[Congressional Record Volume 158, Number 131 (Friday, September 28, 2012)]
[House]
[Pages H6286-H6296]
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012
Mr. LEWIS of California. Mr. Speaker, I ask unanimous consent that
the Committee on Oversight and Government Reform, the Committee on
Homeland Security, and the Permanent Select Committee on Intelligence
be discharged from further consideration of the bill (S. 743) to amend
chapter 23 of title 5, United States Code, to clarify the disclosures
of information protected from prohibited personnel practices, require a
statement in 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, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
Mr. VAN HOLLEN. Mr. Speaker, reserving the right to object--and I
will not object--I think the bill's good. We just passed by unanimous
consent important measures, and I strongly support the whistleblower
protection bill which will protect Federal employees against
retaliation if they're shining a little sunlight on violations, abuses
in the Federal Government, and I do believe that we should adopt this
measure.
I also believe that the House should reconvene to conduct the other
business before the House, and with that, I yield to the gentleman from
California (Mr. Waxman).
Mr. WAXMAN. Thank you very much for yielding. I certainly won't
object to this unanimous consent request, but I do want to point out
that we here in Washington ought to be doing our job. We have our
Nation's urgent priorities. We need to increase jobs, strengthen our
economy, prevent the fiscal cliff, protect Medicare from cuts, address
our long-term debt. We should be fighting for the middle class, not
preserving tax breaks for oil companies and millionaires.
We are out of session for this campaign at the earliest time ever,
and for that reason--but I will not object.
I thank the gentleman for yielding.
Mr. VAN HOLLEN. Mr. Speaker, I withdraw my reservation.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
The text of the bill is as follows:
S. 743
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Whistleblower Protection
Enhancement Act of 2012''.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.
(a) In General.--Section 2302(b)(8) of title 5, United
States Code, is amended--
(1) in subparagraph (A)(i), by striking ``a violation'' and
inserting ``any violation''; and
(2) in subparagraph (B)(i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''.
(b) Prohibited Personnel Practices Under Section
2302(b)(9).--
(1) Technical and conforming amendments.--Title 5, United
States Code, is amended in subsections (a)(3), (b)(4)(A), and
(b)(4)(B)(i) of section 1214, in subsections (a), (e)(1), and
(i) of section 1221, and in subsection (a)(2)(C)(i) of
section 2302, by inserting ``or section 2302(b)(9) (A)(i),
(B), (C), or (D)'' after ``section 2302(b)(8)'' or ``(b)(8)''
each place it appears.
(2) Other references.--(A) Title 5, United States Code, is
amended in subsection (b)(4)(B)(i) of section 1214 and in
subsection (e)(1) of section 1221, by inserting ``or
protected activity'' after ``disclosure'' each place it
appears.
(B) Section 2302(b)(9) of title 5, United States Code, is
amended--
(i) by striking subparagraph (A) and inserting the
following:
``(A) the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation--
[[Page H6287]]
``(i) with regard to remedying a violation of paragraph
(8); or
``(ii) other than with regard to remedying a violation of
paragraph (8);''; and
(ii) in subparagraph (B), by inserting ``(i) or (ii)''
after ``subparagraph (A)''.
(C) Section 2302 of title 5, United States Code, is amended
by adding at the end the following:
``(f)(1) A disclosure shall not be excluded from subsection
(b)(8) because--
``(A) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
or applicant reasonably believed to be covered by subsection
(b)(8)(A)(ii);
``(B) the disclosure revealed information that had been
previously disclosed;
``(C) of the employee's or applicant's motive for making
the disclosure;
``(D) the disclosure was not made in writing;
``(E) the disclosure was made while the employee was off
duty; or
``(F) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(2) If a disclosure is made during the normal course of
duties of an employee, the disclosure shall not be excluded
from subsection (b)(8) if any employee who has authority to
take, direct others to take, recommend, or approve any
personnel action with respect to the employee making the
disclosure, took, failed to take, or threatened to take or
fail to take a personnel action with respect to that employee
in reprisal for the disclosure.''.
SEC. 102. DEFINITIONAL AMENDMENTS.
Section 2302(a)(2) of title 5, United States Code, is
amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee or applicant
providing the disclosure reasonably believes that the
disclosure evidences--
``(i) any violation of any law, rule, or regulation; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.''.
SEC. 103. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended
by amending the matter following paragraph (12) to read as
follows:
``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses
information to Congress. For purposes of paragraph (8), (i)
any presumption relating to the performance of a duty by an
employee whose conduct is the subject of a disclosure as
defined under subsection (a)(2)(D) may be rebutted by
substantial evidence, and (ii) a determination as to whether
an employee or applicant reasonably believes that such
employee or applicant has disclosed information that
evidences any violation of law, rule, regulation, gross
mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or
safety shall be made by determining whether a disinterested
observer with knowledge of the essential facts known to and
readily ascertainable by the employee or applicant could
reasonably conclude that the actions of the Government
evidence such violations, mismanagement, waste, abuse, or
danger.''.
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL
PRACTICES.
(a) Personnel Action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(1) in clause (x), by striking ``and'' after the semicolon;
and
(2) by redesignating clause (xi) as clause (xii) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and''.
(b) Prohibited Personnel Practice.--
(1) In general.--Section 2302(b) of title 5, United States
Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
``; or''; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by existing statute or Executive order
relating to (1) classified information, (2) communications to
Congress, (3) the reporting to an Inspector General of a
violation of any law, rule, or regulation, or mismanagement,
a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety,
or (4) any other whistleblower protection. The definitions,
requirements, obligations, rights, sanctions, and liabilities
created by controlling Executive orders and statutory
provisions are incorporated into this agreement and are
controlling.'.''.
(2) Agency websites.--Agencies making use of any
nondisclosure policy, form, or agreement shall also post the
statement required under section 2302(b)(13) of title 5,
United States Code, (as added by this Act) on the agency
website, accompanied by the specific list of controlling
Executive orders and statutory provisions.
(3) Nondisclosure policy, form, or agreement in effect
before the effective date.--With respect to a nondisclosure
policy, form, or agreement that was in effect before the
effective date of this Act, but that does not contain the
statement required under section 2302(b)(13) of title 5,
United States Code, (as added by this Act) for implementation
or enforcement--
(A) it shall not be a prohibited personnel practice to
enforce that policy, form, or agreement with regard to a
current employee if the agency gives such employee notice of
the statement; and
(B) it shall not be a prohibited personnel practice to
enforce that policy, form, or agreement after the effective
date of this Act with regard to a former employee if the
agency complies with paragraph (2).
(c) Retaliatory Investigations.--
(1) Agency investigation.--Section 1214 of title 5, United
States Code, is amended by adding at the end the following:
``(h) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.''.
(2) Damages.--Section 1221(g) of title 5, United States
Code, is amended by adding at the end the following:
``(4) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.''.
SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.
Section 2302(a)(2)(C) of title 5, United States Code, is
amended by striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance Office; and
``(II) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, provided that the determination be made prior to
a personnel action; or''.
SEC. 106. DISCIPLINARY ACTION.
Section 1215(a)(3) of title 5, United States Code, is
amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case brought under paragraph (1) in which the
Board finds that an employee has committed a prohibited
personnel practice under section 2302(b)(8), or 2302(b)(9)
(A)(i), (B), (C), or (D), the Board may impose disciplinary
action if the Board finds that the activity protected under
section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D)
was a significant motivating factor, even if other factors
also motivated the decision, for the employee's decision to
take, fail to take, or threaten to take or fail to take a
personnel action, unless that employee demonstrates, by
preponderance of evidence, that the employee would have
taken, failed to take, or threatened to take or fail to take
the same personnel action, in the absence of such protected
activity.''.
SEC. 107. REMEDIES.
(a) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party was employed or
had applied for employment at the time of the events giving
rise to the case''.
(b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of
title 5, United States Code, are amended by striking all
after ``travel expenses,'' and inserting ``any other
reasonable and foreseeable consequential damages, and
compensatory damages (including interest, reasonable expert
witness fees, and costs).'' each place it appears.
SEC. 108. JUDICIAL REVIEW.
(a) In General.--Section 7703(b) of title 5, United States
Code, is amended by striking the matter preceding paragraph
(2) and inserting the following:
``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2) of this subsection, a petition to review a
final order or final decision of the Board shall be filed in
the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review shall be filed within 60 days after the Board
[[Page H6288]]
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 2012,
a petition to review a final order or final decision of the
Board that raises no challenge to the Board's disposition of
allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section
2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) shall be
filed in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as
provided under paragraph (2).''.
(b) Review Obtained by Office of Personnel Management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the Board issues notice of the final order or decision
of the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit if the
Director determines, in the discretion of the Director, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals. The granting of the petition for
judicial review shall be at the discretion of the Court of
Appeals.
``(2) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2012,
this paragraph shall apply to any review obtained by the
Director of the Office of Personnel Management that raises no
challenge to the Board's disposition of allegations of a
prohibited personnel practice described in section 2302(b)
other than practices described in section 2302(b)(8), or
2302(b)(9) (A)(i), (B), (C), or (D). The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the Board issues notice of the final order or decision
of the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction as provided under
subsection (b)(2) if the Director determines, in the
discretion of the Director, that the Board erred in
interpreting a civil service law, rule, or regulation
affecting personnel management and that the Board's decision
will have a substantial impact on a civil service law, rule,
regulation, or policy directive. If the Director did not
intervene in a matter before the Board, the Director may not
petition for review of a Board decision under this section
unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.
In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the
right to appear in the proceeding before the court of
appeals. The granting of the petition for judicial review
shall be at the discretion of the court of appeals.''.
SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE
TRANSPORTATION SECURITY ADMINISTRATION.
(a) In General.--Chapter 23 of title 5, United States Code,
is amended--
(1) by redesignating sections 2304 and 2305 as sections
2305 and 2306, respectively; and
(2) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of
law, any individual holding or applying for a position within
the Transportation Security Administration shall be covered
by--
``(1) the provisions of section 2302(b) (1), (8), and (9);
``(2) any provision of law implementing section 2302(b)
(1), (8), or (9) by providing any right or remedy available
to an employee or applicant for employment in the civil
service; and
``(3) any rule or regulation prescribed under any provision
of law referred to in paragraph (1) or (2).
``(b) Rule of Construction.--Nothing in this section shall
be construed to affect any rights, apart from those described
in subsection (a), to which an individual described in
subsection (a) might otherwise be entitled under law.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 23 of title 5, United States Code, is
amended by striking the items relating to sections 2304 and
2305, respectively, and by inserting the following:
``2304. Prohibited personnel practices affecting the Transportation
Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.
