Calendar No. 219
111th Congress
SENATE
Report
1st Session 111-101
======================================================================
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 372
TO AMEND CHAPTER 23 OF TITLE 5, UNITED STATES CODE, TO CLARIFY THE
DISCLOSURES OF INFORMATION PROTECTED FROM PROHIBITED PERSONNEL
PRACTICES, REQUIRE A STATEMENT IN NONDISCLOSURE POLICIES, FORMS, AND
AGREEMENTS THAT SUCH POLICIES, FORMS, AND AGREEMENTS CONFORM WITH
CERTAIN DISCLOSURE PROTECTIONS, PROVIDE CERTAIN AUTHORITY FOR THE
SPECIAL COUNSEL, AND FOR OTHER PURPOSES
December 3, 2009.--Ordered to be printed
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 JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana ROBERT F. BENNETT, Utah
ROLAND W. BURRIS, Illinois
PAUL G. KIRK, Jr., Massachusetts
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Lawrence B. Novey, Senior Counsel
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of Columbia
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amanda Wood, Minority Director for Governmental Affairs
Jennifer A. Hemingway, Minority Staff Director, Subcommittee on
Oversight of Government Management, the Federal Workforce, and the
District of Columbia
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 219
111th Congress
SENATE
Report
1st Session 111-101
======================================================================
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009
_______
December 3, 2009.--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. 372]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 372) to amend
chapter 23 of title 5, United States Code, to clarify the
disclosures of information protected from prohibited personnel
practices, require a statement in nondisclosure policies,
forms, and agreements that such policies, forms, and agreements
conform with certain disclosure protections, provide certain
authority for the Special Counsel, and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background.......................................................2
III. Legislative History............................................38
IV. Section-by-Section Analysis.....................................39
V. Estimated Cost of Legislation...................................48
VI. Evaluation of Regulatory Impact.................................51
VII. Changes in Existing Law.........................................51
I. Purpose and Summary
The Whistleblower Protection Enhancement Act (WPA) is
designed to strengthen the rights of and protections for
federal whistleblowers and to help root out waste, fraud, and
abuse in federal programs. Whistleblowers have long played a
critical role in keeping our government honest and efficient,
and the events of September 11, 2001 made even clearer the fact
that our citizens' safety depends upon our ensuring 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 employees seeking to blow
the whistle on wrongdoing have seen their protections diminish
in recent years, largely as a result of a series of decisions
of the U.S. Court of Appeals for the Federal Circuit, which has
exclusive jurisdiction over many WPA cases. The Federal Circuit
has narrowly defined who qualifies as a whistleblower and what
types of disclosures qualify those whistleblowers for
protection. Just as problematically, the lack of remedies for
most whistleblowers in the intelligence community leaves
unprotected those who disclose wrongdoing that could undermine
our national security.
S. 372 would address these problems by restoring the
original congressional intent of the WPA and strengthening it
and the Intelligence Community Whistleblower Protection Act
(ICWPA).\1\ It would, among other things: clarify the broad
meaning of ``any'' disclosure of waste, fraud, and abuse that,
under the WPA, a covered employee may make with impunity;
expand the availability of a protected channel to make
disclosures of classified information to appropriate committees
of Congress; codify an anti-gag provision to allow employees to
come forward with disclosures of illegality; 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 whistleblowers protected under the
ICWPA with a forum to challenge retaliation, with the right to
appeal decisions to a federal court of appeals; and provide
whistleblowers under both the ICWPA and the WPA with a forum
for challenging retaliatory security clearance determinations.
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\1\Whistleblower Protection Act of 1989, Public Law No. 101-12, 103
Stat. 16 (1989); Intelligence Community Whistleblower Protection Act of
1998, enacted as title VII of the Intelligence Authorization Act for FY
1999, Public Law No. 105-272, 112 Stat. 2396 (1998).
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II. Background
The Civil Service Reform Act of 1978 (CSRA) 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 federal employees continued to fear
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 (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 federal employees who
disclose what they reasonably believe to be evidence of illegal
or other seriously improper government activity. 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 protection for the rights of
federal employees, to prevent reprisals, and to help eliminate
wrongdoing within the government by (1) mandating that
employees should not suffer adverse consequences as a result of
prohibited personnel practices; and (2) establishing that,
while disciplining those who commit prohibited personnel
practices may be used as a means to help accomplish that goal,
the protection of individuals who are the subject of prohibited
personnel practices remains the paramount consideration.\5\
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\5\Id. at 9, 23.
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Congress substantially amended the WPA in 1994, as part of
legislation to reauthorize the OSC and the MSPB. 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.
Now, fifteen 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.
Clarification of what constitutes a protected disclosure under the WPA
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.''\6\
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\6\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.\7\
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\7\H. Rep. No. 103-769, at 18 (1994).
Despite the clear legislative history and the plain,
intended 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. For example,
in Horton v. Department of the Navy,\8\ the court ruled that
disclosures to co-workers or to the wrongdoer are not
protected, because the disclosures are not made to persons in a
position to redress wrongdoing. In Willis v. Department of
Agriculture,\9\ the court stated in dictum that a disclosure
made as part of an employee's normal job duties is not
protected. And in Meuwissen v. Department of Interior,\10\ the
court held that disclosures of information already known are
not protected.\11\
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\8\66 F.3d 279, 283 (Fed. Cir. 1995).
\9\141 F.3d 1139, 1144 (Fed. Cir. 1998).
\10\234 F.3d 9, 13-14 (Fed. Cir. 2000).
\11\See, e.g., Johnson v. Department of Health and Human Services,
87 M.S.P.R. 204, 210 (2000) (limiting Willis to its factual context and
rejecting claim that Willis stood for the broad proposition that had
been rejected by both the MSPB and the Federal Circuit); accord 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''); Sood v. Department of Veteran Affairs, 88 M.S.P.R.
214, 220 (2001); Czarkowski v. Department of the Navy, 87 M.S.P.R. 107
(2000).
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S. 372 accordingly amends the WPA to clarify that a
whistleblower is not deprived of protection because the
disclosure was made during the normal course of the employee's
duties; was made to a person, including a supervisor, who
participated in the wrongdoing; revealed information that had
been previously disclosed; was not made in writing; or was made
while the employee was off duty. The bill also makes clear that
disclosures may not be declared unprotected simply because of
the employee's motive for making the disclosure, or because of
the amount of time that has passed since the events described
in the disclosure. By clarifying the broad scope of protected
disclosures, S. 372 effectively restores Congress's original
intent to the WPA.
The evident difficulty in settling on a precise scope of
protection 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.\12\ 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 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 have under
no burden to present an affirmative defense.\13\ 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.\14\ S. 372 does not affect these decisions or
regulations.
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\12\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).
\13\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).
\14\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 or other
items 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.
Sec. 2302 (b)(8).\15\ The Committee believes it is prudent to
codify that objective test in the whistleblower statute, and
has done so in S. 372. 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. And in cases not so filtered,
the agency may still be able to prevail on its defense if it
can demonstrate that it would have taken the same personnel
action against the employee even absent the disclosure.
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\15\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 expressed 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. 372 requires the Government
Accountability Office (GAO) to evaluate the implementation of
the Act, including any trends in the number of cases filed and
the disposition of those cases and any patterns of abuse. S.
372 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.
The Committee does believe that there should be two narrow,
reasonable limitations on the scope of protected disclosures,
and it has included those limitations in S. 372. The first
emerged during the hearing on this bill's predecessor, S. 1358,
during the 108th Congress. The Senior Executives Association
testified that they believed that an unrestricted scope of
protected disclosure could be construed to include lawful
policy decisions of a supervisor or manager, and recommended
that the bill be clarified to deny protection relating to
policy disagreements.\16\ Put another way, disclosures must be
specific and factual, not general, philosophical, or policy
disagreements. S. 372 incorporates that limitation by excluding
communications concerning policy decisions that lawfully
exercise discretionary authority. This exclusion reflects
congressional intent at the inception of statutory
whistleblower protection.\17\ At the same time, the Committee
recognizes the need to curb a disturbing trend to hold that the
WPA does not cover disclosures of tangible misconduct arguably
flowing from a policy decision. As a result, S. 372 provides
balance by codifying that an employee is still protected 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.\18\
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\16\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).
\17\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.).
\18\Gilbert v. Dept. of Commerce, 194 F.3d 1332 (Fed. Cir. 1999).
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Second, to address concerns that minor, accidental
violations of law committed in good faith would become the
basis for protected disclosures and legal claims, S. 372
excludes disclosures of ``an alleged violation that is minor,
inadvertent, and occurs during conscientious carrying out of
official duties.'' The agency would need to prove the employee
disclosed alleged wrongdoing that is minor or insignificant and
that was done inadvertently or accidentally in the course of
the alleged violator's duties. As an illustrative example,
suppose an agency regulation requires employees to turn off
their office lights at night, someone forgets to do so
occasionally, and an employee reports that violation. That is
the type of disclosure of a minor, accidental violation that
the Committee does not intend should be the basis for a WPA
claim. Of course, this provision has no effect on whether, in
taking a personnel action affecting an employee, the agency
may, or may not, consider that the employee made such a
disclosure of a minor and inadvertent violation; the only
effect of the provision is that the protections and procedures
of the WPA may not be invoked in this situation. The language
of this provision derives from case law finding that
disclosures of trivial or de minimis violations are not
protected under the WPA\19\ and is not intended to expand the
current scope of that exception.
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\19\See Drake v. Agency for International Development, 543 F.3d
1377, 1381 (Fed. Cir. 2008).
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The intentionally broad scope of protected disclosures
should be clear. With respect to ``any violation of any law,
rule, or regulation,'' the Committee emphasizes that ``any''
means ``any,'' except where an agency proves that one of these
two narrow exceptions applies. With respect to a disclosure of
``gross mismanagement'' or a ``gross waste'' of funds, more
than de minimis wrongdoing must be alleged. The Board used an
appropriate definition of ``gross mismanagement'' in Swanson v.
General Services Administration.\20\ 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.''
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\20\110 M.S.P.R. 278, 284-85 (2008), citing Shriver v. Department
of Veterans Affairs, 89 M.S.P.R. 239 (2001).
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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. 372, is
an objective one. However, in a very troubling decision ten
years ago, the Federal Circuit imposed on the whistleblower the
burden of ``irrefragable proof.'' Under this court-imposed
standard, in order to prove that the whistleblower's belief in
the disclosed wrongdoing was reasonable, the whistleblower also
had to present irrefragable proof that the wrongdoing actually
occurred, in order to rebut what the court considered to be the
standard presumption that the government acts in good
faith.\21\ The MSPB and the Federal Circuit have, in subsequent
decisions, disavowed this requirement of ``irrefragable
proof,'' and S. 372 would codify the removal of the
``irrefragable proof'' requirement from whistleblower
jurisprudence.
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\21\Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
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In Lachance v. White, the Office of Personnel Management
(OPM) sought review of an order by the Board that found that
White made protected disclosures resulting in a downgrade in
position. OPM argued that White's belief that he disclosed
gross mismanagement (an allegedly wasteful Air Force education
program) was inadequate to support a violation of the WPA
without an independent review by the MSPB of the reasonableness
of White's belief.
The Federal Circuit agreed, and stated that the MSPB must
have an objective test to determine whether it was reasonable
to believe that the disclosures revealed misbehavior by the Air
Force covered by 5 U.S.C. Sec. 2302(b)(8). 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?''\22\ However, the court then
added that the review of whether White reasonably believed he
disclosed wrongdoing 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.''\23\ In other words, in
the court's view, the disinterested observer weighing whether
the employee disclosed wrongdoing would start with the
presumption that the government acted properly unless there is
presented irrefragable proof to the contrary. ``Irrefragable''
means impossible to refute.\24\ Read literally, therefore, the
holding required employees to establish that they reasonably
believed they disclosed wrongdoing by offering indisputable
proof that the public official or officials acted in bad faith
or violated the law. Such an evidentiary burden was contrary to
logic and clear congressional intent.
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\22\Id.
\23\Id. (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795
(Fed. Cir. 1993)).
\24\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.\25\
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\25\White v. Dept. Air Force, 95 M.S.P.R. 1, 7-8 (2003).
On December 15, 2004, the Federal Circuit, ruling on this
case on appeal from the MSPB, rejected the government's
argument and 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.\26\
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\26\White v. Dept. Air Force, 391 F. 3d 1377, 1381 (Fed. Cir.
2004).
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To definitely disavow the ``irrefragable proof''
requirement and to ensure that it is not revived in future case
decisions, S. 372 codifies the objective reasonable-belief test
in Lachance for all whistleblower disclosures. The bill also
provides that any presumption that a public official (i.e., the
official whose misconduct the whistleblower is disclosing)
acted in good faith 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.''\27\ It consists of ``more than a mere scintilla
of evidence but may be somewhat less than a
preponderance.''\28\ By establishing a substantial evidence
test, the Committee intends to provide a standard that will not
be a higher burden than the preponderance of the evidence
standard that employees must meet to prove their case on the
merits. This standard is consistent with the legislative
history of the 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 is evidence of misconduct listed in section
2302(b)(8).\29\ The Committee emphasizes that there should be
no additional burdens imposed on the employee beyond those
provided by the statute, and that the statutory definition must
be applied consistently to each protected speech category in
section 2302(b)(8).\30\
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\27\Richardson v. Perales, 402 U.S. 389, 401 (1971).
\28\Hays v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990) (quoting
Laws v. Celebrezze, 368 F. 2d 640, 642 (4th Cir. 1966)).
\29\Ramos v. FAA, 4 M.S.P.R. 388 (1980).
\30\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 two narrow exceptions to the
definition of protected disclosures must be applied within the
framework of the objective reasonableness test. In other words,
if an employee has a reasonable belief that the information
disclosed evidences misconduct listed in section 2302(b)(8),
rather than conduct excepted from that definition, the
disclosure is protected. The agency, for example, may not
prevail by demonstrating that the actual misconduct meets the
minor, inadvertent exception; what matters is the objective
reasonableness of the employee's belief with regard to his or
her disclosure.
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.\31\ 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.\32\
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\31\Public Law No. 95-454, 92 Stat. 1143, Sec. 205 (1978) (adding 5
U.S.C. Sec. 7703).
\32\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 and no ``split in the circuits'' can ever
occur. 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.\33\
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\33\S. 1358 Hearing supra note 16, (statement of Stephen Kohn,
Chairman, Board of Directors, National Whistleblower Center) at 136.
The Committee believes that this argument raises valid points
about the current arrangement for judicial review.
Furthermore, unlike federal employee whistleblower cases, 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. State or local government employees affected
by the MSPB's Hatch Act decisions also may obtain review in the
U.S. district courts.\34\ 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 court of appeals for the circuit where the
petitioner resides, transacts business, or to the D.C.
