[Senate Report 112-155]
[From the U.S. Government Publishing Office]
Calendar No. 358
112th Congress Report
2d Session SENATE 112-155
_______________________________________________________________________
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
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 NON-DISCLOSURE POLICIES, FORMS, AND
AGREEMENTS THAT SUCH POLICIES, FORMS, AND AGREEMENTS CONFORM WITH
CERTAIN DISCLOSURE PROTECTIONS, PROVIDE CERTAIN AUTHORITY FOR THE
SPECIAL COUNSEL, AND FOR OTHER PURPOSES
April 19, 2012.--Ordered to be printed
_____
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2012
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20402-0001
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, KENTUCKY
MARK BEGICH, Alaska JERRY MORAN, Kansas
Michael L. Alexander, Staff Director
Beth M. Grossman, Deputy Staff Director and Chief Counsel
Lawrence B. Novey, Chief Counsel for Governmental Affairs
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government
Management,
the Federal Workforce, and the District of Columbia
Nickolas A. Rossi, Minority Staff Director
Mark B. LeDuc, Minority General Counsel
John A. Kane, Minority Professional Staff Member
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
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Page
I. Purpose and Summary..............................................1
II. Background.......................................................2
A. Clarification of What Constitutes a Protected
Disclosure......................................... 4
B. Reasonable Belief--Irrefragable Proof............... 9
C. All-Circuit Review.................................. 11
D. Office of Special Counsel--Amicus Curiae Authority.. 12
E. Burden of Proof in Office of Special Counsel
Disciplinary Actions............................... 14
F. Office of Special Counsel Attorney's Fees........... 15
G. Anti-Gag Provisions................................. 16
H. Retroactive Exemption of Agency Employees from
Whistleblower Protections.......................... 17
I. Whistleblower Protection for Transportation Security
Administration Employees........................... 18
J. Penalties for Retaliatory Investigations............ 20
K. Clarification of Whistleblower Rights for Critical
Infrastructure Information......................... 22
L. Right to a Full Hearing............................. 23
M. Disclosures of Scientific Censorship................ 24
N. Reporting Requirements.............................. 25
O. Alternative Review.................................. 25
P. MSPB Summary Judgment Authority..................... 28
Q. Classified Disclosures to Congress for Employees
under the Whistleblower Protection Act............. 28
R. Whistleblower Protection Ombudsman.................. 32
S. Intelligence Community Whistleblower Protections.... 32
T. Review of Security Clearance or Access
Determinations..................................... 35
III. Legislative History.............................................40
IV. Section-by-Section Analysis.....................................41
V. Estimated Cost of Legislation...................................52
VI. Evaluation of Regulatory Impact.................................55
VII. Changes in Existing Law.........................................55
Calendar No. 358
112th Congress Report
2d Session SENATE 112-155
======================================================================
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT
OF 2012
_______
April 19, 2012.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 743]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the 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 non-disclosure 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,
having considered the same, reports favorably thereon with
amendments and recommends that the bill (as amended) do pass.
I. Purpose and Summary
The Whistleblower Protection Enhancement Act of 2012 will
strengthen the rights of and protections for federal
whistleblowers so that they can more effectively help root out
waste, fraud, and abuse in the federal government.
Whistleblowers play a critical role in keeping our government
honest and efficient. Moreover, in a post-9/11 world, we must
do our utmost to ensure that those with knowledge of problems
at our nation's airports, borders, law enforcement agencies,
and nuclear facilities are able to reveal those problems
without fear of retaliation or harassment. Unfortunately,
federal whistleblowers have seen their protections diminish in
recent years, largely as a result of a series of decisions by
the United States Court of Appeals for the Federal Circuit,
which has exclusive jurisdiction over many cases brought under
the Whistleblower Protection Act (WPA).\1\ Specifically, the
Federal Circuit has wrongly accorded a narrow definition to the
type of disclosure that qualifies for whistleblower protection.
Additionally, the lack of remedies under current law for most
whistleblowers in the intelligence community and for
whistleblowers who face retaliation in the form of withdrawal
of the employee's security clearance leaves unprotected those
who are in a position to disclose wrongdoing that directly
affects our national security.
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\1\Whistleblower Protection Act of 1989, Public Law No. 101-12, 103
Stat. 16 (1989).
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S. 743 would address these problems by restoring the
original congressional intent of the WPA to adequately protect
whistleblowers, by strengthening the WPA, and by creating new
whistleblower protections for intelligence employees and new
protections for employees whose security clearance is withdrawn
in retaliation for having made legitimate whistleblower
disclosures. More specifically, S. 743 would, among other
things, clarify the broad meaning of ``any'' disclosure of
wrongdoing that, under the WPA, a covered employee may make
with legal protection; expand the availability of a protected
channel to make disclosures of classified information to
appropriate committees of Congress; allow certain
whistleblowers to bring their cases in federal district court
(this provision being subject to a five-year sunset); allow
whistleblowers to appeal decisions on their cases to any
federal court of appeals (this provision also being subject to
a five-year sunset); provide whistleblower and other employee
protections to employees of the Transportation Security
Administration (TSA); clarify that those who disclose
scientific censorship are protected under the WPA; establish a
remedy for certain employees of the intelligence community who
are not protected under the WPA, modeled on the whistleblower
protections for Federal Bureau of Investigation (FBI)
employees; and provide federal employees with a way to
challenge security clearance determinations made in retaliation
against protected whistleblower disclosures.
II. Background
The Civil Service Reform Act of 1978 (CSRA) first
established statutory protections for federal employees to
encourage disclosure of government illegality, waste, fraud,
and abuse. As explained in the accompanying Senate Report:
Often, the whistleblower's reward for dedication to the
highest moral principles is harassment and abuse.
Whistleblowers frequently encounter severe damage to
their careers and substantial economic loss. Protecting
employees who disclose government illegality, waste,
and corruption is a major step toward a more effective
civil service. In the vast federal bureaucracy it is
not difficult to conceal wrongdoing provided that no
one summons the courage to disclose the truth. Whenever
misdeeds take place in a federal agency, there are
employees who know that it has occurred, and who are
outraged by it. What is needed is a means to assure
them that they will not suffer if they help uncover and
correct administrative abuses. What is needed is a
means to protect the Pentagon employee who discloses
billions of dollars in cost overruns, the GSA employee
who discloses widespread fraud, and the nuclear
engineer who questions the safety of certain nuclear
plants. These conscientious civil servants deserve
statutory protection rather than bureaucratic
harassment and intimidation.\2\
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\2\S. Rep. No. 95-969, at 8 (1978).
The CSRA established the Office of Special Counsel (OSC) to
investigate and prosecute allegations of prohibited personnel
practices or other violations of the merit system and
established the Merit Systems Protection Board (the MSPB or the
Board) to adjudicate such cases. However, in 1984, the MSPB
reported that the Act had no effect on the number of
whistleblowers, and that an increased percentage of federal
employees who observed wrongdoing failed to report it because
they feared reprisal.\3\ This Committee subsequently reported
that employees felt that the OSC engaged in apathetic and
sometimes detrimental practices toward employees seeking its
assistance. The Committee also found that restrictive decisions
by the MSPB and federal courts hindered the ability of
whistleblowers to win redress.\4\
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\3\See Merit Systems Protection Board, Blowing the Whistle in the
Federal Government: A Comparative Analysis of 1980 and 1983 Survey
Findings, at 5-6 (October 1984).
\4\S. Rep. No. 100-413, at 6-16 (1988).
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In response, Congress in 1989 unanimously passed the WPA,
which forbids retaliation against a federal employee who
discloses what the employee reasonably believes evidences a
violation of law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. As discussed in
more detail below, the WPA makes it a prohibited personnel
practice to take an adverse personnel action against a covered
employee because that employee makes a protected disclosure. An
employee who claims to have suffered retaliation for having
made a protected disclosure may seek a remedy from the MSPB,
may ask the OSC investigate the situation and advocate for the
employee, or may file a grievance under a negotiated grievance
procedure contained in a collective bargaining agreement. The
stated congressional intent of the WPA was to strengthen and
improve protections for the rights of federal employees, to
prevent reprisals, and to help eliminate wrongdoing within the
government.\5\ The Committee emphasized in its report on the
legislation that, although it is important to discipline those
who commit prohibited personnel practices, the protection of
individuals who are the subject of prohibited personnel
practices remains the paramount consideration.\6\
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\5\Id. at 9.
\6\Id. at 23.
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Congress substantially amended the WPA in 1994, as part of
legislation to reauthorize the OSC and the MSPB.\7\ The
amendments were designed, in part, to address a series of
actions by the OSC and decisions by the MSPB and the Federal
Circuit that Congress deemed inconsistent with its intent in
the 1989 Act.\8\ Now, seventeen years after the last major
revision of the WPA, it is again necessary for Congress to
reform and strengthen several aspects of the whistleblower
protection statutes in order to achieve the original intent and
purpose of the laws.
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\7\An Act to authorize appropriations for the United States Office
of Special Counsel, the Merit Systems Protection Board, and for other
purposes, Public Law No. 103-424, 108 Stat. 4361 (1994).
\8\H. Rep. No. 103-769, at 12-18 (1994).
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A. Clarification of what constitutes a protected disclosure
In order to make a claim under the WPA, an individual must
qualify as a covered employee and allege that a personnel
action was taken, or threatened, because of ``any disclosure''
of information by the individual that he or she believes
evidences: 1) a violation of any law, rule, or regulation; or
2) gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to the public
health or safety.\9\
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\9\5 U.S.C. 2302(b)(8).
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Unfortunately, in the years since Congress passed the WPA,
the MSPB and the Federal Circuit narrowed the statute's
protection of ``any disclosure'' of certain types of
wrongdoing, with the effect of denying coverage to many
individuals Congress intended to protect. Both the House and
Senate committee reports accompanying the 1994 amendments
criticized decisions of the MSPB and the Federal Circuit
limiting the types of disclosures covered by the WPA.
Specifically, this Committee explained that the 1994 amendments
were intended to reaffirm the Committee's long-held view that
the WPA's plain language covers any disclosure:
The Committee . . . reaffirms the plain language of the
Whistleblower Protection Act, which covers, by its
terms, ``any disclosure,'' of violations of law, gross
mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to
public health or safety. The Committee stands by that
language, as it explained in its 1988 report on the
Whistleblower Protection Act. That report states: ``The
Committee intends that disclosures be encouraged. The
OSC, the Board and the courts should not erect barriers
to disclosures which will limit the necessary flow of
information from employees who have knowledge of
government wrongdoing. For example, it is inappropriate
for disclosures to be protected only if they are made
for certain purposes or to certain employees or only if
the employee is the first to raise the issue.''\10\
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\10\S. Rep. No. 103-358 (1994), at 10 (quoting S. Rep. No. 100-413
(1988) at 13).
The House Committee on the Post Office and the Civil
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Service similarly stated:
Perhaps the most troubling precedents involve the
[MSPB's] inability to understand that ``any'' means
``any.'' The WPA protects ``any'' disclosure evidencing
a reasonable belief of specified misconduct, a
cornerstone to which the MSPB remains blind. The only
restrictions are for classified information or material
the release of which is specifically prohibited by
statute. Employees must disclose that type of
information through confidential channels to maintain
protection; otherwise there are no exceptions.\11\
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\11\H. Rep. No. 103-769, at 18 (1994).
Despite the clear legislative history and the plain
language of the 1994 amendments, the Federal Circuit and the
MSPB have continued to undermine the WPA's intended meaning by
imposing limitations on the kinds of disclosures by
whistleblowers that are protected under the WPA. S. 743 makes
clear, once and for all, that Congress intends to protect ``any
disclosure'' of certain types of wrongdoing in order to
encourage such disclosures. It is critical that employees know
that the protection for disclosing wrongdoing is extremely
broad and will not be narrowed retroactively by future MSPB or
court opinions. Without that assurance, whistleblowers will
hesitate to come forward.
Section 101 of S. 743 overturns several court decisions
that narrowed the scope of protected disclosures. For example,
in Horton v. Department of the Navy, the court ruled that
disclosures to the alleged wrongdoer are not protected, because
the disclosures are not made to persons in a position to remedy
wrongdoing.\12\ In Willis v. Department of Agriculture, the
court stated that a disclosure made as part of an employee's
normal job duties is not protected.\13\ And in Meuwissen v.
Department of Interior, the court held that disclosures of
information already known are not protected.\14\
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\12\66 F.3d 279, 282 (Fed. Cir. 1995). The Court did not explain
its reasoning that a wrongdoer is not in a position to halt his or her
own actions, stating conclusorily that such a disclosure is criticism
rather than whistleblowing.
\13\141 F.3d 1139, 1144 (Fed. Cir. 1998) (reasoning that because
Willis, as a compliance inspector, was required to report farms that
were out of compliance as a regular part of his job duties, such
reports could not constitute protected disclosures under the WPA). But
see Johnson v. Department of Health and Human Services, 87 M.S.P.R.
204, 210 (2000) (limiting Willis to its factual context); Askew v.
Department of the Army, 88 M.S.P.R. 674, 679-80 (2001) (cautioning that
Willis ought not be read too broadly and rejecting the proposition that
Willis held that ``disclosure of information in the course of an
employee's performance of her normal duties cannot be protected
whistleblowing'').
\14\234 F.3d 9, 12-13 (Fed. Cir. 2000).
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These holdings are contrary to congressional intent for the
WPA. The court wrongly focused on whether or not disclosures of
wrongdoing were protected, instead of applying the very broad
protection required by the plain language of the WPA. The
merits of these cases, instead, should have turned on the
factual question of whether personnel action at issue in the
case occurred ``because of'' the protected disclosure.
Section 101 of S. 743 amends the WPA to overturn decisions
narrowing the scope of protected disclosures by clarifying that
a whistleblower is not deprived of protection just because the
disclosure was made to an individual, including a supervisor,
who participated in the wrongdoing; or revealed information
that had been previously disclosed; or was not made in writing;
or was made while the employee was off duty. The bill also
clarifies that an employee does not lose protection simply
because of the employee's motive for making the disclosure, or
because of the amount of time that elapsed between the events
described in the disclosure and the making of the disclosure.
Finally, an employee is not deprived of protection merely
because the employee made the disclosure in the normal course
of the employee's duties, provided that actual reprisal
occurred--in other words, provided that the employee can show
not only that the agency took the personnel action ``because
of'' the disclosure, but also that the agency took the action
with an improper, retaliatory motive. This extra proof
requirement when an employee makes a disclosure in the normal
course of duties is intended to facilitate adequate supervision
of employees, such as auditors and investigators, whose job is
to regularly report wrongdoing. Personnel actions affecting
auditors, for example, would ordinarily be based on the
auditor's track-record with respect to disclosure of
wrongdoing; and therefore a provision forbidding any personnel
action taken because of a disclosure of wrongdoing would sweep
too broadly. However, it is important to preserve protection
for such disclosures, for example where an auditor can show
that she was retaliated against for refusing to water down a
report. This provision is intended to strike the balance of
protecting disclosures made in the normal course of duties but
imposing a slightly higher burden to show that the personnel
action was made for the actual purpose of retaliating against
the auditor for having made a protected whistleblower
disclosure.
The evident tendency of adjudicative bodies to scale back
the intended scope of protected disclosures appears to have
arisen, at least in part, from concern that management of the
federal workforce may be unduly burdened if employees can
successfully claim whistleblower status in ordinary employment
disputes.\15\ Taking this concern seriously, the Committee has
concluded that the strong national interest in protecting good
faith whistleblowing requires broad protection of whistleblower
disclosures, recognizing that the responsible agencies and
courts can take other steps to deter and weed out frivolous
whistleblower claims. Under decisions of the U.S. Court of
Appeals for the Federal Circuit and the MSPB, for example, a
whistleblower case cannot proceed unless an employee has first
made non-frivolous allegations satisfying the elements for a
prima facie case that the employee has suffered unlawful
retaliation for having made a protected disclosure. Unless the
employee can do this, there will be no hearing and the agency
will be under no burden to present an affirmative defense.\16\
Moreover, the MSPB's procedural rules may be available to
curtail frivolous litigation under certain circumstances,
including in cases under the WPA. These rules generally
authorize an administrative judge at the MSPB to impose
sanctions necessary to meet the interests of justice and to
issue protective orders in cases of harassment of a witness,
including harassment of a party to a case.\17\ S. 743 does not
affect these decisions or regulations.
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\15\See, e.g., Herman v. Department of Justice, 193 F.3d 1375, 1381
(Fed. Cir. 1999); Frederick v. Department of Justice, 73 F.3d 349, 353
(Fed. Cir. 1996).
\16\See, e.g., Yunus v. Department of Veterans Affairs, 242 F.3d
1367 (Fed. Cir. 2001); Rusin v. Department of Treasury, 92 M.S.P.R.
1298 (2002).
\17\See 5 C.F.R. Sec. Sec. 1201.43 & 1201.55(d).
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In addition, to make a prima facie whistleblower case, the
employee must show that he or she reasonably believed that the
disclosed information evidenced a violation of law, gross
mismanagement, or one of the other types of wrongdoing
enumerated in 5 U.S.C. Sec. 2302(b)(8). As detailed further
below, the Federal Circuit has held that this reasonable-belief
test is an objective one: whether a disinterested observer with
knowledge of the facts known to and readily ascertainable by
the employee reasonably could conclude that the conduct
evidences a violation of law, gross mismanagement, or other
matters identified in 5 U.S.C. 2302(b)(8).\18\ The Committee
believes it is prudent to codify that objective test in the
whistleblower statute, and has done so in section 103 of S.
743. Thus, in screening out frivolous claims, the focus for the
MSPB and the courts would properly shift to whether the
employee's belief was objectively reasonable, rather than
whether the employee's disclosure of information meets the
statutory definition of ``disclosure.'' In the Committee's
view, any potential mischief that might otherwise arise from
expanding the scope of what kinds of ``disclosure'' are
protected will be countered by the application of this
objective reasonable-belief test. In cases not so filtered, the
agency would still prevail on its defense if it could
demonstrate that it would have taken the same personnel action
against the employee even absent the disclosure.
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\18\Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); accord
Rusin v. Department of the Treasury, 92 M.S.P.R. 298 (2002).
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Moreover, to further address the concern that the WPA might
impose an undue burden on agency management if employees could
claim whistleblower protections in cases of ordinary workplace
disputes, S. 743 requires the Government Accountability Office
(GAO) to evaluate the implementation of the Act, including any
trends in the number of cases filed, the disposition of those
cases, and any patterns of abuse. S. 743 also requires the MSPB
to report yearly on the number of cases filed, the number of
petitions for review filed, and the disposition of cases
alleging violations of the WPA. The Committee believes that
these provisions will enable Congress to examine closely how
this bill is implemented and to intervene, if necessary, if an
unintended consequence of the legislation should become
evident.
In restoring and enlarging the broad protection of
whistleblowers under the WPA, the Committee decided it was
necessary to codify one narrow, reasonable limitation on the
subject matter of disclosures that are protected. The issue
first emerged during the hearing on this bill's predecessor, S.
1358, in 2003 during the 108th Congress. At the hearing, the
Senior Executives Association expressed concern that, if the
scope of protected disclosures were completely unrestricted,
the WPA could be construed to protect employees who disclose
disagreements with their supervisors' or managers' lawful
policy decisions, and the Association recommended that the bill
be clarified to deny protection of disclosures relating to
policy disagreements.\19\ Put another way, an employee who
discloses general philosophical or policy disagreements with
agency decisions or actions should not be protected as a
whistleblower. Section 102 of S. 743 imposes that limitation by
excluding communications concerning policy decisions that are a
lawful exercise of discretionary authority. This exclusion
reflects congressional intent at the inception of statutory
whistleblower protection.\20\ At the same time, the Committee
seeks to ensure that the WPA covers disclosures of substantial
misconduct, even if the misconduct flows from a policy
decision. S. 743 balances both of these policy objectives by
codifying that an employee is still protected against
retaliation for disclosing evidence of illegality, gross waste,
gross mismanagement, abuse of authority or a substantial and
specific danger to public health or safety, regardless of
whether the information arguably relates to a policy decision,
whether properly or improperly implemented. This language is
consistent with Federal Circuit precedent.\21\
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\19\S. 1358--The Federal Employee Protection of Disclosures Act:
Amendments to the Whistleblower Protection Act: Hearing on S. 1358
before the Committee on Governmental Affairs, S. Hrg. 108-414, at 163
(2003).
\20\See S. Rep. No. 969, 95th Cong., 2d Sess. 8 (1978), reprinted
in 1978 U.S.C.C.A.N. 2723, 2730 (``the Committee intends that only
disclosures of public health or safety dangers which are both
substantial and specific are to be protected. Thus, for example,
general criticisms by an employee of the Environmental Protection
Agency that the agency is not doing enough to protect the environment
would not be protected under this subsection.'').
\21\Gilbert v. Department of Commerce, 194 F.3d 1332 (Fed. Cir.
1999).
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A second limitation that had been included in a prior
version of the bill is not included in S. 743. To address
concerns that minor, accidental violations of law committed in
good faith would become the basis for protected disclosures,
the Committee accepted an amendment to a version of the bill
considered during the 111th Congress, S. 372, to exclude
disclosures of ``an alleged violation that is minor,
inadvertent, and occurs during conscientious carrying out of
official duties.''\22\ The language of this provision was
intended to codify case law finding that disclosures of trivial
or de minimis violations are not protected under the WPA.\23\
However, whistleblower advocates expressed concerns that this
provision might invite inquiry into the substance and
importance of the behavior the employee disclosed, rather than
the employee's reasonable belief that he or she disclosed
wrongdoing protected under the WPA, as discussed in the next
section. The statute is intended to encourage disclosure of
wrongdoing, and the Committee has concluded that an exception
that may cause would-be whistleblowers to hesitate for fear
that their disclosures might be deemed too minor for protection
could be counterproductive. Accordingly, that exception was not
included in S. 743. Moreover, section 101 of the bill
underscores the breadth of the WPA's protections by changing
the term ``a violation'' to the term ``any violation'' in two
places in the WPA.\24\
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\22\Whistleblower Protection Enhancement Act (S. 372), 111th
Congress, section 101(a)(1)(B).
\23\See S. Rep. No. 111-101, at 6-7 (citing Drake v. Agency for
International Development, 543 F.3d 1377, 1381 (Fed. Cir. 2008)).