(c) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this section.
SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH,
ANALYSIS, OR TECHNICAL INFORMATION.
(a) Definitions.--In this subsection--
(1) the term ``agency'' has the meaning given under section
2302(a)(2)(C) of title 5, United States Code;
(2) the term ``applicant'' means an applicant for a covered
position;
(3) the term ``censorship related to research, analysis, or
technical information'' means any effort to distort,
misrepresent, or suppress research, analysis, or technical
information;
(4) the term ``covered position'' has the meaning given
under section 2302(a)(2)(B) of title 5, United States Code;
(5) the term ``employee'' means an employee in a covered
position in an agency; and
(6) the term ``disclosure'' has the meaning given under
section 2302(a)(2)(D) of title 5, United States Code.
(b) Protected Disclosure.--
(1) In general.--Any disclosure of information by an
employee or applicant for employment that the employee or
applicant reasonably believes is evidence of censorship
related to research, analysis, or technical information--
(A) shall come within the protections of section
2302(b)(8)(A) of title 5, United States Code, if--
(i) the employee or applicant reasonably believes that the
censorship related to research, analysis, or technical
information is or will cause--
(I) any violation of law, rule, or regulation; or
(II) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; and
(ii) such disclosure is not specifically prohibited by law
or such information is not specifically required by Executive
order to be kept classified in the interest of national
defense or the conduct of foreign affairs; and
(B) shall come within the protections of section
2302(b)(8)(B) of title 5, United States Code, if--
(i) the employee or applicant reasonably believes that the
censorship related to research, analysis, or technical
information is or will cause--
(I) any violation of law, rule, or regulation; or
(II) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; and
(ii) the disclosure is made to the Special Counsel, or to
the Inspector General of an agency or another person
designated by the head of the agency to receive such
disclosures, consistent with the protection of sources and
methods.
(2) Disclosures not excluded.--A disclosure shall not be
excluded from paragraph (1) for any reason described under
section 2302(f)(1) or (2) of title 5, United States Code.
(3) Rule of construction.--Nothing in this section shall be
construed to imply any limitation on the protections of
employees and applicants afforded by any other provision of
law, including protections with respect to any disclosure of
information believed to be evidence of censorship related to
research, analysis, or technical information.
SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL
INFRASTRUCTURE INFORMATION.
Section 214(c) of the Homeland Security Act of 2002 (6
U.S.C. 133(c)) is amended by adding at the end the following:
``For purposes of this section a permissible use of
independently obtained information includes the disclosure of
such information under section 2302(b)(8) of title 5, United
States Code.''.
SEC. 112. ADVISING EMPLOYEES OF RIGHTS.
Section 2302(c) of title 5, United States Code, is amended
by inserting ``, including how to make a lawful disclosure of
information that is specifically required by law or Executive
order to be kept classified in the interest of national
defense or the conduct of foreign affairs to the Special
Counsel, the Inspector General of an agency, Congress, or
other agency employee designated to receive such
disclosures'' after ``chapter 12 of this title''.
SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.
Section 1212 of title 5, United States Code, is amended by
adding at the end the following:
``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to section 2302(b) (8) or (9), or as otherwise
authorized by law. In any such action, the Special Counsel is
authorized to present the views of the Special Counsel with
respect to compliance with section 2302(b) (8) or (9) and the
impact court decisions would have on the enforcement of such
provisions of law.
``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such
action for the purposes described under subsection (a).''.
SEC. 114. SCOPE OF DUE PROCESS.
(a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
[[Page H6289]]
(b) Individual Action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.
(a) In General.--
(1) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These provisions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
existing statute or Executive order relating to (1)
classified information, (2) communications to Congress, (3)
the reporting to an Inspector General of a violation of any
law, rule, or regulation, or mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety, or (4) any other
whistleblower protection. The definitions, requirements,
obligations, rights, sanctions, and liabilities created by
controlling Executive orders and statutory provisions are
incorporated into this agreement and are controlling.''.
(2) Agency websites.--Agencies making use of any
nondisclosure policy, form, or agreement shall also post the
statement required under paragraph (1) on the agency website,
accompanied by the specific list of controlling Executive
orders and statutory provisions.
(3) Enforceability.--
(A) In general.--Any nondisclosure policy, form, or
agreement described under paragraph (1) that does not contain
the statement required under paragraph (1) may not be
implemented or enforced to the extent such policy, form, or
agreement is inconsistent with that statement.
(B) Nondisclosure policy, form, or agreement in effect
before the effective date.--With respect to a nondisclosure
policy, form, or agreement that was in effect before the
effective date of this Act, but that does not contain the
statement required under paragraph (1) for implementation or
enforcement--
(i) it shall not be a prohibited personnel practice to
enforce that policy, form, or agreement with regard to a
current employee if the agency gives such employee notice of
the statement; and
(ii) it shall not be a prohibited personnel practice to
enforce that policy, form, or agreement after the effective
date of this Act with regard to a former employee if the
agency complies with paragraph (2).
(b) Persons Other Than Government Employees.--
Notwithstanding subsection (a), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the United
States Government, may contain provisions appropriate to the
particular activity for which such document is to be used.
Such policy, form, or agreement shall, at a minimum, require
that the person will not disclose any classified information
received in the course of such activity unless specifically
authorized to do so by the United States Government. Such
nondisclosure policy, form, or agreement shall also make it
clear that such forms do not bar disclosures to Congress or
to an authorized official of an executive agency or the
Department of Justice that are essential to reporting a
substantial violation of law, consistent with the protection
of sources and methods.
SEC. 116. REPORTING REQUIREMENTS.
(a) Government Accountability Office.--
(1) Report.--Not later than 48 months after the date of
enactment of this Act, the Comptroller General shall submit a
report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives on the
implementation of this title.
(2) Contents.--The report under this paragraph shall
include--
(A) an analysis of any changes in the number of cases filed
with the United States Merit Systems Protection Board
alleging violations of section 2302(b) (8) or (9) of title 5,
United States Code, since the effective date of this Act;
(B) the outcome of the cases described under subparagraph
(A), including whether or not the United States Merit Systems
Protection Board, the Federal Circuit Court of Appeals, or
any other court determined the allegations to be frivolous or
malicious;
(C) an analysis of the outcome of cases described under
subparagraph (A) that were decided by a United States
District Court and the impact the process has on the Merit
Systems Protection Board and the Federal court system; and
(D) any other matter as determined by the Comptroller
General.
(b) Merit Systems Protection Board.--
(1) In general.--Each report submitted annually by the
Merit Systems Protection Board under section 1116 of title
31, United States Code, shall, with respect to the period
covered by such report, include as an addendum the following:
(A) Information relating to the outcome of cases decided
during the applicable year of the report in which violations
of section 2302(b) (8) or (9) (A)(i), (B)(i), (C), or (D) of
title 5, United States Code, were alleged.
(B) The number of such cases filed in the regional and
field offices, the number of petitions for review filed in
such cases, and the outcomes of such cases.
(2) First report.--The first report described under
paragraph (1) submitted after the date of enactment of this
Act shall include an addendum required under that
subparagraph that covers the period beginning on the
effective date of this Act and ending at the end of the
fiscal year in which such effective date occurs.
SEC. 117. ALTERNATIVE REVIEW.
(a) In General.--Section 1221 of title 5, United States
Code, is amended by adding at the end the following:
``(k)(1) In this subsection, the term `appropriate United
States district court', as used with respect to an alleged
prohibited personnel practice, means the United States
district court for the judicial district in which--
``(A) the prohibited personnel practice is alleged to have
been committed; or
``(B) the employee, former employee, or applicant for
employment allegedly affected by such practice resides.
``(2)(A) An employee, former employee, or applicant for
employment in any case to which paragraph (3) or (4) applies
may file an action at law or equity for de novo review in the
appropriate United States district court in accordance with
this subsection.
``(B) Upon initiation of any action under subparagraph (A),
the Board shall stay any other claims of such employee,
former employee, or applicant pending before the Board at
that time which arise out of the same set of operative facts.
Such claims shall be stayed pending completion of the action
filed under subparagraph (A) before the appropriate United
States district court and any associated appellate review.
``(3) This paragraph applies in any case in which--
``(A) an employee, former employee, or applicant for
employment--
``(i) seeks corrective action from the Merit Systems
Protection Board under section 1221(a) based on an alleged
prohibited personnel practice described in section 2302(b)
(8) or (9) (A)(i), (B), (C), or (D) for which the associated
personnel action is an action covered under section 7512 or
7542; or
``(ii) files an appeal under section 7701(a) alleging as an
affirmative defense the commission of a prohibited personnel
practice described in section 2302(b) (8) or (9) (A)(i), (B),
(C), or (D) for which the associated personnel action is an
action covered under section 7512 or 7542;
``(B) no final order or decision is issued by the Board
within 270 days after the date on which a request for that
corrective action or appeal has been duly submitted, unless
the Board determines that the employee, former employee, or
applicant for employment engaged in conduct intended to delay
the issuance of a final order or decision by the Board; and
``(C) such employee, former employee, or applicant provides
written notice to the Board of filing an action under this
subsection before the filing of that action.
``(4) This paragraph applies in any case in which--
``(A) an employee, former employee, or applicant for
employment--
``(i) seeks corrective action from the Merit Systems
Protection Board under section 1221(a) based on an alleged
prohibited personnel practice described in section 2302(b)
(8) or (9) (A)(i), (B), (C), or (D) for which the associated
personnel action is an action covered under section 7512 or
7542; or
``(ii) files an appeal under section 7701(a) alleging as an
affirmative defense the commission of a prohibited personnel
practice described in section 2302(b) (8) or (9) (A)(i), (B),
(C), or (D) for which the associated personnel action is an
action covered under section 7512 or 7542;
``(B)(i) within 30 days after the date on which the request
for corrective action or appeal was duly submitted, such
employee, former employee, or applicant for employment files
a motion requesting a certification consistent with
subparagraph (C) to the Board, any administrative law judge
appointed by the Board under section 3105 of this title and
assigned to the case, or any employee of the Board designated
by the Board and assigned to the case; and
``(ii) such employee has not previously filed a motion
under clause (i) related to that request for corrective
action or that appeal; and
``(C) the Board, any administrative law judge appointed by
the Board under section 3105 of this title and assigned to
the case, or any employee of the Board designated by the
Board and assigned to the case certifies that--
``(i) under the standards applicable to the review of
motions to dismiss under rule 12(b)(6) of the Federal Rules
of Civil Procedure, including rule 12(d), the request for
corrective action or the appeal (including any allegations
made with the motion under subparagraph (B)) would not be
subject to dismissal; and
``(ii)(I) the Board is not likely to dispose of the case
within 270 days after the date on which the request for
corrective action or the appeal has been duly submitted; or
``(II) the case--
``(aa) consists of multiple claims;
``(bb) requires complex or extensive discovery;
``(cc) arises out of the same set of operative facts as any
civil action against the Government filed by the employee,
former
[[Page H6290]]
employee, or applicant pending in a Federal court; or
``(dd) involves a novel question of law.