Circuit.\35\
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\34\5 U.S.C. Sec. 1508.
\35\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
can file a case in district court and appeal to the appropriate
federal court of appeals.\36\ 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.\37\ In 1991,
Congress passed the Federal Deposit Insurance Corporation
Improvement Act which provides district court review with
regular avenues of appeal for whistleblowers in federal credit
unions.\38\ Whistleblower laws passed as part of the Energy
Reorganization Act, as amended in 1992,\39\ and the Clean Air
Act, as amended in 1977,\40\ 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),\41\ passed 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 makes a claim of 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.\42\ 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.\43\
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\36\31 U.S.C. Sec. 3730(h).
\37\12 U.S.C. Sec. 1441a(q).
\38\12 U.S.C. Sec. 1790b(b).
\39\42 U.S.C. Sec. 5851(c).
\40\42 U.S.C. Sec. 7622(c).
\41\49 U.S.C. Sec. 42121(b)(4).
\42\18 U.S.C. Sec. 1514A.
\43\Public Law No. 111-5, Sec. 1552, 123 Stat. 115 (2009).
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Subject to a five-year sunset, S. 372 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 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.
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.''\44\ 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 that allege that federal
officials have committed prohibited personnel practices.
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\44\5 U.S.C. Sec. 1211(b).
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When such a claim is filed by a federal employee, 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.\45\ If an agency does not do so, the OSC is
authorized to file a petition for corrective action with the
MSPB.\46\ At proceedings before the MSPB, the OSC is
represented by its own attorneys while the employing agency is
represented by the agency's counsel.
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\45\U.S. Office of Special Counsel, Annual Report for Fiscal Year
2003, at 7.
\46\5 U.S.C. Sec. 1214(b)(2)(C).
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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, 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. These cases
usually involve agency officials' efforts to reverse Board
decisions that have granted a petition by the OSC to impose
discipline for retaliating against a whistleblower. Because the
OSC lacks independent litigating authority, it must be
represented by the Justice Department, rather than its own
attorneys, in such cases. 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 court of appeals. Therefore, S.
372 provides the Special Counsel with authority to file its own
amicus curiae (or, ``friend of the court'') briefs with the
federal courts, represented by its own lawyers, not by DOJ,
thereby presenting the OSC's views on the law in whistleblower
cases or other matters designated in the bill.
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),\47\ 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.\48\
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\47\Public Law No. 96-354, 94 Stat. 1164 (1980).
\48\5 U.S.C. Sec. 612(c).
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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.
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.\49\
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\49\5 U.S.C. Sec. 1215.
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However, under MSPB case law, 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, if the whistleblowing activity had not occurred,
then that manager would not have taken the adverse personnel
action.\50\ This can be a heavy burden to meet. In 1989,
Congress lowered the burden of proof for whistleblowers to win
corrective action against retaliation. The 1989 Act eliminated
the relevance of employer motives, eased the standard to
establish a prima facie case (showing that the protected speech
was a contributing factor in the action), and raised the burden
for agencies, which must now provide independent justification
for the personnel action at issue by clear and convincing
evidence.\51\ However, the 1989 statutory language only
established burdens for defending against retaliation. It
failed to address 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,
but rejected the OSC's claim for disciplinary action against
the managers in the same case.\52\
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\50\Special Counsel v. Santella, 65 M.S.P.R. 452 (1994).
\51\5 U.S.C. Sec. Sec. 1214 and 1221. See also 135 Cong. Rec. 4509,
4517, 5033 (1989).
\52\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.'').
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The bill addresses the burden of proof problem in OSC
disciplinary action cases by employing the same burden of proof
the Supreme Court set forth in Mt. Healthy v. Doyle,\53\ in
which a public school teacher claimed he was unlawfully
terminated from his employment for exercising his First
Amendment freedom of speech. Under this test, the OSC would
have to show that protected whistleblowing was a ``significant
motivating factor'' in the 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 MSPB would
order appropriate discipline unless the official shows, 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.
---------------------------------------------------------------------------
\53\Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977).
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OSC attorney 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 fees could have an impact on 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. 372's
solution is Santella v. Special Counsel.\54\ In a 2-1 decision,
the MSPB held that the OSC could be held liable to pay attorney
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. The Board majority further ruled that two supervisors in
the Internal Revenue Service (IRS) were ``substantially
innocent'' of retaliation, notwithstanding an earlier finding
by an MSPB administrative law judge that their subordinates'
whistleblowing was a contributing factor in four personnel
actions the supervisors took against them.
---------------------------------------------------------------------------
\54\86 M.S.P.R. 48 (May 9, 2000).
---------------------------------------------------------------------------
The OSC argued that, because its decision to prosecute the
supervisors was a reasonable one and based upon then-existing
law, an award of fees would not be in the interests of justice.
In fact, the OSC contended, sanctioning an award of fees under
these 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 fees, then their
employing agency, the IRS, should be found liable.
The Board majority rejected the OSC's arguments. It held
that the OSC, and not the IRS, should be liable for any award
of fees. It further found that--because the supervisors had
ultimately prevailed in the case under the Board's more
stringent burden of proof--they were ``substantially innocent''
of the charges, and reimbursement of their fees would be in the
interests of justice.\55\
---------------------------------------------------------------------------
\55\Id. at 64-65.
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Vice Chair Slavet dissented. She observed that the OSC had
presented ``direct evidence of retaliatory animus on the part
of one of the [supervisors] and circumstantial evidence of
retaliation supporting all the charges.'' Further, she noted
that the OSC had proven its charges to the satisfaction of the
ALJ under the law as it existed when the action was commenced,
but lost when the test was revised and made harder to meet in
the course of the litigation. Under these circumstances, then-
Vice Chair Slavet observed that the OSC's pursuit of the case
was reasonable and an award of fees was not in the interests of
justice.\56\
---------------------------------------------------------------------------
\56\Id. at 69-76.
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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 (and even predict
the unpredictable: changes in the law that might affect the
OSC's original assessment of a case's merit) before bringing a
disciplinary action. Because the OSC is a small agency with a
limited budget, this burden would hinder the OSC's use of
disciplinary action as an enforcement mechanism and threaten
the OSC's ability to implement and enforce the WPA. To correct
this problem, S. 372 would require the employing agency, rather
than the OSC, to reimburse the manager's attorney fees.
Anti-gag provisions
In 1988, Senator Grassley sponsored an amendment to the
Treasury, Postal and General Government Appropriations bill,
which was and continues to be referred to as the ``anti-gag''
provision.\57\ 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,\58\ and to make appropriate disclosures under
other particular laws specified in the statement.
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\57\Public Law No. 105-277, 112 Stat. 2681-526 (1998), the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999,
Sec. 636.
\58\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. 372 would institutionalize the anti-gag provision by
codifying it and making it enforceable. Specifically, the bill
would require every nondisclosure policy, form, or agreement of
the Government to contain specific language set forth in the
legislation informing employees of their rights. A
nondisclosure policy, form, or agreement may not be implemented
or enforced in a manner that is inconsistent with the required
statement of rights or the underlying statutory protections.
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, 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.
S. 372 provides that a nondisclosure policy, form, or
agreement in effect before the date of enactment may be
enforced with regard to a current employee if the agency gives
the employee notice of the statement of rights, and may be
enforced with regard to a former employee if the agency posts
notice on the agency website for one year following the date of
enactment of the Act.\59\ The Committee concludes these
provisions strike the appropriate balance between allowing
existing nondisclosure agreements to remain in force while also
ensuring that employees are aware of their rights under the
law.
---------------------------------------------------------------------------
\59\Such agreements may be enforced during the notice period
provided the agency posts notice by the effective date of the Act.
---------------------------------------------------------------------------
Ex post facto exemption of agencies from whistleblower protection
obligations
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.\60\
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\60\5 U.S.C. Sec. 2302(a)(2)(B).
---------------------------------------------------------------------------
Certain agencies are also excluded from the Act. They
include GAO, the Federal Bureau of Investigation (FBI), the
Central Intelligence Agency, the National Security Agency, the
Defense Intelligence Agency, the National Geospatial-
Intelligence Agency, and other agencies determined by the
President to have the principal function of conducting foreign
intelligence or counterintelligence activities.\61\ S. 372
would add two intelligence community entities that clearly have
the principal function of conducting intelligence activities to
the list of statutorily excluded intelligence agencies that are
covered under the Intelligence Community Whistleblower
Protection Act\62\ rather than the WPA: the Office of the
Director of National Intelligence (ODNI) and the National
Reconnaissance Office. ODNI was created in 2004 by the
Intelligence Reform and Terrorism Prevention Act of 2004\63\
and did not exist the last time the WPA was amended.
---------------------------------------------------------------------------
\61\5 U.S.C. Sec. 2302(a)(2)(C).
\62\The ICWPA was enacted as title VII of the Intelligence
Authorization Act for FY 1999, Public Law No. 105-272, 112 Stat. 2396
(1998). It provides intelligence community employees excluded from the
WPA a protected path to disclose classified information to Congress.
\63\Public Law No. 108-458, 118 Stat. 3638 (2004).
---------------------------------------------------------------------------
In 1994, Congress amended the WPA to block agencies from
depriving an employee of protection under the WPA by
designating the employee's particular position as a
confidential policy-making position after retaliating against
the employee for having blown the whistle. To accomplish this,
Congress restricted the jurisdictional loophole to positions
designated as exceptions ``prior to the personnel action.''\64\
Unfortunately, a similar practice has occurred again, in a
context with far broader consequences. An agency argued that
the President had implicitly exempted the agency from the WPA
by delegating certain intelligence functions to the agency over
a year after an employee at the agency had filed a
whistleblower protection complaint, and after the Board had
overturned an Administrative Judge's decision to order a
hearing.\65\
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\64\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)(C).
\65\See Czarkowski v. Merit Systems Protection Board, 390 F.3d
1347, 1350-51 (Fed. Cir. 2004) (rejecting the argument for implicit
exemption from the WPA). The agency sought to invoke the exemption
after the Board had rejected its previous defense on a different basis
and ordered a hearing. See Czarkowski v. Dept. of the Navy, 87 M.S.P.R.
107 (2000).
---------------------------------------------------------------------------
S. 372 would close the loophole for entire agencies in the
same manner as Congress did for individual positions in 1994,
by specifying that an employee of an agency loses whistleblower
rights only if the agency is excluded under the Act prior to
the occurrence of any personnel action against a whistleblower.
The Committee believes that it is important for employees to
know their rights and protections under the WPA, including if
they have no rights, before they make any whistleblowing
disclosure in reliance on the protections of the WPA. By
eliminating the potential for post-disclosure exclusion from
the WPA, this provision encourages employees to disclose waste,
fraud, abuse, and illegal activity, and will aid them in
determining the appropriate way to do so.
Whistleblower protection for Transportation Security Administration
employees
As noted above,\66\ the WPA generally provides
whistleblowers the opportunity to file a request for corrective
action known as an individual right of action, or IRA, before
the Board. However, in Schott v. Department of Homeland
Security, the MSPB ruled that it had no jurisdiction over
whistleblower cases brought by employees of the Transportation
Security Administration (TSA). The Board reasoned that the
Aviation and Transportation Security Act (ATSA), which created
TSA and gave the TSA Administrator authority to establish a
personnel system outside of title 5 of the United States Code,
provides the Administrator with ``final authority'' over TSA
personnel actions.\67\ The Board held that the Administrator's
``exclusive personnel authority'' encompasses an exclusion from
the whistleblower protections found in title 5 and is not
subject to Board review.
---------------------------------------------------------------------------
\66\See the section entitled ``Office of Special Counsel--Amicas
Curiae Authority,'' supra.
\67\97 M.S.P.R. 35 (2004).
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In May 2002, TSA and the OSC entered into a memorandum of
understanding that provided the OSC the authority to
investigate whistleblower retaliation complaints and recommend
to TSA that it take corrective and/or disciplinary action.\68\
In February 2008, TSA and the Board announced an agreement to
provide TSA employees with a limited right to bring WPA claims
before the Board;\69\ and in July 2008, TSA and the Board
announced that they had implemented that agreement.\70\ Under
the agreement, TSA employees are permitted to file an appeal
with the Board after the OSC has reviewed and closed a matter
involving a whistleblower complaint. Whistleblowers may not
appeal Board orders, and Board hearings for whistleblowers are
closed to the public absent 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.
---------------------------------------------------------------------------
\68\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.
\69\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.
\70\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).
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The Committee concludes that there is no basis for
excluding TSA employees from the full protections of the WPA.
Employees of all other components of the Department of Homeland
Security are protected by the WPA, 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 S. 372:
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.\71\
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\71\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 be protected by the WPA, the Committee
determined that S. 372 should extend full WPA protections to
TSA employees. S. 372 also would make the provisions
prohibiting certain personnel practices under 5 U.S.C.
Sec. 2302(b)(1) applicable to TSA employees. Section 2302(b)(1)
classifies certain unlawful actions as prohibited personnel
practices, including 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; on the basis of age as prohibited by the Age
Discrimination in Employment Act of 1967; on the basis of sex
under the Fair Labor Standards Act of 1938 (which, as amended,
includes the Equal Pay Act); on the basis of handicapping
condition under the Rehabilitation Act of 1973; and on the
basis of marital status or political affiliation as prohibited
by any law, rule, or regulation.
Penalties for retaliatory investigations
In the legislative history to the 1994 amendments, House
Civil Service Subcommittee Chairman Frank McCloskey highlighted
that retaliatory investigation of whistleblowers is a form of
harassment and discrimination, and can have a chilling effect
on protected disclosures, thereby undermining the merit
system.\72\ In 1997, the Board held, in Russell v. Department
of Justice, that the WPA protects employees from retaliatory
investigations under certain circumstances.\73\ Specifically,
in this case where an employee asserted a WPA violation as a
defense against a proposed personnel action, 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.''
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\72\140 Cong. Rec. 29,353 (1994) and H.R. Rep. No. 103-769, at 15.
\73\76 M.S.P.R. 317, 323-24 (1997).
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As noted above, 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.
However, agency investigations of employees are not explicitly
covered under the statutory definition of a ``personnel
action.'' Instead, such investigations can come within that
definition only when they result in a significant change in job
duties, responsibilities, or working conditions or meet certain
other criteria.\74\ Therefore, even if a whistleblower can
demonstrate that an investigation was undertaken in retaliation
for a protected disclosure, the whistleblower has no remedy
under the WPA unless the whistleblower can also show that the
investigation amounts to a significant change in job duties,
responsibilities, or working conditions.
---------------------------------------------------------------------------
\74\5 U.S.C. Sec. 2302(a)(2). Certain other types of actions, such
as disciplinary action, transfers, and decisions affecting pay also
would be considered personnel actions.