\24\Cases may nevertheless arise where an employee disclosed
wrongdoing so trivial that the employee cannot succeed in gaining
protection under the WPA. For example, the Federal Circuit has found
that, to be protected, an employee must have reasonably believed he or
she was reporting a ``genuine violation.'' See Drake, 543 F.3d at 1381-
82 (recognizing that a ``trivial or de minimis exception'' may apply in
an appropriate case, though it ``is not appropriate in this case''
because ``Mr. Drake reported intoxication which he could reasonably
believe constituted a genuine violation of a law, rule, or
regulation.'') (emphasis added). Additionally, in some cases, it may be
difficult to prove that a disclosure involving a trivial or de minimis
violation actually caused the relevant personnel action. As an example,
it may be easier to demonstrate to a fact-finder that an employee was
fired for having complained that other employees accept bribes, than to
demonstrate that the employee was fired for having complained about
another employee arriving ten minutes late for work.
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Additionally, the Committee notes that, with respect to a
disclosure of ``gross mismanagement,'' a ``gross waste'' of
funds, or a ``substantial and specific danger to public health
or safety,'' the statute requires more than disclosure of de
minimis wrongdoing. In applying these provisions of the WPA,
the Merit Systems Protection Board used an appropriate
definition of ``gross mismanagement'' in Swanson v. General
Services Administration.\25\ In Swanson, the Board held that
``[g]ross mismanagement means more than de minimis wrongdoing
or negligence; it means a management action or inaction that
creates a substantial risk of significant adverse impact on the
agency's ability to accomplish its mission.''\26\
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\25\110 M.S.P.R. 278 (2008).
\26\Id. at 284-85, citing Shriver v. Department of Veterans
Affairs, 89 M.S.P.R. 239 (2001).
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In sum, the intentionally broad scope of protected
disclosures should be clear. The Committee emphasizes that the
Board and the courts should not create new exceptions to
protected disclosures in place of those overturned by S. 743.
B. Reasonable Belief--Irrefragable Proof
As noted above, a prima facie whistleblower case entails a
showing that the employee reasonably believes that the
disclosed information evidences a violation of law, rule, or
regulation, or gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health and safety. The test for reasonable belief, as
developed in case law and prospectively codified in S. 743, is
an objective one. However, in a troubling decision twelve years
ago, Lachance v. White, the Federal Circuit imposed on the
whistleblower the burden of ``irrefragable proof'' of wrong-
doing.\27\ Although, as discussed below, the Federal Circuit
has since disavowed the ``irrefragable proof'' requirement,\28\
the Committee wants to ensure that no court ever again adopts
this test, and so section 103 of S. 743 would codify the
removal of the ``irrefragable proof'' requirement from
whistleblower jurisprudence.
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\27\Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
\28\See, e.g., White v. Department of Air Force, 391 F.3d 1377,
1381 (Fed. Cir. 2004) (``The WPA does not require that whistleblowers
establish gross mismanagement by irrefragable proof.'')
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In Lachance v. White, the Federal Circuit held, correctly,
that an objective test is required to determine whether an
employee reasonably believed that he or she disclosed
wrongdoing covered by 5 U.S.C. Sec. 2302(b)(8). Where gross
mismanagement was alleged, the court said that the test is:
``Could a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the
employee reasonably conclude that the actions of the government
evidence gross mismanagement?''\29\ However, the court then
added a second hurdle to that review that implied a dramatic
narrowing of whistleblower protections. The consideration of
objective reasonableness must begin with the ``presumption that
public officers perform their duties correctly, fairly, in good
faith, and in accordance with the law and governing
regulations. . . . And this presumption stands unless there is
`irrefragable proof' to the contrary.''\30\ ``Irrefragable''
means impossible to refute.\31\ Read literally, therefore, the
holding required employees to show indisputable proof that a
public official or officials acted in bad faith or violated the
law in order to qualify for whistleblower protection. Such an
evidentiary burden was contrary to logic and clear
congressional intent.
---------------------------------------------------------------------------
\29\Id.
\30\Id. (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795
(Fed. Cir. 1993)).
\31\Merriam-Webster's Collegiate Dictionary (10th ed. 1999). The
peculiar word has some currency in other jurisprudence entrusted to the
Federal Circuit, government contracting for example, though the concept
there is usually ``almost irrefragable,'' or ``well nigh
irrefragable''--rendered in familiar terms as ``clear and convincing.''
See, e.g., Galen Medical Associates, Inc. v. United States, 369 F.3d
1324, 1330 (Fed. Cir. 2004).
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Fortunately, the MSPB recognized the misstep on remand. In
2003, on remand from the Federal Circuit, the MSPB ruled that:
The WPA clearly does not place a burden on an appellant
to submit ``irrefragable proof'' to rebut a presumption
that federal officials act in good faith and in
accordance with law. There is no suggestion in the
legislative history of the WPA that Congress intended
such a burden be placed on an appellant. When Congress
amended the WPA in 1994, it did nothing to indicate
that the objective test, which had been articulated by
the Board by that time, was inconsistent with the
statute. The dictionary definition of ``irrefragable''
suggests that a putative whistleblower would literally
have to show that the agency actually engaged in gross
mismanagement, even though the WPA states that he need
only have a reasonable belief as to that matter. The
Federal Circuit itself has not imposed an
``irrefragable proof'' burden on appellants in cases
decided after White . . . and has, in fact, stated that
the ``proper test'' is the objective, ``disinterested
observer'' standard.\32\
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\32\White v. Dept. Air Force, 95 M.S.P.R. 1, 7-8 (2003).
The Federal Circuit, ruling on this case on appeal from the
MSPB, rejected the government's argument that disclosures are
not protected without a showing of irrefragable proof that
agency officials acted improperly, and endorsed an objective
test for reviewing the whistleblower's belief that governmental
wrongdoing occurred.\33\ To definitely disavow the
``irrefragable proof'' requirement, S. 743 codifies the
objective reasonable-belief test in Lachance.
---------------------------------------------------------------------------
\33\See, e.g., White v. Department of Air Force, 391 F.3d 1377,
1381 (Fed. Cir. 2004).
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The bill also provides that any presumption relating to the
performance of a duty by an employee whose conduct is the
subject of a whistleblower disclosure may be rebutted by
``substantial evidence'' rather than ``irrefragable proof.''
The Supreme Court has defined substantial evidence as ``such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.''\34\ It consists of ``more than a
mere scintilla of evidence but may be somewhat less than a
preponderance.''\35\ This standard is consistent with the
legislative history of the existing Act. Indeed, a cornerstone
of 5 U.S.C. Sec. 2302(b)(8) since its initial passage in 1978
has been that an employee need not ultimately prove any
misconduct to qualify for whistleblower protection. All that is
necessary is for the employee to have a reasonable belief that
the information disclosed evidences a kind of misconduct listed
in section 2302(b)(8).\36\ The Committee emphasizes that there
should be no additional burdens imposed on the employee beyond
those provided by the statute, and that this test--that the
disclosure is protected if the employee had a reasonable belief
it evidenced misconduct--must be applied consistently to each
kind of misconduct and each kind of speech covered under
section 2302(b)(8).\37\
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\34\Richardson v. Perales, 402 U.S. 389, 401 (1971).
\35\Hays v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990) (quoting
Laws v. Celebrezze, 368 F. 2d 640, 642 (4th Cir. 1966)).
\36\Ramos v. FAA, 4 M.S.P.R. 388 (1980).
\37\Despite adopting an appropriate test for reasonable belief, the
Court in White v. Department of Air Force used a formulation of ``gross
mismanagement'' that could cause confusion. The Court held that ``for a
lawful agency policy to constitute `gross mismanagement,' an employee
must disclose such serious errors by the agency that a conclusion the
agency erred is not debatable among reasonable people.'' 391 F.3d. at
1382. The requirement that the disclosure must lead to ``a conclusion
the agency erred [that] is not debatable among reasonable people''
could be read to require proof that the alleged misconduct actually
occurred. Disclosures of gross mismanagement, as all other forms of
disclosures, must be evaluated from the perspective of the reasonable
belief of the employee disclosing the information. The appropriate
standard for determining whether alleged conduct constitutes ``gross
mismanagement'' is discussed above. See the beginning of this section,
entitled ``Reasonable Belief--Irrefragable Proof,'' supra.
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The Committee notes that the requirement that the employee
need show only reasonable belief applies, as well, in
determining whether the narrow exception for policy disputes,
added by S. 743, applies. In other words, if an employee has a
reasonable belief that the disclosed information evidences the
kinds of misconduct listed in section 2302(b)(8), rather than a
policy disagreement, the disclosure is protected.
C. All-circuit review
When the Civil Service Reform Act of 1978 was enacted, it
gave employees an option of where to appeal final orders of the
MSPB. The 1978 Act allowed them to file a petition in the Court
of Claims, the U.S. Court of Appeals for the circuit where the
petitioner resided, or the U.S. Court of Appeals for the D.C.
Circuit.\38\ In 1982, when Congress created the Federal
Circuit, it gave that court exclusive jurisdiction over
petitions for review of the MSPB's orders other than those
involving certain claims of discrimination.\39\
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\38\Public Law No. 95-454, 92 Stat. 1143, Sec. 205 (1978) (adding 5
U.S.C. Sec. 7703).
\39\Public Law No. 97-164, 96 Stat. 49, Sec. 144 (1982); see also 5
U.S.C. Sec. Sec. 7702, 7703(b)(2).
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At the hearing on S. 1358 during the 108th Congress,
attorney Stephen Kohn, Chairman of the National Whistleblower
Center, testified that:
Restricting appeals to one judicial circuit undermines
the basic principle of appellate review applicable to
all other whistleblower laws. That principle is based
on an informed peer review process which holds all
circuit judges accountable. . . . [As appeals courts
disagree with each other,] courts either reconsider
prior decisions and/or the case is heard by the Supreme
Court, which resolves the dispute.
By segregating federal employee whistleblowers into one
judicial circuit, the WPA avoids this peer review
process. In the Federal Circuit no other judges
critically review the decisions of the Court, no
``split in the circuits'' can ever occur, and thus
federal employees are denied the most important single
procedure which holds appeals court judges reviewable
and accountable. A ``split in the circuits'' is the
primary method in which the U.S. Supreme Court reviews
wrongly decided appeals court decisions.\40\
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\40\S. 1358 Hearing supra note 19, (statement of Stephen Kohn,
Chairman, Board of Directors, National Whistleblower Center) at 136-
137.
The Committee believes that this argument raises valid
points about the current process for judicial review
consolidated at the Federal Circuit.
A number of federal statutes already allow cases involving
rights and protections of federal employees, or involving
whistleblowers, to be appealed to courts of appeals across the
country. In cases involving allegations of discrimination,
cases decided by the MSPB may be brought in the United States
district courts. Likewise, state or local government employees
affected by the MSPB's Hatch Act decisions may obtain review in
the U.S. district courts.\41\ Appeal from decisions of the
district courts in these cases may then be brought in the
appropriate court of appeals for the appropriate circuit.
Additionally, decisions of the Federal Labor Relations
Authority (FLRA) may be appealed to the Court of Appeals for
the circuit where the petitioner resides, transacts business,
or to the D.C. Circuit.\42\
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\41\5 U.S.C. Sec. 1508.
\42\5 U.S.C. Sec. 7123(a).
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Moreover, a multi-circuit appellate review process is
available under existing law for many other types of
whistleblower claims. Under the False Claims Act, as amended in
1986, whistleblowers who disclose fraud in government contracts
may file a case in district court and, if they lose, appeal to
the appropriate federal court of appeals.\43\ Congress passed
the Resolution Trust Corporation Completion Act in 1993, which
provided employees of banking-related agencies the right to go
to district court and have regular avenues of appeal.\44\ In
1991, Congress passed the Federal Deposit Insurance Corporation
Improvement Act, providing district court review with regular
avenues of appeal for whistleblowers in federal credit
unions.\45\ Whistleblower laws passed as part of the Energy
Reorganization Act, as amended in 1992,\46\ and the Clean Air
Act, as amended in 1977,\47\ allow whistleblowers to obtain
review of orders issued in the Department of Labor
administrative process in the appropriate federal court of
appeals. The Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century (AIR 21),\48\ enacted in 2000, allows
whistleblowers to obtain review of their cases alleging
retaliation for reporting air safety violations in the
appropriate federal court of appeals. The Sarbanes-Oxley Act of
2002 allows whistleblowers from all publicly traded
corporations access to the courts and jury trials if the
whistleblower alleges retaliation for making a disclosure and
if the Department of Labor does not reach a decision on a
whistleblower claim in 180 days, with appeal to the appropriate
federal court of appeals.\49\ The American Recovery and
Reinvestment Act of 2009 provides jury trials for whistleblower
claims by all state and local government or contractor
employees receiving funding from the stimulus.\50\
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\43\31 U.S.C. Sec. 3730(h).
\44\12 U.S.C. Sec. 1441a(q).
\45\12 U.S.C. Sec. 1790b(b).
\46\42 U.S.C. Sec. 5851(c).
\47\42 U.S.C. Sec. 7622(c).
\48\49 U.S.C. Sec. 42121(b)(4).
\49\18 U.S.C. Sec. 1514A.
\50\Public Law No. 111-5, Sec. 1552, 123 Stat. 115 (2009).
---------------------------------------------------------------------------
In light of the significant number of statutes that
successfully utilize all-circuit review of whistleblower
appeals from federal district courts, the Committee concludes
the rationale for the Federal Circuit's subject matter-based
jurisdiction--the need for specialization in a particular area
of law--does not apply in whistleblower jurisprudence.
Therefore, subject to a five-year sunset, section 108 of S. 743
would conform the system for judicial review of federal
whistleblower cases to that established for private sector
whistleblower cases and certain other federal employee appeal
systems by suspending the Federal Circuit's exclusive
jurisdiction over whistleblower appeals. The five-year period
will allow Congress to evaluate whether decisions of other
appellate courts in whistleblower cases are consistent with
congressional intent and the Federal Circuit's interpretation
of WPA protections, guide congressional efforts to clarify the
law if necessary, and determine if this structural reform
should be made permanent.
D. Office of Special Counsel--Amicus Curiae Authority
The OSC, initially established in 1979 as the investigative
and prosecutorial arm of the MSPB, became an independent agency
within the Executive Branch, separate from the MSPB, with
passage of the WPA in 1989. The Special Counsel does not serve
at the President's pleasure, but is appointed by and ``may be
removed by the President only for inefficiency, neglect of
duty, or malfeasance in office.''\51\ The primary mission of
the OSC is to protect federal employees and applicants from
prohibited employment practices, with a particular focus on
protecting whistleblowers from retaliation. The OSC
accomplishes this mission by investigating complaints filed by
federal employees and applicants who allege that federal
officials have committed prohibited personnel practices against
them.
---------------------------------------------------------------------------
\51\5 U.S.C. Sec. 1211(b).
---------------------------------------------------------------------------
When such a claim is filed, the OSC investigates the
allegation to determine whether there are reasonable grounds to
believe that a prohibited personnel practice has occurred. If
the Special Counsel determines there are reasonable grounds to
believe that a prohibited personnel practice has occurred, the
Special Counsel sends the head of the employing agency a report
outlining the OSC's findings and asking the agency to remedy
the action. In the majority of cases in which the Special
Counsel believes that a prohibited personnel practice has
occurred, agencies voluntarily take corrective action.\52\ If
an agency does not do so, the OSC is authorized to file a
petition for corrective action with the MSPB.\53\ At
proceedings before the MSPB, the OSC is represented by its own
attorneys, while the employing agency is represented by the
agency's counsel.
---------------------------------------------------------------------------
\52\U.S. Office of Special Counsel, Annual Report for Fiscal Year
2010, at 10.
\53\5 U.S.C. Sec. 1214(b)(2)(C).
---------------------------------------------------------------------------
If the OSC does not send the whistleblower's allegations to
an agency head, it returns the information and any accompanying
documents to the whistleblower explaining why the Special
Counsel did not refer the information. In such a situation, the
whistleblower may file a request for corrective action with the
MSPB. This procedure is commonly known as an individual right
of action (IRA). In IRAs, the OSC may not intervene unless it
has the consent of the whistleblower.
After the MSPB renders a decision on a whistleblower claim,
the OSC's ability to effectively enforce and defend
whistleblower laws in the context of that claim is limited. For
example, the OSC does not have authority to ask the MSPB to
reconsider its decision or to seek review of an MSPB decision
by the Federal Circuit. In contrast, the Office of Personnel
Management (OPM), which typically is not a party to the case,
can request that the MSPB reconsider its rulings. Even when a
party with authority to petition for review of an MSPB decision
does so, the OSC historically has been denied the right to
participate in those proceedings.
Furthermore, if a case is appealed to the Federal Circuit,
the Department of Justice (DOJ) recognizes the OSC's right to
appear as an intervener only in those few cases where the OSC
was a party before the Board and the case reaches the court of
appeals on another party's petition for review. Because the OSC
lacks independent litigating authority, DOJ--not OSC--attorneys
represent OSC in those cases. Because DOJ usually also
represents the defending agency, DOJ's representation of the
OSC in such cases creates a conflict of interest and could be a
significant impediment to the effective enforcement of the WPA.
As a result of the current structure, the OSC is blocked
from participating in the forum in which the law is largely
shaped: the U.S. Court of Appeals for the Federal Circuit (and,
if this legislation is enacted, the other circuits). This
limitation undermines both the OSC's ability to protect
whistleblowers and the integrity of the whistleblower law. The
Committee believes that the OSC should play a role in
whistleblower cases before the courts of appeals. Therefore,
section 113 of S. 743 provides the Special Counsel with
authority to file its own amicus curiae (or, ``friend of the
court'') briefs with the federal courts in whistleblower cases,
represented by its own attorneys, not by DOJ, thereby
presenting the OSC's unfiltered views on the law.
This authority is similar to that granted to the Chief
Counsel for Advocacy of the Small Business Administration
(SBA). Under section 612 of the Regulatory Flexibility Act
(RFA),\54\ the Chief Counsel for Advocacy has the authority to
appear as amicus curiae in any court action to review a
government rule. Specifically, the Chief Counsel is authorized
to present views with respect to compliance with the RFA, the
adequacy of a rulemaking record pertaining to small entities,
and the effect of rules on small entities. Federal courts are
bound to grant the amicus curiae application of the Chief
Counsel, which allows the Chief Counsel to help shape the law
affecting small businesses.\55\
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\54\Public Law No. 96-354, 94 Stat. 1164 (1980).
\55\5 U.S.C. Sec. 612(c).
---------------------------------------------------------------------------
The Committee believes that granting this authority to the
OSC is necessary to ensure the OSC's effectiveness and to
protect whistleblowers from judicial interpretations that
unduly narrow the WPA's protections, as has occurred in the
past.
E. Burden of proof in OSC disciplinary actions
Current law authorizes the OSC to pursue disciplinary
action against managers who retaliate against whistleblowers.
More specifically, the Special Counsel must present a written
complaint to the MSPB if the Special Counsel determines that
disciplinary action should be taken against a supervisor for
having committed a prohibited personnel practice or other
misconduct within the OSC's purview. The Board then may issue
an order taking disciplinary action against the employee.\56\
---------------------------------------------------------------------------
\56\5 U.S.C. Sec. 1215.
---------------------------------------------------------------------------
Under MSPB case law, however, the OSC bears the burden of
demonstrating that protected activity was the ``but-for cause''
of an adverse personnel action against a whistleblower--in
other words, that the manager would not have taken the adverse
personnel action if the whistleblowing activity had not
occurred.\57\ In contrast, under 1989 amendments to the WPA,
when whistleblowers seek corrective action for retaliation,
agencies bear the burden of providing independent justification
for the personnel action at issue and of doing so by clear and
convincing evidence.\58\ The 1989 amendments did not alter the
burden in disciplinary actions. As a result, the Board has on
many occasions ruled that whistleblower reprisal had been
proven for purposes of providing relief to the employees, while
at the same time rejecting the OSC's claim for disciplinary
action against the managers who had just been found responsible
for the unlawful reprisal in the same case.\59\
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\57\Special Counsel v. Santella, 65 M.S.P.R. 452 (1994).
\58\5 U.S.C. Sec. Sec. 1214 and 1221. See also 135 Cong. Rec. 4509,
4517, 5033 (1989).
\59\Letter from Elaine Kaplan, Special Counsel, Office of Special
Counsel, to Senator Carl Levin (Sept. 11, 2002) (arguing that the MSPB
case law relating to the OSC's disciplinary authority should be
overturned, Ms. Kaplan wrote ``change is necessary in order to ensure
that the burden of proof in these [disciplinary] cases is not so
onerous as to make it virtually impossible to secure disciplinary
action against retaliators.'').
---------------------------------------------------------------------------
Section 106 of S. 743 addresses this inconsistency by
establishing for disciplinary actions the same burden of proof
the Supreme Court set forth in Mt. Healthy v. Doyle,\60\ in
which a public school teacher claimed he was unlawfully
terminated from his employment for exercising his First
Amendment right to freedom of speech. Under this test, the OSC
would have to show that protected whistleblowing was a
``significant motivating factor'' in the official's decision to
take or threaten to take a personnel action, even if other
factors were considered in the decision. If the OSC makes such
a showing, the official would then have the opportunity to
show, by a preponderance of the evidence, that he or she would
have taken or threatened to take the same personnel action even
if there had been no protected whistleblower disclosure. If he
or she fails that burden, the Board would be authorized to
impose discipline.
---------------------------------------------------------------------------
\60\Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977).
---------------------------------------------------------------------------
F. Office of Special Counsel Attorney's Fees
The OSC has authority to pursue disciplinary actions
against managers who retaliate against whistleblowers.
Currently, if the OSC loses such a case, it must pay the legal
fees of those against whom it initiated the action. Because the
OSC's budget is small and the amounts involved could
significantly deplete its resources, requiring the OSC to pay
attorney's fees undermines the OSC's ability to enforce the WPA
and defend the merit system by protecting whistleblowers.
Illustrative of the problem and the importance of S. 743's
solution is Santella v. Special Counsel.\61\ In a 2-1 decision,
the MSPB held that the OSC could be held liable to pay
attorney's fees, even in cases where its decision to prosecute
was a reasonable one, if the accused agency officials were
ultimately found ``substantially innocent'' of the charges
brought against them.
---------------------------------------------------------------------------
\61\86 M.S.P.R. 48 (2000).
