[Congressional Record Volume 158, Number 64 (Tuesday, May 8, 2012)]
[Senate]
[Pages S2978-S2985]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012
Ms. STABENOW. Mr. President, I ask unanimous consent that the Senate
proceed to the consideration of Calendar No. 358, S. 743.
The PRESIDING OFFICER. The clerk will report the bill by title.
The assistant legislative clerk read as follows:
A bill (S. 743) 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.
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on Homeland Security and
Governmental Affairs, with amendments, as follows:
[Omit the parts printed in boldface brackets and insert the part
printed in italic]
S. 743
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 [2011] 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) [any other law, rule, or regulation];''; 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[, and
occurs during the conscientious carrying out of official
duties]; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.''.
SEC. 103. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended
by amending the matter following paragraph (12) to read as
follows:
``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking 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)[. For purposes of paragraph
(8),] 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:
[``(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.' ''.
[(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--
[(A) may be enforced with regard to a current employee if
the agency gives such employee notice of the statement; and
[(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.]
[[Page S2979]]
``(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
[2011] 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
[2011] 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).
[[Page S2980]]
``(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[, and occurs
during the conscientious carrying out of official duties]; or
(II) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; 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[, and occurs
during the conscientious carrying out of official duties]; or
(II) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; 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 [any civil action brought in connection
with] 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.
[(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 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.''.
[(2) 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 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)--
[(i) may be enforced with regard to a current employee if
the agency gives such employee notice of the statement; and
[(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.]
(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
[[Page S2981]]
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 [40 months] 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 [January 1,
2009 through] the effective date of this Act and ending at
the end of the fiscal year [2009] 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) [(1)] 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 [standard] 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 [a]the request for
[that] 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
[[Page S2982]]
``(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), [or] 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 [of] 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[, except
for an alleged violation that occurs during the conscientious
carrying out of official duties]; 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
[[Page S2983]]
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 [challenge] 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[, and
occurs during the conscientious carrying out of official
duties]; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety;
``(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[, and
occurs during the conscientious carrying out of official
duties]; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety;
``(C) any communication that complies with--
``(i) subsection (a)(1), (d), [or] and (h) of section 8H of
the Inspector General Act of 1978 (5 U.S.C. App.);
``(ii) subsection (d)(5)(A), (D), [or] 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), [or] 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
[[Page S2984]]
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 [2011]
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 [2011] 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 [process
for determining] 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 [the
recipient] each recipient of the Inspector General's
transmission. [The Director of National Intelligence] 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 [Review] Act of [2011] 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 [recipient of the Inspector General's
submission; and] Director of National Intelligence.
[[Page S2985]]
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.--[The] 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
[(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.]
(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 [to adverse security clearance or access
determinations] 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.
Ms. STABENOW. I ask unanimous consent that the committee-reported
amendments be agreed to, the bill, as amended, be read a third time and
passed, the motion to reconsider be laid upon the table, with no
intervening action or debate, and any related statements be printed in
the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill, (S. 743), as amended, was ordered to be engrossed for a
third reading, was read the third time, and passed.
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