---------------------------------------------------------------------------
S. 372, as introduced, and its predecessors, would have
explicitly and specifically recognized retaliatory
investigations as a prohibited personnel practice. However, the
Administration expressed concerns with that provision.
Specifically, the Administration wanted to ensure that
legitimate agency inquiries--including criminal investigations,
routine background investigations for initial employment,
investigations for determining eligibility for a security
clearance, Inspector General investigations, and management
inquiries of potential wrongdoing in the workplace--are not
chilled by fear of challenge and litigation.\75\
---------------------------------------------------------------------------
\75\S. 1358 Hearing supra note 16 at 60.
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To address this concern, while still increasing
whistleblowers' protection from retaliatory investigations, the
Committee agreed in the substitute amendment to S. 372 to alter
S. 372's original provision on retaliatory investigations. As
amended, the provision leaves Russell as the governing law for
prohibited personnel practices, but 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 would
not change 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,
but, once an employee is able to prove a claim under the WPA,
the provision of S. 372 would create an additional avenue for
financial relief if the employee can further demonstrate that
an investigation was undertaken in retaliation for the
protected disclosure.
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.\76\ To
encourage submission of this information, the HSA stipulates
that voluntarily submitted critical infrastructure information
is to be treated as exempt under the Freedom of Information
Act.\77\ 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.
---------------------------------------------------------------------------
\76\Public Law No. 107-296, Sec. 214, 116 Stat. 2135 (2002).
\77\See 5 U.S.C. Sec. 552.
---------------------------------------------------------------------------
At the same time, the Act criminalizes the unauthorized
disclosure of this type of information, 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:
[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.\78\
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\78\Letter from Elaine Kaplan, Special Counsel, Office of Special
Counsel, to Sen. Charles Grassley (March 10, 2003).
When DHS issued proposed regulations implementing section
214 of the HSA, it received comments expressing concern that
whistleblowers could be treated unfairly and be subject to
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.\79\ However, as stated in DHS's final
regulations, published in September 2006, the ``refer[ence] to
the Whistleblower Protection Act [ ] has been omitted because .
. . [it] merely restates the law of the land.''\80\
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\79\See 69 Fed. Reg. 8074.
\80\See 71 Fed. Reg. 52262, and 6 CFR Sec. 29.8(f).
---------------------------------------------------------------------------
The regulations clearly intend to ensure that disclosures
of independently obtained critical infrastructure information
are not exempt from the WPA. S. 372 would codify that
regulatory intent and make clear that disclosures of this type
are free from criminal penalties and are fully covered by the
whistleblower provisions in 5 U.S.C. Sec. 2302(b)(8).
Right to a full hearing
Board case law has created a disturbing trend of denying
the employees' right to a due process hearing and a public
record to resolve their WPA claims. The prevailing practice at
the Board now is to deny employees the opportunity to present
whistleblower claims if the agency first prevails in its
affirmative defense of proving, by clear and convincing
evidence, that the agency would have taken the same personnel
action for lawful reasons independent of retaliation against
the employee for protected whistleblowing.\81\
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\81\See, e.g., Rusin v. Dept. of Treasury, 92 M.S.P.R. 298 (2002).
---------------------------------------------------------------------------
Taking away whistleblowers' opportunity to present their
cases undermines key purposes of the WPA. The order in which
parties get to present their cases may influence the fact-
finders' perception of the merits and, therefore, potentially
the outcome, and 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. 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 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, the current procedure 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.''\82\ The Board's merit
system oversight duty is so significant that under the 1994
amendments to the Act, the Board must refer managers for OSC
disciplinary investigation whenever there is a finding that
reprisal for a protected disclosure was a contributing factor
in a decision to take a personnel action, even if the agency
ultimately prevails on its affirmative defense of independent
justification.\83\ The current procedure relieves the Board of
these oversight responsibilities, as long as the agency has an
acceptable overall affirmative defense.
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\82\Reprinted in 135 Cong. Rec. 5033 (1989).
\83\140 Cong. Rec. H11422 (daily ed. Oct 7, 1994) (statement of
Rep. McCloskey).
---------------------------------------------------------------------------
S. 372 resolves this problem by requiring that, before the
agency may present its defense, the employee must have had an
opportunity to present his or her evidence first and must have
succeeded in presenting a prima facie case that the protected
activity was a contributing factor in the personnel action. If
the employee fails to do that, then the case is dismissed; if
the employee succeeds, then the agency gets its turn to present
its defense.
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 related
to 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,
S. 372 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.
Reporting requirements
In order to assist Congress in evaluating the effects of
this legislation, S. 372 would require three reports. S. 372
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 would 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. 372
would require the Council of Inspectors General on Integrity
and Efficiency to conduct a study on security clearance
revocations and the appeals processes available. Finally, it
will 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. Sec. 2302(b)(8) or (9). The Committee believes that these
provisions will enable Congress to examine closely how this
bill is implemented and to evaluate whether provisions subject
to the five-year sunset should be extended and to consider
additional steps if needed in the interim.
Alternative review
The duration of the MSPB process often leaves
whistleblowers, many of whom have been terminated from federal
employment, without resolution of their claims for far too
long. To address this problem, the bill as reported establishes
an alternative review procedure for certain whistleblower
retaliation cases. Subject to a five-year sunset, the bill
would allow claims involving major personnel actions to go to
federal district court if at least one of the following
conditions is met: the MSPB does not issue a final order or
decision within 270 days after the request for corrective
action was submitted; or if the MSPB certifies, upon motion
from the employee, that the Board is not likely to dispose of
the case within 270 days or that 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, involves a novel question of law, or states a claim upon
which relief can be granted. With respect to the last
condition, 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.
An MSPB decision that denies certification to remove a
whistleblower case to district court may be considered on
appeal only 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 major personnel actions under
5 U.S.C. Sec. Sec. 7512 and 7542. Second, alternative review is
limited to cases that take more than 270 days to resolve, or
are certified for district court because they are likely to
take more than 270 days or they involve complex or multiple
claims, novel questions of law, or state a claim upon which
relief can be granted. 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.\84\ 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.\85\
---------------------------------------------------------------------------
\84\See Statement of Thomas Devine, Legal Director, Government
Accountability Project, S. 372 Hearing supra note 71.
\85\Id.
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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.\86\
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.\87\ 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.''\88\ 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.
---------------------------------------------------------------------------
\86\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 71, at 12-13.
\87\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).
\88\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.\89\
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.\90\ 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.\91\
---------------------------------------------------------------------------
\89\See id.; see also Devine Statement, S. 372 Hearing supra note
71.
\90\Vaughn Statement, S. 372 Hearing supra note 71, at 14.
\91\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 in
district court.
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. 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.\92\ 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, ``we would suggest that Congress
consider adopting damages caps analogous to the Title VII
context to ensure that incentives are properly aligned and to
alleviate concerns about runaway juries.''\93\
---------------------------------------------------------------------------
\92\Statement of William L. Bransford, General Counsel, Senior
Executives Association, S. 372 Hearing supra note 71.
\93\De Statement, S. 372 Hearing supra note 71.
---------------------------------------------------------------------------
To address the concern that fear of litigation could chill
needed discipline of problem employees, 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 at the hearing on
S. 372 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.\94\ The Committee
concludes 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, 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.
---------------------------------------------------------------------------
\94\Id.
---------------------------------------------------------------------------
The alternative review provisions included in the
substitute amendment adopted by the Committee 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.
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.\95\ To assist the Board with prompt adjudication of
WPA claims, the Committee included in the substitute amendment
to S. 372 a provision authorizing 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 may examine
evidence and pleadings before it and shall determine, 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.
---------------------------------------------------------------------------
\95\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.
---------------------------------------------------------------------------
Classified disclosures to Congress for employees under the WPA
In order to clarify a procedure under the WPA by which
federal employees may disclose to Congress classified
information that evidences waste, fraud, and abuse, S. 372
amends 5 U.S.C. Sec. 2302(b)(8) to allow all federal employees
to take advantage of the procedures that have already been set
forth for disclosing classified information to Congress in the
Intelligence Community Whistleblower Protection Act.
As introduced, S. 372 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 is
direct and specific evidence of 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), which contained very similar provisions to S. 372 as
introduced, although that bill would have applied only to the
intelligence community. The Executive Branch 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.''\96\ In its report, 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.\97\
---------------------------------------------------------------------------
\96\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).
\97\S. Rep. No. 105-165 (1998).
---------------------------------------------------------------------------
Nonetheless, in order to address the Administration's
concerns, the House and Senate agreed to modify the Senate
proposal and enacted the ICWPA, which provides a secure process
by which a whistleblower in the intelligence community may
disclose wrongdoing to Congress.\98\ Specifically, the ICWPA
requires an employee to first inform the inspector general for
his or her agency, who determines if the employee's complaint
is credible. If the inspector general determines the complaint
is credible, he or she must transmit the information to the
House and Senate Intelligence Committees. The employee may also
transmit the information to those committees if the inspector
general does not determine the complaint to be credible, but
the employee must first notify the inspector general that he or
she will take such action. Thereafter, the agency has the
ability to provide the employee with appropriate instructions
regarding how to transmit classified information to the
Congress and an opportunity to review the disclosure of this
information. However, as the House and Senate agreed in the
conference report for the ICWPA, the ICWPA ``establishes an
additional process to accommodate the disclosure of classified
information of interest to Congress.'' 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.''\99\
---------------------------------------------------------------------------
\98\Intelligence Authorization Act for FY 1999, Public Law No. 105-
272, 112 Stat. 2396, title VII (1998) (``Intelligence Community
Whistleblower Protection Act of 1998'').
\99\H.R. Rep. No. 105-780 (1998) (emphasis added).
---------------------------------------------------------------------------
The current Administration likewise objected to S. 372's
provisions explicitly protecting classified disclosures to
Congress. Mr. De, on behalf of the Administration, testified at
the hearing on S. 372:
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.\100\
---------------------------------------------------------------------------
\100\See De Statement, S. 372 Hearing supra note 71, at 11.
The Committee believes that the original provision of
S.372, as introduced, is consistent with Congress's
constitutional role; however, to accommodate the concerns
expressed by the Administration, the Committee agreed to alter
this provision. The substitute amendment to S. 372 adopted by
the Committee strikes the original provision described above
and adds provisions that would provide federal employees
covered under the WPA with protection under the WPA if they
disclose classified information to Congress using the
procedures that now apply under the ICWPA only to employees at
certain intelligence agencies. This provision in S. 372, as
amended, is intended to ensure that employees who witness
waste, fraud, and abuse are not inhibited from disclosing it
appropriately, and thereby seeking to end it, simply because it
involves classified information, and to ensure that Congress
receives the information necessary to fulfill its oversight
responsibilities, while protecting all federal employees from
retaliation for disclosing wrongdoing to Congress. In addition,
this provision seeks to ensure the proper handling of
classified documents and information in the process of
reporting wrongdoing, consistent with the requirements under
the ICWPA, and will extend WPA protection to employees who come
forward under this process with information about prohibited
practices and waste, fraud, and abuse in the federal
government.
The Committee emphasizes that this new process is but one
way for federal employees to disclose classified information to
Congress. 5 U.S.C. Sec. 2302(b) currently states that it is 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. The new
process does not in any way limit the right to communicate with
Congress under the Lloyd-La Follette Act\101\ (which codifies
federal employees' right to petition or provide information to
Congress) or any other provision of law.
---------------------------------------------------------------------------
\101\Public Law No. 336, 37 Stat. 539, 555 (1912); 5 U.S.C.
Sec. 7211.
---------------------------------------------------------------------------
Whistleblower Protection Ombudsman
To ensure that employees are aware of their rights under
the WPA and avenues of redress, the Committee agreed to include
a provision in the substitute amendment to S. 372 adopted by
the Committee that requires each agency inspector general to
designate a Whistleblower Protection Ombudsman within the
Office of the Inspector General. This Ombudsman would advocate
for agency employees, educate agency personnel about prohibited
personnel practices on retaliation for protected disclosures,
and advise agency employees on how to make a protected
disclosure and help those who have made a protected disclosure.
This applies to all inspectors general, whether the employees
are covered by the WPA or ICWPA.
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.
Establishment of Intelligence Community Whistleblower Protection Board
As discussed above, numerous elements of the intelligence
community are excluded from the WPA, under 5 U.S.C.
Sec. 2302(a)(2)(C)(ii) because the intelligence community
handles highly classified programs and information that must be
closely guarded from public disclosure. These whistleblowers
are provided a secure channel under the ICWPA by which to
disclose sensitive information, first to the appropriate
inspector general and then to the Intelligence Committees of
Congress. However, the ICWPA does not offer redress if the
employee suffers retaliation because of the disclosure.\102\
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\102\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. Although S. 372 creates a consolidated process for
all employees in the intelligence community who allege retaliation for
protected whistleblower disclosures to seek redress under the ICWPA,
the committee does not intend that this legislation would interfere in
any way with the ability of Congress and various committees of Congress
to exercise oversight of the treatment of Executive branch
whistleblowers.
---------------------------------------------------------------------------
As Mr. De testified on behalf of the Administration at the
hearing on S. 372, establishing a scheme to provide redress
would be desirable:
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.''\103\
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\103\De Statement, S. 372 Hearing supra note 71, at 6-7.
Specifically, in order to reconcile the competing interests
of providing more robust protections for whistleblowers in the
intelligence community and ensuring that classified information
vital to national security remains protected, Mr. De, on behalf
of the Administration, recommended that a central element of
such a remedial process would be the creation of an
Intelligence Community Whistleblower Protection Board.
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According to Mr. De:
This Board could be composed of senior
presidentially-appointed officials from key agencies
within and outside of the intelligence community,
including inspectors general, to provide a safe and
effective means for intelligence community employees to
obtain redress if they suffer retaliation for
disclosing waste, fraud, or abuse.\104\
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\104\Id. at 7.
The Committee concluded that providing additional
protections for intelligence community employees to 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 outside of their employing agencies
if they suffer retaliation for disclosing agency waste, fraud
or abuse would encourage intelligence community whistleblowers
to come forward. Protecting disclosures made according to a
specified, protected channel additionally would likely better
protect national security information, as Mr. De testified, by
removing the incentive to leak information publicly.
Accordingly, the substitute amendment to S. 372 that was
agreed to by the Committee adds a second title to S. 372,
establishing the Intelligence Community Whistleblower
Protection Board (ICWPB) to hear appeals of intelligence
community whistleblower cases.\105\ The ICWPB would act in many
respects as the MSPB does for whistleblowers outside the
intelligence community, and would be located within the Office
of the Director for National Intelligence to ensure that it has
the expertise and resources needed to appropriately protect
highly sensitive information that may be involved in
intelligence-community whistleblower cases. The ICWPB would
consist of a Chairperson appointed by the President and four
other members, all of whom would be confirmed by the Senate.