---------------------------------------------------------------------------
The OSC argued that its decision to prosecute the
supervisors was a reasonable one, and an award of fees would
not be in the interests of justice. Indeed, the OSC contended
that awarding fees under the circumstances would be counter to
the public interest and contrary to congressional intent that
the OSC vigorously enforce the Whistleblower Protection Act by
seeking to discipline supervisors who violate the Act. The OSC
also argued, in the alternative, that if the supervisors were
entitled to be reimbursed for their attorney's fees, then their
employing agency, the IRS, rather than the OSC, should bear the
cost of reimbursement. The Board majority rejected the OSC's
arguments and held that the OSC, and not the IRS, should be
liable for any award of fees.\62\ Vice Chair Slavet dissented.
---------------------------------------------------------------------------
\62\Id. at 64-65.
---------------------------------------------------------------------------
The Committee believes that the OSC's disciplinary action
authority is a powerful weapon to deter whistleblowing
retaliation. Should the Santella case remain valid law, the OSC
would be subject to heavy financial penalties unless it can
predict to a certainty that it will prevail before bringing a
disciplinary action. Because the OSC is a small agency with a
limited budget, this burden hinders the OSC's use of
disciplinary action as an enforcement mechanism and threatens
the OSC's ability to implement and enforce the WPA. To correct
this problem, section 107 of S. 743 would require the employing
agency, rather than the OSC, to reimburse any attorney's fees
the manager is entitled to recover.
G. Anti-gag provisions
In 1988, Senator Grassley sponsored an amendment to the
Treasury, Postal and General Government Appropriations bill,
which is referred to as the ``anti-gag'' provision.\63\ This
provision has been included in appropriations legislation every
year since then. The annual anti-gag provision states that no
appropriated funds may be used to implement or enforce agency
non-disclosure policies or agreements unless there is a
specific, express statement informing employees that the
disclosure restrictions do not override their right to disclose
waste, fraud, and abuse under the WPA, to communicate with
Congress under the Lloyd-La Follette Act,\64\ and to make
appropriate disclosures under other particular laws specified
in the statement.
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\63\Public Law No. 105-277, 112 Stat. 2681-526 (1998), the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999, 636.
\64\The Lloyd-La Follette Act was passed as Section 6 of the Postal
Service Appropriations Act of 1912, Public Law No. 336, 37 Stat. 539,
555 (1912). Federal employees' right to petition and provide
information to Congress under this Act is codified at section 5 U.S.C.
Sec. 7211.
---------------------------------------------------------------------------
S. 743 would institutionalize the anti-gag provision by
codifying it and making it enforceable. Specifically, section
115 of the bill would require every nondisclosure policy, form,
or agreement of the U.S. Government to contain specific
language set forth in the legislation informing employees of
their rights. This required language will alert employees that
the nondisclosure policy, form, or agreement does not override
employee rights and obligations created by existing statute or
Executive Order relating to classified information,
communications with Congress, the reporting of violations to an
inspector general (IG), or whistleblower protection. The annual
``anti-gag'' provision has always included a specific list of
the statutes and Executive Orders to be stated in each policy,
form, or agreement. Because S. 743 would codify the provision
in permanent statute, not subject to annual revision and
reenactment, the Committee considered and adopted an amendment
to the bill that eliminates the specific list of statutes and
Executive Orders in the required statement, and instead
requires that each policy, form, or agreement must state a
general cross reference to the employee rights and obligations
under existing statute and Executive Order relating to the
topics specified in section 115 of the legislation.
The bill also requires agencies that use nondisclosure
policies, forms, or agreements to post the same statement on
the agency website, accompanied by a current list of the
statutes and Executive Orders that provide the relevant
employee whistleblower rights and obligations. The provision is
designed to give employees both the statutory notice of their
rights, included within each non-disclosure policy, form, or
agreement, and also a specific list of controlling laws and
Executive Orders, published in a form that is easily updated.
Section 104(a) and (b) of the bill also specifically makes
it a prohibited personnel practice for any manager to implement
or enforce a nondisclosure policy, form, or agreement that does
not contain the specific statement mandated in the bill, as
amended, or to implement or enforce a nondisclosure policy,
form, or agreement in retaliation for whistleblowing. Making it
a prohibited personnel practice means that the anti-gag
requirement is enforceable by the OSC and the MSPB, and that an
employee may seek protection against a personnel action taken
in violation of the anti-gag requirement.
The legislation would not make it a prohibited personnel
practice to continue to enforce a nondisclosure policy, form,
or agreement that is in effect before the date of enactment,
even if it does not contain the statement required under the
bill, provided the agency gives actual notice of the statement
to any current employees who are covered by the policy, form or
agreement. In addition, it would not be a prohibited personnel
practice for an agency to continue to enforce such a policy,
form or agreement with regard to former employees, if the
agency complies with the requirement in the bill to post the
statement and controlling law on its website. The Committee has
concluded that these provisions strike an appropriate balance,
allowing agencies to continue using existing nondisclosure
agreements, while also ensuring that employees are given
appropriate notice of their rights under the law.
H. Retroactive exemption of agency employees from whistleblower
protections
The WPA provides that certain employees and agencies are
exempt from the Act. Employees excluded from the Act include
those in positions exempted from the competitive service
because of their confidential, policy-determining, policy-
making, or policy advocating character and those employees
excluded by the President if necessary and warranted by
conditions of good administration.\65\
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\65\5 U.S.C. Sec. 2302(a)(2)(B).
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The WPA also excludes certain entire agencies from
coverage: the GAO, FBI, Central Intelligence Agency (CIA),
National Security Agency, Defense Intelligence Agency, and
National Geospatial-Intelligence Agency, and other agencies
determined by the President to have the principal function of
conducting foreign intelligence or counterintelligence
activities.\66\ S. 743 would add to the excluded list two
offices that clearly have the principal function of conducting
intelligence activities to the list of statutorily excluded
intelligence agencies: the Office of the Director of National
Intelligence (ODNI) and the National Reconnaissance Office. For
whistleblowers in all of these agencies (except GAO), statutory
procedures are available under the Intelligence Community
Whistleblower Protection Act (ICWPA) and similar legislation by
which they may bring their urgent concerns to Congress,\67\ but
the rights and remedies generally available under the WPA do
not apply.\68\
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\66\5 U.S.C. Sec. 2302(a)(2)(C).
\67\The ICWPA was enacted as title VII of the Intelligence
Authorization Act for FY 1999, Public Law No. 105-272 (Oct. 20, 1998)
(adding 50 U.S.C. Sec. 403q(d)(5), applicable to the CIA, and adding
section 8H of the Inspector General Act of 1978, 5 U.S.C. App,
applicable generally to other intelligence agencies). It provides
intelligence community employees excluded from the WPA a protected path
to disclose classified information to Congress. The Intelligence
Authorization Act for Fiscal Year 2010, Public Law No. 111-259,
405(a)(1) (Oct 7, 2010) (adding 50 U.S.C. Sec. 403-3h(k)(5)) adds a
similar protected path, applicable to any member of the intelligence
community who discloses an ``urgent concern'' to the Inspector General
of the Intelligence Community, established under that Act.
\68\Whistleblower protections are already available under 5 U.S.C.
Sec. 2303 for FBI employee, and section 201 of S. 743 would establish
whistleblower protections for others in the intelligence community
similar to the FBI protections.
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Under 1994 amendments to the WPA, an agency cannot deprive
an employee of protection under the WPA by designating the
employee's particular position as a confidential policy-making
position after the agency had already retaliated against the
employee for having blown the whistle. To forbid this practice,
Congress restricted the statutory exemption to positions
designated as exceptions ``prior to the personnel action.''\69\
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\69\Public Law No. 103-424 (1994), 108 Stat. 4361, An act to
reauthorize the Office of Special Counsel and for other purposes,
amending 5 U.S.C. Sec. 2302(a)(2)(B).
---------------------------------------------------------------------------
Unfortunately, a similar practice has recurred in a context
with potentially broader consequences. In a troubling decision,
the MSPB held that, in delegating certain intelligence
functions to an agency, the President had implicitly excluded
that agency and its employees from WPA protection. The claimant
argued to the MSPB that the agency did not conclude it was
exempt from the WPA until after the claimant had filed her
whistleblower complaint, and that the exemption could therefore
not apply retroactively to her; but the MSPB rejected that
argument.\70\
---------------------------------------------------------------------------
\70\See Czarkowski v. Merit Systems Protection Board, 93 M.S.P.R.
515 (2003).
---------------------------------------------------------------------------
On appeal, the Federal Circuit reversed the Board's
decision, holding that an agency and its employees remain
covered under the WPA unless the President determines
explicitly that the agency is exempt.\71\ However, in holding
that an explicit presidential determination is required, the
Court did not specifically rule on whether such a determination
may be applied retroactively to remove WPA coverage from a
whistleblower who suffered retaliation before the determination
was made.
---------------------------------------------------------------------------
\71\Czarkowski v. Merit Systems Protection Board, 390 F.3d 1347,
1350-51 (Fed. Cir. 2004), vacating and remanding 93 M.S.P.R. 515
(2003).
---------------------------------------------------------------------------
Section 105 of S. 743 would close the potential loophole
for entire agencies in the same manner as Congress did in 1994
for individual positions. The bill specifies that, when the
President excludes an agency from the Act, an employee of the
agency does not lose whistleblower rights if the exclusion of
the agency occurred after the agency had already taken a
personnel action against that employee in retaliation for
making a protected whistleblower disclosure.
I. Whistleblower protection for Transportation Security Administration
employees
The Aviation and Transportation Security Act (ATSA), which
created the Transportation Security Administration (TSA) in
2001, gave the TSA Administrator broad authority to establish a
personnel system notwithstanding any other law and provides the
Administrator with ``final authority'' over TSA personnel
actions. As a result of this broad personnel authority, TSA
employees do not have statutory whistleblower rights under the
WPA.
However, TSA has administratively granted to TSA employees
some, but not all, of the rights generally available to federal
employees under the WPA.\72\ More specifically, TSA has by
internal directive forbidden retaliation against its employees
who make protected whistleblower disclosures.\73\ Moreover, in
May 2002, TSA and the OSC entered into a memorandum of
understanding that gave the OSC authority to investigate
whistleblower retaliation complaints and to recommend to TSA
that it take corrective and/or disciplinary action.\74\ In
February 2008, TSA and the Board announced an agreement to
provide TSA employees with a limited right to bring
whistleblower claims before the Board;\75\ and in July 2008,
TSA and the Board announced that they had implemented that
agreement.\76\ Under the agreement, employees may file an
appeal with the Board after the OSC has reviewed and closed a
matter involving a whistleblower complaint.
---------------------------------------------------------------------------
\72\97 M.S.P.R. 35 (2004).
\73\TSA Management Directive No. 1100.75-5.
\74\See Memorandum of Understanding Between OSC and TSA Regarding
Whistleblower Protections for TSA Security Screeners (May 28, 2002),
available at http://www.osc.gov/ documents/tsa/tsa_mou.pdf.
\75\See Memorandum of Agreement between Transportation Security
Administration and Merit Systems Protection Board (February 26, 2008);
TSA Press Release, ``TSA Announces Agreement on Enhanced Whistleblower
Protection for Security Officers'' (February 27, 2008), available at
http://www.tsa.gov/press/releases/2008/0227.shtm.
\76\See Interagency Agreement and Statement of Work between the
Transportation Security Administration and the Merit Systems Protection
Board, Interagency Agreement Number MSPB-08-IAG-001 (July 28, 2008).
---------------------------------------------------------------------------
However, the employee rights under these memoranda are
subject to important limitations. Whistleblowers may not appeal
Board orders to the courts, and Board hearings for
whistleblowers are closed to the public unless there is good
cause for opening them. Also, the OSC does not have authority
to represent TSA employees before the MSPB. The agreement is
subject to cancellation by either the Board or TSA at any time
with 60 days' notice. And the underlying TSA policy forbidding
retaliation against employees who blow the whistle is subject
to revision or cancellation by administrative action of the
agency.
The Committee has concluded that there is no basis for
excluding TSA employees from the full protections of the WPA.
The WPA protects employees of all other components of the
Department of Homeland Security, and encouraging the disclosure
of illegal activity, waste, and mismanagement helps to further
the mission of the Department, as with all other agencies
subject to the WPA. As Rajesh De, Deputy Assistant Attorney
General, Office of Legal Counsel, at the Department of Justice
testified on behalf of the Administration at the June 2009
hearing on the Whistleblower Protection Enhancement Act (S.
372) in the 111th Congress:
We are pleased to see that this bill provides full
whistleblower protection to Transportation Security
Administration screeners, also known as Transportation
Security Officers. Transportation Security Officers
stand literally at the front lines of our nation's
homeland security system. They deserve the same
whistleblower protections afforded to all other
employees of the Department of Homeland Security.\77\
---------------------------------------------------------------------------
\77\Statement of Rajesh De, S. 372--The Whistleblower Protection
Enhancement Act of 2009 before the Subcommittee on Oversight of
Government Management, the Federal Workforce, and the District of
Columbia, Committee on Homeland Security and Governmental Affairs (June
11, 2009).
Therefore, consistent with the Administration's view that
TSA employees should have WPA protection, section 109 of S. 743
extends full WPA protections to TSA employees.
Section 109 of S. 743 also extends to TSA employees the
protections against the prohibited personnel practices listed
under 5 U.S.C. Sec. 2302(b)(1). These prohibited actions
include discrimination against an employee or applicant on the
basis of race, color, religion, sex, or national origin, age,
as prohibited by the Civil Rights Act of 1964;\78\ on the basis
of age as prohibited by the Age Discrimination in Employment
Act of 1967;\79\ on the basis of sex under the Fair Labor
Standards Act of 1938 (which, as amended, includes the Equal
Pay Act);\80\ on the basis of handicapping condition under the
Rehabilitation Act of 1973;\81\ and on the basis of marital
status or political affiliation as prohibited by any law, rule,
or regulation.
---------------------------------------------------------------------------
\78\Public Law No. 88-352, 78 Stat. 241; 42 U.S.C. Sec. 2000a et
seq.
\79\Public Law No. 90-202, 81 Stat. 602; 29 U.S.C. Sec. 621 et seq.
\80\Public Law No. 75-718, 52 Stat. 1060; 29 U.S.C. Sec. 201 et
seq.
\81\Public Law No. 93-112, 87 Stat. 355; 29 U.S.C. Sec. 701 et seq.
---------------------------------------------------------------------------
J. Penalties for retaliatory investigations
The WPA makes it a prohibited personnel practice to take an
adverse personnel action against a covered employee because
that employee made a protected disclosure, and the applicable
definition of ``personnel action'' includes a variety of
actions significantly affecting employees, such as
appointments, promotions, transfers or removals, performance
evaluations, decisions concerning pay or benefits, significant
changes in duties, responsibilities, or working conditions, and
several others. However, agency investigations of employees are
not explicitly covered under the statutory definition of a
``personnel action.'' Instead, such investigations come within
that definition only if they result in a significant change in
job duties, responsibilities, or working conditions or have
effects that otherwise fit within one of the items listed under
the statutory definition of ``personnel action.''\82\
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\82\5 U.S.C. Sec. 2302(a)(2).
---------------------------------------------------------------------------
In the legislative history of the 1994 amendments, House
Civil Service Subcommittee Chairman Frank McCloskey highlighted
that retaliatory investigation of whistleblowers may be a
prohibited form of harassment. He stated:
[T]he prohibition against threats in sections
2302(b)(8) and (b)(9) should be broadly construed[,
and] even if [there are] not formal changes in duties,
responsibilities, or working conditions, the Board
should consider whether other common forms of
harassment represent prohibited threats, because they
are a prelude or precondition to listed forms of
personnel actions. The techniques to harass a
whistleblower are limited only by the imagination.
Illustrative examples, however, include retaliatory
investigations, threat of or referral for prosecution,
defunding, reductions in force and denial or workers
compensation benefits. In evaluating whether harassment
constitutes a threatened personnel action, among
factors the board should consider is whether the
activity is discriminatory, or could have a chilling
effect on merit system duties and responsibilities.\83\
---------------------------------------------------------------------------
\83\140 Cong. Rec. 29,353 (1994); see also H. Rep. No. 103-769
(1994), at 15.
In 1997, the Board held, in Russell v. Department of
Justice, that the WPA protects employees from retaliatory
investigations under certain circumstances.\84\ In that case,
an employee asserted a WPA violation as a defense against a
proposed personnel action, and the Board held that ``[w]hen . .
. an investigation is so closely related to the personnel
action that it could have been a pretext for gathering evidence
to retaliate, and the agency does not show by clear and
convincing evidence that the evidence would have been gathered
absent the protected disclosure, then the appellant
[whistleblower] will prevail on his affirmative defense of
retaliation for whistleblowing.''\85\ The Board observed that
to ``hold otherwise would sanction the use of a purely
retaliatory tool, selective investigations.''\86\
---------------------------------------------------------------------------
\84\76 M.S.P.R. 317, 323-25 (1997)
\85\Id. at 324.
\86\Id. at 325.
---------------------------------------------------------------------------
Because retaliatory investigations are not explicitly
referenced as a ``personnel action'' that may be prohibited
under the WPA, a whistleblower might be able to demonstrate
that an investigation was undertaken in retaliation for a
protected disclosure, but nevertheless have no remedy under the
WPA if the investigation did not result in a significant change
in job duties, responsibilities, or working conditions. To
prevent this outcome, predecessors to S. 743 would have
explicitly and specifically recognized retaliatory
investigations as a prohibited personnel practice. However, in
testimony on the introduced version of S. 372 in the 111th
Congress, the Administration expressed concerns about the
provision. Specifically, the Administration wanted to ensure
that legitimate and important agency inquiries--including
criminal investigations, routine background investigations for
initial employment, investigations for determining eligibility
for a security clearance, IG investigations, and management
inquiries of potential wrongdoing in the workplace--not be
chilled by fear of challenge and litigation.\87\
---------------------------------------------------------------------------
\87\S. 1358 Hearing supra note 19 at 60.
---------------------------------------------------------------------------
To address this concern, while still increasing
whistleblowers' protection from retaliatory investigations, the
Committee agreed to a middle ground. S. 743 does not add
retaliatory investigations as personnel actions expressly
prohibited by the WPA and leaves Russell as the governing law.
Section 104(c) of S. 743 does, however, create an additional
avenue for financial relief once an employee is able to prove a
claim under the WPA, if the employee can further demonstrate
that an investigation was undertaken in retaliation for the
protected disclosure. The bill provides that any corrective
action awarded to whistleblowers may include fees, costs, and
damages incurred due to an agency investigation of the employee
that was commenced, expanded, or extended in retaliation for
protected whistleblowing. This provision of the legislation
does not in any way reduce current protections against
retaliatory investigations, and it would retain the existing
standard for showing that a retaliatory investigation or other
supervisory activity rises to the level of a prohibited
personnel practice forbidden under the WPA.
K. Clarification of whistleblower rights for critical infrastructure
information
The Homeland Security Act (HSA) encouraged non-federal
owners and operators of critical infrastructure to submit
critical infrastructure information voluntarily to the
Department of Homeland Security (DHS) so that the Department
could assess and address potential security threats.\88\ To
encourage submission of this information, the HSA sets out a
process by which critical infrastructure information may be
submitted voluntarily to DHS and stipulates\89\ that such
voluntarily submitted critical infrastructure information is to
be treated as exempt under the Freedom of Information Act.\90\
The HSA, however, makes clear that it is not to be construed to
limit or otherwise affect the ability of a State, local, or
Federal government entity or third party to independently
obtain critical infrastructure information and to use such
information in any manner permitted by law.\91\
---------------------------------------------------------------------------
\88\Public Law No. 107-296, Sec. 214, 116 Stat. 2135 (2002),
codified at 6 U.S.C. Sec. 133.
\89\6 U.S.C. Sec. 133(a).
\90\5 U.S.C. Sec. 552 (the Freedom of Information Act).
\91\ 6 U.S.C. Sec. 133(c).
---------------------------------------------------------------------------
At the same time, the Act criminalizes the unauthorized
disclosure by a federal employee of this type of
information,\92\ leading to confusion as to whether the HSA
limits a whistleblower's disclosure of independently obtained
critical infrastructure information. According to then-Special
Counsel Elaine Kaplan:
---------------------------------------------------------------------------
\92\ 6 U.S.C. Sec. 133(f).
[T]he statutory language is very ambiguous in several
respects. The rights preserved under section 214(c)
extend to government entities, agencies, authorities
and ``third parties.'' It is unclear whether employees
of the United States would be considered ``third
parties.'' Elsewhere in section 214, the statute uses
the phrase ``officer or employee of the United States''
when it refers to disclosures by federal employees.
---------------------------------------------------------------------------
See, section 214(a)(1)(D).
Similarly, the phrase to ``use'' the information ``in
any manner permitted by law,'' does not clearly
encompass ``disclosures'' of information. Elsewhere, in
section 214(a)(1)(D), the statute states that an
officer or employee of the United States, shall not
``us[e] or disclos[e]'' voluntarily provided critical
infrastructure information. The use of the disjunctive
``use or disclose'' (emphasis added) in section
214(a)(1)(D) suggests that the word ``use'' alone in
section 214(c) may not encompass the act of
``disclosing.'' In short, it is unclear whether
Congress intended to authorize ``disclosures of
information'' that are protected by the WPA when it
authorized the ``use of information in any manner
permitted by law'' in section 214(c).
These ambiguities become especially troublesome in the
context of the tendency of the judiciary to narrowly
construe the scope of protection afforded under the
WPA.\93\
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\93\Letter from Elaine Kaplan, Special Counsel, Office of Special
Counsel, to Senator Charles Grassley (March 10, 2003).
When DHS issued proposed regulations implementing section
214 of the HSA, the Department received comments expressing
concern that whistleblowers could be treated unfairly and face
termination, fines, and imprisonment if they disclosed critical
infrastructure information. This would discourage the accurate
reporting of information vital to the public. In response, in
its interim regulations published in February 2004, DHS
specifically referenced the WPA to ensure full protections for
whistleblowers.\94\ However, DHS's final regulations, published
in September 2006, stated that the earlier provision that had
``referred to the Whistleblower Protection Act . . . has been
omitted because . . . [it] merely restates the law of the
land.''\95\
---------------------------------------------------------------------------
\94\See 69 Fed. Reg. 8074, 8081 (Feb. 20, 2004).
