee 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 information), or any successor 
        thereto; section 7211 of title 5, United States Code (governing 
        disclosures to Congress); section 1034 of title 10, United 
        States Code (governing disclosure to Congress by members of the 
        military); section 2302(b)(8) of title 5, United States Code 
        (governing disclosures 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.) (governing 
        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, United States Code, 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 order and 
        such statutory provisions are incorporated into this agreement 
        and are controlling.'''.</DELETED>
        <DELETED>    (2) Nondisclosure policy, form, or agreement in 
        effect before the date of enactment.--A nondisclosure policy, 
        form, or agreement that was in effect before the date of 
        enactment of this Act, but that does not contain the statement 
        required under section 2302(b)(13) of title 5, United States 
        Code, (as added by this Act) for implementation or 
        enforcement--</DELETED>
                <DELETED>    (A) may be enforced with regard to a 
                current employee if the agency gives such employee 
                notice of the statement; and</DELETED>
                <DELETED>    (B) may continue to be enforced after the 
                effective date of this Act with regard to a former 
                employee if the agency posts notice of the statement on 
                the agency website for the 1-year period following that 
                effective date.</DELETED>
            ``(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 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. The definitions, requirements, 
        obligations, rights, sanctions, and liabilities created by 
        controlling Executive orders and statutory provisions are 
        incorporated into this agreement and are controlling.'.''.
            (2) Agency websites.--Agencies making use of any 
        nondisclosure policy, form, or agreement shall also post the 
        statement required under section 2302(b)(13) of title 5, United 
        States Code, (as added by this Act) on the agency website, 
        accompanied by the specific list of controlling Executive 
        orders and statutory provisions.
            (3) Nondisclosure policy, form, or agreement in effect 
        before the effective date.--With respect to a nondisclosure 
        policy, form, or agreement that was in effect before the 
        effective date of this Act, but that does not contain the 
        statement required under section 2302(b)(13) of title 5, United 
        States Code, (as added by this Act) for implementation or 
        enforcement--
                    (A) it shall not be a prohibited personnel practice 
                to enforce that policy, form, or agreement with regard 
                to a current employee if the agency gives such employee 
                notice of the statement; and
                    (B) it shall not be a prohibited personnel practice 
                to enforce that policy, form, or agreement after the 
                effective date of this Act with regard to a former 
                employee if the agency complies with paragraph (2).
    (c) Retaliatory Investigations.--
            (1) Agency investigation.--Section 1214 of title 5, United 
        States Code, is amended by adding at the end the following:
    ``(h) Any corrective action ordered under this section to correct a 
prohibited personnel practice may include fees, costs, or damages 
reasonably incurred due to an agency investigation of the employee, if 
such investigation was commenced, expanded, or extended in retaliation 
for the disclosure or protected activity that formed the basis of the 
corrective action.''.
            (2) Damages.--Section 1221(g) of title 5, United States 
        Code, is amended by adding at the end the following:
            ``(4) Any corrective action ordered under this section to 
        correct a prohibited personnel practice may include fees, 
        costs, or damages reasonably incurred due to an agency 
        investigation of the employee, if such investigation was 
        commenced, expanded, or extended in retaliation for the 
        disclosure or protected activity that formed the basis of the 
        corrective action.''.

SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.

    Section 2302(a)(2)(C) of title 5, United States Code, is amended by 
striking clause (ii) and inserting the following:
                            ``(ii)(I) the Federal Bureau of 
                        Investigation, the Central Intelligence Agency, 
                        the Defense Intelligence Agency, the National 
                        Geospatial-Intelligence Agency, the National 
                        Security Agency, the Office of the Director of 
                        National Intelligence, and the National 
                        Reconnaissance Office; and
                            ``(II) as determined by the President, any 
                        executive agency or unit thereof the principal 
                        function of which is the conduct of foreign 
                        intelligence or counterintelligence activities, 
                        provided that the determination be made prior 
                        to a personnel action; or''.

SEC. 106. DISCIPLINARY ACTION.

    Section 1215(a)(3) of title 5, United States Code, is amended to 
read as follows:
            ``(3)(A) A final order of the Board may impose--
                    ``(i) disciplinary action consisting of removal, 
                reduction in grade, debarment from Federal employment 
                for a period not to exceed 5 years, suspension, or 
                reprimand;
                    ``(ii) an assessment of a civil penalty not to 
                exceed $1,000; or
                    ``(iii) any combination of disciplinary actions 
                described under clause (i) and an assessment described 
                under clause (ii).
            ``(B) In any case brought under paragraph (1) in which the 
        Board finds that an employee has committed a prohibited 
        personnel practice under section 2302(b)(8), or 2302(b)(9) 
        (A)(i), (B), (C), or (D), the Board may impose disciplinary 
        action if the Board finds that the activity protected under 
        section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) was 
        a significant motivating factor, even if other factors also 
        motivated the decision, for the employee's decision to take, 
        fail to take, or threaten to take or fail to take a personnel 
        action, unless that employee demonstrates, by preponderance of 
        evidence, that the employee would have taken, failed to take, 
        or threatened to take or fail to take the same personnel 
        action, in the absence of such protected activity.''.

SEC. 107. REMEDIES.

    (a) Attorney Fees.--Section 1204(m)(1) of title 5, United States 
Code, is amended by striking ``agency involved'' and inserting ``agency 
where the prevailing party was employed or had applied for employment 
at the time of the events giving rise to the case''.
    (b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 5, 
United States Code, are amended by striking all after ``travel 
expenses,'' and inserting ``any other reasonable and foreseeable 
consequential damages, and compensatory damages (including interest, 
reasonable expert witness fees, and costs).'' each place it appears.

SEC. 108. JUDICIAL REVIEW.

    (a) In General.--Section 7703(b) of title 5, United States Code, is 
amended by striking the matter preceding paragraph (2) and inserting 
the following:
    ``(b)(1)(A) Except as provided in subparagraph (B) and paragraph 
(2) of this subsection, a petition to review a final order or final 
decision of the Board shall be filed in the United States Court of 
Appeals for the Federal Circuit. Notwithstanding any other provision of 
law, any petition for review shall be filed within 60 days after the 
Board issues notice of the final order or decision of the Board.
    ``(B) During the 5-year period beginning on the effective date of 
the Whistleblower Protection Enhancement Act of <DELETED>2011</DELETED> 
2012, a petition to review a final order or final decision of the Board 
that raises no challenge to the Board's disposition of allegations of a 
prohibited personnel practice described in section 2302(b) other than 
practices described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), 
(C), or (D) shall be filed in the United States Court of Appeals for 
the Federal Circuit or any court of appeals of competent jurisdiction 
as provided under paragraph (2).''.
    (b) Review Obtained by Office of Personnel Management.--Section 
7703(d) of title 5, United States Code, is amended to read as follows:
    ``(d)(1) Except as provided under paragraph (2), this paragraph 
shall apply to any review obtained by the Director of the Office of 
Personnel Management. The Director of the Office of Personnel 
Management may obtain review of any final order or decision of the 
Board by filing, within 60 days after the Board issues notice of the 
final order or decision of the Board, a petition for judicial review in 
the United States Court of Appeals for the Federal Circuit if the 
Director determines, in the discretion of the Director, that the Board 
erred in interpreting a civil service law, rule, or regulation 
affecting personnel management and that the Board's decision will have 
a substantial impact on a civil service law, rule, regulation, or 
policy directive. If the Director did not intervene in a matter before 
the Board, the Director may not petition for review of a Board decision 
under this section unless the Director first petitions the Board for a 
reconsideration of its decision, and such petition is denied. In 
addition to the named respondent, the Board and all other parties to 
the proceedings before the Board shall have the right to appear in the 
proceeding before the Court of Appeals. The granting of the petition 
for judicial review shall be at the discretion of the Court of Appeals.
    ``(2) During the 5-year period beginning on the effective date of 
the Whistleblower Protection Enhancement Act of <DELETED>2011</DELETED> 
2012, this paragraph shall apply to any review obtained by the Director 
of the Office of Personnel Management that raises no challenge to the 
Board's disposition of allegations of a prohibited personnel practice 
described in section 2302(b) other than practices described in section 
2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). The Director of the 
Office of Personnel Management may obtain review of any final order or 
decision of the Board by filing, within 60 days after the Board issues 
notice of the final order or decision of the Board, a petition for 
judicial review in the United States Court of Appeals for the Federal 
Circuit or any court of appeals of competent jurisdiction as provided 
under subsection (b)(2) if the Director determines, in the discretion 
of the Director, that the Board erred in interpreting a civil service 
law, rule, or regulation affecting personnel management and that the 
Board's decision will have a substantial impact on a civil service law, 
rule, regulation, or policy directive. If the Director did not 
intervene in a matter before the Board, the Director may not petition 
for review of a Board decision under this section unless the Director 
first petitions the Board for a reconsideration of its decision, and 
such petition is denied. In addition to the named respondent, the Board 
and all other parties to the proceedings before the Board shall have 
the right to appear in the proceeding before the court of appeals. The 
granting of the petition for judicial review shall be at the discretion 
of the court of appeals.''.

SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION 
              SECURITY ADMINISTRATION.

    (a) In General.--Chapter 23 of title 5, United States Code, is 
amended--
            (1) by redesignating sections 2304 and 2305 as sections 
        2305 and 2306, respectively; and
            (2) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the 
              Transportation Security Administration
    ``(a) In General.--Notwithstanding any other provision of law, any 
individual holding or applying for a position within the Transportation 
Security Administration shall be covered by--
            ``(1) the provisions of section 2302(b) (1), (8), and (9);
            ``(2) any provision of law implementing section 2302(b) 
        (1), (8), or (9) by providing any right or remedy available to 
        an employee or applicant for employment in the civil service; 
        and
            ``(3) any rule or regulation prescribed under any provision 
        of law referred to in paragraph (1) or (2).
    ``(b) Rule of Construction.--Nothing in this section shall be 
construed to affect any rights, apart from those described in 
subsection (a), to which an individual described in subsection (a) 
might otherwise be entitled under law.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 23 of title 5, United States Code, is amended by striking the 
items relating to sections 2304 and 2305, respectively, and by 
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.''.
    (c) Effective Date.--The amendments made by this section shall take 
effect on the date of enactment of this section.

SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR 
              TECHNICAL INFORMATION.

    (a) Definitions.--In this subsection--
            (1) the term ``agency'' has the meaning given under section 
        2302(a)(2)(C) of title 5, United States Code;
            (2) the term ``applicant'' means an applicant for a covered 
        position;
            (3) the term ``censorship related to research, analysis, or 
        technical information'' means any effort to distort, 
        misrepresent, or suppress research, analysis, or technical 
        information;
            (4) the term ``covered position'' has the meaning given 
        under section 2302(a)(2)(B) of title 5, United States Code;
            (5) the term ``employee'' means an employee in a covered 
        position in an agency; and
            (6) the term ``disclosure'' has the meaning given under 
        section 2302(a)(2)(D) of title 5, United States Code.
    (b) Protected Disclosure.--
            (1) In general.--Any disclosure of information by an 
        employee or applicant for employment that the employee or 
        applicant reasonably believes is evidence of censorship related 
        to research, analysis, or technical information--
                    (A) shall come within the protections of section 
                2302(b)(8)(A) of title 5, United States Code, if--
                            (i) the employee or applicant reasonably 
                        believes that the censorship related to 
                        research, analysis, or technical information is 
                        or will cause--
                                    (I) any violation of law, rule, or 
                                regulation<DELETED>, and occurs during 
                                the conscientious carrying out of 
                                official duties</DELETED>; or
                                    (II) gross mismanagement, a gross 
                                waste of funds, an abuse of authority, 
                                or a substantial and specific danger to 
                                public health or safety; and
                            (ii) such disclosure is not specifically 
                        prohibited by law or such information is not 
                        specifically required by Executive order to be 
                        kept classified in the interest of national 
                        defense or the conduct of foreign affairs; and
                    (B) shall come within the protections of section 
                2302(b)(8)(B) of title 5, United States Code, if--
                            (i) the employee or applicant reasonably 
                        believes that the censorship related to 
                        research, analysis, or technical information is 
                        or will cause--
                                    (I) any violation of law, rule, or 
                                regulation<DELETED>, and occurs during 
                                the conscientious carrying out of 
                                official duties</DELETED>; or
                                    (II) gross mismanagement, a gross 
                                waste of funds, an abuse of authority, 
                                or a substantial and specific danger to 
                                public health or safety; and
                            (ii) the disclosure is made to the Special 
                        Counsel, or to the Inspector General of an 
                        agency or another person designated by the head 
                        of the agency to receive such disclosures, 
                        consistent with the protection of sources and 
                        methods.
            (2) Disclosures not excluded.--A disclosure shall not be 
        excluded from paragraph (1) for any reason described under 
        section 2302(f)(1) or (2) of title 5, United States Code.
            (3) Rule of construction.--Nothing in this section shall be 
        construed to imply any limitation on the protections of 
        employees and applicants afforded by any other provision of 
        law, including protections with respect to any disclosure of 
        information believed to be evidence of censorship related to 
        research, analysis, or technical information.

SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL 
              INFRASTRUCTURE INFORMATION.

    Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C. 
133(c)) is amended by adding at the end the following: ``For purposes 
of this section a permissible use of independently obtained information 
includes the disclosure of such information under section 2302(b)(8) of 
title 5, United States Code.''.

SEC. 112. ADVISING EMPLOYEES OF RIGHTS.

    Section 2302(c) of title 5, United States Code, is amended by 
inserting ``, including how to make a lawful disclosure of information 
that is specifically required by law or Executive order to be kept 
classified in the interest of national defense or the conduct of 
foreign affairs to the Special Counsel, the Inspector General of an 
agency, Congress, or other agency employee designated to receive such 
disclosures'' after ``chapter 12 of this title''.

SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.

    Section 1212 of title 5, United States Code, is amended by adding 
at the end the following:
    ``(h)(1) The Special Counsel is authorized to appear as amicus 
curiae in any action brought in a court of the United States related to 
<DELETED>any civil action brought in connection with</DELETED> section 
2302(b) (8) or (9), or as otherwise authorized by law. In any such 
action, the Special Counsel is authorized to present the views of the 
Special Counsel with respect to compliance with section 2302(b) (8) or 
(9) and the impact court decisions would have on the enforcement of 
such provisions of law.
    ``(2) A court of the United States shall grant the application of 
the Special Counsel to appear in any such action for the purposes 
described under subsection (a).''.

SEC. 114. SCOPE OF DUE PROCESS.

    (a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5, United 
States Code, is amended by inserting ``, after a finding that a 
protected disclosure was a contributing factor,'' after ``ordered if''.
    (b) Individual Action.--Section 1221(e)(2) of title 5, United 
States Code, is amended by inserting ``, after a finding that a 
protected disclosure was a contributing factor,'' after ``ordered if''.

SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

<DELETED>    (a) In General.--</DELETED>
        <DELETED>    (1) Requirement.--Each agreement in Standard Forms 
        312 and 4414 of the Government and any other nondisclosure 
        policy, form, or agreement of the Government shall contain the 
        following statement: ``These restrictions are consistent with 
        and do not supersede, conflict with, or otherwise alter the 
        employee 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 information), or any successor thereto; section 
        7211 of title 5, United States Code (governing disclosures to 
        Congress); section 1034 of title 10, United States Code 
        (governing disclosure to Congress by members of the military); 
        section 2302(b)(8) of title 5, United States Code (governing 
        disclosures 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.) (governing 
        disclosures that could expose confidential Government agents); 
        and the statutes which protect against disclosure that may 
        compromise the national security, including sections 641, 793, 
        794, 798, and 952 of title 18, United States Code, and section 
        4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 
        783(b)). The definitions, requirements, obligations, rights, 
        sanctions, and liabilities created by such Executive order and 
        such statutory provisions are incorporated into this agreement 
        and are controlling.''.</DELETED>
        <DELETED>    (2) Enforceability.--</DELETED>
                <DELETED>    (A) In general.--Any nondisclosure policy, 
                form, or agreement described under paragraph (1) that 
                does not contain the statement required under paragraph 
                (1) may not be implemented or enforced to the extent 
                such policy, form, or agreement is inconsistent with 
                that statement.</DELETED>
                <DELETED>    (B) Nondisclosure policy, form, or 
                agreement in effect before the date of enactment.--A 
                nondisclosure policy, form, or agreement that was in 
                effect before the date of enactment of this Act, but 
                that does not contain the statement required under 
                paragraph (1)--</DELETED>
                        <DELETED>    (i) may be enforced with regard to 
                        a current employee if the agency gives such 
                        employee notice of the statement; and</DELETED>
                        <DELETED>    (ii) may continue to be enforced 
                        after the effective date of this Act with 
                        regard to a former employee if the agency posts 
                        notice of the statement on the agency website 
                        for the 1-year period following that effective 
                        date.</DELETED>
    (a) In General.--
            (1) Requirement.--Each agreement in Standard Forms 312 and 
        4414 of the Government and any other nondisclosure policy, 
        form, or agreement of the Government shall contain the 
        following statement: ``These 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. 
        The definitions, requirements, obligations, rights, sanctions, 
        and liabilities created by controlling Executive orders and 
        statutory provisions are incorporated into this agreement and 
        are controlling.''.
            (2) Agency websites.--Agencies making use of any 
        nondisclosure policy, form, or agreement shall also post the 
        statement required under paragraph (1) on the agency website, 
        accompanied by the specific list of controlling Executive 
        orders and statutory provisions.
            (3) Enforceability.--
                    (A) In general.--Any nondisclosure policy, form, or 
                agreement described under paragraph (1) that does not 
                contain the statement required under paragraph (1) may 
                not be implemented or enforced to the extent such 
                policy, form, or agreement is inconsistent with that 
                statement.
                    (B) Nondisclosure policy, form, or agreement in 
                effect before the effective date.--With respect to a 
                nondisclosure policy, form, or agreement that was in 
                effect before the effective date of this Act, but that 
                does not contain the statement required under paragraph 
                (1) for implementation or enforcement--
                            (i) it shall not be a prohibited personnel 
                        practice to enforce that policy, form, or 
                        agreement with regard to a current employee if 
                        the agency gives such employee notice of the 
                        statement; and
                            (ii) it shall not be a prohibited personnel 
                        practice to enforce that policy, form, or 
                        agreement after the effective date of this Act 
                        with regard to a former employee if the agency 
                        complies with paragraph (2).
    (b) Persons Other Than Government Employees.--Notwithstanding 
subsection (a), a nondisclosure policy, form, or agreement that is to 
be executed by a person connected with the conduct of an intelligence 
or intelligence-related activity, other than an employee or officer of 
the United States Government, may contain provisions appropriate to the 
particular activity for which such document is to be used. Such policy, 
form, or agreement shall, at a minimum, require that the person will 
not disclose any classified information received in the course of such 
activity unless specifically authorized to do so by the United States 
Government. Such nondisclosure policy, form, or agreement shall also 
make it clear that such forms do not bar disclosures to Congress or to 
an authorized official of an executive agency or the Department of 
Justice that are essential to reporting a substantial violation of law, 
consistent with the protection of sources and methods.

SEC. 116. REPORTING REQUIREMENTS.

    (a) Government Accountability Office.--
            (1) Report.--Not later than <DELETED>40 months</DELETED> 48 
        months after the date of enactment of this Act, the Comptroller 
        General shall submit a report to the Committee on Homeland 
        Security and Governmental Affairs of the Senate and the 
        Committee on Oversight and Government Reform of the House of 
        Representatives on the implementation of this title.
            (2) Contents.--The report under this paragraph shall 
        include--
                    (A) an analysis of any changes in the number of 
                cases filed with the United States Merit Systems 
                Protection Board alleging violations of section 2302(b) 
                (8) or (9) of title 5, United States Code, since the 
                effective date of this Act;
                    (B) the outcome of the cases described under 
                subparagraph (A), including whether or not the United 
                States Merit Systems Protection Board, the Federal 
                Circuit Court of Appeals, or any other court determined 
                the allegations to be frivolous or malicious;
                    (C) an analysis of the outcome of cases described 
                under subparagraph (A) that were decided by a United 
                States District Court and the impact the process has on 
                the Merit Systems Protection Board and the Federal 
                court system; and
                    (D) any other matter as determined by the 
                Comptroller General.
    (b) Merit Systems Protection Board.--
            (1) In general.--Each report submitted annually by the 
        Merit Systems Protection Board under section 1116 of title 31, 
        United States Code, shall, with respect to the period covered 
        by such report, include as an addendum the following:
                    (A) Information relating to the outcome of cases 
                decided during the applicable year of the report in 
                which violations of section 2302(b) (8) or (9) (A)(i), 
                (B)(i), (C), or (D) of title 5, United States Code, 
                were alleged.
                    (B) The number of such cases filed in the regional 
                and field offices, the number of petitions for review 
                filed in such cases, and the outcomes of such cases.
            (2) First report.--The first report described under 
        paragraph (1) submitted after the date of enactment of this Act 
        shall include an addendum required under that subparagraph that 
        covers the period beginning on <DELETED>January 1, 2009 through</DELETED> 
        the effective date of this Act and ending at the end of the 
        fiscal year <DELETED>2009</DELETED> in which such effective 
        date occurs.

SEC. 117. ALTERNATIVE REVIEW.