Two of the four members would be designated by the President
from individuals serving as an Inspector General of any agency.
The designation of these members is intended to ensure that
there is strong representation of members who have a firm
understanding of the importance of and mechanisms for oversight
and accountability. The President would appoint the other two
members, in consultation with the Secretary of Defense,
Director of National Intelligence, and the Attorney General.
The designation of these members is intended to ensure that the
Board contains members with a firm understanding of the
importance of and mechanisms for protecting national security
information. The members would serve four-year terms, except
for the initial terms, which vary from four to six years so
that future terms will be staggered.
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\105\The intelligence community elements under the jurisdiction of
the ICWPB are the same elements that are excluded from the WPA and
under the ICWPA, discussed above. These do not include (unless
designated by the President) all of the elements of the intelligence
community as it typically is defined in law, which is having the same
meaning as set forth in section 3(4) of the National Security Act of
1947 (50 U.S.C. Sec. 401a(4)). The agencies excluded from the WPAs
protections and within the scope of the ICWPA always have been narrower
than the intelligence community as defined by the National Security
Act. Although there may be some value to a consistent definition in
law, the Committee has determined that consistency is not a sufficient
basis to exclude additional entities from the more robust protections
of the WPA. The Committee does note that the President has the
authority to exclude other elements of the intelligence community.
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The Chairman of the ICWPB would be paid at level III of the
executive schedule on a pro rata basis for time spent on Board
activities. The members appointed in consultation with the
Secretary of Defense, Director of National Intelligence, and
the Attorney General would be compensated at the same rate for
time spent on ICWPB activities, up to 130 days per year. The
inspectors general appointed to the ICWPB would not receive
additional compensation.
S. 372 provides the ICWPB with the authority, in
consultation with the Attorney General, the Director of
National Intelligence, and the Secretary of Defense, to
promulgate rules, regulations and guidance and issue orders to
fulfill its functions.
Prohibited personnel practices against employees under the ICWPA
Under the substitute amendment agreed to by the Committee,
S. 372 would make it a ``prohibited personnel practice'' for a
supervisor to take or fail to take, or threaten to take or fail
to take, a personnel action, as defined under the WPA, against
an employee under the ICWPA. Additionally, like the WPA, S. 372
would make it a prohibited personnel practice for a supervisor
to take or fail to take, or threaten to take or fail to take,
any personnel action against any employee because he or she--
(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 agency Inspector General. The
denial, suspension, or revocation of a security clearance or
denying access to classified or sensitive information or a
suspension with pay pending an investigation would be subject
to challenge under separate government-wide provisions on
security clearances, discussed below. If an ICWPA employee
seeks to challenge both a security clearance determination and
other alleged retaliation, the employee would bring both claims
jointly under the security clearance process.
These provisions afford employees under the ICWPA
protections against most of the same forms of retaliatory
personnel actions that are forbidden under the WPA. The
exception is that it cannot be considered unlawful retaliation
to withdraw an employee's security clearance, to deny an
employee's access to classified or sensitive information, or to
suspend an employee with pay pending the conclusion of an
investigation. This exception recognizes that intelligence
entities may need to take quick action to protect national
security while an investigation of an employee is pending.
Protected disclosures by employees under the ICWPA
As under the WPA, protected disclosures under S. 372 would
include information the employee reasonably believes 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. However, employees could seek protection through the
ICWPB appeals process only if they made their disclosures to
certain officials in certain ways, due to the sensitive
information involved and limits on which officials have
security clearances and access to certain information. Any
disclosure to an agency official would be protected if
disclosure is not specifically prohibited by law or executive
order. The Committee intends to treat information that would
reveal classified information the same as classified
information. This restriction does not apply to disclosure to
Inspectors General or agency officials designated to receive
such disclosures, because these officials have procedures in
place for handling classified disclosures of wrongdoing.
Additionally, disclosures to Congress that comply with the
ICWPA procedures, described above, or with the process for
disclosing information under the Central Intelligence Agency
Act\106\ are protected within this appeals process.
---------------------------------------------------------------------------
\106\Public Law No. 81-110, 63 Stat. 208 (1949). The relevant
procedures are codified at 50 U.S.C. Sec. 403q.
---------------------------------------------------------------------------
The provisions governing protected disclosures by employees
under the ICWPA include the same clarifications that S. 372
would add to the WPA regarding the nature and circumstances of
disclosures that are protected under the WPA. As described
above, employees' disclosures are protected under S. 372 if the
disclosure was made during the normal course of the employee's
duties; made to a person, including a supervisor, who
participated in the wrongdoing; revealed information that had
been previously disclosed; was not made in writing; or was 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.
Remedial procedures for employees under the ICWPA
A. Appeals to the agency head or designee
For employees, applicants, or former employees under the
ICWPA who allege a prohibited personnel practice, as described
above, S. 372 would provide a process for review. First, an
affected individual would file an appeal with the head of his
or her employing agency or the agency head's designee. An
individual who is not satisfied with the agency head's or
designee's decision, could appeal that decision to the ICWPB.
Finally, the individual could file a petition for review of the
ICWPB's decision in a federal court of appeal.
Regarding the first level of review, S. 372 would provide
employees, applicants, or former employees of an intelligence
community element with the right to appeal a prohibited
personnel practice to the head of his or her employing agency,
or the agency head's designee. S. 372 provides flexibility for
agencies within larger Departments, such as the National
Security Agency, the Defense Intelligence Agency, the National
Geospatial-Intelligence Agency, and the National Reconnaissance
Office within the Department of Defense, to determine how best
to allocate responsibility for this function. Such intra-agency
appeals would be conducted according to rules of procedures
issued by the ICWPB, unless the ICWPB determines that agency
procedures in effect on the date of enactment of S. 372,
including existing rules for employees of the Federal Bureau of
Investigation promulgated under 5 U.S.C. Sec. 2303, adequately
provide certain procedural guarantees.
With respect to these procedural guarantees, S. 372 would
require that agency rules of procedure be based on those
pertaining to prohibited personnel practices under 5 U.S.C.
Sec. 2302(b)(8) and provide: (1) An independent and impartial
fact-finder; (2) notice and the opportunity to be heard and
present evidence, including witness testimony; (3) that the
individual may be represented by counsel; (4) that the
individual has a right to a decision based on the record
developed during the appeal; (5) that the impartial fact-finder
shall provide the agency head, or designee, a report within 180
days of the appeal, unless agreed to by the employee and the
agency; (6) for the use of classified information in a manner
consistent with the interests of national security, including
ex parte submissions where the agency determines they are
warranted; and (7) that the individual shall have no right to
compel the production of classified information, except
evidence needed to establish that the employee made the
disclosure or communication at issue. The fact-finder is
required to prepare a written report with findings,
conclusions, and if applicable, recommended corrective action
that should be taken by the agency. The agency would issue an
order implementing corrective action or denying relief within
60 days of the fact-finder issuing the report, unless the
employee consents to additional time. These procedures are
intended to ensure that agencies establish robust processes to
allow full, fair, and prompt adjudication of ICWPA
whistleblower claims, while appropriately protecting classified
information.
As under the WPA, if an employee demonstrates that a
protected disclosure or the exercise of other protected
whistleblower rights was a contributing factor in a personnel
action, the agency can prevail if it demonstrates by clear and
convincing evidence that it would have taken the same personnel
action in the absence of the protected disclosure. Prevailing
employees subjected to a prohibited personnel practice would be
entitled to corrective action including damages, attorney's
fees, and costs, but compensatory damages would be capped at
$300,000, as under the WPA alternative review process.
B. Appeals to the ICWPB and Courts of Appeal
Employees may appeal the agency's order to the ICWPB within
60 days. The ICWPB's review is de novo based on the agency
record, and the Board will not admit any additional evidence,
although it can remand to the agency for further fact-finding,
if needed. S. 372 requires the ICWPB to issue a final decision
no later than 180 days after the appeal is filed unless the
employee consents to a longer period of time. If the ICWPB
determines that an employee has been subjected to a prohibited
personnel practice, it shall order the agency head to take
corrective action, of the same types and with the same limits
as apply to the agency appeal process. The ICWPB may also
recommend, but cannot order, the reinstatement or hiring of a
former employee or applicant. S. 372 requires that the agency
head take the actions ordered by the ICWPB, unless the
President determines that doing so would endanger national
security. These procedures are intended to ensure independent
and prompt review of agency determinations. Moreover, to
facilitate congressional oversight of the ICWPB and the
implementation of S. 372, Congress would be notified of ICWPB
orders.
As under the WPA, employees may file a petition for review
of a final ICWPB order with the Court of Appeals for the
Federal Circuit or the Federal Court of Appeals for a circuit
in which the retaliation is alleged to have occurred. In order
to maintain consistency with the WPA, the right to appeal to a
circuit court other than the Federal Circuit is subject to a
five-year sunset.
Review of security clearance or access determinations
Whistleblowers covered by the WPA, as well as those who
fall under the ICWPA, have sometimes found themselves
inadequately protected when they allege government waste,
fraud, and abuse 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
currently provides any protection: the revocation of their
security clearance.\107\ 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.\108\
It 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.
---------------------------------------------------------------------------
\107\See, e.g., Mark Hertsgaard, Nuclear Insecurity, Vanity Fair,
Nov. 2003, at 175.
\108\Hesse v. State, 217 F.3d 1372 (Fed. Cir. 2000).
---------------------------------------------------------------------------
As a result of this decision, if an employee's security
clearance or access to classified information is suspended or
revoked in retaliation for making protected disclosures--even
if the employee is terminated from his or her federal
government job because of the suspended or revoked clearance--
the MSPB may not review the suspension or revocation. This is
so, even though a supervisor may have recommended revocation of
the employee's security clearance in retaliation for the
whistleblowing, and with the intent that the employee lose his
or her job as a result. At the hearing during the 107th
Congress on S. 995, one of the predecessor bills to S. 372,
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.\109\
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\109\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 heightened need to ensure that federal
employees can 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, 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.\110\
---------------------------------------------------------------------------
\110\De Statement, S. 372 Hearing supra note 71, at 7.
As introduced, S. 372 would have provided for an MSPB
review of security clearance revocations under the WPA. The
Administration, however, objected to the MSPB conducting the
review. During the hearing on S. 372, Mr. De, on behalf of the
---------------------------------------------------------------------------
Administration, testified:
The current bill would allow an employee who alleges
that his security clearance was revoked in retaliation
for whistleblowing to challenge that determination
before the MSPB. The bill provides that the MSPB, or
any reviewing court, may grant `declaratory relief and
any other appropriate relief' except for the
restoration of a security clearance. That limitation
quite properly recognizes this function to be the
prerogative of the Executive Branch.\111\
---------------------------------------------------------------------------
\111\Id. at 8-9.
The Administration recommended that the proposed ICWPB,
rather than the MSPB, review security clearance revocations,
because this Board already would be reviewing retaliation
against IC employees in a forum that would provide robust,
independent protections and also careful protection of national
---------------------------------------------------------------------------
security information. As Mr. De testified:
The [Administration's] proposed [Intelligence
Community Whistleblower Protection] 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.\112\
---------------------------------------------------------------------------
\112\Id. at 8-9.
The Committee concluded that the Administration's proposal
would allow more comprehensive relief for whistleblowers, by
expanding the review to include employees under the ICWPA in
addition to those covered by the WPA. Accordingly, the
substitute amendment adopted by the Committee gives review of
security clearance revocations to the ICWPB rather than the
MSPB.
S. 372 would require that, to the extent practicable,
agencies continue to employ individuals who challenge a
security clearance suspension or revocation while the challenge
is pending. It also would require the development and
implementation of uniform and consistent policies and
procedures for challenging a security clearance determination,
although it would not authorize challenges to suspensions of
one year or less for an investigation.\113\ The same procedural
protections for appealing prohibited personnel practices under
the ICWPB, discussed above in the section on remedial
procedures for ICWPB agency-level appeals, would be
incorporated into the ICWPB procedures for challenging security
clearance revocations.
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\113\If an employee seeks to challenge both an alleged prohibited
personnel practice and an adverse security clearance determination, the
employee must bring both claims under the procedures for security
clearance revocations.
---------------------------------------------------------------------------
The Committee concluded that the process to review
allegedly retaliatory security clearance and access
determinations should be structured like the process for
challenging prohibited personnel practices against employees
covered under the ICWPA, both in the interest of consistency
and because the balance between encouraging whistleblowing and
protecting classified information is the same in both cases.
Accordingly, the provisions for reviewing security clearance or
access determinations define protected disclosures in the same
way they are defined for challenging other types of retaliation
under the ICWPB process. Likewise, as with the other redress
provisions under the ICWPB, security clearance determinations
made in retaliation for exercising a right of appeal,
complaint, or grievance; assisting another in the exercise of a
whistleblower right; or cooperating with an inspector general
is prohibited.
Procedures for review of security clearance decisions
A. Agency Adjudication
S. 372 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 file an appeal within the
agency in the same manner as employees covered under the ICWPA,
alleging a prohibited personnel practice based on a protected
disclosure. Employees who prevail in their claims would be
entitled to the same types of damages as apply to cases
involving prohibited personnel practices under the ICWPA, with
a $300,000 cap on compensatory damages.\114\
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\114\In addition to the separate caps of $300,000 for compensatory
damages for prohibited personnel practices and for security clearance
decisions, an employee who raises both claims may not be awarded more
than $300,000 in total compensatory damages.
---------------------------------------------------------------------------
The Committee, however, determined that it is appropriate
to alter the burden of proof for security clearance retaliation
claims. During the 108th Congress, in testimony before the
Committee on S. 2682, one of the predecessor bills to S. 372,
DOJ argued that the burden of proof in whistleblower cases is
fundamentally incompatible with the standard for granting
security clearances, which only permits granting access to
classified information where clearly consistent with the
interests of national security.\115\
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\115\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).
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S. 372's objective in this section is to prohibit
retaliation from serving as a factor in decisions that should
be grounded solely in national security considerations. That
means it also is essential that S. 372 not disrupt or undermine
the preexisting, imperative national security objectives of the
security clearance process or impose any chilling effect upon
officials making these sensitive determinations for legitimate
reasons. The Committee's purpose is to deter retaliation
against whistleblowers and to close the loophole that security
clearance revocations have opened. However, the conventional
burden of proof in whistleblower cases may not fairly integrate
into the security clearance determination process, because a
security clearance 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.''\116\ In the especially sensitive area of
security clearance and classified access determinations,
requiring clear and convincing evidence to justify the denial
or revocation when the employee has made a prima facie
whistleblower case may not be appropriate.
---------------------------------------------------------------------------
\116\See Executive Order 12968--Access to Classified Information
(August 2, 1995).