\95\See 71 Fed. Reg. 52262, 52269 (Sept. 1, 2006); see also the
regulations codified at 6 C.F.R. Sec. 29.8(f).
---------------------------------------------------------------------------
The regulations clearly intend to ensure that disclosures
of independently obtained critical infrastructure information
are not exempt from the WPA. Section 111 of S. 743 would codify
that regulatory intent and make clear that, when an employee or
applicant covered by the WPA obtains information in a manner
not covered by the critical infrastructure information program
under the HSA, disclosure by the employee or applicant of that
independently obtained information may be a protected
disclosure under the WPA (5 U.S.C. Sec. 2302(b)(8)) without
risk of criminal penalties, even if the same information was
also voluntarily submitted to DHS as part of the critical
infrastructure information program.
L. Right to a full hearing
Board case law has created a disturbing trend of denying
employees' right to a due process hearing and a public record
to resolve their WPA claims. The Board currently allows an
agency to present its affirmative defense that the agency would
have taken the same personnel action for lawful reasons,
independent of any retaliation against the employee for
protected whistleblowing, without first allowing the employee
to present his or her case proving that the whistleblower
retaliation occurred.\96\ The Federal Circuit has affirmed this
process.\97\
---------------------------------------------------------------------------
\96\See, e.g., McCarthy v. International Boundary and Water
Commission, 116 M.S.P.R. 594, 612 (2011); Azbill v. Department of
Homeland Security, 105 M.S.P.R. 363, 370-71 (2007) (``The Board may
resolve the merits issues in any order it deems most efficient.'').
\97\See, e.g., Fellhoetler v. Department of Agriculture, 568 F.3d
965, 971 (Fed. Cir. 2009) (explicitly affirming the process and noting
that the court had ``tacitly approved of the Board's practice'' in the
past).
---------------------------------------------------------------------------
Taking away whistleblowers' opportunity to present their
cases undermines key purposes of the WPA. The Board is imposing
a process that is the inverse of what most adjudicators use,
where claimants are typically permitted to present their
affirmative case before the defense gets its turn to put on
evidence. This is concerning for several reasons. The order in
which parties get to present their cases may influence the
fact-finder's perception of the merits and, therefore,
potentially the outcome. Thus, employees may be disadvantaged
under the MSPB practice by not being permitted the opportunity
to affirmatively and fully present the evidence for their
claims. Moreover, if employees cannot present their cases, they
may also lose a key opportunity to develop a full record for
appeal, which is an important check on agency decisionmaking.
Finally, denying whistleblowers a hearing deprives them of a
forum in which to air grievances, which may be legitimate and
important even where the disputed personnel action does not
violate the WPA.
Furthermore, allowing the agency to present its evidence
first precludes the Board from exercising some of its most
significant merit system oversight duties. These include
creating a public record of both parties' positions on alleged
governmental misconduct that could threaten or harm citizens.
Similarly, it precludes the Board from a significant merit
system oversight function that Congress emphasized when it
passed the 1994 amendments to the Act. As explained in the
Joint Explanatory statement of the House-Senate conferees who
negotiated the 1989 WPA amendments, ``[w]histleblowing should
never be a factor that contributes in any way to an adverse
personnel action.''\98\ If reprisal for a protected disclosure
is a contributing factor in a decision to take a personnel
action, even if the agency ultimately prevails on its
affirmative defense of independent justification, that is a
significant merit system concern even if it is not an
actionable legal claim. Under the current procedure, the Board
does not exercise these oversight responsibilities as long as
the agency has an acceptable overall affirmative defense,
analyzed without the benefit of having first heard the
employee's evidence.
---------------------------------------------------------------------------
\98\Reprinted in 135 Cong. Rec. 5033 (1989).
---------------------------------------------------------------------------
Section 114 of S. 743 resolves this problem by requiring
that, before the agency may present its defense, the employee
must have first had an opportunity to present his or her
evidence and must have succeeded showing, by a preponderance of
the evidence, that the protected disclosure was a contributing
factor in the personnel action. If the employee fails to do
that, the claim fails; if the employee succeeds, then the
agency may present its defense.
M. Disclosures of scientific censorship
The Committee has heard concerns that federal employees may
be discouraged from, or retaliated against for, disclosing
evidence of unlawful or otherwise improper censorship of
research, analysis, and other technical information related to
scientific research. Although disclosures of such censorship
may be protected as a disclosure of a legal violation or of an
abuse of authority under the WPA, uncertainty on this specific
issue may cause confusion and inhibit disclosure. It is
essential that Congress and the public receive accurate data
and findings from federal researchers and analysts to inform
lawmaking and other public policy decisions.
In order to encourage the reporting of improper censorship,
section 110 of S.743 would specifically protect employees who
disclose information that the employees reasonably believe is
evidence of scientific or technical censorship that may cause
gross government waste or mismanagement, or a substantial and
specific danger to public health or safety, or that violates
the law. This definition of protected disclosures is nearly
identical to the general definition of protected disclosures
that do not relate to censorship. This is intended to make
unmistakably clear that employees are protected for disclosing
scientific censorship in the same manner as they are protected
for making any other disclosure.
N. Reporting requirements
In order to assist Congress in evaluating the effects of
this legislation, section 116 of S. 743 would require a report
from GAO and an annual report from the MSPB. S. 743 would
require GAO to evaluate the implementation of the Act. In light
of concerns that have been raised in the past that clarifying
the broad scope of protected disclosures could lead to
frivolous claims, the bill requires GAO specifically to report
on outcomes of cases, including a review of the number of cases
where the MSPB or a federal court has determined any
allegations to be frivolous or malicious. Additionally, S. 743
would require the MSPB to report annually on the number of
cases filed, the number of petitions for review filed, and the
disposition of cases alleging violations of 5 U.S.C.
Sec. 2302(b)(8) or (9). The Committee believes that these
provisions will enable Congress to examine closely how this
bill is implemented, to evaluate whether provisions subject to
the five-year sunset should be extended, and to consider
additional steps if needed in the interim.
O. Alternative review
Subject to a five-year sunset, section 117 of S. 743 would
allow whistleblower claims where the alleged retaliation
involves major personnel actions under 5 U.S.C. Sec. Sec. 7512
and 7542\99\ to go to federal district court under certain
circumstances. First, cases may be filed in district court if
the MSPB does not issue a final order or decision within 270
days after the MSPB claim was submitted (unless the Board
determines that the employee intentionally delayed the
proceedings). Additionally, cases may be filed in district
court if the MSPB certifies, upon motion from the employee,
that the claim would survive a motion to dismiss under the
standards set forth in the Federal Rules of Civil Procedure and
that any one of the following conditions is met: the Board is
not likely to dispose of the case within 270 days; or the case
consists of multiple claims, requires complex or extensive
discovery, arises out of the same set of facts as a civil
action pending in a federal court, or involves a novel question
of law. With respect to the requirement that the case would
survive a motion to dismiss, the MSPB may examine any evidence
or pleadings before it at the time of the certification
request, but all parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion. If
evidence is examined in the certification decision, the Board
shall grant the certification only if it concludes, viewing the
evidence in the light most favorable to the employee, that the
employee has raised a genuine issue of material fact with
respect to his or her claim. The MSPB must rule on the motion
for certification within 90 days and may not rule on the merits
of the underlying request for corrective action within 15 days
of its certification decision. If the MSPB determines that any
of the specified conditions apply, then the case may be moved
to federal district court.
---------------------------------------------------------------------------
\99\For a member of the competitive service and certain members of
the excepted service, 5 U.S.C. Sec. 7512 refers generally to a removal,
a suspension for more than 14 days, a reduction in grade, a reduction
in pay, or a furlough of 30 days or less; and, for a career appointee
of the Senior Executive Service, 5 U.S.C. Sec. 7542 refers generally to
a removal from the civil service or a suspension for more than 14 days.
---------------------------------------------------------------------------
An MSPB decision that denies certification to remove a
whistleblower case to district court may be appealed only
together with the appeal of the Board's final decision on the
merits of the whistleblower claim and may be overturned only if
the Board's decision on the merits of the claim is overturned.
If a court of appeals overturns a decision denying
certification, the employee may file his or her claim in
federal district court without further proceedings by the MSPB.
The Committee wishes to emphasize that this provision does
not replace the MSPB as the primary forum for adjudicating
whistleblower lawsuits under the WPA. First, the alternative
recourse provision is limited to claims that involve major
personnel actions. Alternative review is further limited to
cases that have taken more than 270 days to resolve, or are
certified for district court because they would survive a
motion to dismiss, and either are likely to take more than 270
days or involve complex or multiple claims or novel questions
of law. These limitations will ensure that only the more
significant and complex cases will be brought in district
court.
According to Thomas Devine, Legal Director of the
Government Accountability Project, certain decisions by the
MSPB and the Federal Circuit Court of Appeals that narrowly
interpret the WPA have undermined employees' confidence in the
Board process.\100\ In recent years, both the MSPB and the
Federal Circuit Court of Appeals have repeatedly applied the
WPA in a manner inconsistent with congressional intent.
Employees, therefore, may feel greater confidence that they
will be protected if provided alternate recourse in a federal
district court and with a jury of their peers than in the Board
process. Furthermore, the alternative process may provide a
check against any future narrowing of the WPA by the Board and
the Federal Circuit.\101\
---------------------------------------------------------------------------
\100\See Statement of Thomas Devine, Legal Director, Government
Accountability Project, S. 372 Hearing supra note 77.
\101\Id.
---------------------------------------------------------------------------
Additionally, district courts may be better equipped than
the Board to handle certain complex cases. The Board uses less
formal procedures, discovery, and rules of evidence than
federal courts, adapted for the fact that most employees
appearing before the Board are not represented by counsel.\102\
For most employees, the less expensive, less formal Board
process will be preferable, but district courts may be better
suited for certain novel and complex cases.\103\ Mr. Devine
testified at the hearing on S. 372 that ``the Board is not
structured or funded for complex, high stakes conflicts that
can require lengthy proceedings.''\104\ For these reasons,
district court certification is available for WPA cases
involving a ``major personnel action'' under 5 U.S.C.
Sec. Sec. 7512 or 7542 and multiple claims, complex or
extensive discovery, or a novel legal question.
---------------------------------------------------------------------------
\102\See Statement of Robert Vaughn, Professor of Law and A. Allen
King Scholar, Washington College of Law at American University, S. 372
Hearing supra note 77, at 12-13.
\103\See id. at 12-17 (arguing that relatively few whistleblowers
would remove their cases to district court if provided the opportunity,
but that complex and contentious cases are more likely to need an
alternative forum).
\104\Id.
---------------------------------------------------------------------------
The Committee anticipates, however, that most employees
with the option of filing their case in district court will
choose to remain in the administrative system through the MSPB
because it is the lower cost, less burdensome alternative.\105\
Trends under other statutes offering district court access as a
supplement to an administrative remedy are instructive.
According to Professor Robert Vaughn, only approximately ten
percent of discrimination claims brought by federal employees
to the Equal Employment Opportunity Commission are pursued in
district court.\106\ Similarly, only a small minority of
whistleblower claims filed under the Sarbanes-Oxley Act of
2002, which protects whistleblowers who report illegal
corporate activity, are pursued in district court rather than
the administrative process at the Department of Labor, although
most Sarbanes-Oxley whistleblowers are eligible to remove their
cases to district court.\107\
---------------------------------------------------------------------------
\105\See id.; see also Devine Statement, S. 372 Hearing supra note
77.
\106\Vaughn Statement, S. 372 Hearing supra note 77, at 14.
\107\See id. at 11, 16 (nearly all Sarbanes-Oxley litigants were
eligible to go to district court, but most stuck with the
administrative process); see also is Richard E. Moberly, Unfulfilled
Expectations: Why Sarbanes Oxley Whistleblowers Seldom Win, 49 William
and Mary Law Review 65 (2007) & table J of ``Basic Data for Unfulfilled
Expectations article, available at http://law.unl.edu/c/
document_library/get_file?folderId=3600&name=DLFE-1326.pdf. Professor
Moberly's data shows that 54 employees withdrew from the administrative
process with an intention of filing a district court claim and 82
employees withdrew from the administrative process with no stated
reason. Assuming that 100 percent of those employees filed a district
court claim, less than 28 percent of the 491 Sarbanes-Oxley litigants
filed district court claims.
---------------------------------------------------------------------------
As discussed in the section above regarding all circuit
review, numerous whistleblower statutes provide access to
district court to litigate whistleblower claims. As a few
examples, discussed above, whistleblowers may file cases in
district court under the False Claims Act, the Resolution Trust
Corporation Completion Act, the Federal Deposit Insurance
Corporation Improvement Act, and the Sarbanes-Oxley Act.\108\
---------------------------------------------------------------------------
\108\See supra notes 41-49 and accompanying text.
---------------------------------------------------------------------------
The Committee believes it is appropriate to limit the
alternative review provisions in certain respects to address
concerns raised at the hearing on S. 372 during the 111th
Congress. At the hearing, William Bransford, on behalf of the
Senior Executive Association, expressed concern that allowing
jury trials in federal district courts could contribute to a
perception among federal managers that disciplining a problem
employee is unacceptably risky. In particular, he stated that a
``sensational jury trial resulting in a finding against the
manager with a substantial award of damages w[ould] create
significant pause for managers.'' He recommended that a limit
on compensatory damages would mitigate this concern if a
district court access provision were adopted.\109\ Likewise,
Rajesh De from the Department of Justice testified on behalf of
the Administration that if a district court access provision
were included in S. 372, the predecessor of S. 743 in the 111th
Congress, ``we would suggest that Congress consider adopting
damages caps analogous to the Title VII [of the Civil Rights
Act of 1964] context to ensure that incentives are properly
aligned and to alleviate concerns about runaway juries.''\110\
---------------------------------------------------------------------------
\109\Statement of William L. Bransford, General Counsel, Senior
Executives Association, S. 372 Hearing supra note 77.
\110\De Statement, S. 372 Hearing supra note 77.
---------------------------------------------------------------------------
To address these concerns, and to ensure that there is no
financial incentive to bring less significant WPA cases in
district court, the alterative recourse provision limits
compensatory damages to $300,000, which is the limit on
compensatory damages for Title VII discrimination claims, and
it does not allow for punitive damages. Likewise, limiting the
alternative recourse provisions to major personnel actions is
intended to address managers' concerns with the potential
burden of federal court litigation and with being able to
effectively discipline employees when needed.
Additionally, Mr. De raised the concern that juries may not
be as familiar with the clear and convincing evidence standard
used under the WPA, but may be more familiar with the
preponderance of the evidence standard. He recommended, on
behalf of the Administration, that a preponderance of the
evidence standard with a burden-shifting framework similar to
the Title VII context might be more appropriate for district
court trials.\111\ The Committee has concluded that this is an
appropriate limit, which may help to address the concern that
allowing jury trials might discourage some supervisors from
making appropriate personnel decisions. Accordingly, for
district court WPA cases only, S. 743 provides that relief may
not be ordered if the agency demonstrates by a preponderance of
the evidence, rather than by clear and convincing evidence,
that the agency would have taken the same personnel action in
the absence of a protected disclosure.
---------------------------------------------------------------------------
\111\Id.
---------------------------------------------------------------------------
The alternative review provisions are subject to a five-
year sunset, in order to allow Congress to evaluate the impact
of this provision on federal whistleblower protections, the
MSPB, and the federal district courts.
P. MSPB summary judgment authority
Currently, the Board does not have the authority to grant
summary judgment in a whistleblower case, even when there is no
genuine issue as to any material fact and the moving party
would be entitled to prevail as a matter of law. In its 2006
reauthorization request, the Board requested authority to grant
motions for summary judgment in order to help it speed case
processing.\112\ To assist the Board with prompt adjudication
of WPA claims, section 118 of S. 743 authorizes the MSPB to
consider and grant summary judgment motions in WPA cases that
involve major personnel actions, subject to a five-year sunset.
In considering a motion for summary judgment, the MPSB should
use the standards set forth in Federal Rule of Civil Procedure
56. That is, the Board shall determine, examining the evidence
and pleadings before it and viewing the evidence in the light
most favorable to the non-moving party, whether any genuine
issue of material fact exists. This five-year period will allow
Congress to evaluate the impact of this provision on the cases
heard by the MSPB and any impact on the WPA protections for
federal whistleblowers.
---------------------------------------------------------------------------
\112\See Justifications for Legislative Proposals submitted by the
MSPB to accompany the Merit Systems Protection Board Reauthorization
Act of 2006, available upon request to the Committee.
---------------------------------------------------------------------------
Q. Classified disclosures to Congress for employees under the WPA
If an employee covered by the WPA wants to make a protected
disclosure of classified information, the WPA states that the
individual may provide the information ``to the Special
Counsel, or to the Inspector General of an agency or another
employee designated by the head of the agency to receive such
disclosures.''\113\ However, the WPA does not lay out a process
by which an employee covered by the Act may make a protected
disclosure of classified information to Congress. The
Intelligence Community Whistleblower Protection Act of 1998
(ICWPA) and similar provisions\114\ establish secure processes
for disclosing certain classified information to Congress, but
these processes may be used only by employees of the
intelligence community, not by employees covered under the WPA.
In order to clarify a procedure that federal employees who are
covered under the WPA may use to disclose to Congress
classified information that evidences waste, fraud, and abuse,
section 119 of S. 743 amends the WPA and the ICWPA to protect
employees covered under the WPA if they make classified
disclosures to Congress using the process established under the
ICWPA.
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\113\5 U.S.C. Sec. 2302(b)(8)(B).
\114\ICWPA, Public Law No. 105-272, title VII (Oct. 20, 1998)
(adding 50 U.S.C. Sec. 403q(d)(5), applicable to the CIA, and adding
section 8H of the Inspector General Act of 1978, 5 U.S.C. App,
applicable generally to other intelligence agencies); the Intelligence
Authorization Act for Fiscal Year 2010, Public Law No. 111-259,
Sec. 405(a)(1) (Oct 7, 2010) (adding 50 U.S.C. Sec. 403-3h(k)(5),
applicable to any member of the intelligence community).
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Certain prior versions of this legislation in past
Congresses would have explicitly provided full WPA protection
to federal whistleblowers who disclose classified information
to Congress in certain circumstances. A whistleblower would
have been covered under the WPA if he or she was retaliated
against for disclosing classified information to a member of
Congress who is authorized to receive the information disclosed
or congressional staff who holds the appropriate security
clearance and is authorized to receive the information
disclosed. In order for such a disclosure to be protected, the
employee would have been required to have a reasonable belief
that the disclosure directly and specifically evidences
wrongdoing.
The Executive Branch and Congress long have taken somewhat
different positions regarding their respective roles with
respect to the control and disclosure of classified
information. The debate prior to enactment of the ICWPA
provides useful context. In 1998, Congress considered a bill
(S. 1668) with similar provisions to those in prior versions of
S. 743, but that applied only to members of the intelligence
community. The Clinton Administration opposed the bill, arguing
that ``S. 1668 would deprive the President of his authority to
decide, based on the national interest, how, when and under
what circumstances particular classified information should be
disclosed to Congress [which would be] an impermissible
encroachment on the President's ability to carry out core
executive functions.''\115\ In its report on the bill, the
Senate Select Committee on Intelligence described its
consideration of Constitutional and other ramifications of the
legislation. That Committee concluded that the regulation of
national security information, while implicitly in the command
authority of the President, is equally in the national security
and foreign affairs authorities vested in Congress by the
Constitution. The Intelligence Committee, furthermore, was
convinced that the provision was constitutional because it did
not prevent the President from accomplishing his
constitutionally assigned functions, and it was justified by an
overriding need to promote the objectives within the
constitutional authority of Congress.\116\
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\115\See Whistleblower Protections for Classified Disclosures, 22
Op. O.L.C. 92 (1998) (statement of Randolph D. Moss, Deputy Assistant
Attorney General, Office of Legal Counsel, before the House Permanent
Select Committee on Intelligence).
\116\S. Rep. No. 105-165 (1998).
---------------------------------------------------------------------------
Nonetheless, in order to address the concerns of the
Administration then in office, the House and Senate in 1998
agreed to modify the Senate proposal and enacted the ICWPA,
which provides a secure process that whistleblowers in certain
intelligence agencies and offices may use to disclose
classified information to Congress.\117\ The ICWPA provides
that if an employee wishes to convey to Congress information
about a serious problem or violation involving intelligence
activities, and if the employee wishes to do so under the ICWPA
process, the employee must first inform the appropriate IG. The
IG is then required to determine whether the information
appears credible, and, if so, the IG must transmit it to the
head of the relevant intelligence agency or office, who is then
required to forward it to the House and Senate Intelligence
Committees. If the IG does not transmit the information to the
agency head, the employee may contact either or both of the
congressional intelligence committees to make the disclosure,
but, before doing so, must first, through the IG, notify the
head of the agency or office about the employee's intent and
must follow the instructions from the agency or office head
regarding how to contact Congress in accordance with
appropriate security practices.
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\117\See Sec. 8H of the Inspector General Act of 1978, 5 U.S.C.
app; Sec. 17(d)(5) of the Central Intelligence Agency Act of 1949, 50
U.S.C. Sec. 403q(d)(5)).
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It is important to note that in enacting the ICWPA,
Congress did not contradict its long-held view that an
individual's right to provide information to Congress and
Congress's power to receive information are inherent in our
Constitutional structure. The Congressional findings enacted at
the beginning of the ICWPA specifically state that ``no basis
in law exists for requiring prior authorization of disclosures
to the intelligence committees of Congress by employees of the
executive branch of classified information about wrongdoing
within the Intelligence Community'' and that the process under
the ICWPA provides an ``additional procedure'' established ``to
encourage such reporting.''\118\ Likewise, the House and Senate
agreed in the ICWPA conference report it ``establishes an
additional process to accommodate the disclosure of classified
information of interest to Congress.''\119\ The conference
report similarly emphasized that the new provision ``is not the
exclusive process by which an Intelligence Community employee
may make a report to Congress.''\120\
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\118\Public Law No. 105-272, Sec. Sec. 701(b)(4)-(6) (Oct. 20,
1998).
\119\H.R. Rep. No. 105-780, at 34 (1998).
\120\Id.
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During the 111th Congress, the current Administration took
a similar position to that taken by earlier Administrations.
Discussing the provision in S. 372 that would have explicitly
extended the WPA to protect employees who disclosed classified
information to Congress, Mr. De testified on behalf of the
Administration:
Of course, Congress has significant and legitimate
oversight interests in learning about, and remedying,
waste, fraud and abuse in the intelligence community,
and we recognize that Congress has long held a
different view of the relevant constitutional issues.