    (a) In General.--Section 1221 of title 5, United States Code, is 
amended by adding at the end the following:
    ``(k)(1) In this subsection, the term `appropriate United States 
district court', as used with respect to an alleged prohibited 
personnel practice, means the United States district court for the 
judicial district in which--
            ``(A) the prohibited personnel practice is alleged to have 
        been committed; or
            ``(B) the employee, former employee, or applicant for 
        employment allegedly affected by such practice resides.
    ``(2)(A) An employee, former employee, or applicant for employment 
in any case to which paragraph (3) or (4) applies may file an action at 
law or equity for de novo review in the appropriate United States 
district court in accordance with this subsection.
    ``(B) Upon initiation of any action under subparagraph (A), the 
Board shall stay any other claims of such employee, former employee, or 
applicant pending before the Board at that time which arise out of the 
same set of operative facts. Such claims shall be stayed pending 
completion of the action filed under subparagraph (A) before the 
appropriate United States district court and any associated appellate 
review.
    ``(3) This paragraph applies in any case in which--
            ``(A) an employee, former employee, or applicant for 
        employment--
                    ``(i) seeks corrective action from the Merit 
                Systems Protection Board under section 1221(a) based on 
                an alleged prohibited personnel practice described in 
                section 2302(b) (8) or (9) (A)(i), (B), (C), or (D) for 
                which the associated personnel action is an action 
                covered under section 7512 or 7542; or
                    ``(ii) files an appeal under section 7701(a) 
                alleging as an affirmative defense the commission of a 
                prohibited personnel practice described in section 
                2302(b) (8) or (9) (A)(i), (B), (C), or (D) for which 
                the associated personnel action is an action covered 
                under section 7512 or 7542;
            ``(B) no final order or decision is issued by the Board 
        within 270 days after the date on which a request for that 
        corrective action or appeal has been duly submitted, unless the 
        Board determines that the employee, former employee, or 
        applicant for employment engaged in conduct intended to delay 
        the issuance of a final order or decision by the Board; and
            ``(C) such employee, former employee, or applicant provides 
        written notice to the Board of filing an action under this 
        subsection before the filing of that action.
    ``(4) This paragraph applies in any case in which--
            ``(A) an employee, former employee, or applicant for 
        employment--
                    ``(i) seeks corrective action from the Merit 
                Systems Protection Board under section 1221(a) based on 
                an alleged prohibited personnel practice described in 
                section 2302(b) (8) or (9) (A)(i), (B), (C), or (D) for 
                which the associated personnel action is an action 
                covered under section 7512 or 7542; or
                    ``(ii) files an appeal under section 7701(a) 
                <DELETED>(1)</DELETED> alleging as an affirmative 
                defense the commission of a prohibited personnel 
                practice described in section 2302(b) (8) or (9) 
                (A)(i), (B), (C), or (D) for which the associated 
                personnel action is an action covered under section 
                7512 or 7542;
            ``(B)(i) within 30 days after the date on which the request 
        for corrective action or appeal was duly submitted, such 
        employee, former employee, or applicant for employment files a 
        motion requesting a certification consistent with subparagraph 
        (C) to the Board, any administrative law judge appointed by the 
        Board under section 3105 of this title and assigned to the 
        case, or any employee of the Board designated by the Board and 
        assigned to the case; and
            ``(ii) such employee has not previously filed a motion 
        under clause (i) related to that request for corrective action 
        or that appeal; and
            ``(C) the Board, any administrative law judge appointed by 
        the Board under section 3105 of this title and assigned to the 
        case, or any employee of the Board designated by the Board and 
        assigned to the case certifies that--
                    ``(i) under the standards <DELETED>standard</DELETED> 
                applicable to the review of motions to dismiss under 
                rule 12(b)(6) of the Federal Rules of Civil Procedure, 
                including rule 12(d), the request for corrective action 
                or the appeal (including any allegations made with the 
                motion under subparagraph (B)) would not be subject to 
                dismissal; and
                    ``(ii)(I) the Board is not likely to dispose of the 
                case within 270 days after the date on which 
                <DELETED>a</DELETED>the request for <DELETED>that</DELETED> 
                corrective action or the appeal has been duly 
                submitted; or
                    ``(II) the case--
                            ``(aa) consists of multiple claims;
                            ``(bb) requires complex or extensive 
                        discovery;
                            ``(cc) arises out of the same set of 
                        operative facts as any civil action against the 
                        Government filed by the employee, former 
                        employee, or applicant pending in a Federal 
                        court; or
                            ``(dd) involves a novel question of law.
    ``(5) The Board shall grant or deny any motion requesting a 
certification described under paragraph (4)(ii) within 90 days after 
the submission of such motion and the Board may not issue a decision on 
the merits of a request for corrective action within 15 days after 
granting or denying a motion requesting certification.
    ``(6)(A) Any decision of the Board, any administrative law judge 
appointed by the Board under section 3105 of this title and assigned to 
the case, or any employee of the Board designated by the Board and 
assigned to the case to grant or deny a certification described under 
paragraph (4)(ii) shall be reviewed on appeal of a final order or 
decision of the Board under section 7703 only if--
            ``(i) a motion requesting a certification was denied; and
            ``(ii) the reviewing court vacates the decision of the 
        Board on the merits of the claim under the standards set forth 
        in section 7703(c).
    ``(B) The decision to deny the certification shall be overturned by 
the reviewing court, and an order granting certification shall be 
issued by the reviewing court, if such decision is found to be 
arbitrary, capricious, or an abuse of discretion.
    ``(C) The reviewing court's decision shall not be considered 
evidence of any determination by the Board, any administrative law 
judge appointed by the Board under section 3105 of this title, or any 
employee of the Board designated by the Board on the merits of the 
underlying allegations during the course of any action at law or equity 
for de novo review in the appropriate United States district court in 
accordance with this subsection.
    ``(7) In any action filed under this subsection--
            ``(A) the district court shall have jurisdiction without 
        regard to the amount in controversy;
            ``(B) at the request of either party, such action shall be 
        tried by the court with a jury;
            ``(C) the court--
                    ``(i) subject to clause (iii), shall apply the 
                standards set forth in subsection (e); and
                    ``(ii) may award any relief which the court 
                considers appropriate under subsection (g), except--
                            ``(I) relief for compensatory damages may 
                        not exceed $300,000; and
                            ``(II) relief may not include punitive 
                        damages; and
                    ``(iii) notwithstanding subsection (e)(2), may not 
                order relief if the agency demonstrates by a 
                preponderance of the evidence that the agency would 
                have taken the same personnel action in the absence of 
                such disclosure; and
            ``(D) the Special Counsel may not represent the employee, 
        former employee, or applicant for employment.
    ``(8) An appeal from a final decision of a district court in an 
action under this subsection shall be taken to the Court of Appeals for 
the Federal Circuit or any court of appeals of competent jurisdiction.
    ``(9) This subsection applies with respect to any appeal, petition, 
or other request for corrective action duly submitted to the Board, 
whether under section 1214(b)(2), the preceding provisions of this 
section, section 7513(d), section 7701, or any otherwise applicable 
provisions of law, rule, or regulation.''.
    (b) Sunset.--
            (1) In general.--Except as provided under paragraph (2), 
        the amendments made by this section shall cease to have effect 
        5 years after the effective date of this Act.
            (2) Pending claims.--The amendments made by this section 
        shall continue to apply with respect to any claim pending 
        before the Board on the last day of the 5-year period described 
        under paragraph (1).

SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY JUDGMENT.

    (a) In General.--Section 1204(b) of title 5, United States Code, is 
amended--
            (1) by redesignating paragraph (3) as paragraph (4);
            (2) by inserting after paragraph (2) the following:
            ``(3) With respect to a request for corrective action based 
        on an alleged prohibited personnel practice described in 
        section 2302(b) (8) or (9) (A)(i), (B), (C), or (D) for which 
        the associated personnel action is an action covered under 
        section 7512 or 7542, the Board, any administrative law judge 
        appointed by the Board under section 3105 of this title, or any 
        employee of the Board designated by the Board may, with respect 
        to any party, grant a motion for summary judgment when the 
        Board or the administrative law judge determines that there is 
        no genuine issue as to any material fact and that the moving 
        party is entitled to a judgment as a matter of law.''.
    (b) Sunset.--
            (1) In general.--Except as provided under paragraph (2), 
        the amendments made by this section shall cease to have effect 
        5 years after the effective date of this Act.
            (2) Pending claims.--The amendments made by this section 
        shall continue to apply with respect to any claim pending 
        before the Board on the last day of the 5-year period described 
        under paragraph (1).

SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION.

    (a) Prohibited Personnel Practices.--Section 2302(b)(8) of title 5, 
United States Code, is amended--
            (1) in subparagraph (A), by striking ``or'' after the 
        semicolon;
            (2) in subparagraph (B), by adding ``or'' after the 
        semicolon; and
            (3) by adding at the end the following:
                    ``(C) any communication that complies with 
                subsection (a)(1), (d), <DELETED>or</DELETED> and (h) 
                of section 8H of the Inspector General Act of 1978 (5 
                U.S.C. App.);''.
    (b) Inspector General Act of 1978.--Section 8H of the Inspector 
General Act of 1978 (5 U.S.C. App.) is amended--
            (1) in subsection (a)(1), by adding at the end the 
        following:
                    ``(D) An employee of any agency, as that term is 
                defined under section 2302(a)(2)(C) of title 5, United 
                States Code, who intends to report to Congress a 
                complaint or information with respect to an urgent 
                concern may report the complaint or information to the 
                Inspector General (or designee) of the agency 
                <DELETED>of</DELETED> at which that employee is 
                employed.'';
            (2) in subsection (c), by striking ``intelligence 
        committees'' and inserting ``appropriate committees'';
            (3) in subsection (d)--
                    (A) in paragraph (1), by striking ``either or both 
                of the intelligence committees'' and inserting ``any of 
                the appropriate committees''; and
                    (B) in paragraphs (2) and (3), by striking 
                ``intelligence committees'' each place that term 
                appears and inserting ``appropriate committees'';
            (4) in subsection (h)--
                    (A) in paragraph (1)--
                            (i) in subparagraph (A), by striking 
                        ``intelligence''; and
                            (ii) in subparagraph (B), by inserting ``or 
                        an activity involving classified information'' 
                        after ``an intelligence activity''; and
                    (B) by striking paragraph (2), and inserting the 
                following:
            ``(2) The term `appropriate committees' means the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Select Committee on Intelligence of the 
        Senate, except that with respect to disclosures made by 
        employees described in subsection (a)(1)(D), the term 
        `appropriate committees' means the committees of appropriate 
        jurisdiction.''.

SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN.

    (a) In General.--Section 3 of the Inspector General Act of 1978 (5 
U.S.C. App.) is amended by striking subsection (d) and inserting the 
following:
    ``(d)(1) Each Inspector General shall, in accordance with 
applicable laws and regulations governing the civil service--
            ``(A) appoint an Assistant Inspector General for Auditing 
        who shall have the responsibility for supervising the 
        performance of auditing activities relating to programs and 
        operations of the establishment;
            ``(B) appoint an Assistant Inspector General for 
        Investigations who shall have the responsibility for 
        supervising the performance of investigative activities 
        relating to such programs and operations; and
            ``(C) designate a Whistleblower Protection Ombudsman who 
        shall educate agency employees--
                    ``(i) about prohibitions on retaliation for 
                protected disclosures; and
                    ``(ii) who have made or are contemplating making a 
                protected disclosure about the rights and remedies 
                against retaliation for protected disclosures.
    ``(2) The Whistleblower Protection Ombudsman shall not act as a 
legal representative, agent, or advocate of the employee or former 
employee.
    ``(3) For the purposes of this section, the requirement of the 
designation of a Whistleblower Protection Ombudsman under paragraph 
(1)(C) shall not apply to--
            ``(A) any agency that is an element of the intelligence 
        community (as defined in section 3(4) of the National Security 
        Act of 1947 (50 U.S.C. 401a(4))); or
            ``(B) as determined by the President, any executive agency 
        or unit thereof the principal function of which is the conduct 
        of foreign intelligence or counter intelligence activities.''.
    (b) Technical and Conforming Amendment.--Section 8D(j) of the 
Inspector General Act of 1978 (5 U.S.C. App.) is amended--
            (1) by striking ``section 3(d)(1)'' and inserting ``section 
        3(d)(1)(A)''; and
            (2) by striking ``section 3(d)(2)'' and inserting ``section 
        3(d)(1)(B)''.
    (c) Sunset.--
            (1) In general.--The amendments made by this section shall 
        cease to have effect on the date that is 5 years after the date 
        of enactment of this Act.
            (2) Return to prior authority.--Upon the date described in 
        paragraph (1), section 3(d) and section 8D(j) of the Inspector 
        General Act of 1978 (5 U.S.C. App.) shall read as such sections 
        read on the day before the date of enactment of this Act.

       TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS

SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY WHISTLEBLOWERS.

    (a) In General.--Chapter 23 of title 5, United States Code, is 
amended by inserting after section 2303 the following:
``Sec. 2303A. Prohibited personnel practices in the intelligence 
              community
    ``(a) Definitions.--In this section--
            ``(1) the term `agency' means an executive department or 
        independent establishment, as defined under sections 101 and 
        104, that contains an intelligence community element, except 
        the Federal Bureau of Investigation;
            ``(2) the term `intelligence community element'--
                    ``(A) means--
                            ``(i) the Central Intelligence Agency, the 
                        Defense Intelligence Agency, the National 
                        Geospatial-Intelligence Agency, the National 
                        Security Agency, the Office of the Director of 
                        National Intelligence, and the National 
                        Reconnaissance Office; and
                            ``(ii) any executive agency or unit thereof 
                        determined by the President under section 
                        2302(a)(2)(C)(ii) of title 5, United States 
                        Code, to have as its principal function the 
                        conduct of foreign intelligence or 
                        counterintelligence activities; and
                    ``(B) does not include the Federal Bureau of 
                Investigation; and
            ``(3) the term `personnel action' means any action 
        described in clauses (i) through (x) of section 2302(a)(2)(A) 
        with respect to an employee in a position in an intelligence 
        community element (other than a position of a confidential, 
        policy-determining, policymaking, or policy-advocating 
        character).
    ``(b) In General.--Any employee of an agency who has authority to 
take, direct others to take, recommend, or approve any personnel 
action, shall not, with respect to such authority, take or fail to take 
a personnel action with respect to any employee of an intelligence 
community element as a reprisal for a disclosure of information by the 
employee to the Director of National Intelligence (or an employee 
designated by the Director of National Intelligence for such purpose), 
or to the head of the employing agency (or an employee designated by 
the head of that agency for such purpose), which the employee 
reasonably believes evidences--
            ``(1) a violation of any law, rule, or regulation<DELETED>, 
        except for an alleged violation that occurs during the 
        conscientious carrying out of official duties</DELETED>; or
            ``(2) mismanagement, a gross waste of funds, an abuse of 
        authority, or a substantial and specific danger to public 
        health or safety.
    ``(c) Enforcement.--The President shall provide for the enforcement 
of this section in a manner consistent with applicable provisions of 
sections 1214 and 1221.
    ``(d) Existing Rights Preserved.--Nothing in this section shall be 
construed to--
            ``(1) preempt or preclude any employee, or applicant for 
        employment, at the Federal Bureau of Investigation from 
        exercising rights currently provided under any other law, rule, 
        or regulation, including section 2303;
            ``(2) repeal section 2303; or
            ``(3) provide the President or Director of National 
        Intelligence the authority to revise regulations related to 
        section 2303, codified in part 27 of the Code of Federal 
        Regulations.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 23 of title 5, United States Code, is amended by inserting 
after the item relating to section 2303 the following:

``2303A. Prohibited personnel practices in the intelligence 
                            community.''.

SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS DETERMINATIONS.