---------------------------------------------------------------------------
Therefore, the substitute amendment to S. 372 adopted by
the Committee provides that if an employee shows that a
protected disclosure was a contributing factor in a security
clearance determination, the agency will 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.''\117\ This unique
deference to national security interests is one element in the
factors to be considered when determining if the agency would
have taken the same security clearance action. It does not
apply when considering the existence and strength of the
affirmative case made by the employee, including any proof of
motive to retaliate on the part of the agency officials
involved in the decision. Moreover, if either the agency or the
Board finds retaliation, the unique deference to national
security applied to security clearance decisions does not limit
other corrective action, including damages.
---------------------------------------------------------------------------
\117\New section 3001(j)(3)(C) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. Sec. 435b(j)(3)(C)), as
added by section 202(b) of S. 372, as reported.
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B. Review by the ICWPB
For cases alleging a retaliatory security clearance
determination, S. 372 also allows for the appeal of a final
agency decision to the ICWPB within 60 days. As with other
ICWPB appeals, the Board's review is de novo 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 ICWPB finds that the agency's determination was
retaliatory, employees are entitled to the same types of
damages as discussed above, and the Board may recommend
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.''\118\ The ICWPB
may also recommend, but not order, reinstatement or hiring of a
former employee or applicant. S. 372 requires the ICWPB to
notify Congress of any orders it issues, and an agency must
notify Congress if it does not follow the ICWPB's
recommendation to reinstate a clearance.
---------------------------------------------------------------------------
\118\New section 3001(j)(4)(F) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. Sec. 435b(j)(4)(F)), as
added by section 202(b) of S. 372, as reported.
---------------------------------------------------------------------------
Unlike in cases where prohibited personnel practices are
alleged, S. 372 does not provide for judicial review of agency
or ICWPB actions on appeals taken in connection with the
revocation of an employee's security clearance or access to
classified information. The Administration takes the position
that providing a judicial remedy, even one that does not
mandate restoration of the clearance, is inconsistent with the
traditional deference afforded to the Executive Branch in this
area.\119\
---------------------------------------------------------------------------
\119\De Statement, S. 372 Hearing supra note 71, at 7.
---------------------------------------------------------------------------
As with the broader issue of control of classified
information, the Congress long has held a different view of the
authorities of the Executive Branch and Congress with respect
to security clearances. Executive Branch authority in this area
is not exclusive and Congress properly plays a role. 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 would be whether an agency unlawfully
retaliated against a whistleblower, not whether the national
interest is served by granting or revoking a security
clearance.
Nevertheless, the Committee concludes that the ICWPB can
provide adequate review of security clearance retaliation.
Given the national security and institutional concerns the
Administration raised, the Committee agreed, in the substitute
amendment adopted by the Committee, to accommodate the
Administration's request not to provide judicial review of
security clearance determinations. However, S. 372 will require
congressional notification of ICWPB orders and certain agency
actions that will facilitate oversight of the security
clearance redress process created by this legislation, which
will provide a check against implementation inconsistent with
congressional intent.
ICWPA revisions
An employee covered under either the WPA or ICWPA who has
submitted a complaint or information to an inspector general
under the ICWPA procedures would be permitted to inform
Congress that he or she made a submission to that particular
inspector general, and of the date on which the submission was
made. Additionally, S. 372 allows an inspector general to
submit a complaint or information under the ICWPA or the
Central Intelligence Agency Act of 1949 directly to the Chair
of the ICWPB if the inspector general determines that
submission to the agency head would create a conflict of
interest.
III. Legislative History
S. 372 was introduced by Senators Akaka, Collins, Grassley,
Levin, Lieberman, Voinovich, Leahy, Kennedy, Carper, Pryor, and
Mikulski on February 3, 2009, and was referred to the Committee
on Homeland Security and Governmental Affairs. Senators Cardin
and Burris have since joined as cosponsors. The bill was
referred to the Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of Columbia
(OGM) on March 20, 2009.
This legislation is the culmination of nearly 10 years of
work by Senator Akaka, other sponsors, and the Committee. S.
372 is 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.
Additionally, S. 372 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 of which were similar to S.
1358, introduced on June 26, 2003. These bills follow previous
versions of the legislation: S. 3190, introduced on October 12,
2000; S. 995, introduced on June 7, 2001; and S. 3070,
introduced on October 8, 2002, and favorably reported by the
Committee on November 19, 2002.
The Committee and its subcommittees have held three
hearings on S. 372 and predecessor bills. Most recently, S. 372
was the subject of a hearing before the OGM Subcommittee on
June 11, 2009. Witnesses 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.
On November 12, 2003, the Committee held a hearing on S.
1358. Witnesses included Senator Charles Grassley (R-IA); Mr.
Peter Keisler, Assistant Attorney General, Civil Division, U.S.
Department of Justice; Ms. Elaine Kaplan, attorney and former
U.S. Special Counsel; Mr. Thomas Devine, Legal Director,
Government Accountability Project; Mr. Stephen Kohn, Chairman,
Board of Directors, National Whistleblower Center; and Mr.
William Bransford, Partner, Shaw, Bransford, Veilleux & Roth,
P.C., and General Counsel to the Senior Executives Association.
The Committee also received written testimony from Ms. Susanne
Marshall, then-Chairman of the MSPB. Additionally, on July 25,
2001, the Subcommittee on International Security,
Proliferation, and Federal Services held a hearing on S. 995.
On July 28, 2009, OGM favorably polled out S. 372, and the
Committee considered S. 372 on July 29, 2009. Senators Akaka,
Collins, Lieberman, and Voinovich offered a substitute
amendment, which was agreed to by voice vote. The amendment
allows the claimant to move certain WPA cases to federal
district court, creates a process for employees under the ICWPA
to seek redress for whistleblower retaliation, and creates a
process for all employees to seek redress for security
clearance decisions made in retaliation for protected
whistleblowing, among other provisions. The bill, as amended,
was ordered reported favorably en bloc by voice vote. Members
present were Senators Lieberman, Akaka, Carper, Pryor,
McCaskill, Burris, Collins, Coburn, and Voinovich.
IV. Section-by-Section Analysis
Section 1 titles the bill as the Whistleblower Protection
Enhancement Act of 2009.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
Section 101
Section 101(a) clarifies congressional intent that the law
covers a whistleblowing disclosure of ``any'' violation, except
a minor, inadvertent violation of law that occurs during the
conscientious carrying out of official duties.
Section 101(b) makes technical and conforming amendments
and clarifies that a disclosure shall not be excluded from
protection because it is made during the normal course of an
employee's duties; was made to a person, including a
supervisor, who participated in the wrongdoing; revealed
information that had been previously disclosed; was not made in
writing; was made while the employee was off duty; because of
the employee or applicant's motive for making the disclosure;
or because of the amount of time since the occurrence of the
events described in the disclosure.
Section 102
Section 102(a) 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 illegal activity, gross mismanagement, a gross waste
of funds, an abuse of authority or specific danger to public
health or safety.
Section 102(b) provides a definition of ``clear and
convincing evidence''--that is, the degree of proof that
produces in the mind of the trier of fact a firm belief as to
the allegations sought to be established--for the purposes of
determining whether corrective action is warranted.
Section 103 provides that any presumption relating to a
public officer's performance of a duty can be overcome with
substantial evidence. It also codifies the objective test for
reasonable belief as 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
Section 104(a) adds to the list of prohibited personnel
practices that may not be taken against whistleblowers in
retaliation for protected disclosures the enforcement of a
nondisclosure policy, form or agreement.
Section 104(b) bars agencies from implementing or enforcing
against whistleblowers any nondisclosure policy, form or
agreement that fails to contain specified language preserving
the right of federal employees to disclose certain protected
information. A non-disclosure policy, form, or agreement in
effect before the date of enactment could be enforced after
public notice of this specified language.
Section 104(c) leaves Russell as the governing law for
demonstrating that retaliatory investigations are prohibited
personnel practices and additionally permits corrective action
awarded to whistleblowers to 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.
Section 105 adds the Office of the Director of National
Intelligence and the National Reconnaissance Office to the list
of intelligence community entities excluded from WPA coverage,
and provides that a whistleblower at an agency cannot be
deprived of coverage under the WPA unless the President removes
the agency from WPA coverage prior to a challenged personnel
action taken against the whistleblower.
Section 106 modifies the proof in disciplinary actions by
requiring the OSC to demonstrate that the whistleblower's
protected disclosure was a ``significant motivating factor'' in
the decision by the manager 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 107 requires that, in disciplinary actions, any
attorney fees would be reimbursed by the manager's employing
agency rather than the OSC, and permits recovery of reasonable
and foreseeable compensatory damages.
Section 108
Section 108(a) creates a five-year pilot program that
suspends the exclusive jurisdiction of the U.S. Court of
Appeals for the Federal Circuit over whistleblower appeals and
allows petitions for review to be filed either in the federal
circuit or in any other federal circuit court of competent
jurisdiction for a period of five years.
Section 108(b): During this five-year period, the Office of
Personnel Management's existing authority to file petitions of
review of the MSPB orders interpreting civil service law would
be expanded to permit the filing 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 establishes that employees of the
Transportation Security Administration are covered by section 5
U.S.C. 2302(b)(1), (8), and (9), which includes 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,
and the Rehabilitation Act of 1973.
Section 110 clarifies that an employee is protected from
reprisal for disclosing information which an employee
reasonably believes is evidence of censorship related to
research, analysis, or technical information if the employee
reasonably believes the censorship is or will cause gross
government waste or mismanagement, a substantial and specific
danger to public health or safety, or any violation of law.
Section 111 clarifies that section 214(c) of the Homeland
Security Act (HSA) maintains existing WPA rights for
independently obtained information that may also qualify as
voluntarily submitted critical infrastructure information under
the HSA.
Section 112 requires agencies, as part of their education
requirements under 5 U.S.C. Sec. 2302(c), to advise employees
of their rights and protections and to educate employees on how
to lawfully make a protected disclosure of classified
information to the Special Counsel, the Inspector General,
Congress, or other designated agency official authorized to
receive classified information.
Section 113 strengthens the OSC's ability to protect
whistleblowers and the integrity of the WPA and the Hatch Act
by authorizing the OSC to appear as amicus curiae in any civil
action brought in connection with the WPA and the Hatch Act and
present its views with respect to compliance with the law and
the impact court decisions would have on the enforcement of
such provisions of the law.
Section 114 specifies that an agency may present its
defense to a whistleblower case only after the whistleblower
has first made a prima facie showing that protected activity
was a contributing factor in the personnel action.
Section 115
Section 115(a) requires all federal nondisclosure policies,
forms, and agreements to contain specified language preserving
the right of federal employees to disclose certain protected
information. Nondisclosure policies, forms, and agreements
without that statement may not be implemented or enforced in a
manner inconsistent with the specified statement of rights.
Nondisclosure policies, forms, and agreements in effect before
the date of enactment may continue to be enforced with respect
to current employees if the agency provides the employees
notice of the statement, and may continue to be enforced
against past employees if the agency posts notice of the
statement on the agency website for one year.
Section 115(b) provides that a nondisclosure policy, form,
or agreement for a person who is not a federal employee, but
who is connected with the conduct of intelligence or
intelligence-related activity, shall contain appropriate
provisions that require nondisclosure of classified information
and make clear the forms do not bar disclosures to Congress or
to an authorized official that are essential to reporting a
substantial violation of law.
Section 116
Section 116(a) requires the GAO to report on the
implementation of this Act within 40 months, including an
analysis of the number of cases filed with the MSPB under 5
U.S.C. Sec. Sec. 2302 (b)(8) and (b)(9), their disposition, and
any resulting trends.
Section 116(b) requires the Council of Inspectors General
on Integrity and Efficiency to report on security clearance
revocations at a select sample of executive branch agencies and
on the appeals process in place at those agencies and under the
Intelligence Community Whistleblower Protection Board within 18
months.
Section 116(c) requires the MSPB to report on the number
and outcome of cases filed under 5 U.S.C. Sec. Sec. 2302(b)(8)
and (b)(9) on a yearly basis.
Section 117 creates a five-year pilot program that permits
an employee who has been subjected to a major personnel action
to file for a de novo review in U.S. district court if the
employee seeks corrective action or files an appeal with the
MSPB under certain circumstances. More specifically, the
employee may file in district court if no final order or
decision is issued by the MSPB within 270 days after the
request was submitted; or upon certification by the MSPB that
the Board is not likely to dispose of the case within 270 days
after the request was submitted or that 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, involves a novel question of law, or states
a claim upon which relief can be granted. Under this section,
an employee may submit a motion for certification to the MSPB
within 30 days of the original request for corrective action or
appeal. The MSPB shall rule on the motion within 90 days, and
not later than 15 days before issuing a final decision on the
merits of the case, and shall stay any other claims while the
district court case is pending. In 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 the agency
would have taken the same personnel action in the absence of a
protected disclosure. In district court, the employee may not
be represented by the Special Counsel. 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 compensatory damages
may not exceed $300,000 and punitive damages are not permitted.
An appeal from a final decision of a district court can be
taken to the Federal Circuit in the district in which the
action was filed.
Section 118
Section 118(a) authorizes the MSPB to consider and grant
summary judgment motions in WPA cases involving major personnel
actions 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 judgment as a
matter of law.
Section 118(b) provides that this 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 provides that employees protected under the WPA
may make protected classified disclosures 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-La Follette Act,
codified in 5 U.S.C. Sec. 7211, or other provisions of law.
Section 120 requires that agency inspectors general,
including the Inspector General of the Central Intelligence
Agency and each other inspector general within the intelligence
community, designate a Whistleblower Protection Ombudsman
within the Office of the Inspector General. The Ombudsman would
advocate for the interests of agency employees who make
disclosures of information, educate agency personnel about
prohibited personnel practices on retaliation for protected
disclosures, and advise agency employees who have made a
protected disclosure or are contemplating making a disclosure.
TITLE I--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS
Section 201 establishes protections for certain
intelligence community whistleblowers.
Section 201(a) would amend Title I of the National Security
Act of 1947 by adding two sections to the Act, Section 120 and
Section 121:
Section 120(a) of the National Security Act, as amended,
establishes the Intelligence Community Whistleblower Protection
Board (ICWPB).
Section 120(b) of the National Security Act, as amended,
establishes the membership of the ICWPB. The ICWPB would
consist of a Chairperson; two members designated by the
President from individuals serving as Presidentially-appointed,
Senate-confirmed inspectors general of any agencies; and two
members appointed by the President after consultation with the
Attorney General, the Director of National Intelligence, and
the Secretary of Defense. Two alternate Board members would
also be designated by the President and would serve if a Board
member recuses himself or herself from a matter. The
Chairperson would be paid at the annual rate of basic pay
payable for level III of the Executive Schedule under 5 U.S.C.