However, as Presidents dating back to President
Washington have maintained, the Executive Branch must
be able to exercise control over national security
information where necessary.\121\
---------------------------------------------------------------------------
\121\See De Statement, S. 372 Hearing supra note 77, at 11.
Although the Committee believes that the provisions on
classified information contained in previous versions of the
legislation are consistent with Congress's constitutional role,
the Committee in the 111th Congress accommodated the
Administration's concerns by adopting a compromise
provision,\122\ and the sponsors of the legislation in the
112th Congress included that compromise provision in S. 743.
---------------------------------------------------------------------------
\122\See S. Rept. 111-101, to accompany S. 372 (Dec. 3, 2009), at
26-28.
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Under this legislation, employees covered under the WPA
would get WPA protection if they disclose classified
information to Congress using the procedures that now, under
the ICWPA, apply only to employees at certain intelligence
agencies. S. 743 amends the ICWPA provisions to encompass any
federal employee at an agency covered by the WPA who intends to
report to Congress information about a serious problem or
violation in an activity involving classified information.
Under the legislation, such an employee may report the
information to the IG of the individual's employing agency.
Then if the IG finds the information credible, the IG is
required to transmit the information to the head of the agency,
to forward it to the committees of jurisdiction; and, if the IG
does not do so, the employee may directly contact one or both
of the committees of jurisdiction in order to provide the
disclosure. As examples, generally an employee of the
Department of Justice could contact the House and Senate
Judiciary Committees to provide the disclosure, and generally
an employee of the Department of Defense could contact the
House and Senate Armed Services Committees to provide the
disclosure. (Intelligence-community employees who are covered
under the ICWPA would still contact the House Permanent Select
Committee on Intelligence or the Senate Select Committee on
Intelligence to provide the disclosure.) All such disclosures
of classified information would continue to be governed by any
independent legal requirements for the proper handling of such
information and for disclosure only to Members of Congress or
to congressional employees with the appropriate security
clearance.
By providing legal protection to federal employees who
disclose wrongdoing to Congress, even if the disclosure
involves classified information, this provision is intended to
ensure that employees who witness waste, fraud, and abuse in an
activity involving classified information are not inhibited
from disclosing it appropriately, and thereby seeking to end
it, and to ensure that Congress receives the information
necessary to fulfill its oversight responsibilities. In
addition, this provision seeks to ensure the proper handling of
classified documents and information in the process of
reporting wrongdoing.
The Committee emphasizes that this new process is but one
way for federal employees to disclose classified information to
Congress. Federal personnel law already states explicitly that
whistleblower and related protections are not to be construed
to authorize the withholding of information from Congress or
the taking of any personnel action against an employee who
discloses information to the Congress.\123\ The new process
also does not in any way limit the right of an employee to
communicate with Congress under the Lloyd-La Follette Act\124\
(which codifies federal employees' right to petition or provide
information to Congress) or any other provision of law.
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\123\5 U.S.C. Sec. 2302(b)
\124\Public Law No. 336, 37 Stat. 539, 555 (1912); 5 U.S.C. 7211.
---------------------------------------------------------------------------
R. Whistleblower Protection Ombudsman
To ensure that employees are aware of their rights under
the WPA and avenues for redress, section 120 of S. 743, subject
to a five-year sunset, requires each agency IG to designate a
Whistleblower Protection Ombudsman within the Office of the
Inspector General. This Ombudsman would educate agency
personnel about the prohibition against retaliation for
protected disclosures and the rights and remedies against
retaliation for a protected disclosure. This provision does not
apply to inspectors general in the intelligence community.
The addition of a Whistleblower Protection Ombudsman at
each agency would provide the agency and the employees with an
intermediary to ensure that supervisors and leaders within the
agency, as well as employees, are aware of prohibited
retaliatory actions and employee rights under the WPA. In this
intermediary role, the ombudsman could also help provide
recommendations for resolving problems between an individual
and the employer before any prohibited personnel practices are
taken in violation of the WPA. The ombudsman may not, however,
act as a legal representative, agent, or advocate for an
employee.
S. Intelligence community whistleblower protections
As discussed above, numerous elements of the intelligence
community are excluded from protection under the WPA,\125\
because the intelligence community handles highly classified
programs and information that must be closely guarded from
public disclosure. The ICWPA provides these whistleblowers a
secure channel through which they may disclose sensitive
information to the Intelligence Committees of Congress. The
ICWPA offers two parallel processes--one for CIA employees, who
may begin by submitting their information to the CIA's IG,\126\
and one for members of several other elements of the
intelligence community, who may begin by making their
submission to the appropriate IG.\127\ Additionally, in the
Intelligence Authorization Act for Fiscal Year 2010 (FY10 IAA),
Congress added a third similar process, under which employees
of any element of the intelligence community may submit their
information to the Inspector General of the Intelligence
Community established by that legislation within the ODNI.\128\
As described above, under all three of these processes, if the
IG determines the material submitted is credible, the IG is
required to send it to the head of the intelligence element,
who must forward it to the Senate and House Intelligence
Committees. If the IG does not send it to the relevant agency
head, the employee may contact the Intelligence Committees
directly. (Contractor employees may use these same procedures
as federal employees under the ICWPA and under the FY10 IAA to
bring information about serious problems or violations
involving intelligence activities to Congress.)
---------------------------------------------------------------------------
\125\See 5 U.S.C. Sec. 2302(a)(2)(C)(ii).
\126\50 U.S.C. Sec. 403q(d)(5).
\127\Section 8H of the Inspector General Act of 1978 (5 U.S.C.
App.).
\128\50 U.S.C. Sec. 403-3h(k)(5), added by the Intelligence
Authorization Act for Fiscal Year 2010, Public Law No. 111-259,
Sec. 405(a)(1) (Oct 7, 2010).
---------------------------------------------------------------------------
Even though the ICWPA and the similar FY10 IAA provision
are designed to establish procedures by which a whistleblower
may securely disclose classified information to Congress, these
statutes do not provide for any redress if the employee suffers
retaliation because of the disclosure.\129\ Establishing a
scheme to provide redress would be desirable, as Mr. De
testified on behalf of the Administration at the hearing in the
111th Congress:
\129\Some agencies have internal agency procedures to protect
whistleblowers, which generally are not required by law. The Federal
Bureau of Investigation does have whistleblower protections under 5
U.S.C. Sec. 2303.
Yet it is essential that we root out waste, fraud and
abuse in the intelligence community just as elsewhere,
and that intelligence community employees have safe
channels to report such wrongdoing. Such whistleblowers
expose flaws in programs that are essential for
protecting our national security. We believe it is
necessary to craft a scheme carefully in order to
protect national security information while ensuring
that intelligence community whistleblowers are
protected in reality, not only in name. Properly
structured, a remedial scheme should actually reduce
harmful leaks by ensuring that whistleblowers are
protected only when they make disclosures to designated
Executive Branch officials or through proper channels
to Congress.\130\
---------------------------------------------------------------------------
\130\De Statement, S. 372 Hearing supra note 77, at 6-7.
The Committee has concluded that providing additional
protections for intelligence community employees who expose
waste, fraud, abuse, and illegal activities would help protect
this country's interests and strengthen its national security.
Providing an effective avenue for intelligence community
employees to obtain redress if they suffer retaliation for
disclosing agency waste, fraud, or abuse would encourage
intelligence community whistleblowers to come forward.
Moreover, protecting disclosures that are made according to a
specified, protected channel would likely better protect
national security information, as Mr. De testified, by removing
the incentive to leak information publicly.
In the 111th Congress, the version of S. 372 reported by
the Committee laid out a highly structured process for
protecting intelligence community whistleblowers, including the
creation of an Intelligence Community Whistleblower Protection
Board, modeled on the MSPB, with presidentially-appointed board
members. However, the Committee subsequently heard concerns
that these provisions may not have provided the Director of
National Intelligence (DNI) the flexibility needed to protect
national security information in the unique context of the
intelligence community, and that the provisions were more
constraining and costly than necessary to achieve the desired
protection. In light of these concerns, the sponsors of S. 372
offered a substitute amendment when the bill was under
consideration by the Senate, replacing these detailed
provisions with a more flexible structure to protect
intelligence community whistleblowers, and this more flexible
approach was included in the bill that passed the Senate.\131\
The sponsors retained this new provision in S. 743 in the
current Congress. The revised provision is nearly identical to
existing protections for FBI employees under 5 U.S.C.
Sec. 2303. In approving S. 743 with this revised provision in
it, the Committee determined that adopting this flexible model
that already has been implemented successfully within the one
key element of the intelligence community is preferable to
creating a whole new, untested model for intelligence community
whistleblowers.
---------------------------------------------------------------------------
\131\S. amend. No. 4760 to S. 372, 111th Cong.; amendment agreed to
and S. 372 passed, Cong. Rec. S8809-S8824 (daily edition, Dec. 10,
2010.)
---------------------------------------------------------------------------
Specifically, section 201 of S. 743 would make it a
prohibited personnel practice for a supervisor to take or fail
to take, or threaten to take or to fail to take, any personnel
action against an intelligence community employee in reprisal
for a protected disclosure.\132\ Disclosures would be protected
if the employee reasonably believes that the information
evidences any of the following: a violation of any law, rule,
or regulation; mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety. The Committee intends for the provisions
governing protected disclosures by employees under this new
provision to be applied, as much as possible, in the same
manner they are applied under the WPA, including the
clarifications of the broad scope of protected disclosures
under the WPA made by S. 743.\133\
---------------------------------------------------------------------------
\132\These provisions do not extend whistleblower protections to
applicants for intelligence positions. In this respect, the provisions
are like the protections for FBI employees under 5 U.S.C. Sec. 2303,
but unlike the WPA, which does protect applicants as well as employees.
Applicants for intelligence positions are more likely to be unreliable
than individuals who have already been hired into the intelligence
community as employees, and are less likely to have valuable
information about waste, fraud, and abuse to disclose. On balance, the
risk to national security from granting appeal rights to applicants for
intelligence community positions outweighs the benefits.
\133\More specifically, the Committee expects that the following
clarifications that this bill makes to the WPA would be made applicable
to whistleblowers in the intelligence community, unless there is a
compelling national security basis for adopting a different rule:
clarifications with respect to disclosures made during the normal
course of the employee's duties; disclosures made to a person,
including a supervisor, who participated in the wrongdoing; disclosures
that reveal information that had been previously disclosed; disclosures
not made in writing or made while the employee was off duty; without
regard to the employee's motive for making the disclosure or the amount
of time that has passed since the events described in the disclosure.
---------------------------------------------------------------------------
For a disclosure to be protected, the employee must provide
the information to the DNI, to the head of the employing
intelligence agency, or to an employee designated by the DNI or
by the agency head. The Committee expects that the DNI and the
agency heads will designate IGs to receive information, as the
Attorney General designated the IG in the FBI's whistleblower
protection implementing regulations,\134\ but, in order to
conform with the existing statutory provisions applicable to
the FBI, S. 743 does not state that IGs must be
designated.\135\ Like the FBI provisions, S. 743 directs the
President to provide for the enforcement of the new
protections, in a manner consistent with 5 U.S.C. Sec. 1214,
which provides for OSC investigations of whistleblower and
other prohibited personnel practice complaints, and with 5
U.S.C. Sec. 1221, which provides the process for bringing
whistleblower complaints before the MSPB. This broad delegation
of authority addresses the concerns that the previous provision
may have been insufficiently flexible or more structured and
costly than necessary to achieve the intended result.
---------------------------------------------------------------------------
\134\28 C.F.R. Sec. 27.1.
\135\5 U.S.C. Sec. 2303 (FBI protections).
---------------------------------------------------------------------------
S. 743 does not alter the FBI's separate whistleblower
protections, nor does it alter the current process as
articulated by regulation at 28 C.F.R. part 27. The legislation
contains language explicitly preserving existing rights of FBI
employees, stating that nothing in the section shall be
construed to preempt or preclude the current rights, or to
provide to the President or to the DNI the authority to revise
the regulations governing those rights.
T. Review of security clearance or access determinations
Whistleblowers with security clearances who are covered by
the WPA have nevertheless sometimes found themselves
inadequately protected when they allege government waste,
fraud, and abuse, including wrongdoing that poses a risk to
national security. That is because some such whistleblowers
suffer retaliation not in the form of direct termination of
their jobs, but instead through means against which neither the
WPA, nor the ICWPA, nor the similar FY10 IAA provision
currently provides any protection: the revocation of their
security clearance. The effective result of the removal of an
employee's security clearance or the denial of access to
classified information typically is employment termination.
However, in 2000 the Federal Circuit held that the MSPB lacks
jurisdiction over an employee's claim that his security
clearance was revoked in retaliation for whistleblowing.\136\
The court held that the MSPB may neither review a security
clearance determination nor require the grant or reinstatement
of a clearance, and that the denial or revocation of a
clearance is not a personnel action.\137\
---------------------------------------------------------------------------
\136\Hesse v. State, 217 F.3d 1372 (Fed. Cir. 2000).
\137\Id. at 1377-80.
---------------------------------------------------------------------------
As a result, if an employee is terminated from his or her
federal government job because a clearance is suspended or
revoked in retaliation for whistleblowing--even if the
supervisor recommended revocation of the employee's security
clearance with the intent that the employee would lose his or
her job as a result--there is no remedy under the WPA or the
ICWPA or similar FY10 IAA provision. At the hearing during the
107th Congress on S. 995, one of the predecessor bills to S.
743, Senator Levin asked then-Special Counsel Elaine Kaplan
about ``a situation where a federal employee can blow the
whistle on waste, fraud or abuse, and then, in retaliation for
so doing, have his or her security clearance withdrawn and then
be fired because he or she no longer has a security
clearance.'' Ms. Kaplan responded:
It is sort of Kafkaesque. If you are complaining about
being fired, and then one can go back and say, ``Well,
you are fired because you do not have your security
clearance and we cannot look at why you do not have
your security clearance,'' it can be a basis for
camouflaging retaliation.\138\
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\138\S. 995--Whistleblower Protection Act Amendments: Hearing on S.
995 before the Subcommittee on International Security, Proliferation,
and Federal Services of the Committee on Governmental Affairs, S. Hrg.
107-160 (2001) (testimony of Hon. Elaine Kaplan, Special Counsel,
Office of Special Counsel).
In light of the critical need to ensure that federal
employees come forward with information vital to preserving our
national security, the Committee supports extending the
protections for whistleblowers to include those who are
retaliated against through the loss of their security
clearances or access to classified information. The
Administration likewise supports strengthening these
protections. At the hearing on S. 372 during the 111th
---------------------------------------------------------------------------
Congress, Mr. De testified:
We are aware that Congress has heard testimony in the
past from individuals who have claimed that their
security clearances were revoked due to whistleblowing
activities. This administration has zero tolerance for
such actions. Although current law provides some
procedural protections, the administration believes
that an employee who is denied a security clearance
should be able to seek recourse outside of her
agency.\139\
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\139\De Statement, S. 372 Hearing supra note 77, at 7.
Prior versions of this legislation, including S. 372 as
introduced in the 111th Congress, would have allowed
whistleblowers to appeal security clearance revocations under
the WPA to the MSPB and to reviewing courts, but would not have
authorized the Board or reviewing courts to order a security
clearance restored. However, the Administration recommended
during the 111th Congress that a proposed new board within the
ODNI, rather than the MSPB and the courts, review security
clearance revocations. This structure would ensure that
security clearance decisions would be reviewed only within the
Executive Branch, subject to careful protection of national
security information, while also providing a process for robust
review that would be independent of the agency that made the
challenged security-clearance determination.\140\ Additionally,
the Administration recommended that, if a review board were
established within the ODNI to review security clearance
revocations, such a board--unlike the MSPB and reviewing
courts--could appropriately restore improperly terminated
clearances. As Mr. De testified:
---------------------------------------------------------------------------
\140\Id. at 8-9.
The [Administration's] proposed Board, however, could
recommend full relief to the aggrieved employee,
including restoration of the clearance, and could
ensure that Congress would be notified if that
recommendation is not followed by the agency head. This
mechanism would ensure that no agency will remove a
security clearance as a way to retaliate against an
employee who speaks truths that the agency does not
want to hear. Further, we believe that such a Board
could ably review allegedly retaliatory security-
clearance revocations from all agencies, including
agencies in the intelligence community, rather than
limiting review to Title 5 agencies, as S. 372
apparently would do.\141\
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\141\Id.
Following the recommendation of the Administration, section
202 of S. 743 would forbid agencies from withdrawing security
clearances in retaliation for protected whistleblower
disclosures, and would provide for appeal of allegedly
retaliatory security-clearance decisions, first to the agency,
and then to an independent review panel within ODNI. The
Committee has concluded that allowing appeal of alleged
security clearance retaliation to a board within ODNI would
provide for comprehensive relief for whistleblowers, by
allowing restoration of clearances and by covering both
employees who are under the WPA and employees within the
intelligence community who are not under the WPA.
Specifically, S. 743 forbids an agency to take, fail to
take, or threaten to take or fail to take any action with
respect to any employee's\142\ security clearance or access
determination because of a protected disclosure. A protected
disclosure would include any disclosure of information that the
employee reasonably believes evidences a violation of any law,
rule, or regulation; or gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety. The same clarifications that
this bill makes for protected disclosures under the WPA are
incorporated into this security-clearance provision: that is,
clarifications to ensure protection of disclosures made during
the normal course of the employee's duties; disclosures made to
a person, including a supervisor, who participated in the
wrongdoing; disclosures that reveal information that had been
previously disclosed; disclosures not made in writing or made
while the employee was off duty; and without regard to the
employee's motive for making the disclosure or the amount of
time that has passed since the events described in the
disclosure. Such disclosures are protected under the bill if
made to the DNI or an employee designated by the DNI, or to the
head of the employing agency or an employee designated by the
head of the employing agency, or to an IG of an agency or
another employee designated by the head of the agency. In
addition, this section would protect disclosures that the
employee makes in compliance with one of the processes under
the ICWPA\143\ or under the similar FY10 IAA provision.\144\
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\142\As with applicants for intelligence positions, non-federal
employees applying for federal positions are not covered by the bill's
security clearance retaliation provisions. Providing appeal rights to
applicants for federal positions requiring a security clearance, who
are more likely to be unreliable than those who have already been hired
into such a position, could pose a risk to national security.
\143\Section 8H of the Inspector General Act of 1978 (5 U.S.C.
App.) (applicable to certain members of the intelligence community); 50
U.S.C. Sec. 403q (applicable to CIA employees).
\144\50 U.S.C. Sec. 403-3h(k)(5).
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S. 743 would require that, to the extent practicable,
agencies must continue to employ individuals who challenge a
security clearance suspension or revocation while the challenge
is pending. The legislation would also require the development
and implementation of uniform and consistent policies and
procedures to ensure proper protections while a security
clearance decision is being made, including the right to appeal
an adverse decision. However, the bill would not authorize an
employee to appeal a security clearance suspension for the
purposes of conducting an investigation, if the suspension
lasts no longer than one year, or if the agency head certifies
that a longer suspension is needed to prevent imminent harm to
national security.
S. 743 provides that an employee who believes that he or
she has been subjected to retaliation in the form of revocation
of his or her security clearance may first appeal that decision
within 90 days within the agency. The bill requires that the
agency's procedures for these appeals must be comparable to
those pertaining to prohibited personnel practices under 5
U.S.C. Sec. 2302(b)(8)and must provide essential elements of
due process listed in the bill. Moreover, classified
information must be handled in a manner consistent with the
interests of national security, and the individual would not
have the right to compel the production of classified
information, except evidence needed to establish that the
employee made the disclosure or communication at issue.
Employees who prevail would be entitled to corrective action,
including up to $300,000 in compensatory damages.
Significantly, the Committee has determined that it is
appropriate to alter the burden of proof when the employee
appeals an adverse security clearance determination within the
agency. Generally in whistleblower cases, if the employee
proves by a preponderance of the evidence that a protected
disclosure was a contributing factor in the personnel action,
the burden of proof shifts and the agency can prevail only by
proving by ``clear and convincing evidence'' that it would have
taken the same personnel action for independent, legitimate
reasons in the absence of the whistleblower disclosure.
However, application of this burden of proof may conflict with
the compelling need to protect national security in every case
involving a security clearance decision. Under the applicable
Executive Order, security clearances may be granted ``only
where facts and circumstances indicate access to classified
information is clearly consistent with the national security
interests of the United States, and any doubt shall be resolved
in favor of the national security.''\145\ In this especially
sensitive area, a requirement that an agency must justify its
decision to deny or revoke a security clearance by ``clear and
convincing evidence'' may conflict with the mandate in the
Executive Order that ``any doubt'' be resolved in favor of
national security.
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\145\See Executive Order 12968--Access to Classified Information
(August 2, 1995).
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S. 743 therefore provides that, even if an employee shows
that a protected disclosure was a contributing factor in a
security clearance determination, the agency will nevertheless
prevail if it ``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.''\146\
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\146\Proposed new section 3001(j)(4)(C) of the Intelligence Reform
and Terrorism Prevention Act of 2004 (50 U.S.C. Sec. 435b(j)(4)(C)), as
it would be added by section 202(b) of S. 743.
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Under the bill, this unique statutory language establishing
a burden of proof and requiring deference to national security
interests applies only when the fact-finder is determining
whether the agency would have taken the same security clearance
action in the absence of the disclosure. This statutory
language does not apply to considering the employee's
affirmative evidence, including any proof the employee presents
showing a motive to retaliate on the part of the agency
officials involved in the decision. Moreover, after an employee
prevails on a retaliation claim, the language defining burden
of proof and deference to national security does not apply to
the determination of what corrective action or damages are
warranted.
If the agency's decision is adverse to the employee, S. 743
allows the employee to take a further appeal to the appellate
review board within ODNI within 60 days. This board will make a
de novo decision based on the agency record, and it will not
admit any additional evidence, although it can remand to the
agency for further fact-finding if needed. If the board finds
that the security clearance decision violated the protections
provided by S. 743, the employee would be entitled to
corrective action including damages. Additionally, the board
may recommend, but not order, reinstating the security
clearance if doing so is ``clearly consistent with the
interests of national security, with any doubt resolved in
favor of national security.''\147\ The board may also
recommend, but not order, reinstatement or hiring of a former
employee, and may order that a former employee be treated as a
current federal employee when applying for other positions in
the federal government. Under the bill, the board must notify
Congress of any orders it issues, and an agency must notify
Congress if it does not follow the board's recommendation to
reinstate a clearance.