    (a) In General.--Section 3001(b) of the Intelligence Reform and 
Terrorism Prevention Act of 2004 (50 U.S.C. 435b(b)) is amended--
            (1) in the matter preceding paragraph (1), by striking 
        ``Not'' and inserting ``Except as otherwise provided, not'';
            (2) in paragraph (5), by striking ``and'' after the 
        semicolon;
            (3) in paragraph (6), by striking the period at the end and 
        inserting ``; and''; and
            (4) by inserting after paragraph (6) the following:
            ``(7) not later than 180 days after the date of enactment 
        of the Whistleblower Protection Enhancement Act of 2011--
                    ``(A) developing policies and procedures that 
                permit, to the extent practicable, individuals who 
                <DELETED>challenge</DELETED> in good faith appeal a 
                determination to suspend or revoke a security clearance 
                or access to classified information to retain their 
                government employment status while such challenge is 
                pending; and
                    ``(B) developing and implementing uniform and 
                consistent policies and procedures to ensure proper 
                protections during the process for denying, suspending, 
                or revoking a security clearance or access to 
                classified information, including the provision of a 
                right to appeal such a denial, suspension, or 
                revocation, except that there shall be no appeal of an 
                agency's suspension of a security clearance or access 
                determination for purposes of conducting an 
                investigation, if that suspension lasts no longer than 
                1 year or the head of the agency certifies that a 
                longer suspension is needed before a final decision on 
                denial or revocation to prevent imminent harm to the 
                national security.
    ``Any limitation period applicable to an agency appeal under 
paragraph (7) shall be tolled until the head of the agency (or in the 
case of any component of the Department of Defense, the Secretary of 
Defense) determines, with the concurrence of the Director of National 
Intelligence, that the policies and procedures described in paragraph 
(7) have been established for the agency or the Director of National 
Intelligence promulgates the policies and procedures under paragraph 
(7). The policies and procedures for appeals developed under paragraph 
(7) shall be comparable to the policies and procedures pertaining to 
prohibited personnel practices defined under section 2302(b)(8) of 
title 5, United States Code, and provide--
            ``(A) for an independent and impartial fact-finder;
            ``(B) for notice and the opportunity to be heard, including 
        the opportunity to present relevant evidence, including witness 
        testimony;
            ``(C) that the employee or former employee may be 
        represented by counsel;
            ``(D) that the employee or former employee has a right to a 
        decision based on the record developed during the appeal;
            ``(E) that not more than 180 days shall pass from the 
        filing of the appeal to the report of the impartial fact-finder 
        to the agency head or the designee of the agency head, unless--
                    ``(i) the employee and the agency concerned agree 
                to an extension; or
                    ``(ii) the impartial fact-finder determines in 
                writing that a greater period of time is required in 
                the interest of fairness or national security;
            ``(F) for the use of information specifically required by 
        Executive order to be kept classified in the interest of 
        national defense or the conduct of foreign affairs in a manner 
        consistent with the interests of national security, including 
        ex parte submissions if the agency determines that the 
        interests of national security so warrant; and
            ``(G) that the employee or former employee shall have no 
        right to compel the production of information specifically 
        required by Executive order to be kept classified in the 
        interest of national defense or the conduct of foreign affairs, 
        except evidence necessary to establish that the employee made 
        the disclosure or communication such employee alleges was 
        protected by subparagraphs (A), (B), and (C) of subsection 
        (j)(1).''.
    (b) Retaliatory Revocation of Security Clearances and Access 
Determinations.--Section 3001 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (50 U.S.C. 435b) is amended by adding at the end 
the following:
    ``(j) Retaliatory Revocation of Security Clearances and Access 
Determinations.--
            ``(1) In general.--Agency personnel with authority over 
        personnel security clearance or access determinations shall not 
        take or fail to take, or threaten to take or fail to take, any 
        action with respect to any employee's security clearance or 
        access determination because of--
                    ``(A) any disclosure of information to the Director 
                of National Intelligence (or an employee designated by 
                the Director of National Intelligence for such purpose) 
                or the head of the employing agency (or employee 
                designated by the head of that agency for such purpose) 
                by an employee that the employee reasonably believes 
                evidences--
                            ``(i) a violation of any law, rule, or 
                        regulation<DELETED>, and occurs during the 
                        conscientious carrying out of official 
                        duties</DELETED>; or
                            ``(ii) gross mismanagement, a gross waste 
                        of funds, an abuse of authority, or a 
                        substantial and specific danger to public 
                        health or safety;
                    ``(B) any disclosure to the Inspector General of an 
                agency or another employee designated by the head of 
                the agency to receive such disclosures, of information 
                which the employee reasonably believes evidences--
                            ``(i) a violation of any law, rule, or 
                        regulation<DELETED>, and occurs during the 
                        conscientious carrying out of official 
                        duties</DELETED>; or
                            ``(ii) gross mismanagement, a gross waste 
                        of funds, an abuse of authority, or a 
                        substantial and specific danger to public 
                        health or safety;
                    ``(C) any communication that complies with--
                            ``(i) subsection (a)(1), (d), <DELETED>or</DELETED> 
                        and (h) of section 8H of the Inspector General 
                        Act of 1978 (5 U.S.C. App.);
                            ``(ii) subsection (d)(5)(A), (D), 
                        <DELETED>or</DELETED> and (G) of section 17 of 
                        the Central Intelligence Agency Act of 1949 (50 
                        U.S.C. 403q); or
                            ``(iii) subsection (k)(5)(A), (D), 
                        <DELETED>or</DELETED> and (G), of section 103H 
                        of the National Security Act of 1947 (50 U.S.C. 
                        403-3h);
                    ``(D) the exercise of any appeal, complaint, or 
                grievance right granted by any law, rule, or 
                regulation;
                    ``(E) testifying for or otherwise lawfully 
                assisting any individual in the exercise of any right 
                referred to in subparagraph (D); or
                    ``(F) cooperating with or disclosing information to 
                the Inspector General of an agency, in accordance with 
                applicable provisions of law in connection with an 
                audit, inspection, or investigation conducted by the 
                Inspector General,
        if the actions described under subparagraphs (D) through (F) do 
        not result in the employee or applicant unlawfully disclosing 
        information specifically required by Executive order to be kept 
        classified in the interest of national defense or the conduct 
        of foreign affairs.
            ``(2) Rule of construction.--Consistent with the protection 
        of sources and methods, nothing in paragraph (1) shall be 
        construed to authorize the withholding of information from the 
        Congress or the taking of any personnel action against an 
        employee who discloses information to the Congress.
            ``(3) Disclosures.--
                    ``(A) In general.--A disclosure shall not be 
                excluded from paragraph (1) because--
                            ``(i) the disclosure was made to a person, 
                        including a supervisor, who participated in an 
                        activity that the employee reasonably believed 
                        to be covered by paragraph (1)(A)(ii);
                            ``(ii) the disclosure revealed information 
                        that had been previously disclosed;
                            ``(iii) of the employee's motive for making 
                        the disclosure;
                            ``(iv) the disclosure was not made in 
                        writing;
                            ``(v) the disclosure was made while the 
                        employee was off duty; or
                            ``(vi) of the amount of time which has 
                        passed since the occurrence of the events 
                        described in the disclosure.
                    ``(B) Reprisals.--If a disclosure is made during 
                the normal course of duties of an employee, the 
                disclosure shall not be excluded from paragraph (1) if 
                any employee who has authority to take, direct others 
                to take, recommend, or approve 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.
            ``(4) Agency adjudication.--
                    ``(A) Remedial procedure.--An employee or former 
                employee who believes that he or she has been subjected 
                to a reprisal prohibited by paragraph (1) of this 
                subsection may, within 90 days after the issuance of 
                notice of such decision, appeal that decision within 
                the agency of that employee or former employee through 
                proceedings authorized by paragraph (7) of subsection 
                (a), except that there shall be no appeal of an 
                agency's suspension of a security clearance or access 
                determination for purposes of conducting an 
                investigation, if that suspension lasts not longer than 
                1 year (or a longer period in accordance with a 
                certification made under subsection (b)(7)).
                    ``(B) Corrective action.--If, in the course of 
                proceedings authorized under subparagraph (A), it is 
                determined that the adverse security clearance or 
                access determination violated paragraph (1) of this 
                subsection, the agency shall take specific corrective 
                action to return the employee or former employee, as 
                nearly as practicable and reasonable, to the position 
                such employee or former employee would have held had 
                the violation not occurred. Such corrective action 