``(5) The Board shall grant or deny any motion requesting a
certification described under paragraph (4)(ii) within 90
days after the submission of such motion and the Board may
not issue a decision on the merits of a request for
corrective action within 15 days after granting or denying a
motion requesting certification.
``(6)(A) Any decision of the Board, any administrative law
judge appointed by the Board under section 3105 of this title
and assigned to the case, or any employee of the Board
designated by the Board and assigned to the case to grant or
deny a certification described under paragraph (4)(ii) shall
be reviewed on appeal of a final order or decision of the
Board under section 7703 only if--
``(i) a motion requesting a certification was denied; and
``(ii) the reviewing court vacates the decision of the
Board on the merits of the claim under the standards set
forth in section 7703(c).
``(B) The decision to deny the certification shall be
overturned by the reviewing court, and an order granting
certification shall be issued by the reviewing court, if such
decision is found to be arbitrary, capricious, or an abuse of
discretion.
``(C) The reviewing court's decision shall not be
considered evidence of any determination by the Board, any
administrative law judge appointed by the Board under section
3105 of this title, or any employee of the Board designated
by the Board on the merits of the underlying allegations
during the course of any action at law or equity for de novo
review in the appropriate United States district court in
accordance with this subsection.
``(7) In any action filed under this subsection--
``(A) the district court shall have jurisdiction without
regard to the amount in controversy;
``(B) at the request of either party, such action shall be
tried by the court with a jury;
``(C) the court--
``(i) subject to clause (iii), shall apply the standards
set forth in subsection (e); and
``(ii) may award any relief which the court considers
appropriate under subsection (g), except--
``(I) relief for compensatory damages may not exceed
$300,000; and
``(II) relief may not include punitive damages; and
``(iii) notwithstanding subsection (e)(2), may not order
relief if the agency demonstrates by a preponderance of the
evidence that the agency would have taken the same personnel
action in the absence of such disclosure; and
``(D) the Special Counsel may not represent the employee,
former employee, or applicant for employment.
``(8) An appeal from a final decision of a district court
in an action under this subsection shall be taken to the
Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction.
``(9) This subsection applies with respect to any appeal,
petition, or other request for corrective action duly
submitted to the Board, whether under section 1214(b)(2), the
preceding provisions of this section, section 7513(d),
section 7701, or any otherwise applicable provisions of law,
rule, or regulation.''.
(b) Sunset.--
(1) In general.--Except as provided under paragraph (2),
the amendments made by this section shall cease to have
effect 5 years after the effective date of this Act.
(2) Pending claims.--The amendments made by this section
shall continue to apply with respect to any claim pending
before the Board on the last day of the 5-year period
described under paragraph (1).
SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY JUDGMENT.
(a) In General.--Section 1204(b) of title 5, United States
Code, is amended--
(1) by redesignating paragraph (3) as paragraph (4);
(2) by inserting after paragraph (2) the following:
``(3) With respect to a request for corrective action based
on an alleged prohibited personnel practice described in
section 2302(b) (8) or (9) (A)(i), (B), (C), or (D) for which
the associated personnel action is an action covered under
section 7512 or 7542, the Board, any administrative law judge
appointed by the Board under section 3105 of this title, or
any employee of the Board designated by the Board may, with
respect to any party, grant a motion for summary judgment
when the Board or the administrative law judge determines
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.''.
(b) Sunset.--
(1) In general.--Except as provided under paragraph (2),
the amendments made by this section shall cease to have
effect 5 years after the effective date of this Act.
(2) Pending claims.--The amendments made by this section
shall continue to apply with respect to any claim pending
before the Board on the last day of the 5-year period
described under paragraph (1).
SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION.
(a) Prohibited Personnel Practices.--Section 2302(b)(8) of
title 5, United States Code, is amended--
(1) in subparagraph (A), by striking ``or'' after the
semicolon;
(2) in subparagraph (B), by adding ``or'' after the
semicolon; and
(3) by adding at the end the following:
``(C) any communication that complies with subsection
(a)(1), (d), and (h) of section 8H of the Inspector General
Act of 1978 (5 U.S.C. App.);''.
(b) Inspector General Act of 1978.--Section 8H of the
Inspector General Act of 1978 (5 U.S.C. App.) is amended--
(1) in subsection (a)(1), by adding at the end the
following:
``(D) An employee of any agency, as that term is defined
under section 2302(a)(2)(C) of title 5, United States Code,
who intends to report to Congress a complaint or information
with respect to an urgent concern may report the complaint or
information to the Inspector General (or designee) of the
agency at which that employee is employed.'';
(2) in subsection (c), by striking ``intelligence
committees'' and inserting ``appropriate committees'';
(3) in subsection (d)--
(A) in paragraph (1), by striking ``either or both of the
intelligence committees'' and inserting ``any of the
appropriate committees''; and
(B) in paragraphs (2) and (3), by striking ``intelligence
committees'' each place that term appears and inserting
``appropriate committees'';
(4) in subsection (h)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking ``intelligence''; and
(ii) in subparagraph (B), by inserting ``or an activity
involving classified information'' after ``an intelligence
activity''; and
(B) by striking paragraph (2), and inserting the following:
``(2) The term `appropriate committees' means the Permanent
Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of
the Senate, except that with respect to disclosures made by
employees described in subsection (a)(1)(D), the term
`appropriate committees' means the committees of appropriate
jurisdiction.''.
SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN.
(a) In General.--Section 3 of the Inspector General Act of
1978 (5 U.S.C. App.) is amended by striking subsection (d)
and inserting the following:
``(d)(1) Each Inspector General shall, in accordance with
applicable laws and regulations governing the civil service--
``(A) appoint an Assistant Inspector General for Auditing
who shall have the responsibility for supervising the
performance of auditing activities relating to programs and
operations of the establishment;
``(B) appoint an Assistant Inspector General for
Investigations who shall have the responsibility for
supervising the performance of investigative activities
relating to such programs and operations; and
``(C) designate a Whistleblower Protection Ombudsman who
shall educate agency employees--
``(i) about prohibitions on retaliation for protected
disclosures; and
``(ii) who have made or are contemplating making a
protected disclosure about the rights and remedies against
retaliation for protected disclosures.
``(2) The Whistleblower Protection Ombudsman shall not act
as a legal representative, agent, or advocate of the employee
or former employee.
``(3) For the purposes of this section, the requirement of
the designation of a Whistleblower Protection Ombudsman under
paragraph (1)(C) shall not apply to--
``(A) any agency that is an element of the intelligence
community (as defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4))); or
``(B) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counter intelligence
activities.''.
(b) Technical and Conforming Amendment.--Section 8D(j) of
the Inspector General Act of 1978 (5 U.S.C. App.) is
amended--
(1) by striking ``section 3(d)(1)'' and inserting ``section
3(d)(1)(A)''; and
(2) by striking ``section 3(d)(2)'' and inserting ``section
3(d)(1)(B)''.
(c) Sunset.--
(1) In general.--The amendments made by this section shall
cease to have effect on the date that is 5 years after the
date of enactment of this Act.
(2) Return to prior authority.--Upon the date described in
paragraph (1), section 3(d) and section 8D(j) of the
Inspector General Act of 1978 (5 U.S.C. App.) shall read as
such sections read on the day before the date of enactment of
this Act.
TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS
SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY
WHISTLEBLOWERS.
(a) In General.--Chapter 23 of title 5, United States Code,
is amended by inserting after section 2303 the following:
``Sec. 2303A. Prohibited personnel practices in the
intelligence community
``(a) Definitions.--In this section--
``(1) the term `agency' means an executive department or
independent establishment, as defined under sections 101 and
104, that contains an intelligence community element, except
the Federal Bureau of Investigation;
``(2) the term `intelligence community element'--
[[Page H6291]]
``(A) means--
``(i) the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-Intelligence
Agency, the National Security Agency, the Office of the
Director of National Intelligence, and the National
Reconnaissance Office; and
``(ii) any executive agency or unit thereof determined by
the President under section 2302(a)(2)(C)(ii) of title 5,
United States Code, to have as its principal function the
conduct of foreign intelligence or counterintelligence
activities; and
``(B) does not include the Federal Bureau of Investigation;
and
``(3) the term `personnel action' means any action
described in clauses (i) through (x) of section 2302(a)(2)(A)
with respect to an employee in a position in an intelligence
community element (other than a position of a confidential,
policy-determining, policymaking, or policy-advocating
character).
``(b) In General.--Any employee of an agency who has
authority to take, direct others to take, recommend, or
approve any personnel action, shall not, with respect to such
authority, take or fail to take a personnel action with
respect to any employee of an intelligence community element
as a reprisal for a disclosure of information by the employee
to the Director of National Intelligence (or an employee
designated by the Director of National Intelligence for such
purpose), or to the head of the employing agency (or an
employee designated by the head of that agency for such
purpose), which the employee reasonably believes evidences--
``(1) a violation of any law, rule, or regulation; or
``(2) mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety.
``(c) Enforcement.--The President shall provide for the
enforcement of this section in a manner consistent with
applicable provisions of sections 1214 and 1221.
``(d) Existing Rights Preserved.--Nothing in this section
shall be construed to--
``(1) preempt or preclude any employee, or applicant for
employment, at the Federal Bureau of Investigation from
exercising rights currently provided under any other law,
rule, or regulation, including section 2303;
``(2) repeal section 2303; or
``(3) provide the President or Director of National
Intelligence the authority to revise regulations related to
section 2303, codified in part 27 of the Code of Federal
Regulations.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 23 of title 5, United States Code, is
amended by inserting after the item relating to section 2303
the following:
``2303A. Prohibited personnel practices in the intelligence
community.''.
SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS
DETERMINATIONS.
