[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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