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\147\Proposed new section 3001(j)(5)(G) of the Intelligence Reform
and Terrorism Prevention Act of 2004 (50 U.S.C. Sec. 435b(j)(5)(G)), as
it would be added by section 202(b) of S. 743.
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The Administration has taken the position that legislation
providing judicial review of such appeals, even if the court
were not allowed to restore a security clearance, would be
inconsistent with the deference traditionally afforded to the
Executive Branch in this area.\148\ The Committee notes that,
as discussed above with respect to the broader issue of control
of classified information, the Senate and the House of
Representatives have held a different view of the scope of
Executive Branch authority over security clearances and
Congress's role in regulating and overseeing security
clearances. Executive Branch authority in this area is not
exclusive, and providing judicial redress of retaliatory
security clearance decisions is consistent with Congress's
constitutional regulatory and oversight role. The Senate and
House of Representatives have each passed a previous version of
this legislation that included a provision under which alleged
whistleblower retaliation in security clearance decisions would
have been subject to review by either the MSPB or an IG, with
appeal to the federal courts.\149\ Moreover, the possibility of
court review might increase whistleblowers' confidence in the
independence and integrity of the protections against
retaliation. The Committee emphasizes that the focus of any
such court review, which would have been provided under earlier
versions of the bill, would have been to consider whether an
agency unlawfully retaliated against a whistleblower, not
whether the national interest is served by granting or revoking
a security clearance.
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\148\De Statement, S. 372 Hearing supra note 77, at 7.
\149\See Federal Employee Protection of Disclosures Act, S. 274 in
the 110th Congress, section 1(e)(3)(A), providing for MSPB and federal
court review of security clearance decisions, passed the Senate by
unanimous consent on December 17, 2007; Whistleblower Protection
Enhancement Act, H.R. 985 in the 110th Congress, section 10(a),
providing for IG and federal court review of security clearance
decisions, passed the House of Representatives on March 14, 2007.
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Nevertheless, the Committee concluded that an Executive
Branch process can provide adequate review of security
clearance retaliation. Moreover, this section's congressional
notification requirements will facilitate oversight of the
security clearance redress process created by this legislation
and provide a check against implementation inconsistent with
congressional intent. Accordingly, the Committee agreed to
accommodate the Administration's concerns, and S. 743 does not
provide for any judicial review of security clearance
retaliation claims.
III. Legislative History
S. 743 was introduced by Senators Akaka, Collins, Grassley,
Lieberman, Levin, Carper, Leahy, Harkin, Pryor, Landrieu,
McCaskill, Tester, Begich, and Cardin on April 6, 2011. It was
further referred to the Committee on Homeland Security and
Governmental Affairs. Senator Coons has since joined as a
cosponsor. The bill was referred to the Subcommittee on
Oversight of Government Management, the Federal Workforce, and
the District of Columbia (OGM) on May 9, 2011.
This legislation is the result of more than a decade of
work by Senator Akaka, other sponsors, and the Committee. S.
743 is similar to S. 372, introduced in the 111th Congress as
the Whistleblower Protection Enhancement Act on February 3,
2009. The Committee reported S. 372 favorably on July 29, 2009,
with an amendment, and S. 372 passed the Senate by unanimous
consent on December 10, 2010. S. 372 passed the House of
Representatives with an amendment by unanimous consent on
December 22, 2010, but the Senate and House were not able to
resolve the differences prior to the sine die adjournment of
the 111th Congress.
S. 743 is also similar to S. 274, introduced in the 110th
Congress as the Federal Employee Protection of Disclosures Act
on January 11, 2007. The Committee reported S. 274 favorably on
June 13, 2007, and S. 274 passed the Senate on December 17,
2007. S. 743 also is similar to S. 494, introduced in the 109th
Congress on March 2, 2005, and favorably reported by the
Committee on April 13, 2005. S. 494 passed the Senate as an
amendment (S. Amdt. 4351) to the John Warner National Defense
Authorization Act for Fiscal Year 2007, H.R. 5122, on June 22,
2006. S. 494 was identical to S. 2628, introduced in the 108th
Congress on July 8, 2004, and favorably reported by the
Committee on July 21, 2004. Both S. 494 and S. 2628 were
similar to S. 1358, introduced in the 108th Congress on June
26, 2003. These bills follow previous versions of the
legislation: S. 3070, introduced in the 107th Congress on
October 8, 2002, and favorably reported by the Committee on
November 19, 2002; S. 995, introduced in the 107th Congress on
June 7, 2001; and S. 3190, introduced in the 106th Congress on
October 12, 2000.
The Committee and its subcommittees have held three
hearings on whistleblower protection legislation. The OGM
Subcommittee held a hearing on last Congress' precursor to S.
743 (S. 372, 111th Congress). Witnesses at the June 11, 2009,
hearing included Mr. Rajesh De, Deputy Assistant Attorney
General, Office of Legal Policy, at the U.S. Department of
Justice; Mr. William L. Bransford, General Counsel of the
Senior Executives Association; Ms. Danielle Brian, Executive
Director of the Project on Government Oversight; Mr. Thomas
Devine, Legal Director of the Government Accountability
Project; and Professor Robert G. Vaughn, Professor of Law,
Washington College of Law at American University.
Past hearings on earlier incarnations of the bill include a
full Committee hearing on November 12, 2003, and a July 25,
2001, hearing of the Subcommittee on International Security,
Proliferation, and Federal Services.
On July 29, 2011, OGM favorably polled out S. 743, and the
full Committee considered the bill at a business meeting on
October 19, 2011. Senator Akaka offered an amendment, which
made several minor changes to the legislation\150\ and which
was agreed to by voice vote. The bill, as amended, was ordered
reported favorably by voice vote. Members present for both
votes were Senators Lieberman, Akaka, Carper, Pryor, McCaskill,
Begich, Collins, Brown, Johnson, and Moran.
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\150\The changes made by the amendment include: (1) in the anti-gag
provision, requiring nondisclosure orders to include a general
reference to the kinds of statutes and Executive Orders that establish
employees' rights and obligations, instead of requiring nondisclosure
orders to state a specific list of statutes and Executive Orders that
was set forth in the original bill; (2) extending the time period for
the Government Accountability Office to complete its report on the
implementation of the Act from 40 to 48 months; (3) requiring that
certain complaints arising out of intelligence units within the Defense
Department be sent to the Secretary of Defense in addition to the DNI;
(4) requiring the DNI to consult with the Secretary of Defense in
prescribing regulations against whistleblower retaliation in the
intelligence community; and (5) requiring that, within the appellate
review board that will hear security clearance appeals, the special
subpanel drawn from the intelligence community to hear cases arising
from the intelligence community shall include the new Inspector General
of the Intelligence Community and the Department of Defense IG.
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IV. Section-by-Section Analysis
Section 1--Short Title
This section titles the bill as the ``Whistleblower
Protection Enhancement Act of 2012.''
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
Section 101--Clarification of Disclosures Covered
The protections of the WPA become applicable when a covered
employee or applicant makes a protected disclosure. The WPA
forbids taking, failing to take, or threatening to take or fail
to take, a personnel action against an employee or applicant
because of a protected disclosure, and the individual making a
protected disclosure is provided redress if such a personnel
action does occur. Section 101 of the legislation makes several
amendments to the WPA to overturn decisions narrowing the scope
of protected disclosures and reaffirms congressional intent
that the law covers whistleblowing of any disclosure of the
covered forms of wrongdoing.
Section 101(a) underscores the breadth of the WPA's
protections by changing the term ``a violation'' to the term
``any violation'' in two places in 5 U.S.C. Sec. 2302(b)(8),
which is a provision of the WPA stating the kinds of wrongdoing
that may be the subject of a protected disclosure.
Section 101(b) makes clear that ``any disclosure'' means
``any disclosure'' by specifically stating that a disclosure
does not lose protection because: the disclosure was made to a
person, including a supervisor, who participated in the
wrongdoing disclosed; the disclosure revealed information that
had previously been disclosed; of the employee's or applicant's
motive for making the disclosure; the disclosure was made while
the employee was off duty; or of the amount of time which has
passed since the occurrence of the events described in the
disclosure. Section 101(b) also clarifies that a disclosure is
not excluded from protection because it was made during the
employee's normal course of duties, providing the employee is
able to show reprisal--in other words, that the personnel
action was taken with an improper, retaliatory motive, not
simply ``because of'' the disclosure without demonstrating the
motive for the action. Section 101(b) also makes technical and
conforming amendments.
Section 102--Definitional Amendments
This section clarifies the definition of ``disclosure'' to
mean a formal or informal communication or transmission, but
not to include a communication concerning legitimate policy
decisions that lawfully exercise discretionary agency authority
unless the employee reasonably believes the disclosure
evidences a violation of any law, rule, or regulation; gross
mismanagement; a gross waste of funds; an abuse of authority;
or a substantial and specific danger to public health or
safety.
Section 103--Rebuttable Presumption
This section provides that any presumption relating to an
employee whose conduct is the subject of a whistleblower
disclosure may be rebutted with substantial evidence, in order
to ensure that no court will again require ``irrefragable
proof,'' as the court did in Lachance v. White, discussed
above. This section also codifies the objective test for
reasonable belief, which the United States Court of Appeals for
the Federal Circuit established in Lachance v. White.
Specifically, this section provides that a determination as to
whether an employee has the requisite reasonable belief about
the disclosed information will be made by determining whether
``a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee could
reasonably conclude that the actions of the Government evidence
such violation, mismanagement, waste, abuse, or danger.''
Section 104--Personnel Actions and Prohibited Personnel Practices
The WPA generally forbids the taking of a ``personnel
action'' against a covered employee because of a protected
disclosure. The term ``personnel action'' is defined in 5
U.S.C. Sec. 2302(a)(2)(A) to include a number of significant
employment-related actions, such as promotions, demotions,
reassignments, pay decisions, as well as any other significant
change in duties, responsibilities, or working conditions.
Section 104(a) of the legislation adds implementing or
enforcing a nondisclosure policy, form, or agreement to the
definition of ``personnel action'' under 5 U.S.C.
Sec. 2302(a)(2)(A) .
Section 104(b) makes it a prohibited personnel practice
under 5 U.S.C. Sec. 2302(b) for an agency to implement or
enforce any nondisclosure policy, form, or agreement that fails
to contain language specified in the legislation preserving
employee obligations, rights, and liabilities created by
existing statute or Executive Order relating to disclosure of
information. As discussed above, the amendment adopted by the
Committee substitutes a general cross reference to the employee
rights and obligations under existing statute and Executive
Orders for the specific list of statutes and Executive Orders.
Section 104(b), as reported, also requires agencies using any
nondisclosure policy, form, or agreement to post this language
on their websites, accompanied by a list of controlling
Executive Orders and statutory provisions. Section 104(b)
further provides that it shall not be a prohibited personnel
practice to enforce a non-disclosure policy, form, or agreement
in effect before the date of enactment with respect to a
current employee, providing the agency gives the employee
notice of the required statement, and with respect to a former
employee, providing the public notice requirement is met.
Section 104(c) provides that corrective action awarded to
whistleblowers under 5 U.S.C. Sec. Sec. 1214 and 1221(g) may
include damages, fees, and costs incurred due to an agency
investigation of the employee that was commenced, expanded, or
extended in retaliation for engaging in protected
whistleblowing. The section does not address the circumstances
under which a retaliatory investigation may be a prohibited
personnel practice, thereby leaving the holding of Russell v.
Department of Justice\151\ (discussed, above, under the topic
``Penalties for retaliatory investigations'') as the governing
law.
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\151\76 M.S.P.R. 317, 323-25 (1997).
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Section 105--Exclusion of Agencies by the President
This section amends 5 U.S.C. Sec. 2302(a)(2)(C) by adding
the ODNI and the National Reconnaissance Office to the list of
intelligence community entities excluded from WPA coverage.
This section also states that, when the President exercises his
authority to remove an agency from WPA coverage because the
agency's principal function is foreign intelligence or
counterintelligence, a whistleblower at the agency cannot be
deprived of coverage under the WPA unless the removal of the
agency occurred before the agency took a personnel action
against the whistleblower.
Section 106--Disciplinary Action
This section amends 5 U.S.C. Sec. 1215(a)(3), which governs
OSC actions to impose discipline on those who commit a
prohibited personnel practice; violate another law, rule, or
regulation under the OSC's jurisdiction; or knowingly and
willfully refused or failed to comply with an MSPB order.
Specifically, this section modifies the standard of proof OSC
must meet to prevail. Under the amendment, the OSC must
demonstrate to the MSPB that the whistleblower's protected
disclosure was a ``significant motivating factor'' in an
agency's decision to take the adverse action, even if other
factors also motivated the decision. Current law requires the
OSC to demonstrate that an adverse personnel action would not
have occurred ``but for'' the whistleblower's protected
activity. Section 106 also amends 5 U.S.C. Sec. 1215(a)(3) to
allow the Board to impose a combination of the types of
disciplinary action authorized under the statute. The current
statute allows the Board to impose any of the types of
disciplinary action individually, but not a combination of more
than one type.
Section 107--Remedies
This section requires that, in disciplinary actions brought
by OSC, the agency where the prevailing party was employed or
had applied for employment at the time of the events giving
rise to the case would reimburse any attorney's fees awarded.
Current law imposes the burden on the OSC. Section 107 also
permits corrective action awarded to whistleblowers to include
reasonable and foreseeable compensatory damages.
Section 108--Judicial Review
Section 108(a) amends 5 U.S.C. Sec. 7703(b) to suspend the
exclusive jurisdiction of the U.S. Court of Appeals for the
Federal Circuit over whistleblower appeals from the MSPB for a
period of five years, allowing petitions for review to be filed
either in the Federal Circuit or in any other federal circuit
court of competent jurisdiction during this five-year period.
Section 108(b) amends 5 U.S.C. Sec. 7703(d) to conform
OPM's authority to file petitions for review of the MSPB's
orders interpreting civil service laws, during the five-year
period in which the Federal Circuit's exclusive jurisdiction is
suspended, so that OPM could seek review of WPA cases in the
Court of Appeals for the Federal Circuit or any other competent
court of appeals, rather than exclusively in the Federal
Circuit.
Section 109--Prohibited Personnel Practices Affecting the
Transportation Security Administration
This section adds a new 5 U.S.C. Sec. 2304, stating that
employees of the TSA are covered by 5 U.S.C. Sec. 2302(b)(1),
(8), and (9). These provisions offer full WPA rights as well as
protections against certain other prohibited personnel
practices, including discrimination under the Civil Rights Act
of 1964, the Age Discrimination in Employment Act of 1967, and
the Rehabilitation Act of 1973. Nothing in the new section 2304
would affect any rights to which an individual is otherwise
entitled under the law.
Section 110--Disclosure of Censorship Related to Research, Analysis, or
Technical Information
This section clarifies that an employee is protected from
reprisal under the WPA for disclosing information that an
employee reasonably believes is evidence of censorship related
to research, analysis, or technical information that is or will
cause gross government waste or mismanagement, an abuse of
authority, a substantial and specific danger to public health
or safety, or any violation of law.
Section 111--Clarification of Whistleblower Rights for Critical
Infrastructure Information
To encourage non-federal owners and operators of critical
infrastructure to voluntarily submit certain security-related
information regarding critical infrastructure to the Department
of Homeland Security, section 214 of the Homeland Security Act
(HSA) (6 U.S.C. Sec. 133) exempts such information from
disclosure under the Freedom of Information Act (5 U.S.C.
Sec. 552) and makes it a crime for a federal employee to
wrongfully disclose such information. Section 111 of this
legislation amends section 214(c) of the HSA (6 U.S.C.
Sec. 133(c)) to clarify that, when an employee or applicant
covered by the WPA obtains information in a manner not covered
by the critical infrastructure information program under the
HSA, disclosure by the employee or applicant of that
independently obtained information may be a protected
disclosure under the WPA (5 U.S.C. Sec. 2302(b)(8)) without
risk of criminal penalties, even if the same information was
also voluntarily submitted to DHS under the critical-
infrastructure protection program.
Section 112--Advising Employees of Rights
This section amends 5 U.S.C. Sec. 2302(c) to require
agencies, as part of their education requirements with respect
to employees' rights and protections, to inform employees how
to lawfully make a protected disclosure of classified
information to the Special Counsel, an Inspector General,
Congress, or any other designated agency official authorized to
receive classified information.
Section 113--Special Counsel Amicus Curiae Appearance
This section amends 5 U.S.C. Sec. 1212 to strengthen OSC's
ability to protect whistleblowers and the integrity of the WPA,
by authorizing OSC to appear as amicus curiae in any civil
action brought in a court of the United States in connection
with the WPA.
Section 114--Scope of Due Process
This section amends 5 U.S.C. Sec. Sec. 1214(b)(4)(B)(ii)
and 1221(e)(2) to specify that an agency may present its
defense to a whistleblower case only after the whistleblower
has first made a prima facie showing that a protected
disclosure was a contributing factor in the personnel action.
Section 115--Nondisclosure Policies, Forms, and Agreements
Section 115(a) requires all federal nondisclosure policies,
forms, and agreements to contain specified language preserving
employee obligations, rights, and liabilities created by
existing statute and Executive Order with respect to disclosure
of information. Section 115(a) also requires agencies to post
this language on their websites, accompanied by a list of
controlling statutory provisions and Executive Orders.
Nondisclosure policies, forms, and agreements without that
statement may not be implemented or enforced in a manner
inconsistent with the specified statement of rights.
Additionally, it is not a prohibited personnel practice to
enforce nondisclosure policies, forms, and agreements in effect
before the date of enactment with respect to current employees
if the agency provides the employees notice of the statement,
and with respect to former employees if the agency posts notice
of the statement on the agency website. (As discussed above,
section 104(b) of the bill would generally make it a prohibited
personnel practice to implement or enforce a nonconforming
federal nondisclosure policy.)
Section 115(b) provides that a nondisclosure policy, form,
or agreement for a person who is not a federal employee, but is
connected with the conduct of intelligence or intelligence-
related activity, shall contain appropriate provisions that
require nondisclosure of classified information and make clear
that the forms do not bar disclosures to Congress or to an
authorized official that are essential to reporting a
substantial violation of law. Of course, reporting a
substantial violation of law is but one example where
disclosure of classified information to Congress may be
appropriate. Section 115(b) provides a minimum standard for any
nondisclosure policy, form, or agreement for a person who is
not a federal person, and this minimum requirement should not
be construed to imply that such nondisclosure policy, form, or
agreement may not provide further information, consistent with
the minimum requirement, about additional protections that may
apply.
Section 116--Reporting Requirements
This section requires the GAO to 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 Act within 48
months, including an analysis of the number of cases filed with
the MSPB under the WPA, their disposition, and the impact the
process has on the MSPB and the Federal court system. The
section also requires the MSPB to report on the number and
outcome of WPA cases annually. In addition to WPA cases, these
reports must also cover cases filed under 5 U.S.C.
Sec. 2302(b)(9), which makes it a prohibited personnel practice
for an agency to take a personnel action in retaliation against
an employee for exercising appeal or grievance rights,
assisting another individual in exercising such rights,
cooperating with an IG or the Special Counsel, or refusing to
violate a law.
Section 117--Alternative Review
Section 117(a) amends 5 U.S.C. Sec. 1221 to allow certain
whistleblower and similar cases to be elevated to federal
district court. Under the new provisions, an employee, former
employee, or applicant who is before the MSPB to seek
corrective action under 5 U.S.C. Sec. 1221(a) or to appeal an
adverse action under 5 U.S.C. Sec. 7701(a), and whose claim is
based on alleged retaliation for either a protected disclosure
under 5 U.S.C. Sec. 2302(b)(8), making a whistleblower-
protection claim protected under Sec. 2302(b)(9)(A), or an
exercise of other rights protected under 5 U.S.C.
Sec. 2302(b)(9)(B), (C), or (D),\152\ may file an action for de
novo review in district court if several additional conditions
are satisfied. The individual may file only if the alleged
retaliation consisted of a major personnel action covered under
5 U.S.C. Sec. Sec. 7512 or 7542 (a removal from the civil
service, a demotion, a suspension for more than 14 days, or a
furlough of 30 days or less), and only if either--(i) no final
order or decision is issued by the MSPB within 270 days after a
request or appeal was submitted to the MSPB, or (ii) the MSPB
certifies, upon motion from the employee, that the claim would
survive a motion to dismiss and that any one of the following
is true: the Board is not likely to dispose of the case within
270 days, or the case consists of multiple claims, requires
complex or extensive discovery, arises out of the same set of
facts as a civil action pending in a federal court, or involves
a novel question of law.
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\152\As noted above, 5 U.S.C. Sec. 2302(b)(9) makes it a prohibited
personnel practice for an agency to take a personnel action against an
employee in retaliation for exercising certain appeal or grievance
rights, for assisting another individual in exercising such rights, for
cooperating with an IG or the Special Counsel, or for refusing to
violate a law. Under the amendments made by section 117(a) of the bill,
an employee may seek de novo review when the employee claims under
Sec. 2302(b)(9)(A) to have suffered retaliation for having sought a
remedy for a whistleblower violation under Sec. 2302(b)(8), but not
when the employee claims to have suffered retaliation for trying to
remedy a violation of any other law.
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A motion for certification may be submitted to the MSPB
within 30 days after the original request or appeal, and the
MSPB must rule on the motion within 90 days, and not later than
15 days before issuing a final decision on the merits of the
case. If a whistleblower claim goes to district court under
this provision, the MSPB must stay any other claims that arise
out of the same set of operative facts until completion of the
district court action and any appeals.
Section 117(a) also provides that, in cases removed to
district court, the agency may prevail if it demonstrates by a
preponderance of the evidence (rather than by clear and
convincing evidence, which is the standard used within the MSPB
process) that it would have taken the same personnel action in
the absence of a protected disclosure or other protected
activity. Section 117(a) also states that the Special Counsel
may not represent the employee in district court. At the
request of either party, the case shall be tried with a jury.
The court may award damages, attorney's fees, and costs, but
not punitive damages, and compensatory damages may not exceed
$300,000. An appeal from a final decision of a district court
can be taken to either the Court of Appeals for Federal Circuit
or the Court of Appeals for the circuit in which the district
court sits.