(a) In General.--Section 3001(b) of the Intelligence Reform
and Terrorism Prevention Act of 2004 (50 U.S.C. 435b(b)) is
amended--
(1) in the matter preceding paragraph (1), by striking
``Not'' and inserting ``Except as otherwise provided, not'';
(2) in paragraph (5), by striking ``and'' after the
semicolon;
(3) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(4) by inserting after paragraph (6) the following:
``(7) not later than 180 days after the date of enactment
of the Whistleblower Protection Enhancement Act of 2011--
``(A) developing policies and procedures that permit, to
the extent practicable, individuals who in good faith appeal
a determination to suspend or revoke a security clearance or
access to classified information to retain their government
employment status while such challenge is pending; and
``(B) developing and implementing uniform and consistent
policies and procedures to ensure proper protections during
the process for denying, suspending, or revoking a security
clearance or access to classified information, including the
provision of a right to appeal such a denial, suspension, or
revocation, except that there shall be no appeal of an
agency's suspension of a security clearance or access
determination for purposes of conducting an investigation, if
that suspension lasts no longer than 1 year or the head of
the agency certifies that a longer suspension is needed
before a final decision on denial or revocation to prevent
imminent harm to the national security.
``Any limitation period applicable to an agency appeal
under paragraph (7) shall be tolled until the head of the
agency (or in the case of any component of the Department of
Defense, the Secretary of Defense) determines, with the
concurrence of the Director of National Intelligence, that
the policies and procedures described in paragraph (7) have
been established for the agency or the Director of National
Intelligence promulgates the policies and procedures under
paragraph (7). The policies and procedures for appeals
developed under paragraph (7) shall be comparable to the
policies and procedures pertaining to prohibited personnel
practices defined under section 2302(b)(8) of title 5, United
States Code, and provide--
``(A) for an independent and impartial fact-finder;
``(B) for notice and the opportunity to be heard, including
the opportunity to present relevant evidence, including
witness testimony;
``(C) that the employee or former employee may be
represented by counsel;
``(D) that the employee or former employee has a right to a
decision based on the record developed during the appeal;
``(E) that not more than 180 days shall pass from the
filing of the appeal to the report of the impartial fact-
finder to the agency head or the designee of the agency head,
unless--
``(i) the employee and the agency concerned agree to an
extension; or
``(ii) the impartial fact-finder determines in writing that
a greater period of time is required in the interest of
fairness or national security;
``(F) for the use of information specifically required by
Executive order to be kept classified in the interest of
national defense or the conduct of foreign affairs in a
manner consistent with the interests of national security,
including ex parte submissions if the agency determines that
the interests of national security so warrant; and
``(G) that the employee or former employee shall have no
right to compel the production of information specifically
required by Executive order to be kept classified in the
interest of national defense or the conduct of foreign
affairs, except evidence necessary to establish that the
employee made the disclosure or communication such employee
alleges was protected by subparagraphs (A), (B), and (C) of
subsection (j)(1).''.
(b) Retaliatory Revocation of Security Clearances and
Access Determinations.--Section 3001 of the Intelligence
Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b)
is amended by adding at the end the following:
``(j) Retaliatory Revocation of Security Clearances and
Access Determinations.--
``(1) In general.--Agency personnel with authority over
personnel security clearance or access determinations shall
not take or fail to take, or threaten to take or fail to
take, any action with respect to any employee's security
clearance or access determination because of--
``(A) any disclosure of information to the Director of
National Intelligence (or an employee designated by the
Director of National Intelligence for such purpose) or the
head of the employing agency (or employee designated by the
head of that agency for such purpose) by an employee that the
employee reasonably believes evidences--
``(i) a violation of any law, rule, or regulation; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety;
``(B) any disclosure to the Inspector General of an agency
or another employee designated by the head of the agency to
receive such disclosures, of information which the employee
reasonably believes evidences--
``(i) a violation of any law, rule, or regulation; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety;
``(C) any communication that complies with--
``(i) subsection (a)(1), (d), and (h) of section 8H of the
Inspector General Act of 1978 (5 U.S.C. App.);
``(ii) subsection (d)(5)(A), (D), and (G) of section 17 of
the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q);
or
``(iii) subsection (k)(5)(A), (D), and (G), of section 103H
of the National Security Act of 1947 (50 U.S.C. 403-3h);
``(D) the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation;
``(E) testifying for or otherwise lawfully assisting any
individual in the exercise of any right referred to in
subparagraph (D); or
``(F) cooperating with or disclosing information to the
Inspector General of an agency, in accordance with applicable
provisions of law in connection with an audit, inspection, or
investigation conducted by the Inspector General,
if the actions described under subparagraphs (D) through (F)
do not result in the employee or applicant unlawfully
disclosing information specifically required by Executive
order to be kept classified in the interest of national
defense or the conduct of foreign affairs.
``(2) Rule of construction.--Consistent with the protection
of sources and methods, nothing in paragraph (1) shall be
construed to authorize the withholding of information from
the Congress or the taking of any personnel action against an
employee who discloses information to the Congress.
``(3) Disclosures.--
``(A) In general.--A disclosure shall not be excluded from
paragraph (1) because--
``(i) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
reasonably believed to be covered by paragraph (1)(A)(ii);
``(ii) the disclosure revealed information that had been
previously disclosed;
``(iii) of the employee's motive for making the disclosure;
``(iv) the disclosure was not made in writing;
``(v) the disclosure was made while the employee was off
duty; or
``(vi) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(B) Reprisals.--If a disclosure is made during the normal
course of duties of an employee, the disclosure shall not be
excluded from paragraph (1) if any employee who has
[[Page H6292]]
authority to take, direct others to take, recommend, or
approve any personnel action with respect to the employee
making the disclosure, took, failed to take, or threatened to
take or fail to take a personnel action with respect to that
employee in reprisal for the disclosure.
``(4) Agency adjudication.--
``(A) Remedial procedure.--An employee or former employee
who believes that he or she has been subjected to a reprisal
prohibited by paragraph (1) of this subsection may, within 90
days after the issuance of notice of such decision, appeal
that decision within the agency of that employee or former
employee through proceedings authorized by paragraph (7) of
subsection (a), except that there shall be no appeal of an
agency's suspension of a security clearance or access
determination for purposes of conducting an investigation, if
that suspension lasts not longer than 1 year (or a longer
period in accordance with a certification made under
subsection (b)(7)).
``(B) Corrective action.--If, in the course of proceedings
authorized under subparagraph (A), it is determined that the
adverse security clearance or access determination violated
paragraph (1) of this subsection, the agency shall take
specific corrective action to return the employee or former
employee, as nearly as practicable and reasonable, to the
position such employee or former employee would have held had
the violation not occurred. Such corrective action shall
include reasonable attorney's fees and any other reasonable
costs incurred, and may include back pay and related
benefits, travel expenses, and compensatory damages not to
exceed $300,000.
``(C) Contributing factor.--In determining whether the
adverse security clearance or access determination violated
paragraph (1) of this subsection, the agency shall find that
paragraph (1) of this subsection was violated if a disclosure
described in paragraph (1) was a contributing factor in the
adverse security clearance or access determination taken
against the individual, unless the agency demonstrates by a
preponderance of the evidence that it would have taken the
same action in the absence of such disclosure, giving the
utmost deference to the agency's assessment of the particular
threat to the national security interests of the United
States in the instant matter.
``(5) Appellate review of security clearance access
determinations by director of national intelligence.--
``(A) Definition.--In this paragraph, the term `Board'
means the appellate review board established under section
204 of the Whistleblower Protection Enhancement Act of 2012.
``(B) Appeal.--Within 60 days after receiving notice of an
adverse final agency determination under a proceeding under
paragraph (4), an employee or former employee may appeal that
determination to the Board.
``(C) Policies and procedures.--The Board, in consultation
with the Attorney General, Director of National Intelligence,
and the Secretary of Defense, shall develop and implement
policies and procedures for adjudicating the appeals
authorized by subparagraph (B). The Director of National
Intelligence and Secretary of Defense shall jointly approve
any rules, regulations, or guidance issued by the Board
concerning the procedures for the use or handling of
classified information.
``(D) Review.--The Board's review shall be on the complete
agency record, which shall be made available to the Board.
The Board may not hear witnesses or admit additional
evidence. Any portions of the record that were submitted ex
parte during the agency proceedings shall be submitted ex
parte to the Board.
``(E) Further fact-finding or improper denial.--If the
Board concludes that further fact-finding is necessary or
finds that the agency improperly denied the employee or
former employee the opportunity to present evidence that, if
admitted, would have a substantial likelihood of altering the
outcome, the Board shall remand the matter to the agency from
which it originated for additional proceedings in accordance
with the rules of procedure issued by the Board.
``(F) De novo determination.--The Board shall make a de
novo determination, based on the entire record and under the
standards specified in paragraph (4), of whether the employee
or former employee received an adverse security clearance or
access determination in violation of paragraph (1). In
considering the record, the Board may weigh the evidence,
judge the credibility of witnesses, and determine
controverted questions of fact. In doing so, the Board may
consider the prior fact-finder's opportunity to see and hear
the witnesses.
``(G) Adverse security clearance or access determination.--
If the Board finds that the adverse security clearance or
access determination violated paragraph (1), it shall then
separately determine whether reinstating the security
clearance or access determination is clearly consistent with
the interests of national security, with any doubt resolved
in favor of national security, under Executive Order 12968
(60 Fed. Reg. 40245; relating to access to classified
information) or any successor thereto (including any
adjudicative guidelines promulgated under such orders) or any
subsequent Executive order, regulation, or policy concerning
access to classified information.
``(H) Remedies.--
``(i) Corrective action.--If the Board finds that the
adverse security clearance or access determination violated
paragraph (1), it shall order the agency head to take
specific corrective action to return the employee or former
employee, as nearly as practicable and reasonable, to the
position such employee or former employee would have held had
the violation not occurred. Such corrective action shall
include reasonable attorney's fees and any other reasonable
costs incurred, and may include back pay and related
benefits, travel expenses, and compensatory damages not to
exceed $300,000. The Board may recommend, but may not order,
reinstatement or hiring of a former employee. The Board may
order that the former employee be treated as though the
employee were transferring from the most recent position held
when seeking other positions within the executive branch. Any
corrective action shall not include the reinstating of any
security clearance or access determination. The agency head
shall take the actions so ordered within 90 days, unless the
Director of National Intelligence, the Secretary of Energy,
or the Secretary of Defense, in the case of any component of
the Department of Defense, determines that doing so would
endanger national security.