Sec. 5324, and Board members would be paid at the same rate of
pay on a pro rata basis for time spent on Board activities,
except that inspectors general would not receive any additional
pay. The Board members would serve four-year terms, except that
the first Chairperson appointed by the President would serve
six years, two of the original Board members would serve five
years, and the other two original Board members would serve
four years, in order to create staggered terms in the future.
Section 120(c) of the National Security Act, as amended,
establishes the resources and authority of the ICWPB. The
Office of the Director of National Intelligence would provide
the Board with adequate office space, equipment, supplies and
communications facilities, and services necessary for the
operation of the Board. The Chairperson would transmit a budget
to the Director of National Intelligence specifying the
aggregate amount of funds required for the fiscal year. The
Director of National Intelligence would then transmit a
proposed budget to the President for approval. The Chairperson
would be authorized to select, appoint, and employ officers and
employees of the Board as necessary. Section 120(c) provides
the Board authority to promulgate rules, regulations, and
guidance, and issue orders, although any Board rule,
regulation, or guidance must be jointly approved by the
Director of National Intelligence, Secretary of Defense, and
Attorney General.
Section 121(a) of the National Security Act, as amended,
specifies that the intelligence community elements under the
jurisdiction of the ICWPB will be the same as those
intelligence entities excluded from the WPA by 5 U.S.C.
Sec. 2302(a)(2)(C) and covered under the ICWPA, specifically,
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, the
National Reconnaissance Office, and, as determined by
President, any Executive agency or unit thereof the principal
function of which is the conduct of foreign intelligence or
counterintelligence activities, if that determination is made
before the challenged personnel action. Section 121(a) also
defines ``personnel action'' as an action taken against an
employee under the ICWPA that would be considered a personnel
action as defined in 5 U.S.C. Sec. 2302(a)(2)(A), but would not
include the denial, suspension, or revocation of a security
clearance or the denial of access to classified information or
a suspension with pay pending an investigation.
Section 121(b) of the National Security Act, as amended,
prohibits taking any personnel action against employees under
this section because of a protected disclosure. Disclosures
protected under this section are the same types of disclosure
of wrongdoing as are protected under the WPA in 5 U.S.C.
Sec. 2302(b)(8). Disclosures to agency officials are protected
if not specifically prohibited by law or executive order.
Disclosures that comply with section 8H of the Inspector
General Act of 1978 (5 U.S.C. App.) or with section 17(d)(5) of
the Central Intelligence Agency Act of 1949 (50 U.S.C.
Sec. 403q(d)(5)), as well as disclosures of wrongdoing to
inspectors general and designated agency officials, are also
protected. A prohibited personnel practice would include taking
action against someone because he or she--(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 inspector general. Disclosures would not be
excluded from protection under the intelligence community
whistleblower protections under the same circumstances as
disclosures are not excluded from WPA coverage, as set forth in
Section 101(b). Section 121(b) does not authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses information
to Congress.
Section 121(c)(1) of the National Security Act, as amended,
establishes a remedial procedure for employees under the ICWPA
who believe they have been subjected to a prohibited personnel
practice. Employees would have the right to appeal an alleged
prohibited personnel practice to the agency head, and
applicable rules of procedure, based on those pertaining to
prohibited personnel practices under 5. U.S.C. Sec. 2302(b)(8),
would provide: (1) for an independent and impartial fact-
finder; (2) for notice and the opportunity to be heard and
present evidence, including witness testimony; (3) that the
individual may be represented by counsel; (4) that the
individual has a right to a decision based on the record
developed during the appeal; (5) that the impartial fact-finder
shall provide the agency head, or designee, a report within 180
days, unless agreed to by the employee and the agency; (6) for
the use of the classified information in a manner consistent
with the interests of national security, including ex parte
submissions; and (7) that the individual shall have no right to
compel the production of classified information, except
evidence to establish that the employee made the disclosure
alleged to be protected.
Section 121(c)(2) of the National Security Act, as amended,
requires the impartial fact-finder to prepare a report with
findings, conclusions, and if necessary, recommended corrective
action. After reviewing the record and the fact-finder's
report, the agency head would determine whether the individual
has been subjected to a prohibited personnel practice and
either issue an order denying relief or implement corrective
action. This decision would be made within 60 days, unless the
employee consents to additional time. Corrective action would
include the employee's reasonable attorney's fees and costs,
and may include back pay and related benefits, travel expenses,
and compensatory damages no greater than $300,000.
Section 121(c)(3) of the National Security Act, as amended,
requires the agency head to find that a prohibited personnel
practice occurred if a protected disclosure was a
``contributing factor'' in the personnel action unless the
agency can demonstrate by clear and convincing evidence that it
would have taken the same action in the absence of the
employee's protected disclosure.
Section 121(c)(4) of the National Security Act, as amended,
allows an employee to appeal an agency head's final order to
the Intelligence Community Whistleblower Protection Board
within 60 days. The ICWPB's review of the record would be de
novo, and its determination would be based on the entire
record. The appeal would be conducted under the rules of
procedure issued by the ICWPB, described in Section 121(c)(1).
The ICWPB could not admit additional evidence, but it would
have authority to remand to the agency for further fact-finding
if necessary or if the agency improperly denied the employee or
applicant the ability to present evidence. Unless the employee
consents, the Board would be required to issue a decision
within 180 days. The Board shall order the agency to take
corrective action if it determines that a prohibited personnel
practice has occurred. Corrective action would include the
employee's reasonable attorney's fees and costs, and might
include back pay and related benefits, travel expenses, and
compensatory damages no greater than $300,000. The Board could
recommend, but not order, the reinstatement or hiring of a
former employee or applicant. The Agency head would be required
to take the actions ordered by the Board unless the President
determines that doing so would endanger national security.
Section 121(c)(5) of the National Security Act, as amended,
allows for judicial review of a final order. For a five-year
trial period, an employee would be permitted to file a petition
for review in the Court of Appeals for the Federal Circuit or
the court of appeals of a circuit in which the reprisal is
alleged in the order to have occurred. After that period,
appeals would be filed in the Court of Appeals for the Federal
Circuit. Any portions of the record that were submitted ex
parte during agency proceedings would be submitted ex parte to
the ICWPB and any reviewing court. Section 121(d) limits
judicial review to the express provisions of this section. This
section also requires the ICWPB to notify Congress when it
issues final orders.
Section 121(d) of the National Security Act, as amended,
limits judicial review to the express provisions of this
section.
Section 121(e) of the National Security Act, as amended,
provides that the legislation affords no protections for
certain terminations of employment: (1) Those under 10 U.S.C.
Sec. 1609; and (2) those personally and summarily carried out
by the Director of National Intelligence, the Director of the
Central Intelligence Agency, or an agency head under 5 U.S.C.
Sec. 7532, if the Director or agency head determines the
termination to be in the interest of the United States,
determines that the procedures prescribed in other provisions
of law that authorize the termination of the employee's
employment cannot be invoked in a manner consistent with
national security, and notifies Congress.
Section 121(f) of the National Security Act, as amended,
requires employees challenging both a prohibited personnel
practice under this section and an adverse security clearance
determination to bring both claims under the procedures set
forth for security clearances. The total amount of compensatory
damages for such claims may not exceed $300,000.
Section 201(b) strikes 5 U.S.C. Sec. 2303.
Section 201(c) makes technical and conforming amendments.
Section 202
Section 202(a) amends Section 3001(b) of the Intelligence
Reform and Terrorism Prevention Act of 2004 by requiring the
development of policies and procedures that permit, to the
extent practicable, individuals covered under both the WPA and
ICWPA who, in good faith, challenge a security clearance
determination to remain employed while the challenge is
pending; and the development and implementation of uniform and
consistent policies and procedures to ensure protections to
allow review of security clearance determinations alleged to be
in retaliation for whistleblowing. Those procedures would be
required to include the same guarantees as are described under
the new Section 121(c)(1) of the National Security Act, as
added by Section 201(a) of the bill.
Section 202(b) prohibits revoking a security clearance in
retaliation for a protected disclosure. Disclosures would not
be excluded from protection under this section under the same
circumstances as disclosures are not excluded from WPA
coverage, as set forth in Section 101(b). Section 202(b)
provides similar remedial procedures to employees who seek to
appeal the revocation of their security clearance
determinations as employees who are covered under the ICWPA and
who seek to appeal alleged prohibited personnel practices,
although it does not allow for an appeal of a suspension for
purposes of conducting an investigation that lasts no longer
than one year. An employee who believes his or her security
clearance was revoked because of a protected disclosure would
be permitted to file an appeal within the agency in the same
manner as employees alleging a prohibited personnel practice
based on a disclosure. If the agency determines that the
adverse security clearance determination was retaliatory, it
would be required to take corrective action. The same types of
damages are available, and with the same limits, as for
prohibited personnel practice agency appeals for intelligence
employees. The standard of review, however, differs from other
whistleblower retaliation claims. The agency would be required
to find that a security clearance determination was retaliatory
if a protected disclosure was a ``contributing factor'' in the
determination, unless the agency can demonstrate by a
preponderance of the evidence that it would have taken the same
action in the absence of the 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.
Section 202(b) also allows an employee to appeal an agency
head's final order or decision to the ICWPB within 60 days. The
Board, in consultation with the Attorney General, the Director
of National Intelligence, and the Secretary of Defense, would
develop and implement policies and procedures for such appeals.
The ICWPB could not admit additional evidence, but it would
have authority to remand to the agency for further fact-
finding, if necessary, or if the agency improperly denied the
employee or applicant the ability to present evidence. The
Board's review would be de novo, and its determination would be
based on the entire record.
Section 202(b) further requires the ICWPB to order
corrective action, including damages, attorney's fees, and
costs, with compensatory damages capped at $300,000, if the
ICWPB determines that an adverse security clearance
determination was retaliatory. The Agency head would be
required to take the actions ordered by the Board unless the
President determines that doing so would endanger national
security. Section 202(b) also allows the Board to recommend,
but not order, the reinstatement or hiring of a former employee
or applicant, as well as to recommend the reinstatement of a
security clearance if it determines that doing so is clearly
consistent with the interests of national security. Section
202(b) requires the Board to notify Congress of any orders it
issues and requires the agency to notify Congress if an agency
does not follow the Board's recommendation to reinstate a
security clearance. Judicial review of agency or Board actions
under this section is not permitted. Section 202(b) does not
apply to adverse security clearance determinations if the
employee was terminated under the circumstances described in
Section 201(a) under the new Section 121(e) of the National
Security Act.
Section 203 allows the inspector general to submit a
complaint or information submitted under the ICWPA or the
Central Intelligence Agency Act of 1949 directly to the Chair
of the ICWPB if the inspector general determines that
submission to the agency head would create a conflict of
interest. Section 203 also would allow an individual who has
submitted a complaint or information to an inspector general to
notify any member of Congress, or congressional staff members,
of the submission made under the ICWPA or the Central
Intelligence Agency Act of 1949.
Section 301 states that the Act would take effect 30 days
after the date of enactment.
V. Estimated Cost of Legislation
September 8, 2009.
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. 372, the
Whistleblower Protection Enhancement Act of 2009.
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. 372--Whistleblower Protection Enhancement Act of 2009
Summary: S. 372 would amend the Whistleblower Protection
Act (WPA) to clarify current law and give new protections to
federal employees including those who report abuse, fraud, and
waste involving government activities. 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. 372 would cost $54
million over the 2010-2014 period, assuming appropriation of
the necessary amounts for awards to whistleblowers and
additional staffing and reporting requirements. Enacting the
bill would not affect direct spending or revenues.
S. 372 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. 372 is shown in the following table. The
costs of this legislation fall within budget function 800
(general government) and all other budget functions that
include federal salaries and expenses.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------
2010-
2010 2011 2012 2013 2014 2014
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Whistleblower Awards:
Estimated Authorization Level................... 5 5 5 5 5 25
Estimated Outlays............................... 5 5 5 5 5 25
Intelligence Community Whistleblower Protection
Board:
Estimated Authorization Level................... 3 3 3 3 3 15
Estimated Outlays............................... 3 3 3 3 3 15
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............... 13 11 10 10 10 54
Estimated Outlays........................... 13 11 10 10 10 54
----------------------------------------------------------------------------------------------------------------
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 near the start of fiscal year 2010 and
that spending will follow historical patterns for similar
programs.
Under current law, the OSC investigates complaints
regarding reprisals against federal employees that inform
authorities of fraud or other improprieties in the operation of
federal programs (such individuals are known as
whistleblowers). The OSC takes corrective action 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.
Whistleblower awards
When implementing corrective actions to settle an
employment dispute between the federal government and its
employees regarding prohibited personnel practices, federal
agencies are required to spend appropriated funds (some are
paid by the Judgment Fund and reimbursed by each individual
agency) to pay for an employee's attorney, back pay, and any
associated travel and medical costs.
S. 372 would expand protections for whistleblowers and
extend protections to Transportation Security Administration
passenger and baggage screeners and federal employees working
on research, analysis, or technical information. This would
include additional awards to employees who suffered from
retaliation by their agency and compensatory damages 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, there are generally between
400 and 500 whistleblower cases each year and around 2,000
prohibited personnel practice complaints. CBO is unaware of any
comprehensive information on the current costs of corrective
actions related to those cases. Damage awards in each case
depend on the particular circumstances of each case. Recent
settlements amounts under the Whistleblower Protection Act have
ranged from $20,000 to $300,000. In addition, the Government
Accountability Office has reported that the Judgment Fund
spends about $15 million annually on equal employment
opportunity and whistleblower cases. While it is uncertain how
often damages would be awarded in such cases, CBO expects that
the added protections under the bill would increase costs for
such awards by about $5 million each year.
Intelligence Community Whistleblower Protection Board
Section 201 would establish the Intelligence Community
Whistleblower Protection Board. The new board, which would have
five members, would be responsible for issuing guidance on the
procedures intelligence agencies should use when reviewing the
claims of intelligence community employees who believe that
they have experienced an adverse personnel action, such as
termination of employment or denial of a promotion, or security
clearance determination in retaliation for such employee
revealing certain types of misconduct. Based on information
from the Office of the Director of National Intelligence about
the board's staff requirements and the costs of similar
government boards, CBO estimates that implementing that this
provision would cost $3 million annually.
MSBP and OSC
CBO expects that the bill's changes to existing laws would
increase the workload of the MSPB and the OSC. For fiscal year
2009, the MSPB received an appropriation of $39 million, and
the OSC received $17 million. Based on information from those
agencies, we estimate that implementing this bill would cost
about $2 million a year to hire additional professional and
administrative staff.
Other provisions
The bill would require a report by the Government
Accountability Office on whistleblowers and the Council of
Inspectors General on the security clearance revocations, as
well as changes to training and nondisclosure policies
governmentwide. Based on information from agencies and on the
costs of similar existing requirements, CBO estimates that
implementing those provisions would cost $4 million over the
2010-2014 period.