                shall include reasonable attorney's fees and any other 
                reasonable costs incurred, and may include back pay and 
                related benefits, travel expenses, and compensatory 
                damages not to exceed $300,000.
                    ``(C) Contributing factor.--In determining whether 
                the adverse security clearance or access determination 
                violated paragraph (1) of this subsection, the agency 
                shall find that paragraph (1) of this subsection was 
                violated if a disclosure described in paragraph (1) was 
                a contributing factor in the adverse security clearance 
                or access determination taken against the individual, 
                unless the agency demonstrates by a preponderance of 
                the evidence that it would have taken the same action 
                in the absence of such disclosure, giving the utmost 
                deference to the agency's assessment of the particular 
                threat to the national security interests of the United 
                States in the instant matter.
            ``(5) Appellate review of security clearance access 
        determinations by director of national intelligence.--
                    ``(A) Definition.--In this paragraph, the term 
                `Board' means the appellate review board established 
                under section 204 of the Whistleblower Protection 
                Enhancement Act of <DELETED>2011</DELETED> 2012.
                    ``(B) Appeal.--Within 60 days after receiving 
                notice of an adverse final agency determination under a 
                proceeding under paragraph (4), an employee or former 
                employee may appeal that determination to the Board.
                    ``(C) Policies and procedures.--The Board, in 
                consultation with the Attorney General, Director of 
                National Intelligence, and the Secretary of Defense, 
                shall develop and implement policies and procedures for 
                adjudicating the appeals authorized by subparagraph 
                (B). The Director of National Intelligence and 
                Secretary of Defense shall jointly approve any rules, 
                regulations, or guidance issued by the Board concerning 
                the procedures for the use or handling of classified 
                information.
                    ``(D) Review.--The Board's review shall be on the 
                complete agency record, which shall be made available 
                to the Board. The Board may not hear witnesses or admit 
                additional evidence. Any portions of the record that 
                were submitted ex parte during the agency proceedings 
                shall be submitted ex parte to the Board.
                    ``(E) Further fact-finding or improper denial.--If 
                the Board concludes that further fact-finding is 
                necessary or finds that the agency improperly denied 
                the employee or former employee the opportunity to 
                present evidence that, if admitted, would have a 
                substantial likelihood of altering the outcome, the 
                Board shall remand the matter to the agency from which 
                it originated for additional proceedings in accordance 
                with the rules of procedure issued by the Board.
                    ``(F) De novo determination.--The Board shall make 
                a de novo determination, based on the entire record and 
                under the standards specified in paragraph (4), of 
                whether the employee or former employee received an 
                adverse security clearance or access determination in 
                violation of paragraph (1). In considering the record, 
                the Board may weigh the evidence, judge the credibility 
                of witnesses, and determine controverted questions of 
                fact. In doing so, the Board may consider the prior 
                fact-finder's opportunity to see and hear the 
                witnesses.
                    ``(G) Adverse security clearance or access 
                determination.--If the Board finds that the adverse 
                security clearance or access determination violated 
                paragraph (1), it shall then separately determine 
                whether reinstating the security clearance or access 
                determination is clearly consistent with the interests 
                of national security, with any doubt resolved in favor 
                of national security, under Executive Order 12968 (60 
                Fed. Reg. 40245; relating to access to classified 
                information) or any successor thereto (including any 
                adjudicative guidelines promulgated under such orders) 
                or any subsequent Executive order, regulation, or 
                policy concerning access to classified information.
                    ``(H) Remedies.--
                            ``(i) Corrective action.--If the Board 
                        finds that the adverse security clearance or 
                        access determination violated paragraph (1), it 
                        shall order the agency head to take specific 
                        corrective action to return the employee or 
                        former employee, as nearly as practicable and 
                        reasonable, to the position such employee or 
                        former employee would have held had the 
                        violation not occurred. Such corrective action 
                        shall include reasonable attorney's fees and 
                        any other reasonable costs incurred, and may 
                        include back pay and related benefits, travel 
                        expenses, and compensatory damages not to 
                        exceed $300,000. The Board may recommend, but 
                        may not order, reinstatement or hiring of a 
                        former employee. The Board may order that the 
                        former employee be treated as though the 
                        employee were transferring from the most recent 
                        position held when seeking other positions 
                        within the executive branch. Any corrective 
                        action shall not include the reinstating of any 
                        security clearance or access determination. The 
                        agency head shall take the actions so ordered 
                        within 90 days, unless the Director of National 
                        Intelligence, the Secretary of Energy, or the 
                        Secretary of Defense, in the case of any 
                        component of the Department of Defense, 
                        determines that doing so would endanger 
                        national security.
                            ``(ii) Recommended action.--If the Board 
                        finds that reinstating the employee or former 
                        employee's security clearance or access 
                        determination is clearly consistent with the 
                        interests of national security, it shall 
                        recommend such action to the head of the entity 
                        selected under subsection (b) and the head of 
                        the affected agency.
                    ``(I) Congressional notification.--
                            ``(i) Orders.--Consistent with the 
                        protection of sources and methods, at the time 
                        the Board issues an order, the Chairperson of 
                        the Board shall notify--
                                    ``(I) the Committee on Homeland 
                                Security and Government Affairs of the 
                                Senate;
                                    ``(II) the Select Committee on 
                                Intelligence of the Senate;
                                    ``(III) the Committee on Oversight 
                                and Government Reform of the House of 
                                Representatives;
                                    ``(IV) the Permanent Select 
                                Committee on Intelligence of the House 
                                of Representatives; and
                                    ``(V) the committees of the Senate 
                                and the House of Representatives that 
                                have jurisdiction over the employing 
                                agency, including in the case of a 
                                final order or decision of the Defense 
                                Intelligence Agency, the National 
                                Geospatial-Intelligence Agency, the 
                                National Security Agency, or the 
                                National Reconnaissance Office, the 
                                Committee on Armed Services of the 
                                Senate and the Committee on Armed 
                                Services of the House of 
                                Representatives.
                            ``(ii) Recommendations.--If the agency head 
                        and the head of the entity selected under 
                        subsection (b) do not follow the Board's 
                        recommendation to reinstate a clearance, the 
                        head of the entity selected under subsection 
                        (b) shall notify the committees described in 
                        subclauses (I) through (V) of clause (i).
            ``(6) Judicial review.--Nothing in this section shall be 
        construed to permit or require judicial review of any--
                    ``(A) agency action under this section; or
                    ``(B) action of the appellate review board 
                established under section 204 of the Whistleblower 
                Protection Enhancement Act of <DELETED>2011</DELETED> 
                2012.
            ``(7) Private cause of action.--Nothing in this section 
        shall be construed to permit, authorize, or require a private 
        cause of action to challenge the merits of a security clearance 
        determination.''.
    (c) Access Determination Defined.--Section 3001(a) of the 
Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 
435b(a)) is amended by adding at the end the following:
            ``(9) The term `access determination' means the 
        <DELETED>process for determining</DELETED> determination 
        regarding whether an employee--
                    ``(A) is eligible for access to classified 
                information in accordance with Executive Order 12968 
                (60 Fed. Reg. 40245; relating to access to classified 
                information), or any successor thereto, and Executive 
                Order 10865 (25 Fed. Reg. 1583; relating to 
                safeguarding classified information with industry); and
                    ``(B) possesses a need to know under that Order.''.
    (d) Rule of Construction.--Nothing in section 3001 of the 
Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 
435b), as amended by this Act, shall be construed to require the repeal 
or replacement of agency appeal procedures implementing Executive Order 
12968 (60 Fed. Reg. 40245; relating to classified national security 
information), or any successor thereto, and Executive Order 10865 (25 
Fed. Reg. 1583; relating to safeguarding classified information with 
industry), or any successor thereto, that meet the requirements of 
section 3001(b)(7) of such Act, as so amended.

SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE COMMUNITY 
              WHISTLEBLOWER PROTECTION ACT.

    (a) In General.--Section 8H of the Inspector General Act of 1978 (5 
U.S.C. App.) is amended--
            (1) in subsection (b)--
                    (A) by inserting ``(1)'' after ``(b)''; and
                    (B) by adding at the end the following:
    ``(2) If the head of an establishment determines that a complaint 
or information transmitted under paragraph (1) would create a conflict 
of interest for the head of the establishment, the head of the 
establishment shall return the complaint or information to the 
Inspector General with that determination and the Inspector General 
shall make the transmission to the Director of National Intelligence 
and, if the establishment is within the Department of Defense, to the 
Secretary of Defense. In such a case, the requirements of this section 
for the head of the establishment apply to <DELETED>the recipient</DELETED> 
each recipient of the Inspector General's transmission. <DELETED>The 
Director of National Intelligence</DELETED> Each recipient of the 
Inspector General's transmission shall consult with the members of the 
appellate review board established under section 204 of the 
Whistleblower Protection Enhancement <DELETED>Review</DELETED> Act of 
<DELETED>2011</DELETED> 2012 regarding all transmissions under this 
paragraph.'';
            (2) by designating subsection (h) as subsection (i); and
            (3) by inserting after subsection (g), the following:
    ``(h) An individual who has submitted a complaint or information to 
an Inspector General under this section may notify any member of 
Congress or congressional staff member of the fact that such individual 
has made a submission to that particular Inspector General, and of the 
date on which such submission was made.''.
    (b) Central Intelligence Agency.--Section 17(d)(5) of the Central 
Intelligence Agency Act of 1949 (50 U.S.C. 403q) is amended--
            (1) in subparagraph (B)--
                    (A) by inserting ``(i)'' after ``(B)''; and
                    (B) by adding at the end the following:
    ``(ii) If the Director determines that a complaint or information 
transmitted under paragraph (1) would create a conflict of interest for 
the Director, the Director shall return the complaint or information to 
the Inspector General with that determination and the Inspector General 
shall make the transmission to the Director of National Intelligence. 
In such a case, the requirements of this subsection for the Director 
apply to the  <DELETED>recipient of the Inspector General's submission; 
and</DELETED> Director of National Intelligence. The Director of 
National Intelligence shall consult with the members of the appellate 
review board established under section 204 of the Whistleblower 
Protection Enhancement Act of 2012 regarding all transmissions under 
this clause.''; and
            (2) by adding at the end the following:
    ``(H) An individual who has submitted a complaint or information to 
the Inspector General under this section may notify any member of 
Congress or congressional staff member of the fact that such individual 
has made a submission to the Inspector General, and of the date on 
which such submission was made.''.

SEC. 204. REGULATIONS; REPORTING REQUIREMENTS; NONAPPLICABILITY TO 
              CERTAIN TERMINATIONS.

    (a) Definitions.--In this section--
            (1) the term ``congressional oversight committees'' means--
                    (A) the Committee on Homeland Security and 
                Government Affairs of the Senate;
                    (B) the Select Committee on Intelligence of the 
                Senate;
                    (C) the Committee on Oversight and Government 
                Reform of the House of Representatives; and
                    (D) the Permanent Select Committee on Intelligence 
                of the House of Representatives; and
            (2) the term ``intelligence community element''--
                    (A) means--
                            (i) the Central Intelligence Agency, the 
                        Defense Intelligence Agency, the National 
                        Geospatial-Intelligence Agency, the National 
                        Security Agency, the Office of the Director of 
                        National Intelligence, and the National 
                        Reconnaissance Office; and
                            (ii) any executive agency or unit thereof 
                        determined by the President under section 
                        2302(a)(2)(C)(ii) of title 5, United States 
                        Code, to have as its principal function the 
                        conduct of foreign intelligence or 
                        counterintelligence activities; and
                    (B) does not include the Federal Bureau of 
                Investigation.
    (b) Regulations.--
            (1) In general.--<DELETED>The</DELETED> In consultation 
        with the Secretary of Defense, the Director of National 
        Intelligence shall 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 disclosure 
        of information described in section 2303A(b) of title 5, United 
        States Code, as added by this Act.
            (2) Appellate review board.--Not later than 180 days after 
        the date of enactment of this Act, the Director of National 
        Intelligence, in consultation with the Secretary of Defense, 
        the Attorney General, and the heads of appropriate agencies, 
        shall establish an appellate review board that is broadly 
        representative of affected Departments and agencies and is made 
        up of individuals with expertise in merit systems principles 
        and national security issues--
                    (A) to hear whistleblower appeals related to 
                security clearance access determinations described in 
                section 3001(j) of the Intelligence Reform and 
                Terrorism Prevention Act of 2004 (50 U.S.C. 435b), as 
                added by this Act; and
                <DELETED>    (B) that shall include a subpanel that 
                reflects the composition of the intelligence committee, 
                which shall be composed of intelligence community 
                elements and inspectors general from intelligence 
                community elements, for the purpose of hearing cases 
                that arise in elements of the intelligence 
                community.</DELETED>
                    (B) that shall include a subpanel that reflects the 
                composition of the intelligence community, which 
                shall--
                            (i) be composed of intelligence community 
                        elements and inspectors general from 
                        intelligence community elements, for the 
                        purpose of hearing cases that arise in elements 
                        of the intelligence community; and
                            (ii) include the Inspector General of the 
                        Intelligence Community and the Inspector 
                        General of the Department of Defense.
    (c) Report on the Status of Implementation of Regulations.--Not 
later than 2 years after the date of enactment of this Act, the 
Director of National Intelligence shall submit a report on the status 
of the implementation of the regulations promulgated under subsection 
(b) to the congressional oversight committees.
    (d) Nonapplicability to Certain Terminations.--Section 2303A of 
title 5, United States Code, as added by this Act, and section 3001 of 
the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 
435b), as amended by this Act, shall not apply <DELETED>to adverse 
security clearance or access determinations</DELETED> if the affected 
employee is concurrently terminated under--
            (1) section 1609 of title 10, United States Code;
            (2) the authority of the Director of National Intelligence 
        under section 102A(m) of the National Security Act of 1947 (50 
        U.S.C. 403-1(m)), if--
                    (A) the Director personally summarily terminates 
                the individual; and
                    (B) the Director--
                            (i) determines the termination to be in the 
                        interest of the United States;
                            (ii) determines that the procedures 
                        prescribed in other provisions of law that 
                        authorize the termination of the employment of 
                        such employee cannot be invoked in a manner 
                        consistent with the national security; and
                            (iii) not later than 5 days after such 
                        termination, notifies the congressional 
                        oversight committees of the termination;
            (3) the authority of the Director of the Central 
        Intelligence Agency under section 104A(e) of the National 
        Security Act of 1947 (50 U.S.C. 403-4a(e)), if--
                    (A) the Director personally summarily terminates 
                the individual; and
                    (B) the Director--
                            (i) determines the termination to be in the 
                        interest of the United States;
                            (ii) determines that the procedures 
                        prescribed in other provisions of law that 
                        authorize the termination of the employment of 
                        such employee cannot be invoked in a manner 
                        consistent with the national security; and
                            (iii) not later than 5 days after such 
                        termination, notifies the congressional 
                        oversight committees of the termination; or
            (4) section 7532 of title 5, United States Code, if--
                    (A) the agency head personally terminates the 
                individual; and
                    (B) the agency head--
                            (i) determines the termination to be in the 
                        interest of the United States;
                            (ii) determines that the procedures 
                        prescribed in other provisions of law that 
                        authorize the termination of the employment of 
                        such employee cannot be invoked in a manner 
                        consistent with the national security; and
                            (iii) not later than 5 days after such 
                        termination, notifies the congressional 
                        oversight committees of the termination.

               TITLE III--SAVINGS CLAUSE; EFFECTIVE DATE

SEC. 301. SAVINGS CLAUSE.

    Nothing in this Act shall be construed to imply any limitation on 
any protections afforded by any other provision of law to employees and 
applicants.

SEC. 302. EFFECTIVE DATE.

    This Act shall take effect 30 days after the date of enactment of 
this Act.
                                                       Calendar No. 358

112th CONGRESS

  2d Session

                                 S. 743

                          [Report No. 112-155]

_______________________________________________________________________

                                 A BILL

  To amend chapter 23 of title 5, United States Code, to clarify the 
    disclosures of information protected from prohibited personnel 
 practices, require a statement in nondisclosure policies, forms, and 
   agreements that such policies, forms, and agreements conform with 
   certain disclosure protections, provide certain authority for the 
                Special Counsel, and for other purposes.

_______________________________________________________________________

                             April 19, 2012

                        Reported with amendments