``(ii) Recommended action.--If the Board finds that
reinstating the employee or former employee's security
clearance or access determination is clearly consistent with
the interests of national security, it shall recommend such
action to the head of the entity selected under subsection
(b) and the head of the affected agency.
``(I) Congressional notification.--
``(i) Orders.--Consistent with the protection of sources
and methods, at the time the Board issues an order, the
Chairperson of the Board shall notify--
``(I) the Committee on Homeland Security and Government
Affairs of the Senate;
``(II) the Select Committee on Intelligence of the Senate;
``(III) the Committee on Oversight and Government Reform of
the House of Representatives;
``(IV) the Permanent Select Committee on Intelligence of
the House of Representatives; and
``(V) the committees of the Senate and the House of
Representatives that have jurisdiction over the employing
agency, including in the case of a final order or decision of
the Defense Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security Agency, or the
National Reconnaissance Office, the Committee on Armed
Services of the Senate and the Committee on Armed Services of
the House of Representatives.
``(ii) Recommendations.--If the agency head and the head of
the entity selected under subsection (b) do not follow the
Board's recommendation to reinstate a clearance, the head of
the entity selected under subsection (b) shall notify the
committees described in subclauses (I) through (V) of clause
(i).
``(6) Judicial review.--Nothing in this section shall be
construed to permit or require judicial review of any--
``(A) agency action under this section; or
``(B) action of the appellate review board established
under section 204 of the Whistleblower Protection Enhancement
Act of 2012.
``(7) Private cause of action.--Nothing in this section
shall be construed to permit, authorize, or require a private
cause of action to challenge the merits of a security
clearance determination.''.
(c) Access Determination Defined.--Section 3001(a) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50
U.S.C. 435b(a)) is amended by adding at the end the
following:
``(9) The term `access determination' means the
determination regarding whether an employee--
``(A) is eligible for access to classified information in
accordance with Executive Order 12968 (60 Fed. Reg. 40245;
relating to access to classified information), or any
successor thereto, and Executive Order 10865 (25 Fed. Reg.
1583; relating to safeguarding classified information with
industry); and
``(B) possesses a need to know under that Order.''.
(d) Rule of Construction.--Nothing in section 3001 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50
U.S.C. 435b), as amended by this Act, shall be construed to
require the repeal or replacement of agency appeal procedures
implementing Executive Order 12968 (60 Fed. Reg. 40245;
relating to classified national security information), or any
successor thereto, and Executive Order 10865 (25 Fed. Reg.
1583; relating to safeguarding classified information with
industry), or any successor thereto, that meet the
requirements of section 3001(b)(7) of such Act, as so
amended.
SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE COMMUNITY
WHISTLEBLOWER PROTECTION ACT.
(a) In General.--Section 8H of the Inspector General Act of
1978 (5 U.S.C. App.) is amended--
(1) in subsection (b)--
(A) by inserting ``(1)'' after ``(b)''; and
(B) by adding at the end the following:
``(2) If the head of an establishment determines that a
complaint or information transmitted under paragraph (1)
would create a conflict of interest for the head of the
establishment, the head of the establishment shall return the
complaint or information to the Inspector General with that
determination and the Inspector General shall make the
transmission to the Director of National
[[Page H6293]]
Intelligence and, if the establishment is within the
Department of Defense, to the Secretary of Defense. In such a
case, the requirements of this section for the head of the
establishment apply to each recipient of the Inspector
General's transmission. Each recipient of the Inspector
General's transmission shall consult with the members of the
appellate review board established under section 204 of the
Whistleblower Protection Enhancement Act of 2012 regarding
all transmissions under this paragraph.'';
(2) by designating subsection (h) as subsection (i); and
(3) by inserting after subsection (g), the following:
``(h) An individual who has submitted a complaint or
information to an Inspector General under this section may
notify any member of Congress or congressional staff member
of the fact that such individual has made a submission to
that particular Inspector General, and of the date on which
such submission was made.''.
(b) Central Intelligence Agency.--Section 17(d)(5) of the
Central Intelligence Agency Act of 1949 (50 U.S.C. 403q) is
amended--
(1) in subparagraph (B)--
(A) by inserting ``(i)'' after ``(B)''; and
(B) by adding at the end the following:
``(ii) If the Director determines that a complaint or
information transmitted under paragraph (1) would create a
conflict of interest for the Director, the Director shall
return the complaint or information to the Inspector General
with that determination and the Inspector General shall make
the transmission to the Director of National Intelligence. In
such a case, the requirements of this subsection for the
Director apply to the Director of National Intelligence. The
Director of National Intelligence shall consult with the
members of the appellate review board established under
section 204 of the Whistleblower Protection Enhancement Act
of 2012 regarding all transmissions under this clause.''; and
(2) by adding at the end the following:
``(H) An individual who has submitted a complaint or
information to the Inspector General under this section may
notify any member of Congress or congressional staff member
of the fact that such individual has made a submission to the
Inspector General, and of the date on which such submission
was made.''.
SEC. 204. REGULATIONS; REPORTING REQUIREMENTS;
NONAPPLICABILITY TO CERTAIN TERMINATIONS.
(a) Definitions.--In this section--
(1) the term ``congressional oversight committees'' means--
(A) the Committee on Homeland Security and Government
Affairs of the Senate;
(B) the Select Committee on Intelligence of the Senate;
(C) the Committee on Oversight and Government Reform of the
House of Representatives; and
(D) the Permanent Select Committee on Intelligence of the
House of Representatives; and
(2) the term ``intelligence community element''--
(A) means--
(i) the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-Intelligence
Agency, the National Security Agency, the Office of the
Director of National Intelligence, and the National
Reconnaissance Office; and
(ii) any executive agency or unit thereof determined by the
President under section 2302(a)(2)(C)(ii) of title 5, United
States Code, to have as its principal function the conduct of
foreign intelligence or counterintelligence activities; and
(B) does not include the Federal Bureau of Investigation.
(b) Regulations.--
(1) In general.--In consultation with the Secretary of
Defense, the Director of National Intelligence shall
prescribe regulations to ensure that a personnel action shall
not be taken against an employee of an intelligence community
element as a reprisal for any disclosure of information
described in section 2303A(b) of title 5, United States Code,
as added by this Act.
(2) Appellate review board.--Not later than 180 days after
the date of enactment of this Act, the Director of National
Intelligence, in consultation with the Secretary of Defense,
the Attorney General, and the heads of appropriate agencies,
shall establish an appellate review board that is broadly
representative of affected Departments and agencies and is
made up of individuals with expertise in merit systems
principles and national security issues--
(A) to hear whistleblower appeals related to security
clearance access determinations described in section 3001(j)
of the Intelligence Reform and Terrorism Prevention Act of
2004 (50 U.S.C. 435b), as added by this Act; and
(B) that shall include a subpanel that reflects the
composition of the intelligence community, which shall--
(i) be composed of intelligence community elements and
inspectors general from intelligence community elements, for
the purpose of hearing cases that arise in elements of the
intelligence community; and
(ii) include the Inspector General of the Intelligence
Community and the Inspector General of the Department of
Defense.
(c) Report on the Status of Implementation of
Regulations.--Not later than 2 years after the date of
enactment of this Act, the Director of National Intelligence
shall submit a report on the status of the implementation of
the regulations promulgated under subsection (b) to the
congressional oversight committees.
(d) Nonapplicability to Certain Terminations.--Section
2303A of title 5, United States Code, as added by this Act,
and section 3001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (50 U.S.C. 435b), as amended by this
Act, shall not apply if the affected employee is concurrently
terminated under--
(1) section 1609 of title 10, United States Code;
(2) the authority of the Director of National Intelligence
under section 102A(m) of the National Security Act of 1947
(50 U.S.C. 403-1(m)), if--
(A) the Director personally summarily terminates the
individual; and
(B) the Director--
(i) determines the termination to be in the interest of the
United States;
(ii) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
(iii) not later than 5 days after such termination,
notifies the congressional oversight committees of the
termination;
(3) the authority of the Director of the Central
Intelligence Agency under section 104A(e) of the National
Security Act of 1947 (50 U.S.C. 403-4a(e)), if--
(A) the Director personally summarily terminates the
individual; and
(B) the Director--
(i) determines the termination to be in the interest of the
United States;
(ii) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
(iii) not later than 5 days after such termination,
notifies the congressional oversight committees of the
termination; or
(4) section 7532 of title 5, United States Code, if--
(A) the agency head personally terminates the individual;
and
(B) the agency head--
(i) determines the termination to be in the interest of the
United States;
(ii) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
(iii) not later than 5 days after such termination,
notifies the congressional oversight committees of the
termination.
TITLE III--SAVINGS CLAUSE; EFFECTIVE DATE
SEC. 301. SAVINGS CLAUSE.
Nothing in this Act shall be construed to imply any
limitation on any protections afforded by any other provision
of law to employees and applicants.
SEC. 302. EFFECTIVE DATE.
This Act shall take effect 30 days after the date of
enactment of this Act.
Amendment Offered by Mr. Lewis of California
Mr. LEWIS of California. Mr. Speaker, I have an amendment at the
desk.
The SPEAKER pro tempore. The Clerk will report the amendment.
The Clerk read as follows:
Strike all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Whistleblower Protection
Enhancement Act of 2012''.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.
(a) In General.--Section 2302(b)(8) of title 5, United
States Code, is amended--
(1) in subparagraph (A)(i), by striking ``a violation'' and
inserting ``any violation''; and
(2) in subparagraph (B)(i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''.
(b) Prohibited Personnel Practices Under Section
2302(b)(9).--
(1) Technical and conforming amendments.--Title 5, United
States Code, is amended--
(A) in subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of
section 1214 and in subsections (a), (e)(1), and (i) of
section 1221, by inserting ``or section 2302(b)(9) (A)(i),
(B), (C), or (D)'' after ``section 2302(b)(8)'' each place it
appears; and
(B) in section 2302(a)(2)(C)(i), by inserting ``or section
2302(b)(9) (A)(i), (B), (C), or (D)'' after ``(b)(8)''.
(2) Other references.--(A) Title 5, United States Code, is
amended in subsection (b)(4)(B)(i) of section 1214 and in
subsection (e)(1) of section 1221 by inserting ``or protected
activity'' after ``disclosure'' each place it appears.