Section 117(b) provides that the provisions of section
117(a) are subject to a five-year sunset. Any claim pending
before the MSPB on the last day of the five-year period shall
continue to be subject to the provisions of section 117(a).
Section 118--Merit Systems Protection Board Summary Judgment
Section 118(a) amends 5 U.S.C. Sec. 1204(b) to authorize
the MSPB to consider and grant summary judgment motions in WPA
cases involving major personnel actions when the MSPB or an
administrative law judge determines that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.
Section 118(b) provides that the MSPB's summary judgment
authority is subject to a five-year sunset. The MSPB would
maintain summary judgment authority for those claims pending,
but not yet resolved, at the time of the sunset.
Section 119--Disclosures of Classified Information
This section amends 5 U.S.C. Sec. 2302(b)(8) and section 8H
of the Inspector General Act of 1978 (5 U.S.C. App.) to provide
that employees protected under the WPA may make protected
disclosures of classified information under the procedures set
forth for disclosing classified information under the ICWPA.
These protections do not in any way limit the right to
communicate with Congress under the Lloyd-LaFollette Act,
codified in 5 U.S.C. Sec. 7211, or other provisions of law.
Section 120--Whistleblower Protection Ombudsman
This section amends section 3 of the Inspector General Act
of 1978 (5 U.S.C. App.) to create a five-year pilot program to
require that each agency IG designate a Whistleblower
Protection Ombudsman. The Ombudsman would educate agency
employees about prohibitions on retaliation, and rights and
remedies against retaliation, for protected disclosures. The
Ombudsman would not act as a legal representative, agent, or
advocate of the employee or former employee. Agencies that are
elements of the intelligence community--as defined in section
3(4) of the National Security Act of 1947 (50 U.S.C.
Sec. 401a(4)) or whose principal function is the conduct of
foreign intelligence and counter intelligence activities, as
determined by the President--are not subject to this
requirement.
TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS
Section 201--Protection of Intelligence Community Whistleblowers
This section adds a new 5 U.S.C. Sec. 2303A, modeled on the
current protections for FBI employees in 5 U.S.C. Sec. 2303.
The new section would prohibit a personnel action against an
intelligence community employee as a reprisal for making a
protected whistleblower disclosure to the DNI, the head of the
employing agency, or an employee designated by the DNI or the
agency head for such purpose. The President would be directed
to provide for enforcement of this section. To establish the
scope of protection, the section defines the term
``intelligence community element'' to mean the CIA, the Defense
Intelligence Agency, the National Geospatial-Intelligence
Agency, the National Security Agency, the ODNI, the National
Reconnaissance Office, and any executive agency or unit thereof
determined by the President under 5 U.S.C.
Sec. 2302(a)(2)(C)(ii) to have as its principal function the
conduct of foreign intelligence or counterintelligence
activities. The term ``intelligence community element,'' for
the purposes of this section, does not include the FBI, which
is already subject to the similar provisions of 5 U.S.C.
Sec. 2303, and the new section 2303A also states that it should
not be construed to affect rights of FBI employees under
existing provisions of Sec. 2303.
Section 202--Review of Security Clearance or Access Determinations
Section 202(a) amends section 3001(b) of the Intelligence
Reform and Terrorism Prevention Act of 2004 (50 U.S.C.
Sec. 435b) to require the promulgation within 180 days of
policies and procedures to allow appeals of adverse security
clearance and access determinations. The section directs that
employees, to the extent practicable, should be allowed to
retain government employment while such an appeal is pending.
Section 202(a) also requires the policies and procedures to
include due process protections comparable to those pertaining
to WPA violations, including: an independent and impartial
fact-finder; notice and the opportunity to be heard, with the
opportunity to present relevant evidence and witness testimony;
the right to be represented by counsel; a decision based on the
record that is developed; and a decision within 180 days unless
the employee or former employee and the agency agree to an
extension, or unless the impartial fact-finder determines in
writing that a greater time period is needed in the interest of
fairness or national security. Classified information could be
used in the process, in a manner consistent with national
security, including through ex parte submissions if the agency
determines that national security interests so warrant. The
employee or former employee would have no right to compel the
production of classified information except as necessary to
establish that he or she made a protected disclosure.
Section 202(b) adds a new subsection (j) at the end of
section 3001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (50 U.S.C. Sec. 435b) to prohibit any
personnel action against employees with respect to their
security clearance or access determination because of a
protected disclosure. (An ``access determination,'' as defined
in section 202(c) and discussed below, is a determination
whether an individual has access to classified information.)
This section protects disclosures that an employee makes to the
DNI (or designee), to the head of the employing agency (or
designee), or to the IG of an agency if the employee reasonably
believes that the disclosed information evidences the type of
wrongdoing that may be the subject of disclosures protected
under the WPA. In addition, this section protects any
communication that the employee makes in compliance with one of
the processes under the ICWPA (either the process for CIA
employees or the process for certain other employees in the
intelligence community) or the similar process under the FY10
IAA.\153\
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\153\Section 8H of the Inspector General Act of 1978 (5 U.S.C.
App.); 50 U.S.C. Sec. 403q; 50 U.S.C. Sec. 403-3h(k)(5).
---------------------------------------------------------------------------
The provision further forbids taking an adverse security
clearance decision because someone: (1) exercises an appeal,
complaint, or grievance right; (2) testifies for or otherwise
assists any individual in the exercise of their whistleblower
rights; or (3) cooperates with, or discloses information to, an
IG, provided that the employee or applicant does not unlawfully
disclose classified information.
The amendment made by section 202(b) further establishes
that an individual who believes that he or she has been
subjected to prohibited reprisal may appeal that decision
within 90 days, but may not appeal the suspension of a security
clearance or access determination for purposes of conducting an
investigation, if that suspension does not last longer than one
year (or a longer period in accordance with agency
certification that the longer period is needed to prevent
imminent harm to the national security). If whistleblower
retaliation is found, the agency would be required to take
corrective action, which would include reasonable attorney's
fees and any other reasonable costs incurred, and could include
back pay and related benefits, travel expenses, and
compensatory damages not to exceed $300,000. Corrective action
shall not be ordered if the agency demonstrates by a
preponderance of the evidence (rather than by clear and
convincing evidence, which is the standard for WPA cases) that
it would have taken the same personnel action absent the
disclosure, giving the utmost deference to the agency's
assessment of the particular threat to United States national
security interests.
Section 202(b) would also permit an employee or former
employee to appeal the agency's decision within 60 days to the
appellate review board that is established within the ODNI
under section 204 of S. 743. The appellate review board must,
in consultation with the Attorney General, the DNI, and the
Secretary of Defense, develop and implement policies and
procedures for adjudicating such appeals, and the DNI and
Secretary of Defense would jointly approve any rules,
regulations, or guidance issued by the board concerning the use
or handling of classified information. The board's review would
be de novo based on the complete agency record, and any
portions of the record that were submitted ex parte shall
remain ex parte during the appeal. The review board would not
be permitted to hear witnesses or admit additional evidence,
and if the board determines that further fact-finding is
necessary, it would remand to the agency for additional
proceedings.
If the appellate review board finds that an adverse
security clearance or access determination violated this
section, the board would order the agency to take corrective
action to return the individual, as nearly as practicable and
reasonable, to the position the individual would have held had
the violation not occurred. Corrective action would also
include reasonable attorney's fees and any other reasonable
costs incurred, and could include back pay and related
benefits, travel expenses, and compensatory damages not to
exceed $300,000. Corrective action must be taken within 90
days, unless the DNI, Secretary of Defense, or Secretary of
Energy determines that doing so would endanger national
security. The board would separately determine whether
reinstituting the security clearance or access determination is
clearly consistent with national security, with any doubt
resolved in favor of national security. It could recommend, but
not order, the reinstatement of the security clearance or
access determination, as well as the reinstatement of a former
employee. The board also could 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. The board would be required to notify
Congress of its orders, as would an agency that does not follow
the board's recommendation to reinstate a clearance. This
section does not authorize either judicial review or a private
cause of action.
Section 202(c) further amends section 3001 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50
U.S.C. Sec. 435b) to add a definition of the term ``access
determination,'' which will mean a determination whether an
employee is eligible for access to classified information in
accordance with Executive Order 12968, Executive Order 10865,
or any successor of those executive orders and possesses the
need to know under those orders.
Section 202(d) states that nothing in section 3001 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50
U.S.C. Sec. 435b), as amended by this section, shall be
construed to require the repeal or replacement of agency appeal
procedures implementing Executive Order 12968 and Executive
Order 10865, or any successor of those executive orders, that
meet the requirements of Section 3001 of the Intelligence
Reform and Terrorism Prevention Act of 2004, as amended by this
section. These Executive Orders govern access to and
safeguarding classified information.
Section 203--Revisions Relating to the Intelligence Community
Whistleblower Act
This section amends section 8H of the Inspector General Act
of 1978 and section 17(d)(5) of the Central Intelligence Agency
Act of 1949 (50 U.S.C. Sec. 403q), both of which were
originally enacted by the ICWPA, to provide that, if an agency
head determines that handling a disclosure under these
procedures would create a conflict of interest, the agency head
must notify the IG, who would then make the transmission to the
DNI and, if the establishment is within the Department of
Defense, to the Secretary of Defense. Each recipient of the
IG's transmission would consult with the members of the
appellate review board established by this bill regarding all
transmissions. The amendments made by section 203 also permit
individuals who submit a complaint or information to an IG
under the ICWPA to notify a member of Congress or congressional
staff member of that submission, and the date on which the
submission was made.
Section 204--Regulations; Reporting Requirements; Nonapplicability to
Certain Terminations
Section 204(a) defines the term ``congressional oversight
committees'' to mean the Committee on Homeland Security and
Governmental Affairs of the Senate, the Select Committee on
Intelligence of the Senate, the Committee on Oversight and
Government Reform of the House of Representatives, and the
Permanent Select Committee on Intelligence of the House of
Representatives. Section 204(a) also defines the term
``intelligence community element,'' to mean the CIA, the
Defense Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security Agency, the ODNI,
the National Reconnaissance Office, and any executive agency or
unit thereof determined by the President under 5 U.S.C.
Sec. 2302(a)(2)(C)(ii), to have as its principal function the
conduct of foreign intelligence or counterintelligence
activities. The term ``intelligence community element,'' for
the purposes of this section, does not include the FBI. This is
the same definition of ``intelligence community element'' as is
included in the amendment made by section 201 of this bill for
the purposes of the intelligence community whistleblower
protections created by that section.
Section 204(b) requires the DNI, in consultation with the
Secretary of Defense, to prescribe regulations to ensure that
personnel actions will not be taken against intelligence
community employees as reprisal for making a disclosure that is
protected under 5 U.S.C. Sec. 2302A, which is the intelligence
community whistleblower provision enacted by section 201 of
this bill.
Section 204(b) also requires the DNI, in consultation with
the Secretary of Defense, the Attorney General, and the heads
of appropriate agencies, to establish the appellate review
board to hear whistleblower appeals related to security
clearance determinations under the amendments made by section
202(b) of this bill. The appellate review board would include a
subpanel composed of intelligence community elements and
inspectors general from intelligence community elements,
including the Inspector General of the Intelligence Community
and of the Department of Defense, to hear cases that arise in
elements of the intelligence community.
Section 204(c) requires the DNI, not later than two years
after the date of enactment, to submit a report on the status
of the implementation of the regulations to the congressional
oversight committees.
Section 204(d) provides that the protections of
intelligence community whistleblowers established under section
201 of this bill and the protection from security clearance
retaliation established under section 202 of this bill would
not apply to security clearance determinations if the affected
employee is concurrently terminated under any of several
specific authorities listed in the bill. Under these listed
authorities, considered together with conditions stated in the
bill, an employee could not assert whistleblower rights to
challenge an adverse security clearance determination if the
employee is concurrently, personally terminated by the
Secretary of Defense, the DNI, the CIA Director, or the head of
any other agency who determines that termination is in the
interest of the United States and that summary termination is
necessary because the procedures under other provisions of law
cannot be followed consistent with national security, and who
promptly notifies Congress of the termination.\154\
---------------------------------------------------------------------------
\154\These authorities listed in the bill authorizing summary
termination are: 10 U.S.C. Sec. 1609, granting authority to the
Secretary of Defense; section 102A(m) of the National Security Act of
1947 (50 U.S.C. Sec. 403-1(m)), granting authority to the DNI; section
104A(e) of the National Security Act of 1947 (50 U.S.C. Sec. 403-
4a(e)), granting authority to the CIA Director; and 5 U.S.C. Sec. 7532,
granting authority to any other agency head.
---------------------------------------------------------------------------
TITLE III--SAVINGS CLAUSE; EFFECTIVE DATE
Section 301--Savings Clause
This section provides a savings clause stating that the
legislation shall not be construed to imply any limitation on
any protections afforded by any other provisions of law to
employees and applicants.
Section 302--Effective Date
This section states the Act would take effect 30 days after
the date of enactment. The Committee expects and intends that
the Act's provisions shall be applied in OSC, MSPB, and
judicial proceedings initiated by or on behalf of a
whistleblower and pending on or after that effective date. Such
application is expected and appropriate because the legislation
generally corrects erroneous decisions by the MSPB and the
courts; removes and compensates for burdens that were
wrongfully imposed on individual whistleblowers exercising
their rights in the public interest; and improves the rules of
administrative and judicial procedure and jurisdiction
applicable to the vindication of whistleblowers' rights.
V. Estimated Cost of Legislation
February 1, 2012.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 743, the
Whistleblower Protection Enhancement Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 743--Whistleblower Protection Enhancement Act of 2011
Summary: S. 743 would amend the Whistleblower Protection
Act (WPA) to clarify current law and extend new legal
protections to federal employees who report abuse, fraud, and
waste related to government activities (such individuals are
known as whistleblowers). The legislation also would affect
activities of the Merit Systems Protection Board (MSPB) and the
Office of Special Counsel (OSC). Finally, it would establish an
oversight board within the intelligence community to review
whistleblower claims.
CBO estimates that implementing S. 743 would cost $24
million over the 2012-2017 period, assuming appropriation of
the necessary amounts for awards to whistleblowers and
additional administrative costs. Enacting the bill would not
affect direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
S. 743 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the federal government: The estimated
budgetary impact of S. 743 is shown in the following table. The
costs of this legislation primarily fall within budget
functions 800 (general government) and 050 (national defense),
as well as all other budget functions that include federal
salaries and expenses.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
----------------------------------------------------------------------
2012 2013 2014 2015 2016 2017 2012-2017
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Cost of Corrective Actions:
Estimated Authorization Level........ * 1 1 1 1 1 5
Estimated Outlays.................... * 1 1 1 1 1 5
Intelligence Community Whistleblower
Protection Board:
Estimated Authorization Level........ * 1 1 1 1 1 5
Estimated Outlays.................... * 1 1 1 1 1 5
MSPB and OSC:
Estimated Authorization Level........ * 2 2 2 2 2 10
Estimated Outlays.................... * 2 2 2 2 2 10
Other Provisions:
Estimated Authorization Level........ * 3 1 * * * 4
Estimated Outlays.................... * 3 1 * * * 4
Total Changes:
Estimated Authorization Level.... * 7 5 4 4 4 24
Estimated Outlays................ * 7 5 4 4 4 24
----------------------------------------------------------------------------------------------------------------
Notes: MSPB = Merit Systems Protection Board; OSC = Office of Special Counsel.
* = less than $500,000.
Basis of the estimate: For this estimate, CBO assumes that
the bill will be enacted in fiscal year 2012, that the
necessary amounts will be made available from appropriated
funds, and that spending will follow historical patterns for
similar programs.
Under current law, the OSC investigates complaints
regarding reprisals against federal employees who inform
authorities of fraud or other improprieties in the operation of
federal programs. The OSC orders corrective action (such as job
restoration, back pay, and reimbursement of attorneys' fees and
medical costs) for valid complaints. If agencies fail to take
corrective actions, the OSC or the employee can pursue a case
through the MSPB for resolution. Whistleblower cases may also
be reviewed by the U.S. Court of Appeals.
COST OF CORRECTIVE ACTIONS
When settling an employment dispute between the federal
government and an employee regarding prohibited personnel
practices, federal agencies are required to pay for an
employee's attorney, any retroactive salary payments, and any
travel and medical costs associated with the claim.
S. 743 would expand legal protections for whistleblowers
and extend protections to passenger and baggage screeners
working for the Transportation Security Administration and all
federal employees working primarily on scientific research. The
bill would authorize monetary awards to federal employees who
suffered retaliation by their agency of up to $300,000. In
addition, the legislation would allow access to jury trials and
would remove the exclusive jurisdiction of the U.S. Court of
Appeals over whistleblower appeals.
According to the MSPB and OSC, approximately 450
whistleblower cases and around 2,000 complaints about
prohibited personnel practices (including engaging in reprisals
against whistleblowers) are filed against the federal
government each year. CBO is unaware of comprehensive
information on the current costs of corrective actions related
to those cases. Damage awards depend on the particular
circumstances of each case. Settlement amounts for
whistleblowers have been as high as $1 million, while the
average settlement is around $18,000 (most corrective action is
nonmonetary, for example, amending performance appraisals). In
addition, the Government Accountability Office has reported
that about $15 million is spent annually (from the Treasury's
Judgment Fund) on equal employment opportunity and
whistleblower cases. While it is uncertain how often damages
would be awarded in such whistleblower situations, CBO expects
that increasing the number of covered employees and legal
protections under the bill would increase costs for such awards
by about $1 million each year.
INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION BOARD
Section 204 would require the Director of National
Intelligence, in consultation with the Secretary of Defense and
the Attorney General, to establish an appellate review board.
That board would adjudicate appeals from employees who believe
that they have been denied security clearances or other types
of authorizations to access restricted information in
retaliation for revealing certain types of misconduct. Based on
information from the Office of the Director of National
Intelligence about the staffing needs for similar activities,
CBO estimates that implementing this provision would cost $1
million annually.
MSBP AND OSC
CBO expects that enacting the bill would increase the
workload of the MSPB and the OSC. For fiscal year 2012, the
MSPB received an appropriation of $40 million, and the OSC
received $19 million. Based on information from those agencies,
we estimate that when the legislation was fully implemented,
those offices would spend about $2 million a year to hire
additional professional and administrative staff to handle
additional cases.
OTHER PROVISIONS
S. 743 would require the Government Accountability Office
to prepare two reports on whistleblowers. In addition, agencies
would be required to make changes to their whistleblower
training and nondisclosure policies governmentwide. Based on
information from federal agencies on the costs of similar
requirements, CBO estimates that implementing those provisions
would cost $4 million over the 2012-2017 period assuming
appropriation of the necessary amounts.
Previous CBO estimate: On January 25, 2012, CBO transmitted
a cost estimate for H.R. 3289, the Platts-Van Hollen
Whistleblower Protection Enhancement Act of 2011, as ordered
reported by the House Committee on Oversight and Government
Reform on November 15, 2011. Both S. 743 and H.R. 3289 would
amend the Whistleblower Protection Act. Both bills have similar
provisions and implementation costs, but the costs to implement
H.R. 3289 would be higher primarily because it would impose
additional responsibilities on Inspectors General.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: S. 743
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no significant costs on state,
local, or tribal governments.
Estimate prepared by: Federal Costs: Matthew Pickford and
Jason Wheelock; Impact on State, Local, and Tribal Governments:
Elizabeth Cove Delisle; Impact on the Private Sector: Paige
Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
VI. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The Committee
agrees with CBO, which states that there are no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and no costs on state, local, or
tribal governments. The legislation contains no other
regulatory impact.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic and existing law, in which no
change is proposed, is shown in roman):
TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION
Subchapter I--Merit Systems Protection Board
SEC. 1204. POWERS AND FUNCTIONS OF THE MERIT SYSTEMS PROTECTION BOARD.
* * * * * * *
(b) * * *
* * * * * * *
(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)(i),
(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.
[(3)](4) Witnesses (whether appearing voluntarily or
under subpoena) shall be paid the same fee and mileage
allowances which are paid subpoenaed witnesses in the
courts of the United States.
* * * * * * *
(m)(1) Except as provided in paragraph (2) of this
subsection, the Board, or an administrative law judge or other
employee of the Board designated to hear a case arising under
section 1215, may require payment by the [agency involved]
agency where the prevailing party was employed or had applied
for employment at the time of the events giving rise to the
case of reasonable attorney fees incurred by an employee or
applicant for employment if the employee or applicant is the
prevailing party and the Board, administrative law judge, or
other employee (as the case may be) determines that payment by
the agency is warranted in the interest of justice, including
any case in which a prohibited personnel practice was engaged
in by the agency or any case in which the agency's action was
clearly without merit.
Subchapter II--Office of Special Counsel
SEC. 1212. POWERS AND FUNCTIONS OF THE OFFICE OF SPECIAL COUNSEL.
* * * * * * *
(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 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. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; CORRECTIVE
ACTION.
(a) * * *
* * * * * * *
(3) Except in a case in which an employee, former
employee, or applicant for employment has the right to
appeal directly to the Merit Systems Protection Board
under any law, rule, or regulation, any such employee,
former employee, or applicant shall seek corrective
action from the Special Counsel before seeking
corrective action from the Board. An employee, former
employee, or applicant for employment may seek
corrective action from the Board under section 1221, if
such employee, former employee, or applicant seeks
corrective action for a prohibited personnel practice
described in section 2302(b)(8) or section
2302(b)(9)(A)(i), (B), (C), or (D) from the Special
Counsel and--
(A)(i) the Special Counsel notifies such
employee, former employee, or applicant that an
investigation concerning such employee, former
employee, or applicant has been terminated; and
(ii) no more than 60 days have elapsed since
notification was provided to such employee,
former employee, or applicant for employment
that such investigation was terminated; or
(B) 120 days after seeking corrective action
from the Special Counsel, such employee, former
employee, or applicant has not been notified by
the Special Counsel that the Special Counsel
shall seek corrective action on behalf of such
employee, former employee, or applicant.
(b) * * *
* * * * * * *
(4)(A) The Board shall order such corrective action
as the Board considers appropriate, if the Board
determines that the Special Counsel has demonstrated
that a prohibited personnel practice, other than one
described in section 2302(b)(8) or section
2302(b)(9)(A)(i), (B), (C), or (D), has occurred,
exists, or is to be taken.