Intergovernmental and private-sector impact: S. 372
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: Peter H. Fontaine, 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. CBO 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 is employed or has applied
for employment 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
* * * * * * *
* * * * * * *
(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to any civil action brought in connection with
section 2302(b)(8) or (9), or as otherwise authorized by law.
In any such action, the Special Counsel is authorized to
present the views of the Special Counsel with respect to
compliance with section 2302(b)(8) or (9) and the impact court
decisions would have on the enforcement of such provisions of
law.
(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such action
for the purposes described under subsection (a).
SEC. 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)(i), (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)(i), (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)(i), (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)(i), (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. For purposes of the preceding sentence,
`clear and convincing evidence' means the degree of
proof that produces in the mind of the trier of fact a
firm belief as to the allegations sought to be
established.
* * * * * * *
(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)(i), (C) , or (D), the Board
shall impose disciplinary action if the Board finds
that the activity protected under section 2302(b)(8),
or 2302(b)(9)(A)(i), (B)(i), (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)(i), (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)(i), (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)(i), (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. For purposes of the
preceding sentence, `clear and convincing evidence' means the
degree of proof that produces in the mind of the trier of fact
a firm belief as to the allegations sought to be established.
* * * * * * *
(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)(i), (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;
(B) the employment records relevant to such practice
are maintained and administered; or
(C) 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 that--
(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) for
which the associated personnel action is an
action covered under section 7512 or 7542; or
(ii) files an appeal under section 7701(a)(1)
alleging as an affirmative defense the
commission of a prohibited personnel practice
described in section 2302(b)(8) or (9)(A)(i),
(B)(i), (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; 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)(i), (C), or (D) for which the
associated personnel action is an action
covered under section 7512 or 7542; or
(ii) files an appeal under section 7701(a)(1)
alleging as an affirmative defense the
commission of a prohibited personnel practice
described in section 2302(b)(8) or (9)(A)(i),
(B)(i), (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 correction
action; 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) the Board is not likely to dispose of the
case within 270 days after the date on which a
request for that corrective action has been
duly submitted;
(ii) the case--
(I) consists of multiple claims;
(II) requires complex or extensive
discovery;
(III) 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
(IV) involves a novel question of
law; or
(iii) under 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 (including any
allegations made with the motion under
subparagraph (B)) would not be subject to
dismissal.
(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, in any event, not
later than 15 days before issuing a decision on the merits of a
request for corrective action.
(6) 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 under this paragraph shall be reviewed only on
appeal of a final order or decision of the Board under section
7703, if--
(A) the reviewing court determines that the decision
by the Board on the merits of the alleged prohibited
personnel described in section 2302(b)(8) or (9)(A)(i),
(B)(i), (C), or (D) failed to meet the standards of
section 7703(c); and
(B) the decision to deny the certification shall be
overturned by the reviewing court if such decision is
found to be arbitrary, capricious, or an abuse of
discretion; and
(C) 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 section (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)(i), (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,
if the determination (as that determination
relates to a personnel action) is made before
that 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, except for an alleged violation
that is a minor, inadvertent violation, and
occurs during the conscientious carrying out of
official duties; or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Any 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 except for
an alleged violation that is a minor,
inadvertent violation, and occurs
during the conscientious carrying out
of official duties; or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety, 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, except for an alleged
violation that is a minor, inadvertent
violation, and occurs during the
conscientious carrying out of official
duties, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; or
(C) any communication that complies with
subsection (a)(1), (d), or (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) with regard to remedying a
violation of any other law, rule, or
regulation;
(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
Executive Order No. 12958; section 7211 of title 5,
United States Code (governing disclosures to Congress);
section 1034 of title 10, United States Code (governing
disclosure to Congress by members of the military);
section 2302(b)(8) of title 5, United States Code
(governing disclosures of illegality, waste, fraud,
abuse, or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50
U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the
statutes which protect against disclosures that could
compromise national security, including sections 641,
793, 794, 798, and 952 of title 18, United States Code,
and section 4(b) of the Subversive Activities Control
Act of 1950 (50 U.S.C. 783(b)). The definitions,
requirements, obligations, rights, sanctions, and
liabilities created by such Executive order and such
statutory provisions are incorporated into this
agreement and are controlling.''
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), any presumption
relating to the performance of a duty by an employee who has
authority to take or direct others to take, recommend, or
approve any personnel action may be rebutted by substantial
evidence. For purposes of paragraph (8), a determination as to
whether an employee or applicant reasonably believes that such
employee or applicant has disclosed information that evidences
any violation of law, rule, regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety shall be made by
determining whether a disinterested observer with knowledge of
the essential facts known to and readily ascertainable by the
employee 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 secret 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) A disclosure shall not be excluded from subsection
(b)(8) because--
(1) the disclosure was made during the normal course
of the duties of the employee;
(2) 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);
(3) the disclosure revealed information that had been
previously disclosed;
(4) of the employee or applicant's motive for making
the disclosure;
(5) the disclosure was not made in writing;
(6) the disclosure was made while the employee was
off duty; or
(7) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
[SEC. 2303. PROHIBITED PERSONNEL PRACTICES IN THE FEDERAL BUREAU OF
INVESTIGATION.
[(a) Any employee of the Federal Bureau of Investigation
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 the Bureau as a reprisal for a disclosure of
information by the employee to the Attorney General (or an
employee designated by the Attorney General for such purpose)
which the employee or applicant 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.
For the purpose of this subsection, ``personnel action''
means any action described in clauses (i) through (x) of
section 2302(a)(2)(A) of this title with respect to an employee
in, or applicant for, a position in the Bureau (other than a
position of a confidential, policy-determining, policymaking,
or policy-advocating character).
[(b) The Attorney General shall prescribe regulations to
ensure that such a personnel action shall not be taken against
an employee of the Bureau as a reprisal for any disclosure of
information described in subsection (a) of this section.
[(c) The President shall provide for the enforcement of
this section in a manner consistent with applicable provisions
of sections 1214 and 1221 of this title.]
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 2009, 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)(i), (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.
(2) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2009,
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)(i), (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.
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[.]; and
(3) designate a Whistleblower Protection Ombudsman
who shall advocate for the interests of agency
employees or applicants who make protected disclosures
of information, educate agency personnel about
prohibitions on retaliation for protected disclosures,
and advise agency employees, applicants, or former
employees who have made or are contemplating making a
protected disclosure.
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 of 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 Chair of the Intelligence Community
Whistleblower Protection Board. In such a case, the
requirements of this section for the head of the establishment
apply to the recipient of the Inspector General's transmission.
The Chair shall consult with the other members of the
Intelligence Community Whistleblower Protection Board regarding
all submissions under this section.
* * * * * * *
(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--
* * * * * * *
[(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.]
(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, except that with respect to
disclosures made by employees described in subsection
(a)(1)(D), the term ``intelligence 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 National Security Act of 1947
Public Law 81-110
(as codified at 50 U.S.C. 402 et seq.)
SEC. 120. INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION BOARD.
(a) Establishment.--There is established within the Office
of the Director of National Intelligence the Intelligence
Community Whistleblower Protection Board (in this section
referred to as the ``Board'').
(b) Membership.--(1) The Board shall consist of--
(A) a Chairperson who shall be appointed by the
President, by and with the advice and consent of the
Senate (in this section referred to as the
``Chairperson'');
(B) 2 members who shall be designated by the
President--
(i) from individuals serving as inspectors
general of any agency or department of the
United States who have been appointed by the
President, by and with the advice and consent
of the Senate; and
(ii) after consultation with members of the
Council of Inspectors General on Integrity and
Efficiency; and
(C) 2 members who shall be appointed by the
President, by and with the advice and consent of the
Senate, after consultation with the Attorney General,
the Director of National Intelligence, and the
Secretary of Defense.
(D)(i) A member of the Board who serves as the
inspector general of an agency or department shall
recuse themselves from any matter brought to the Board
by a former employee, employee, or applicant of the
agency or department for which that member serves as
inspector general.
(2) The President shall designate 2 alternate members of
the Board from individuals serving as an inspector general of
an agency or department of the United States. If a member of
the Board recuses themselves from a matter pending before the
Board, an alternate shall serve in place of that member for
that matter.
(3) The members of the Board shall be individuals of sound
and independent judgment who shall collectively possess
substantial experience in national security and personnel
matters.
(4)(A) The Chairperson shall be compensated at a rate equal
to the daily equivalent of the annual rate of basic pay
prescribed for level III of the Executive Schedule under
section 5314 of title 5, United States Code, plus 3 percent for
each day (including travel time) during which the Chairperson
is engaged in the performance of the duties of the Board.
(B) The members appointed under paragraph (1)(B) and
alternate members designated under paragraph (2) shall serve
without compensation in addition to that received for their
services as inspectors general.
(C) The members appointed under paragraph 1(C) shall--
(i) perform their duties for a period not to exceed
130 days during any period of 365 consecutive days; and
(ii) shall be compensated at the rate of pay for the
Chairperson specified in paragraph (A).
(D)(i) The members of the Board shall serve 4-year terms at
the pleasure of the President, except that of the members first
appointed or designated--
(I) the Chairperson shall have a term of 6 years;
(II) 2 members shall have a term of 5 years; and
(III) 2 members shall have a term of 4 years.
(ii) A member designated under paragraph (1)(B) shall be
ineligible to serve on the Board if that member ceases to serve
as an inspector general for an agency or department of the
United States.
(iii) A member of the Board may serve on the Board after
the expiration of the term of that member until a successor for
that member has taken office as a member of the Board.
(iv) An individual appointed to fill a vacancy occurring,
other than by the expiration of a term of office, shall be
appointed only for the unexpired term of the member that
individual succeeds.
(5) Three members shall constitute a quorum of the Board.
(c) Resources and Authority.--(1) The Office of the
Director of National Intelligence shall provide the Board with
appropriate and adequate office space, together with such
equipment, office supplies, and communications facilities and
services as may be necessary for the operation of the Board,
and shall provide necessary maintenance services for the Board
and the equipment and facilities located therein.
(2)(A) For each fiscal year, the Chairperson shall transmit
a budget estimate and request to the Director of National
Intelligence. The budget request shall specify the aggregate
amount of funds requested for such fiscal year for the
operations of the Board.
(B) In transmitting a proposed budget to the President for
approval, the Director of National Intelligence shall include--
(i) the amount requested by the Chairperson; and
(ii) any comments of the Chairperson with respect to
the amount requested.
(3) Subject to applicable law and policies of the Director
of National Intelligence, the Chairperson, for the purposes of
enabling the Board to fulfill its statutorily assigned
functions, is authorized to select, appoint, and employ such
officers and employees as may be necessary for carrying out the
functions, powers, and duties of the Office.
(4) In consultation with the Attorney General, the Director
of National Intelligence, and the Secretary of Defense, the
Board may promulgate rules, regulations, and guidance and issue
orders to fulfill its functions. The Director of National
Intelligence, Secretary of Defense, and Attorney General shall
jointly approve any rules, regulations, or guidance issued
under section 121(c)(1)(B).
(5) The number of individuals employed by or on detail to
the Board shall not be counted against any limitation on the
number of personnel, positions, or full-time equivalents in the
Office of the Director of National Intelligence.
SEC. 121. INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS.
(a) Definitions.--In this section:
(1) The term ``agency'' means an Executive department
or independent establishment, as defined under sections
101 and 104 of title 5, United States Code, that
contains an intelligence community element.
(2) The term ``intelligence community element''
means--
(A) 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
(B) 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, if the
determination (as that determination relates to
a personnel action) is made before that
personnel action.
(3) The term ``personnel action''--
(A) means any action taken against an
employee of an intelligence community element
that would be considered a personnel action, as
defined in section 2302(a)(2)(A) of title 5,
United States Code, if taken against an
employee subject to such section 2302; and
(B) shall not include the denial, suspension,
or revocation of a security clearance or
denying access to classified or sensitive
information or a suspension with pay pending an
investigation.
(4) The term ``prohibited personnel practice'' means
any action prohibited by subsection (b) of this
section.
(b) Prohibited Personnel Practices.--(1) No person who has
authority to take, direct others to take, recommend, or approve
any personnel action, shall, with respect to such authority--
(A) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
intelligence community element employee or applicant
for employment because of--
(i) any disclosure of information to an
official of an agency by an employee or
applicant which the employee or applicant
reasonably believes evidences--
(I) any violation of law, rule, or
regulation except for an alleged
violation that is a minor, inadvertent
violation, and occurs during the
conscientious carrying out of official
duties; or
(II) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety, 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;
(ii) 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
or applicant reasonably believes evidences--
(I) a violation of any law, rule, or
regulation except for an alleged
violation that is a minor, inadvertent
violation, and occurs during the
conscientious carrying out of official
duties; or
(II) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; or
(iii) any communication that complies with
subsection (a)(1), (d), or (h) of section 8H of
the Inspector General Act of 1978 (5 U.S.C.
App.) or that complies with subparagraphs (A),
(D), or (H) of section 17(d)(5) of the Central
Intelligence Agency Act of 1949 (50 U.S.C.
403q); or
(B) take or fail to take, or threaten to take or fail
to take, any personnel action against any intelligence
community element employee or applicant for employment
because of--
(i) the exercise of any appeal, complaint, or
grievance right granted by subsection (c);
(ii) testifying for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in clause (i); or
(iii) cooperating with or disclosing
information to the inspector general of an
agency in connection with an audit, inspection,
or investigation conducted by the inspector
general, in accordance with applicable
provisions of law, if the actions described
under clauses (i), (ii), and (iii) do not
result in the employee or applicant unlawfully
disclosing information specifically required by
Executive order to be kept secret in the
interest of national defense or the conduct of
foreign affairs or any other information the
disclosure of which is specifically prohibited
by law.
(2) A disclosure shall not be excluded from paragraph (1)
because--
(A) the disclosure was made during the normal course
of the duties of the employee;
(B) 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 paragraph (1)(A)(ii);
(C) the disclosure revealed information that had been
previously disclosed;
(D) of the employee or applicant's motive for making
the disclosure;
(E) the disclosure was not made in writing;
(F) the disclosure was made while the employee was
off duty; or
(G) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
(3) Nothing in this subsection 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.
(c) Remedial Procedure.--(1)(A) An employee, applicant, or
former employee of an intelligence community element who
believes that such employee, applicant, or former employee has
been subjected to a prohibited personnel practice may petition
for an appeal of the personnel action to the agency head or the
designee of the agency head within 60 days after discovery of
the alleged adverse personnel action.