(B) Section 2302(b)(9) of title 5, United States Code, is
amended--
(i) by striking subparagraph (A) and inserting the
following:
``(A) the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation--
``(i) with regard to remedying a violation of paragraph
(8); or
``(ii) other than with regard to remedying a violation of
paragraph (8);''; and
[[Page H6294]]
(ii) in subparagraph (B), by inserting ``(i) or (ii)''
after ``subparagraph (A)''.
(C) Section 2302 of title 5, United States Code, is amended
by adding at the end the following:
``(f)(1) A disclosure shall not be excluded from subsection
(b)(8) because--
``(A) the disclosure was made to a supervisor or to a
person who participated in an activity that the employee or
applicant reasonably believed to be covered by subsection
(b)(8)(A)(i) and (ii);
``(B) the disclosure revealed information that had been
previously disclosed;
``(C) of the employee's or applicant's motive for making
the disclosure;
``(D) the disclosure was not made in writing;
``(E) the disclosure was made while the employee was off
duty; or
``(F) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(2) If a disclosure is made during the normal course of
duties of an employee, the disclosure shall not be excluded
from subsection (b)(8) if any employee who has authority to
take, direct others to take, recommend, or approve any
personnel action with respect to the employee making the
disclosure, took, failed to take, or threatened to take or
fail to take a personnel action with respect to that employee
in reprisal for the disclosure.''.
SEC. 102. DEFINITIONAL AMENDMENTS.
Section 2302(a)(2) of title 5, United States Code, is
amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee or applicant
providing the disclosure reasonably believes that the
disclosure evidences--
``(i) any violation of any law, rule, or regulation; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.''.
SEC. 103. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended
by amending the matter following paragraph (12) to read as
follows:
``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses
information to Congress. For purposes of paragraph (8), (i)
any presumption relating to the performance of a duty by an
employee whose conduct is the subject of a disclosure as
defined under subsection (a)(2)(D) may be rebutted by
substantial evidence, and (ii) a determination as to whether
an employee or applicant reasonably believes that such
employee or applicant has disclosed information that
evidences any violation of law, rule, regulation, gross
mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or
safety shall be made by determining whether a disinterested
observer with knowledge of the essential facts known to and
readily ascertainable by the employee or applicant could
reasonably conclude that the actions of the Government
evidence such violations, mismanagement, waste, abuse, or
danger.''.
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL
PRACTICES.
(a) Personnel Action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(1) in clause (x), by striking ``and'' after the semicolon;
and
(2) by redesignating clause (xi) as clause (xii) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and''.
(b) Prohibited Personnel Practice.--
(1) In general.--Section 2302(b) of title 5, United States
Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
``; or''; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by existing statute or Executive order
relating to (1) classified information, (2) communications to
Congress, (3) the reporting to an Inspector General of a
violation of any law, rule, or regulation, or mismanagement,
a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety,
or (4) any other whistleblower protection. The definitions,
requirements, obligations, rights, sanctions, and liabilities
created by controlling Executive orders and statutory
provisions are incorporated into this agreement and are
controlling.'.''.
(2) Agency websites.--Agencies making use of any
nondisclosure policy, form, or agreement shall also post the
statement required under section 2302(b)(13) of title 5,
United States Code (as added by this Act) on the agency
website, accompanied by the specific list of controlling
Executive orders and statutory provisions.
(3) Nondisclosure policy, form, or agreement in effect
before the effective date.--With respect to a nondisclosure
policy, form, or agreement that was in effect before the
effective date of this Act, but that does not contain the
statement required under section 2302(b)(13) of title 5,
United States Code (as added by this Act) for implementation
or enforcement--
(A) it shall not be a prohibited personnel practice to
enforce that policy, form, or agreement with regard to a
current employee if the agency gives such employee notice of
the statement; and
(B) it shall not be a prohibited personnel practice to
enforce that policy, form, or agreement after the effective
date of this Act with regard to a former employee if the
agency complies with paragraph (2) of this subsection.
(c) Retaliatory Investigations.--
(1) Agency investigation.--Section 1214 of title 5, United
States Code, is amended by adding at the end the following:
``(h) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.''.
(2) Damages.--Section 1221(g) of title 5, United States
Code, is amended by adding at the end the following:
``(4) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.''.
SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.
Section 2302(a)(2)(C) of title 5, United States Code, is
amended by striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance Office; and
``(II) as determined by the President, any Executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, provided that the determination be made prior to
a personnel action; or''.
SEC. 106. DISCIPLINARY ACTION.
Section 1215(a)(3) of title 5, United States Code, is
amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case brought under paragraph (1) in which the
Board finds that an employee has committed a prohibited
personnel practice under section 2302(b)(8), or 2302(b)(9)
(A)(i), (B), (C), or (D), the Board may impose disciplinary
action if the Board finds that the activity protected under
section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D)
was a significant motivating factor, even if other factors
also motivated the decision, for the employee's decision to
take, fail to take, or threaten to take or fail to take a
personnel action, unless that employee demonstrates, by a
preponderance of the evidence, that the employee would have
taken, failed to take, or threatened to take or fail to take
the same personnel action, in the absence of such protected
activity.''.
SEC. 107. REMEDIES.
(a) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party was employed or
had applied for employment at the time of the events giving
rise to the case''.
(b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of
title 5, United States Code, are amended by striking all
after ``travel expenses,'' and inserting ``any other
reasonable and foreseeable consequential damages, and
compensatory damages (including interest, reasonable expert
witness fees, and costs).'' each place it appears.
SEC. 108. JUDICIAL REVIEW.
(a) In General.--Section 7703(b) of title 5, United States
Code, is amended by striking the matter preceding paragraph
(2) and inserting the following:
``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2) of this subsection, a petition to review a
final order or final decision of the Board shall be filed in
the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review shall be filed within 60 days after the Board issues
notice of the final order or decision of the Board.
``(B) During the 2-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2012,
a petition to review a final order or final decision of the
Board that raises no challenge to the Board's disposition of
allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section
2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) shall be
filed in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction.
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) Review Obtained by Office of Personnel Management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director may
obtain
[[Page H6295]]
review of any final order or decision of the Board by filing,
within 60 days after the Board issues notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in the discretion of the
Director, that the Board erred in interpreting a civil
service law, rule, or regulation affecting personnel
management and that the Board's decision will have a
substantial impact on a civil service law, rule, regulation,
or policy directive. If the Director did not intervene in a
matter before the Board, the Director may not petition for
review of a Board decision under this section unless the
Director first petitions the Board for a reconsideration of
its decision, and such petition is denied. In addition to the
named respondent, the Board and all other parties to the
proceedings before the Board shall have the right to appear
in the proceeding before the Court of Appeals. The granting
of the petition for judicial review shall be at the
discretion of the Court of Appeals.
``(2) During the 2-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2012,
this paragraph shall apply to any review obtained by the
Director of the Office of Personnel Management that raises no
challenge to the Board's disposition of allegations of a
prohibited personnel practice described in section 2302(b)
other than practices described in section 2302(b)(8), or
2302(b)(9) (A)(i), (B), (C), or (D). The Director 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 if
the Director determines, in the discretion of the Director,
that the Board erred in interpreting a civil service law,
rule, or regulation affecting personnel management and that
the Board's decision will have a substantial impact on a
civil service law, rule, regulation, or policy directive. If
the Director did not intervene in a matter before the Board,
the Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the court of appeals. The granting of the petition for
judicial review shall be at the discretion of the court of
appeals.''.
SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE
TRANSPORTATION SECURITY ADMINISTRATION.
(a) In General.--Chapter 23 of title 5, United States Code,
is amended--
(1) by redesignating sections 2304 and 2305 as sections
2305 and 2306, respectively; and
(2) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of
law, any individual holding or applying for a position within
the Transportation Security Administration shall be covered
by--
``(1) the provisions of section 2302(b) (1), (8), and (9);
``(2) any provision of law implementing section 2302(b)
(1), (8), or (9) by providing any right or remedy available
to an employee or applicant for employment in the civil
service; and
``(3) any rule or regulation prescribed under any provision
of law referred to in paragraph (1) or (2).
``(b) Rule of Construction.--Nothing in this section shall
be construed to affect any rights, apart from those described
in subsection (a), to which an individual described in
subsection (a) might otherwise be entitled under law.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 23 of title 5, United States Code, is
amended by striking the items relating to sections 2304 and
2305, respectively, and inserting the following:
``2304. Prohibited personnel practices affecting the Transportation
Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.
(c) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this section.
SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH,
ANALYSIS, OR TECHNICAL INFORMATION.
(a) Definitions.--In this subsection--
(1) the term ``agency'' has the meaning given under section
2302(a)(2)(C) of title 5, United States Code;
(2) the term ``applicant'' means an applicant for a covered
position;
(3) the term ``censorship related to research, analysis, or
technical information'' means any effort to distort,
misrepresent, or suppress research, analysis, or technical
information;
(4) the term ``covered position'' has the meaning given
under section 2302(a)(2)(B) of title 5, United States Code;
(5) the term ``employee'' means an employee in a covered
position in an agency; and
(6) the term ``disclosure'' has the meaning given under
section 2302(a)(2)(D) of title 5, United States Code.
(b) Protected Disclosure.--
(1) In general.--Any disclosure of information by an
employee or applicant for employment that the employee or
applicant reasonably believes is evidence of censorship
related to research, analysis, or technical information--
(A) shall come within the protections of section
2302(b)(8)(A) of title 5, United States Code, if--
(i) the employee or applicant reasonably believes that the
censorship related to research, analysis, or technical
information is or will cause--
(I) any violation of law, rule, or regulation; or
(II) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; and
(ii) such disclosure is not specifically prohibited by law
or such information is not specifically required by Executive
order to be kept classified in the interest of national
defense or the conduct of foreign affairs; and
(B) shall come within the protections of section
2302(b)(8)(B) of title 5, United States Code, if--
(i) the employee or applicant reasonably believes that the
censorship related to research, analysis, or technical
information is or will cause--
(I) any violation of law, rule, or regulation; or
(II) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; and
(ii) the disclosure is made to the Special Counsel, or to
the Inspector General of an agency or another person
designated by the head of the agency to receive such
disclosures, consistent with the protection of sources and
methods.
(2) Disclosures not excluded.--A disclosure shall not be
excluded from paragraph (1) for any reason described under
section 2302(f)(1) or (2) of title 5, United States Code.
(3) Rule of construction.--Nothing in this section shall be
construed to imply any limitation on the protections of
employees and applicants afforded by any other provision of
law, including protections with respect to any disclosure of
information believed to be evidence of censorship related to
research, analysis, or technical information.
SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL
INFRASTRUCTURE INFORMATION.
Section 214(c) of the Homeland Security Act of 2002 (6
U.S.C. 133(c)) is amended by adding at the end the following:
``For purposes of this section a permissible use of
independently obtained information includes the disclosure of
such information under section 2302(b)(8) of title 5, United
States Code.''.
SEC. 112. ADVISING EMPLOYEES OF RIGHTS.
Section 2302(c) of title 5, United States Code, is amended
by inserting ``, including how to make a lawful disclosure of
information that is specifically required by law or Executive
order to be kept classified in the interest of national
defense or the conduct of foreign affairs to the Special
Counsel, the Inspector General of an agency, Congress, or
other agency employee designated to receive such
disclosures'' after ``chapter 12 of this title''.
SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.
Section 1212 of title 5, United States Code, is amended by
adding at the end the following:
``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to section 2302(b) (8) or (9), or as otherwise
authorized by law. In any such action, the Special Counsel is
authorized to present the views of the Special Counsel with
respect to compliance with section 2302(b) (8) or (9) and the
impact court decisions would have on the enforcement of such
provisions of law.
``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such
action for the purposes described under subsection (a).''.
SEC. 114. SCOPE OF DUE PROCESS.
(a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(b) Individual Action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.
(a) In General.--
(1) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These provisions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
existing statute or Executive order relating to (1)
classified information, (2) communications to Congress, (3)
the reporting to an Inspector General of a violation of any
law, rule, or regulation, or mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety, or (4) any other
whistleblower protection. The definitions, requirements,
obligations, rights, sanctions, and liabilities created by
controlling Executive orders and statutory provisions are
incorporated into this agreement and are controlling.''.
(2) Agency websites.--Agencies making use of any
nondisclosure policy, form, or agreement shall also post the
statement required under paragraph (1) on the agency website,
accompanied by the specific list of controlling Executive
orders and statutory provisions.
(3) Enforceability.--
(A) In general.--Any nondisclosure policy, form, or
agreement described under paragraph (1) that does not contain
the statement required under paragraph (1) may not be
implemented or enforced to the extent such policy, form, or
agreement is inconsistent with that statement.
(B) Nondisclosure policy, form, or agreement in effect
before the effective date.--
[[Page H6296]]
With respect to a nondisclosure policy, form, or agreement
that was in effect before the effective date of this Act, but
that does not contain the statement required under paragraph
(1) for implementation or enforcement--
(i) it shall not be a prohibited personnel practice to
enforce that policy, form, or agreement with regard to a
current employee if the agency gives such employee notice of
the statement; and
(ii) it shall not be a prohibited personnel practice to
enforce that policy, form, or agreement after the effective
date of this Act with regard to a former employee if the
agency complies with paragraph (2).
(b) Persons Other Than Government Employees.--
Notwithstanding subsection (a), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the United
States Government, may contain provisions appropriate to the
particular activity for which such document is to be used.
Such policy, form, or agreement shall, at a minimum, require
that the person will not disclose any classified information
received in the course of such activity unless specifically
authorized to do so by the United States Government. Such
nondisclosure policy, form, or agreement shall also make it
clear that such forms do not bar disclosures to Congress or
to an authorized official of an executive agency or the
Department of Justice that are essential to reporting a
substantial violation of law, consistent with the protection
of sources and methods.
SEC. 116. REPORTING REQUIREMENTS.
(a) Government Accountability Office.--
(1) Report.--Not later than 4 years after the date of
enactment of this Act, the Comptroller General shall submit a
report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives on the
implementation of this title.
(2) Contents.--The report under this subsection shall
include--
(A) an analysis of any changes in the number of cases filed
with the Merit Systems Protection Board alleging violations
of section 2302(b)(8) or (9) of title 5, United States Code,
since the effective date of this Act;
(B) the outcome of the cases described under subparagraph
(A), including whether or not the Merit Systems Protection
Board, the United States Court of Appeals for the Federal
Circuit, or any other court determined the allegations to be
frivolous or malicious as well as a recommendation whether
Congress should grant the Merit Systems Protection Board
summary judgment authority for cases described under
subparagraph (A);
(C) a recommendation regarding whether Congress should
grant jurisdiction for some subset of cases described under
subparagraph (A) to be decided by a district court of the
United States and an evaluation of the impact that would have
on the Merit Systems Protection Board and the Federal court
system; and
(D) any other matter as determined by the Comptroller
General.
(b) Merit Systems Protection Board.--
(1) In general.--Each report submitted annually by the
Merit Systems Protection Board under section 1116 of title
31, United States Code, shall, with respect to the period
covered by such report, include as an addendum the following:
(A) Information relating to the outcome of cases decided by
the Merit Systems Protection Board during the period covered
by such report in which violations of section 2302(b)(8) or
(9)(A)(i), (B)(i), (C), or (D) of title 5, United States
Code, were alleged.
(B) The number of such cases filed in the regional and
field offices, and the number of petitions for review filed
in such cases, during the period covered by such report, and
the outcomes of any such cases or petitions for review
(irrespective of when filed) decided during such period.
(2) First report.--The first report described under
paragraph (1) submitted after the date of enactment of this
Act shall include an addendum required under that paragraph
that covers the period beginning on the effective date of
this Act and ending at the end of the fiscal year in which
such effective date occurs.
SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN.
(a) In General.--Section 3 of the Inspector General Act of
1978 (5 U.S.C. App.) is amended by striking subsection (d)
and inserting the following:
``(d)(1) Each Inspector General shall, in accordance with
applicable laws and regulations governing the civil service--
``(A) appoint an Assistant Inspector General for Auditing
who shall have the responsibility for supervising the
performance of auditing activities relating to programs and
operations of the establishment;
``(B) appoint an Assistant Inspector General for
Investigations who shall have the responsibility for
supervising the performance of investigative activities
relating to such programs and operations; and
``(C) designate a Whistleblower Protection Ombudsman who
shall educate agency employees--
``(i) about prohibitions on retaliation for protected
disclosures; and
``(ii) who have made or are contemplating making a
protected disclosure about the rights and remedies against
retaliation for protected disclosures.
``(2) The Whistleblower Protection Ombudsman shall not act
as a legal representative, agent, or advocate of the employee
or former employee.
``(3) For the purposes of this section, the requirement of
the designation of a Whistleblower Protection Ombudsman under
paragraph (1)(C) shall not apply to--
``(A) any agency that is an element of the intelligence
community (as defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4))); or
``(B) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counter intelligence
activities.''.
(b) Technical and Conforming Amendment.--Section 8D(j) of
the Inspector General Act of 1978 (5 U.S.C. App.) is
amended--
(1) by striking ``section 3(d)(1)'' and inserting ``section
3(d)(1)(A)''; and
(2) by striking ``section 3(d)(2)'' and inserting ``section
3(d)(1)(B)''.
(c) Sunset.--
(1) In general.--The amendments made by this section shall
cease to have effect on the date that is 5 years after the
date of enactment of this Act.
(2) Return to prior authority.--Upon the date described in
paragraph (1), section 3(d) and section 8D(j) of the
Inspector General Act of 1978 (5 U.S.C. App.) shall read as
such sections read on the day before the date of enactment of
this Act.
TITLE II--SAVINGS CLAUSE; EFFECTIVE DATE
SEC. 201. SAVINGS CLAUSE.
Nothing in this Act shall be construed to imply any
limitation on any protections afforded by any other provision
of law to employees and applicants.
SEC. 202. EFFECTIVE DATE.
Except as otherwise provided in section 109, this Act shall
take effect 30 days after the date of enactment of this Act.
Mr. LEWIS of California (during the reading). Mr. Speaker, I ask
unanimous consent to dispense with the reading of the amendment.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
Mr. VAN HOLLEN. Reserving the right to object, I just want to
understand. Is this an amendment to the whistleblower bill or this is
the whistleblower bill?
Mr. LEWIS of California. It is a very extensive amendment I had
planned to have read, but I understand the gentleman is not going to
object. So I am anxious to hear him.
Mr. VAN HOLLEN. This is the whistleblower amendment?
Mr. LEWIS of California. It is.
Mr. VAN HOLLEN. I withdraw my reservation.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
The amendment was agreed to.
The bill was ordered to be read a third time, was read the third
time, and passed, and a motion to reconsider was laid on the table.
____________________
[Congressional Record Volume 158, Number 131 (Friday, September 28, 2012)]
[Extensions of Remarks]
[Pages E1659-E1660]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
EXCHANGE OF LETTERS ON S. 743
______
HON. DARRELL E. ISSA
of california
in the house of representatives
Friday, September 28, 2012
Mr. ISSA. Mr. Speaker: I submit the exchange of letters on S. 743.
House of Representatives,
Committee on Homeland Security,
Washington, DC, September 19, 2012.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
Rayburn House Office Building, Washington, DC.
Dear Chairman Issa: I am writing regarding the
jurisdictional interest of the Committee on Homeland Security
over provisions in S. 743, the Whistleblower Protection
Enhancement Act of 2012, which passed the Senate by unanimous
consent with amendments on May 8, 2012.
I understand the importance of advancing this legislation
to the House floor in an expeditious manner. Therefore, the
Committee on Homeland Security will waive further
consideration. This action is conditional on our mutual
understanding and agreement that doing so will in no way
diminish or alter the jurisdiction of the Committee on
Homeland Security over the subject matter included in this or
similar legislation. I request that you urge the Speaker to
appoint members of this Committee to any conference committee
for consideration of any provisions that fall within the
jurisdiction of the Committee on Homeland Security in the
House-Senate conference on this or similar legislation.
I also request that this letter and your response be
included in the Congressional Record during consideration of
this measure on the House floor. Thank you for you
consideration of this matter.
Sincerely,
Peter T. King,
Chairman.
____
House of Representatives, Committee on Oversight and
Government Reform,
Washington, DC, September 19, 2012.
Hon. Peter T. King,
Chairman, Committee on Homeland Security, House of
Representatives, Washington DC.
Dear Mr. Chairman: Thank you for your letter regarding the
Committee on the Homeland Security's jurisdictional interest
in S. 743, the ``Whistleblower Protection Enhancement Act of
2012,'' and your willingness to forego consideration of S.
743 by your committee.
I agree that the Committee on Homeland Security has a valid
jurisdictional interest in certain provisions of S. 743 and
that the Committee's jurisdiction will not be adversely
affected by your decision to forego consideration of S. 743.