(B)(i) Subject to the provisions of clause (ii), in
any case involving an alleged prohibited personnel
practice as described under section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D), the Board
shall order such corrective action as the Board
considers appropriate if the Special Counsel has
demonstrated that a disclosure or protected activity
described under section 2302(b)(8) or section
2302(b)(9)(A)(i), (B), (C), or (D) was a contributing
factor in the personnel action which was taken or is to
be taken against the individual.
(ii) Corrective action under clause (i) may not be
ordered if, after a finding that a protected disclosure
was a contributing factor, the agency demonstrates by
clear and convincing evidence that it would have taken
the same personnel action in the absence of such
disclosure.
* * * * * * *
(g) If the Board orders corrective action under this
section, such corrective action may include--
(1) that the individual be placed, as nearly as
possible, in the position the individual would have
been in had the prohibited personnel practice not
occurred; and
(2) reimbursement for attorney's fees, back pay and
related benefits, medical costs incurred, travel
expenses, [and any other reasonable and foreseeable
consequential damages] any other reasonable and
foreseeable consequential damages, and compensatory
damages (including interest, reasonable expert witness
fees, and costs).
* * * * * * *
(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.
SEC. 1215. DISCIPLINARY ACTION.
(a) * * *
* * * * * * *
[(3) A final order of the Board may impose
disciplinary action consisting of removal, reduction in
grade, debarment from Federal employment for a period
not to exceed 5 years, suspension, reprimand, or an
assessment of a civil penalty not to exceed $1,000.]
(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. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES.
(a) Subject to the provisions of subsection (b) of this
section and subsection 1214(a)(3), an employee, former
employee, or applicant for employment may, with respect to any
personnel action taken, or proposed to be taken, against such
employee, former employee, or applicant for employment, as a
result of a prohibited personnel practice described in section
2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) seek
corrective action from the Merit Systems Protection Board.
* * * * * * *
(e)(1) Subject to the provisions of paragraph (2), in any
case involving an alleged prohibited personnel practice as
described under section 2302(b)(8) or section 2302(b)(9)(A)(i),
(B), (C), or (D), the Board shall order such corrective action
as the Board considers appropriate if the employee, former
employee, or applicant for employment has demonstrated that a
disclosure or protected activity described under section
2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) was a
contributing factor in the personnel action which was taken or
is to be taken against such employee, former employee, or
applicant. The employee may demonstrate that the disclosure or
protected activity was a contributing factor in the personnel
action through circumstantial evidence, such as evidence that--
(A) the official taking the personnel action knew of
the disclosure or protected activity; and
(B) the personnel action occurred within a period of
time such that a reasonable person could conclude that
the disclosure or protected activity was a contributing
factor in the personnel action.
(2) Corrective action under paragraph (1) may not be
ordered if, after a finding that a protected disclosure was a
contributing factor, the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel
action in the absence of such disclosure.
* * * * * * *
(g)(1)(A) If the Board orders corrective action under this
section, such corrective action may include--
(i) that the individual be placed, as nearly as
possible, in the position the individual would have
been in had the prohibited personnel practice not
occurred; and
(ii) back pay and related benefits, medical costs
incurred, travel expenses, [and any other reasonable
and foreseeable consequential changes.] any other
reasonable and foreseeable consequential damages, and
compensatory damages (including interest, reasonable
expert witness fees, and costs).
(B) Corrective action shall include attorney's fees and
costs as provided for under paragraphs (2) and (3).
* * * * * * *
(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.
* * * * * * *
(i) Subsections (a) through (h) shall apply in any
proceeding brought under section 7513(d) if, or to the extent
that, a prohibited personnel practice as defined in section
2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) is
alleged.
* * * * * * *
(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 or 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)
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 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 the request for 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 or
appeal within 15 days after granting or denying a motion
requesting certification.
(6)(A) Any decision of the Board, any administrative law
judge appointed by the Board under section 3105 of this title
and assigned to the case, or any employee of the Board
designated by the Board and assigned to the case to grant or
deny a certification described under paragraph (4)(ii) shall be
reviewed on appeal of a final order or decision of the Board
under section 7703 only if--
(i) a motion requesting a certification was denied;
and
(ii) the reviewing court vacates the decision of the
Board on the merits of the claim under the standards
set forth in section 7703(c).
(B) The decision to deny the certification shall be
overturned by the reviewing court, and an order granting
certification shall be issued by the reviewing court, if such
decision is found to be arbitrary, capricious, or an abuse of
discretion.
(C) The reviewing court's decision shall not be considered
evidence of any determination by the Board, any administrative
law judge appointed by the Board under section 3105 of this
title, or any employee of the Board designated by the Board on
the merits of the underlying allegations during the course of
any action at law or equity for de novo review in the
appropriate United States district court in accordance with
this subsection.
(7) In any action filed under this subsection--
(A) the district court shall have jurisdiction
without regard to the amount in controversy;
(B) at the request of either party, such action shall
be tried by the court with a jury;
(C) the court--
(i) subject to clause (iii), shall apply the
standards set forth in subsection (e); and
(ii) may award any relief which the court
considers appropriate under subsection (g),
except--
(I) relief for compensatory damages
may not exceed $300,000; and
(II) relief may not include punitive
damages; and
(iii) notwithstanding subsection (e)(2), may
not order relief if the agency demonstrates by
a preponderance of the evidence that the agency
would have taken the same personnel action in
the absence of such disclosure; and
(D) the Special Counsel may not represent the
employee, former employee, or applicant for employment.
(8) An appeal from a final decision of a district court in
an action under this subsection shall be taken to the Court of
Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.
(9) This subsection applies with respect to any appeal,
petition, or other request for corrective action duly submitted
to the Board, whether under section 1214(b)(2), the preceding
provisions of this section, section 7513(d), section 7701, or
any otherwise applicable provisions of law, rule, or
regulation.
PART III--EMPLOYEES
Subpart A--General Provisions
CHAPTER 23--MERIT SYSTEM PRINCIPLES
SEC. 2302. PROHIBITED PERSONNEL PRACTICES.
(a)(1) For the purpose of this title, ``prohibited
personnel practice'' means any action described in subsection
(b).
(2) For the purpose of this section--
(A) ``personnel action'' means--
* * * * * * *
(x) a decision to order psychiatric testing
or examination; [and]
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and
[(xi)] (xii) any other significant change in
duties, responsibilities, or working
conditions; with respect to an employee in, or
applicant for, a covered position in an agency,
and in the case of an alleged prohibited
personnel practice described in subsection
(b)(8), an employee or applicant for employment
in a Government corporation as defined in
section 9101 of title 31;
(B) ``covered position'' means, with respect to any
personnel action, any position in the competitive
service, a career appointee position in the Senior
Executive Service, or a position in the excepted
service, but does not include any position which is,
prior to the personnel action--
(i) excepted from the competitive service
because of its confidential, policy-
determining, policy-making, or policy-
advocating character; or
(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of good
administration; [and]
(C) ``agency'' means an Executive agency and the
Government Printing Office, but does not include--
(i) a Government corporation, except in the
case of an alleged prohibited personnel
practice described under subsection (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D);
[(ii) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Imagery and
Mapping Agency, the National Security Agency,
and, 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;
or]
(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
(iii) the General Accountability Office; and
(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; 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 employee who has authority to take, direct others
to take, recommend, or approve any personnel action, shall not,
with respect to such authority--
* * * * * * *
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences--
(i) [a violation] any violation of
any law, rule, or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety, if such
disclosure is not specifically
prohibited by law and if such
information is not specifically
required by Executive order to be kept
secret in the interest of national
defense or the conduct of foreign
affairs; [or]
(B) any disclosure to the Special Counsel, or
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 or applicant
reasonably believes evidences--
(i) [a violation] any violation
(other than a violation of this
section) of any law, rule, or
regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; or
(C) any communication that complies with
subsection (a)(1), (d), and (h) of section 8H
of the Inspector General Act of 1978 (5 U.S.C.
App.);
(9) take or fail to take, or threaten to take or fail
to take, any personnel action against any employee or
applicant for employment because of--
(A) [the exercise of any appeal, complaint,
or grievance right granted by any law, rule or
regulation] 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 paragraph (8);
(B) testifying for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in subparagraph (A)(i) or
(ii);
(C) cooperating with or disclosing
information to the Inspector General of an
agency, or the Special Counsel, in accordance
with applicable provisions of law; or
(D) for refusing to obey an order that would
require the individual to violate a law;
* * * * * * *
(11)(A) knowingly take, recommend, or approve any
personnel action if the taking of such action would
violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action
would violate a veterans' preference requirement; [or]
(12) take or fail to take any other personnel action
if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title[.]; or
(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.''
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) 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.
(c) The head of each agency shall be responsible for the
prevention of prohibited personnel practices, for the
compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel
management, and for ensuring (in consultation with the Office
of Special Counsel) that agency employees are informed of the
rights and remedies available to them under this chapter and
chapter 12 of this title, 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. Any individual to whom the head of an agency
delegates authority for personnel management, or for any aspect
thereof, shall be similarly responsible within the limits of
the delegation.
* * * * * * *
(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. 2303. PROHIBITED PERSONNEL PRACTICES IN THE FEDERAL BUREAU OF
INVESTIGATION.
* * * * * * *
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; or
(2) mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to
public health or safety.
(c) Enforcement.--The President shall provide for the
enforcement of this section in a manner consistent with
applicable provisions of sections 1214 and 1221.
(d) Existing Rights Preserved.--Nothing in this section
shall be construed to--
(1) preempt or preclude any employee, or applicant
for employment, at the Federal Bureau of Investigation
from exercising rights currently provided under any
other law, rule, or regulation, including section 2303;
(2) repeal section 2303; or
(3) provide the President or Director of National
Intelligence the authority to revise regulations
related to section 2303, codified in part 27 of the
Code of Federal Regulations.
SEC. 2304. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION
SECURITY ADMINISTRATION.
(a) In General.--Notwithstanding any other provisions of
law, any individual holding or applying for a position within
the Transportation Security Administration shall be covered
by--
(1) the provisions of section 2302(b)(1), (8), and
(9);
(2) any provision of law implementing section 2302(b)
(1), (8), or (9) by providing any right or remedy
available to an employee or applicant for employment in
the civil service; and
(3) any rule or regulation prescribed under any
provision of law referred to in paragraph (1) or (2).
(b) Rule of Construction.--Nothing in this section shall be
construed to affect any rights, apart from those described in
subsection (a), to which an individual described in subsection
(a) might otherwise be entitled under law.
SEC. [2304] 2305. RESPONSIBILITIES OF THE GOVERNMENT ACCOUNTABILITY
OFFICE.
SEC. [2305] 2306. COORDINATION WITH CERTAIN OTHER PROVISIONS OF LAW.
Subpart F--Labor Management and Employee Relations
CHAPTER 77--APPEALS
SEC. 7703. JUDICIAL REVIEW OF DECISIONS OF THE MERIT SYSTEMS PROTECTION
BOARD.
(a)(1) Any employee or applicant for employment adversely
affected or aggrieved by a final order or decision of the Merit
Systems Protection Board may obtain judicial review of the
order or decision.
* * * * * * *
[(b)(1) Except as provided in 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 must be filed within
60 days after the date the petitioner received notice of the
final order or decision of the Board.]
(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, 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).
* * * * * * *
[(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 date the Director received
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 his
discretion, 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.]
(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,
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.
Inspector General Act of 1978
Public Law 95-452
(as codified at 5 U.S.C. App.)
SEC. 3. APPOINTMENT OF INSPECTOR GENERAL; SUPERVISION; REMOVAL;
POLITICAL ACTIVITIES; APPOINTMENT OF ASSISTANT
INSPECTOR GENERAL FOR AUDITING AND ASSISTANT
INSPECTOR GENERAL FOR INVESTIGATIONS
* * * * * * *
[(d) Each Inspector General shall, in accordance with
applicable laws and regulations governing the civil service--
(1) 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, and
(2) 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.]
(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.
SEC. 8D. SPECIAL PROVISIONS CONCERNING THE DEPARTMENT OF TREASURY.
* * * * * * *
(j) An individual appointed to the position of Treasury
Inspector General for Tax Administration, the Assistant
Inspector General for Auditing of the Office of the Treasury
Inspector General for Tax Administration under section
[3(d)(1)] 3(d)(1)(A), the Assistant Inspector General for
Investigations of the Office of the Treasury Inspector General
for Tax Administration under section [3(d)(2)] 3(d)(1)(B), or
any position of Deputy Inspector General of the Office of the
Treasury Inspector General for Tax Administration may not be an
employee of the Internal Revenue Service--
(1) during the 2-year period preceding the date of
appointment to such position; or
(2) during the 5-year period following the date such
individual ends service in such position.
SEC. 8H. ADDITIONAL PROVISIONS WITH RESPECT TO INSPECTORS GENERAL OF
THE INTELLIGENCE COMMUNITY.
(a)(1)(A) * * *
(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 at which that employee is employed;
* * * * * * *
(b)(1) Not later than the end of the 14-calendar day period
beginning on the date of receipt of an employee complaint or
information under subsection (a), the Inspector General shall
determine whether the complaint or information appears
credible. Upon making such a determination, the Inspector
General shall transmit to the head of the establishment notice
of that determination, together with the complaint or
information.
(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 each
recipient of the Inspector General's transmission. Each
recipient shall consult with the members of the appellate
review board established under section 204 of the Whistleblower
Protection Enhancement Act of 2011 regarding all transmissions
under this paragraph.
(c) Upon receipt of a transmittal from the Inspector
General under subsection (b), the head of the establishment
shall, within 7 calendar days of such receipt, forward such
transmittal to the [intelligence committees] appropriate
committees, together with any comments the head of the
establishment considers appropriate.
* * * * * * *
(d)(1) If the Inspector General does not find credible
under subsection (b) a complaint or information submitted to
the Inspector General under subsection (a), or does not
transmit the complaint or information to the head of the
establishment in accurate form under subsection (b), the
employee (subject to paragraph (2)) may submit the complaint or
information to Congress by contacting [either or both of the
intelligence committees] any of the appropriate committees
directly.
(2) The employee may contact the intelligence committees
directly as described in paragraph (1) only if the employee--
(A) before making such a contact, furnishes to the
head of the establishment, through the Inspector
General, a statement of the employee's complaint or
information and notice of the employee's intent to
contact the [intelligence committees] appropriate
committees directly; and
(B) obtains and follows from the head of the
establishment, through the Inspector General, direction
on how to contact the [intelligence committees]
appropriate committees in accordance with appropriate
security practices.
(3) A member or employee of one of the [intelligence
committees] appropriate committees who receives a complaint or
information under paragraph (1) does so in that member or
employee's official capacity as a member or employee of that
committee.
* * * * * * *
(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.
[(h)](i) In this section:
(1) The term ``urgent concern'' means any of the
following:
(A) A serious or flagrant problem, abuse,
violation of law or Executive order, or
deficiency relating to the funding,
administration, or operations of an
[intelligence] activity involving classified
information, but does not include differences
of opinions concerning public policy matters.
(B) A false statement to Congress, or a
willful withholding from Congress, on an issue
of material fact relating to the funding,
administration, or operation of an intelligence
activity or an activity involving classified
information.
(C) An action, including a personnel action
described in section 2302(a)(2)(A) of title 5,
constituting reprisal or threat of reprisal
prohibited under section 7 (c) in response to
an employee's reporting an urgent concern in
accordance with this section.
(2) [The term ``intelligence committees'' means the
Permanent Select Committee on Intelligence of the House
of Representatives and the Select Committee on
Intelligence of the Senate] 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.
The Homeland Security Act of 2002
Public Law 107-296
(as codified at 6 U.S.C. 133)
SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE
INFORMATION.
* * * * * * *
(c) Independently Obtained Information.--Nothing in this
section shall be construed to limit or otherwise affect the
ability of a State, local, or Federal Government entity,
agency, or authority, or any third party, under applicable law,
to obtain critical infrastructure information in a manner not
covered by subsection (a) of this section, including any
information lawfully and properly disclosed generally or
broadly to the public and to use such information in any manner
permitted by law. 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.
The Central Intelligence Agency Act of 1949
Public Law 81-110
(as codified at 50 U.S.C. 403q)
SEC. 17(E). INSPECTOR GENERAL FOR AGENCY.
* * * * * * *
(d) Semiannual Reports; Immediate Reports of Serious or
Flagrant Problems; Reports of Functional Problems; Reports to
Congress on Urgent Concerns.--
* * * * * * *
(5)(A) An employee of the Agency, or of a contractor
to the Agency, who intends to report to Congress a
complaint or information with respect to an urgent
concern may report such complaint or information to the
Inspector General.
(B)(i) Not later than the end of the 14-calendar day
period beginning on the date of receipt from an
employee of a complaint or information under
subparagraph (A), the Inspector General shall determine
whether the complaint or information appears credible.
Upon making such a determination, the Inspector General
shall transmit to the Director notice of that
determination, together with the complaint or
information.
(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 Director of National Intelligence. The Director
of National Intelligence shall consult with the members
of the appellate review board established under section
204 of the Whistleblower Protection Enhancement Act of
2012 regarding all transmissions under this paragraph.
* * * * * * *
(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.
* * * * * * *
The Intelligence Reform and Terrorism Prevention Act of 2004
Public Law 108-458
(as codified at 50 U.S.C. 435b)
SEC. 3001. SECURITY CLEARANCES.
(a) Definitions.--
* * * * * * *
(9) The term ``access determination'' means the
process for determining whether an employee--
(A) is eligible for access to classified
information in accordance with Executive Order
12968 (60 Fed. Reg. 40245; relating 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.
* * * * * * *
(b) Selection of Entity.--[Not] Except as otherwise
provided, not later than 90 days after December 17, 2004, the
President shall select a single department, agency, or element
of the executive branch to be responsible for--
(1) directing day-to-day oversight of investigations
and adjudications for personnel security clearances,
including for highly sensitive programs, throughout the
United States Government;
(2) developing and implementing uniform and
consistent policies and procedures to ensure the
effective, efficient, and timely completion of security
clearances and determinations for access to highly
sensitive programs, including the standardization of
security questionnaires, financial disclosure
requirements for security clearance applicants, and
polygraph policies and procedures;
(3) serving as the final authority to designate an
authorized investigative agency or authorized
adjudicative agency;
(4) ensuring reciprocal recognition of access to
classified information among the agencies of the United
States Government, including acting as the final
authority to arbitrate and resolve disputes involving
the reciprocity of security clearances and access to
highly sensitive programs pursuant to subsection (d) of
this section;
(5) ensuring, to the maximum extent practicable, that
sufficient resources are available in each agency to
achieve clearance and investigative program goals;
[and]
(6) reviewing and coordinating the development of
tools and techniques for enhancing the conduct of
investigations and granting of clearances[.]; and
(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 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).
* * * * * * *
(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; 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; 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), and (h)
of section 8H of the Inspector General
Act of 1978 (5 U.S.C. App.);
(ii) subsection (d)(5)(A), (D), 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), and
(G), of section 103H of the National
Security Act of 1947 (50 U.S.C. 403-
3h);
(D) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation;
(E) testifying for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in subparagraph (D); or
(F) cooperating with or disclosing
information to the Inspector General of an
agency, in accordance with applicable
provisions of law in connection with an audit,
inspection, or investigation conducted by the
Inspector General,
if the actions described under subparagraphs (D)
through (F) do not result in the employee or applicant
unlawfully disclosing information specifically required
by Executive order to be kept classified in the
interest of national defense or the conduct of foreign
affairs.
(2) Rule of construction.--Consistent with the
protection of sources and methods, nothing in paragraph
(1) shall be construed to authorize the withholding of
information from the Congress or the taking of any
personnel action against an employee who discloses
information to the Congress.
(3) Disclosures.--
(A) In general.--A disclosure shall not be
excluded from paragraph (1) because--
(i) the disclosure was made to a
person, including a supervisor, who
participated in an activity that the
employee reasonably believed to be
covered by paragraph (1)(A)(ii);
(ii) the disclosure revealed
information that had been previously
disclosed;
(iii) of the employee's motive for
making the disclosure;
(iv) the disclosure was not made in
writing;
(v) the disclosure was made while the
employee was off duty; or
(vi) of the amount of time which has
passed since the occurrence of the
events described in the disclosure.
(B) Reprisals.--If a disclosure is made
during the normal course of duties of an
employee, the disclosure shall not be excluded
from paragraph (1) if any employee who has
authority to take, direct others to take,
recommend, or approve any personnel action with
respect to the employee making the disclosure,
took, failed to take, or threatened to take or
fail to take a personnel action with respect to
that employee in reprisal for the disclosure.
(4) Agency adjudication.--
(A) Remedial procedure.--An employee or
former employee who believes that he or she has
been subjected to a reprisal prohibited by
paragraph (1) of this subsection may, within 90
days after the issuance of notice of such
decision, appeal that decision within the
agency of that employee or former employee
through proceedings authorized by paragraph (7)
of subsection (a), except that there shall be
no appeal of an agency's suspension of a
security clearance or access determination for
purposes of conducting an investigation, if
that suspension lasts not longer than 1 year
(or a longer period in accordance with a
certification made under subsection (b)(7)).
(B) Corrective action.--If, in the course of
proceedings authorized under subparagraph (A),
it is determined that the adverse security
clearance or access determination violated
paragraph (1) of this subsection, the agency
shall take specific corrective action to return
the employee or former employee, as nearly as
practicable and reasonable, to the position
such employee or former employee would have
held had the violation not occurred. Such
corrective action shall include reasonable
attorney's fees and any other reasonable costs
incurred, and may include back pay and related
benefits, travel expenses, and compensatory
damages not to exceed $300,000.
(C) Contributing factor.--In determining
whether the adverse security clearance or
access determination violated paragraph (1) of
this subsection, the agency shall find that
paragraph (1) of this subsection was violated
if a disclosure described in paragraph (1) was
a contributing factor in the adverse security
clearance or access determination taken against
the individual, unless the agency demonstrates
by a preponderance of the evidence that it
would have taken the same action in the absence
of such disclosure, giving the utmost deference
to the agency's assessment of the particular
threat to the national security interests of
the United States in the instant matter.
(5) Appellate review of security clearance access
determinations by director of national intelligence.--
(A) Definition.--In this paragraph, the term
`Board' means the appellate review board
established under section 204 of the
Whistleblower Protection Enhancement Act of
2011.
(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.
(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.