(B) The appeal shall be conducted within the agency
according to rules of procedure issued by the Intelligence
Community Whistleblower Protection Board under section
120(c)(4). Those rules shall be based on those pertaining to
prohibited personnel practices defined under section 2302(b)(8)
of title 5, United States Code, and provide--
(i) for an independent and impartial fact-finder;
(ii) for notice and the opportunity to be heard,
including the opportunity to present relevant evidence,
including witness testimony;
(iii) that the employee, applicant, or former
employee may be represented by counsel;
(iv) that the employee, applicant, or former employee
has a right to a decision based on the record developed
during the appeal;
(v) that, unless agreed to by the employee and the
agency concerned, 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;
(vi) for the use of information specifically required
by Executive order to be kept secret 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 where the
agency determines that the interests of national
security so warrant; and
(vii) that the employee, applicant, or former
employee shall have no right to compel the production
of information specifically required by Executive order
to be kept secret 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 subsection (b)(1)(A) through (C).
(C) If the Board certifies that agency procedures in effect
on the date of enactment of this section, including procedures
promulgated under section 2303 of title 5, United States Code,
before that date, adequately provide guaranties required under
subparagraph (B)(i) through (vi), the appeal may be conducted
according to those procedures.
(2) On the basis of the record developed during the appeal,
the impartial fact-finder shall prepare a report to the agency
head or the designee of the agency head setting forth findings,
conclusions, and, if applicable, recommended corrective action.
After reviewing the record and the impartial fact-finder's
report, the agency head or the designee of the agency head
shall determine whether the employee, former employee, or
applicant has been subjected to a prohibited personnel
practice, and shall either issue an order denying relief or
shall implement corrective action to return the employee,
former employee, or applicant, as nearly as practicable and
reasonable, to the position such employee, former employee, or
applicant would have held had the prohibited personnel practice
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. Unless the
employee, former employee, or applicant consents, no more than
60 days shall pass from the submission of the report by the
impartial fact-finder to the agency head and the final decision
by the agency head or the designee of the agency head.
(3) In determining whether the employee, former employee,
or applicant has been subjected to a prohibited personnel
practice, the agency head or the designee of the agency head
shall find that a prohibited personnel practice occurred if a
disclosure described in subsection (b) was a contributing
factor in the personnel action which was taken against the
individual, unless the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel
action in the absence of such disclosure.
(4)(A) Any employee, former employee, or applicant
adversely affected or aggrieved by a final order or decision of
the agency head or the designee of the agency head under
paragraph (1) may appeal that decision to the Intelligence
Community Whistleblower Protection Board within 60 days after
the issuance of such order. Such appeal shall be conducted
under rules of procedure issued by the Board under section
120(c)(4).
(B) The Board's review shall be on the agency record. 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 not be disclosed to the employee,
former employee, or applicant during proceedings before the
Board.
(C) If the Board concludes that further fact-finding is
necessary or finds that the agency improperly denied the
employee, former employee, or applicant the opportunity to
present evidence that, if admitted, would have a substantial
likelihood of altering the outcome, the Board shall--
(i) remand the matter to the agency from which it
originated for additional proceedings in accordance
with the rules of procedure issued by the Board; or
(ii) refer the matter to another agency for
additional proceedings in accordance with the rules of
procedure issued by the Board.
(D) The Board shall make a de novo determination, based on
the entire record, of whether the employee, former employee, or
applicant suffered a prohibited personnel practice. 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.
(E) On the basis of the agency record, the Board shall
determine whether the employee, former employee, or applicant
has been subjected to a prohibited personnel practice, and
shall either issue an order denying relief or shall order the
agency head to take specific corrective action to return the
employee, former employee, or applicant, as nearly as
practicable and reasonable, to the position such employee,
former employee, or applicant would have held had the
prohibited personnel practice 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 or applicant. The
agency head shall take the actions so ordered, unless the
President determines that doing so would endanger national
security. Unless the employee, former employee, or applicant
consents, no more than 180 days shall pass from the filing of
the appeal with the Board to the final decision by the Board.
Any period of time during which the Board lacks a sufficient
number of members to undertake a review shall be excluded from
the 180-day period.
(F) In determining whether the employee, former employee,
or applicant has been subjected to a prohibited personnel
practice, the agency head or the designee of the agency head
shall find that a prohibited personnel practice occurred if a
disclosure described in subsection (b) of this section was a
contributing factor in the personnel action which was taken
against the individual, unless the agency demonstrates by clear
and convincing evidence that it would have taken the same
personnel action in the absence of such disclosure.
(5)(A)(i) During the 5-year period beginning on the
effective date of the Whistleblower Protection Enhancement Act
of 2009, an employee, former employee, applicant, or an agency
may file a petition to review a final order of the Board in the
United States Court of Appeals for the Federal Circuit or the
United States court of appeals for a circuit in which the
reprisal is alleged in the order to have occurred.
Notwithstanding any other provision of law, any petition for
review shall be filed within 60 days after the date of issuance
of the final order of the Board.
(ii) After the 5-year period described under clause (i), a
petition to review a final order described under that clause
shall be filed in the United States Court of Appeals for the
Federal Circuit.
(B) The court of appeals shall review the record and hold
unlawful and set aside any agency action, findings, or
conclusions found to be--
(i) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(ii) obtained without procedures required by law,
rule, or regulation having been followed; or
(iii) unsupported by substantial evidence.
(C) Any portions of the record that were submitted ex parte
during the agency proceedings shall be submitted ex parte to
the Board and any reviewing court.
(D) At the time the Board issues an order, the Chairperson
shall notify the chairpersons and ranking members of--
(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; and
(iv) the Permanent Select Committee on Intelligence
of the House of Representatives.
(d) Except as expressly provided in this section, there
shall be no judicial review of agency actions under this
section.
(e) This section shall not apply to terminations executed
under--
(1) section 1609 of title 10, United States Code;
(2) the authority of the Director of National
Intelligence under section 102A(m) of this Act, if--
(A) the Director personally summarily
terminates the individual; and
(B) the Director--
(i) determines the termination to be
in the interest of the United States;
(ii) determines that the procedures
prescribed in other provisions of law
that authorize the termination of the
employment of such employee cannot be
invoked in a manner consistent with the
national security; and
(iii) notifies the congressional
oversight committees of such
termination within 5 days after the
termination;
(3) the authority of the Director of the Central
Intelligence Agency under section 104A(e) of this Act,
if--
(A) the Director personally summarily
terminates the individual; and
(B) the Director--
(i) determines the termination to be
in the interest of the United States;
(ii) determines that the procedures
prescribed in other provisions of law
that authorize the termination of the
employment of such employee cannot be
invoked in a manner consistent with the
national security; and
(iii) notifies the congressional
oversight committees of such
termination within 5 days after the
termination; or
(4) section 7532 of title 5, United States Code, if--
(A) the agency head personally summarily
terminates the individual; and
(B) the agency head--
(i) determines the termination to be
in the interest of the United States,
(ii) determines that the procedures
prescribed in other provisions of law
that authorize the termination of the
employment of such employee cannot be
invoked in a manner consistent with the
national security; and
(iii) notifies the congressional
oversight committees of such
termination within 5 days after the
termination.
(f) If an employee, former employee, or applicant seeks to
challenge both a prohibited personnel practice under this
section and an adverse security clearance or access
determination under section 3001(j) of the Intelligence Reform
and Terrorism Prevention Act of 2004 (50 U.S.C. 435b(j)), the
employee shall bring both claims under the procedure set forth
in 3001(j) of that Act for challenging an adverse security
clearance or access determination. If the Board awards
compensatory damages for such claim or claims, the total amount
of compensatory damages ordered shall not exceed $300,000.
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
Chair of the Intelligence Community Whistleblower
Protection Board. In such a case--
(I) the requirements of this subsection for
the Director apply to the recipient of the
Inspector General's submission; and
(II) the Chairperson shall consult with the
other members of the Intelligence Community
Whistleblower Protection Board regarding all
submissions under this section.
* * * * * * *
(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.
* * * * * * *
(e) Authorities of the Inspector General * * *.
* * * * * * *
(9) The Inspector General shall designate a
Whistleblower Protection Ombudsman who shall advocate
for the interests of agency employees or applicants who
make protected disclosures of information, educate
agency personnel about prohibitions on retaliation for
protected disclosures, and advise agency employees,
applicants, or former employees who have made or are
contemplating making a protected disclosure.
* * * * * * *
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.
* * * * * * *
(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 30 days after the date of
enactment of the Whistleblower Protection Enhancement
Act of 2009--
(A) developing policies and procedures that
permit, to the extent practicable, individuals
who challenge in good faith 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, including such policies and
procedures for appeals based on those
pertaining to prohibited personnel pactices
defined under section 2302(b)(8) of title 5,
United States Code, and that provide--
(i) for an independent and impartial
fact-finder;
(ii) for notice and the opportunity
to be heard, including the opportunity
to present relevant evidence, including
witness testimony;
(iii) that the employee, applicant,
or former employee may be represented
by counsel;
(iv) that the employee, applicant, or
former employee has a right to a
decision based on the record developed
during the appeal;
(v) that, unless agreed to by the
employee and the agency concerned, no
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;
(vi) for the use of information
specifically required by Executive
order to be kept secret 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
(vii) that the employee, applicant,
or former employee shall have no right
to compel the production of information
specifically required by Executive
order to be kept secret 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
or applicant's security clearance or access
determination because of--
(A) any disclosure of information to an
official of an Executive agency by an employee
or applicant which the employee or applicant
reasonably believes evidences--
(i) a violation of any law, rule, or
regulation, except for an alleged
violation that is a minor, inadvertent
violation, and occurs during the
conscientious carrying out of official
duties; or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety, if such
disclosure is not specifically
prohibited by law and if such
disclosure does not reveal information
specifically authorized under criteria
established by statute, Executive
Order, Presidential directive, or
Presidential memorandum to be kept
secret in the interest of national
defense or the conduct of foreign
affairs;
(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
or applicant reasonably believes evidences--
(i) a violation of any law, rule, or
regulation, except for an alleged
violation that is a minor, inadvertent
violation, and occurs during the
conscientious carrying out of official
duties; or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety;
(C) any communication that complies with
subsection (a)(1), (d), or (h) of section 8H of
the Inspector General Act of 1978 (5 U.S.C.
App.) or that complies with subsection
(d)(5)(A), (D), or (H) of section 17 of the
Central Intelligence Agency Act of 1949 (50
U.S.C. 403q);
(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 authorized
under criteria established by Executive Order,
statute, Presidential Directive, or
Presidential memorandum to be kept secret in
the interest of national defense or the conduct
of foreign affairs. Nothing in this paragraph
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.
(2) Disclosures.--A disclosure shall not be excluded
from paragraph (1) because--
(A) the disclosure was made during the normal
course of the duties of the employee;
(B) 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 paragraph
(1)(A)(ii);
(C) the disclosure revealed information that
had been previously disclosed;
(D) of the employee or applicant's motive for
making the disclosure;
(E) the disclosure was not made in writing;
(F) the disclosure was made while the
employee was off duty; or
(G) of the amount of time which has passed
since the occurrence of the events described in
the disclosure.
(3) Agency adjudication.--
(A) Appeal.--An employee, former employee, or
applicant for employment who believes that he
or she has been subjected to a reprisal
prohibited by paragraph (1) of this subsection
may, within 60 days after the issuance of
notice of such decision, appeal that decision
within the agency of that employee, former
employee, or applicant through proceedings
authorized by paragraph (8) of subsection (b),
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.
(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, former employee, or applicant, as
nearly as practicable and reasonable, to the
position such employee, former employee, or
applicant 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.
(4) Review by the intelligence community
whistleblower protection board.--
(A) Appeal.--Within 60 days after receiving
notice of an adverse final agency determination
under a proceeding under paragraph (3), an
employee, former employee, or applicant for
employment may appeal that determination to the
Intelligence Community Whistleblower Protection
Board.
(B) 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 (A). 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.
(C) 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.
(D) 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--
(i) remand the matter to the agency
from which it originated for additional
proceedings in accordance with the
rules of procedure issued by the Board;
or
(ii) refer the case to an
intelligence community agency for
additional proceedings in accordance
with the rules of procedure issued by
the Board.
(E) De novo determination.--The Board shall
make a de novo determination, based on the
entire record, of whether the employee, former
employee, or applicant 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.
(F) 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 (including any adjudicative
guidelines promulgated under such orders) or
any subsequent Executive order, regulation, or
policy concerning access to classified
information.
(G) 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, former employee, or
applicant, as nearly as practicable and
reasonable, to the position such
employee, former employee, or applicant
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 or applicant, and
any relief shall not include the
reinstating of any security clearance
or access determination. The agency
head shall take the actions so ordered,
unless the President determines that
doing so would endanger national
security.
(ii) Recommended action.--If the
Board finds that reinstating the
employee, former employee, or
applicant'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.
(H) Congressional notification.--
(i) Orders.--At the time the Board
issues an order, the Chairperson of the
Board shall notify the chairpersons and
ranking members of--
(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; and
(IV) the Permanent Select
Committee on Intelligence 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 chairpersons and
ranking members of the committees
described in subclauses (I) through
(IV) of clause (i).
(5) Judicial review.--Nothing in this section should
be construed to permit or require judicial review of
agency or Board actions under this section.
(6) Nonapplicability to certain terminations.--This
section shall not apply to adverse security clearance
or access determinations if the affected employee is
concurrently terminated under--
(A) section 1609 of title 10, United States
Code;
(B) the authority of the Director of National
Intelligence under section 102A(m) of the
National Security Act of 1947 (50 U.S.C. 403-
1(m)), if--
(i) the Director personally summarily
terminates the individual; and
(ii) the Director--
(I) determines the
termination to be in the
interest of the United States;
(II) determines that the
procedures prescribed in other
provisions of law that
authorize the termination of
the employment of such employee
cannot be invoked in a manner
consistent with the national
security, and
(III) notifies the
congressional oversight
committees of such termination
within 5 days after the
termination;
(C) the authority of the Director of the
Central Intelligence Agency under section
104A(e) of the National Security Act of 1947
(50 U.S.C. 403-4a(e)), if--
(i) the Director personally summarily
terminates the individual; and
(ii) the Director--
(I) determines the
termination to be in the
interest of the United States;
(II) determines that the
procedures prescribed in other
provisions of law that
authorize the termination of
the employment of such employee
cannot be invoked in a manner
consistent with the national
security; and
(III) notifies the
congressional oversight
committees of such termination
within 5 days after the
termination; or
(D) section 7532 of title 5, United States
Code, if--
(i) the agency head personally
summarily terminates the individual;
and
(ii) the agency head--
(I) determines the
termination to be in the
interest of the United States;
(II) determines that the
procedures prescribed in other
provisions of law that
authorize the termination of
the employment of such employee
cannot be invoked in a manner
consistent with the national
security; and
(III) notifies the
congressional oversight
committees of such termination
within 5 days after the
termination.