As you have requested, I will support your request for an
appropriate appointment of outside conferees from your
Committee in the event of a House-Senate conference on this
or similar legislation should such a conference be convened.
Finally, I will include a Copy of your letter and this
response in the Congressional Record during the floor
consideration of this bill. Thank you again for your
cooperation.
Sincerely,
Darrell Issa,
Chairman.
____
House of Representatives, Permanent Select Committee on
Intelligence,
Washington, DC, September 18, 2012.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform, House
of Representatives, Washington, DC.
Dear Mr. Chairman: In recognition of the importance of
expediting the passage of S. 743, the ``Whistleblower
Protection Enhancement Act of 2012,'' the Permanent Select
Committee on Intelligence will not object to consideration of
a motion to suspend the rules and pass the bill. The
Committee has jurisdictional interests in S. 743, including
intelligence and intelligence-related authorizations and
provisions contained in the bill.
We very much appreciate the efforts of you and your staff
to address issues of jurisdictional interest to the Permanent
Select Committee on Intelligence during consideration of this
legislation.
The Committee takes this action only with the understanding
that this procedural route should not be construed to
prejudice the House Permanent Select Committee on
Intelligence's jurisdictional interest over this bill or any
similar bill and will not be considered as precedent for
consideration of matters of jurisdictional interest to the
Committee in the future, including in connection with any
subsequent consideration of the bill by the House. In
addition, the Permanent Select Committee on Intelligence will
seek conferees on any provisions of the bill that are within
its jurisdiction during any House-Senate conference that may
be convened on this legislation.
[[Page E1660]]
Finally, I would ask that you include a copy of our
exchange of letters on this matter in the Congressional
Record during the House debate on S. 743. I appreciate the
constructive work between our committees in this matter and
thank you for your consideration.
Sincerely,
Mike Rogers,
Chairman.
____
House of Representatives, Committee on Oversight and
Government Reform,
Washington, DC, September 19, 2012.
Hon. Mike Rogers,
Chairman, Permanent Select Committee on Intelligence, House
of Representatives, Washington, DC.
Dear Mr. Chairman: Thank you for your letter regarding the
House Permanent Select Committee on Intelligence's
jurisdictional interest in S. 743, the ``Whistleblower
Protection Enhancement Act of 2012,'' and your willingness to
forego consideration of S. 743 by your committee.
I agree that the House Permanent Select Committee on
Intelligence has a valid jurisdictional interest in certain
provisions of S. 743 and that the Committee's jurisdiction
will not be adversely affected by your decision to forego
consideration of S. 743. As you have requested, I will
support your request for an appropriate appointment of
outside conferees from your Committee in the event of a
House-Senate conference on this or similar legislation should
such a conference be convened.
Finally, I will include a copy of your letter and this
response in the Congressional Record during the floor
consideration of this bill. Thank you again for your
cooperation.
Sincerely,
Darrell Issa,
Chairman.
____________________
[Congressional Record Volume 158, Number 131 (Friday, September 28, 2012)]
[Extensions of Remarks]
[Page E1664]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT (S. 743)
______
HON. TODD RUSSELL PLATTS
of pennsylvania
in the house of representatives
Friday, September 28, 2012
Mr. PLATTS. Mr. Speaker, I rise today in support of the Whistleblower
Protection Enhancement Act, S. 743, and, as a long-time sponsor and
cosponsor of similar legislation this session and in past sessions,
hope to clarify the intent of the application of the bill's provisions
in two important ways.
By way of background, I first introduced a version of this
legislation in 2003, H.R. 3281, to respond to a series of decisions by
the Merit Systems Protection Board, MSPB, and the Federal Circuit
Court. Those decisions undermined Congressional intent with respect to
the original Whistleblower Protection Act of 1989.
Specifically, Congress intended that ``any'' protected disclosure of
waste, fraud, and abuse by a federal employee be covered by the law. As
interpreted by the MSPB and the Federal Circuit Court, however,
loopholes began to develop. Congress strengthened the law in 1994, but
decisions by the MSPB and Federal Circuit Court continued to undermine
the intent of Congress.
A mark-up of my original legislation was held in 2004. A mark-up of a
re-introduced version of the bill, H.R. 1317, was held in 2006. A
version introduced by Representative Henry Waxman and myself, H.R. 985,
was passed by the House in 2007. At the core, all of these bills--and
their Senate versions--restored the Congressional intent of the
original Whistleblower Protection Act by plugging the loopholes that
had developed.
The bill before us today makes the same attempt at restoring
Congressional intent, but--if interpreted incorrectly--I fear the
possibility of two more loopholes opening up.
First, agencies must not be allowed to circumvent whistleblower
protections through so-called ``secrecy'' regulations, such as a new
category of information (labeled ``Sensitive Security Information'')
created by the Department of Homeland Security. Whistleblower law
understandably already exempts from whistleblower protections
information which is classified or ``specifically prohibited by law''
from release. Classified information is information that is kept secret
by Executive Order, not a hybrid category of information created by
agency regulation like ``Sensitive Security Information.'' Moreover,
``prohibited by law'' has long been understood to mean statutory law
and court interpretations of those statutes, not to agency rules and
regulations.
If the Federal Circuit Court broadens the ``prohibited by law''
exemption to include anything that an agency tries to keep secret under
any of their regulations, a new loophole could be opened up that would
substantially undermine Congressional intent in passing this bill. It
is therefore important to once again make it clear: ``Prohibited by
law'' has long been understood to mean statutory law and court
interpretations of those statutes, not to agency rules and regulations.
Any exceptions to these rights must be created by Congress, and
Congress must act with specificity. That has been the law since 1978,
and it continues to be the law.
Second, it must be understood that those whistleblowers who have been
waiting for this bill to be enacted are protected by its provisions. As
stated by the Senate Committee on Homeland Security and Governmental
Affairs in its report accompanying this bill, S. Rpt. 112-155:
The Committee expects and intends that the Act's provisions
shall be applied in OSC [Office of Special Counsel], MSPB,
and judicial proceedings initiated by or on behalf of a
whistleblower and pending on or after that effective date [30
days after the date of enactment of the bill]. Such
application is expected and appropriate because the
legislation generally corrects erroneous decisions by the
MSPB and the courts; removes and compensates for burdens that
were wrongfully imposed on individual whistleblowers
exercising their rights in the public interest; and improves
the rules of administrative and judicial procedure and
jurisdiction applicable to the vindication of whistleblowers'
rights.
Some in the whistleblower community have been waiting for more than a
decade to see Congressional intent with respect to whistleblower law
restored. The number who could actually take advantage of the
protections in this bill is probably not large, but their cases are
significant and justice requires protections for them.
In concluding, I would like to thank the many, many individuals and
organizations that have championed this important ``good government''
issue over the years. There are more than I could possibly mention, but
allow me to name just a few: Senator Daniel Akaka, who has pushed this
issue for years in the Senate; former Representative Connie Morella,
who introduced the first House version of the bill before her
retirement; former Representatives Tom Davis and current Representative
Henry Waxman, who pushed the issue during their service on the
Government Reform Committee; my colleagues Darrell Issa, Elijah
Cummings, Chris Van Hollen and their staffs; and, finally, the
Government Accountability Project (GAP), Project on Government
Oversight (POGO), and National Taxpayers Union (NTU). Without all of
their efforts, we would not be in a position to finally secure
enactment of this important legislation that ensures whistleblowers
with the courage to report waste, fraud, and abuse are applauded--not
punished.
____________________
[Congressional Record Volume 158, Number 131 (Friday, September 28, 2012)]
[Extensions of Remarks]
[Page E1665]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
S. 743, THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT
______
HON. ELIJAH E. CUMMINGS
of maryland
in the house of representatives
Friday, September 28, 2012
Mr. CUMMINGS. Mr. Speaker, I rise in strong support of the
Whistleblower Protection Enhancement Act. This bill will significantly
expand the protections available to government whistleblowers.
Whistleblowers risk their careers to challenge abuses of power and the
mismanagement of government resources. Protecting the rights of
whistleblowers is critical for rooting out waste and fraud within the
government.
I applaud the leadership and commitment of all of the Members of
Congress and the advocates who have worked on this legislation. The
bill we are considering today was introduced by Senator Akaka. This
bill should be a proud addition to his legacy as he closes out his long
and distinguished career in Congress. Congressman Todd Platts and
Congressman Chris Van Hollen also deserve credit for getting us here
today. They have both worked to find a bipartisan path forward on this
bill. I also want to thank Chairman Darrell Issa for working with me
and the other Members to get this bill to the House floor.
Here are just a few of the ways this bill strengthens current law.
This bill will protect all lawful disclosures of waste, fraud, and
abuse. Court decisions have narrowed the scope of protected disclosures
in a way that the Office of Special Counsel says handcuffs it in its
efforts to protect whistleblowers. For example, federal employees are
currently not protected for blowing the whistle in the course of their
job duties. This bill closes that loophole so that federal auditors and
safety inspectors will be protected when they blow the whistle.
This bill provides whistleblower protections to Transportation
Security Administration employees. Current law leaves TSA employees
unprotected. Giving Transportation Security Officers the same
protections as other federal employees will encourage the disclosure of
issues that may threaten the safety of our airports.
Under this bill, whistleblowers can appeal a decision of the Merit
Systems Protection Board to any federal court of appeals. Currently,
all appeals go to the Federal Circuit Court of Appeals which has
consistently misinterpreted the intent of Congress with regard to the
Whistleblower Protection Act.
This bill also protects government scientists for disclosures about
agency censorship or other problems with the integrity of the
scientific process.
This bill does a lot of good things but I will be honest. The bill
that we are considering today is not as strong as I hoped it would be.
Even if this bill passes we will still have work to do. We need to
provide meaningful rights to whistleblowers in the intelligence
community and we need to amend the law to allow whistleblowers the
ability to go to court and have their case heard by a jury. I know this
bill represents a compromise based on the political realities of today.
But the fight is not over. I will continue to fight for the protections
that are not in this bill and hope that my colleagues on both sides of
the aisle will join me in that fight.
The journey of this legislation has been a long and frustrating one
for the advocates of whistleblower protections who have been trying for
almost a decade to get a strong bill enacted. We have been so close so
many times only to have another roadblock get in the way. Mr. Speaker,
I hope that today is different. I hope that this bill will have a clear
path to the President's desk and become law. I urge every Member of
Congress to stand up for whistleblowers, to stand up for good
government, to pass this legislation, and then to join me tomorrow to
continue the fight for whistleblower protections.
____________________
