112th Congress Rept. 112-508
HOUSE OF REPRESENTATIVES
2d Session Part 1
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WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2011
_______
May 30, 2012.--Ordered to be printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3289]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 3289) to amend title 5, United
States Code, to provide clarification relating to disclosures
of information protected from prohibited personnel practices;
to require a statement in nondisclosure policies, forms, and
agreements that such policies, forms, and agreements are in
conformance with certain protections; to provide certain
additional authorities to the Office of Special Counsel; and
for other purposes, having considered the same, report
favorably thereon with amendments and recommend that the bill
as amended do pass.
CONTENTS
Page
Committee Statement and Views.................................... 5
Section-by-Section............................................... 6
Explanation of Amendments........................................ 12
Committee Consideration.......................................... 12
Rollcall Votes................................................... 13
Application of Law to the Legislative Branch..................... 13
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 13
Statement of General Performance Goals and Objectives............ 13
Federal Advisory Committee Act................................... 13
Unfunded Mandate Statement....................................... 13
Committee Estimate............................................... 14
Budget Authority and Congressional Budget Office Cost Estimate... 14
Changes in Existing Law Made by the Bill as Reported............. 17
Additional Views................................................. 44
The amendments are as follows:
Strike ``Whistleblower Protection Enhancement Act of 2011''
each place it appears in the bill and insert ``Platts-Van
Hollen Whistleblower Protection Enhancement Act of 2011''.
In section 2303a(b) of title 5, United States Code, in the
matter preceding paragraph (1), as proposed to be added by
section 201(a) of the bill--
(1) strike ``or to the head'' and insert ``to the
head''; and
(2) insert ``or to a supervisor in the chain of
authority of such employee who is authorized to access
such information'' before ``which the employee''.
At the end of title I of the bill, add the following:
SEC. 122. STUDY.
(a) In General.--The Government Accountability Office shall
study and, not later than 1 year after the date of enactment of
this Act, submit to the appropriate committees of Congress a
report on whistleblower hotlines of Federal agencies. Such
study and report shall address the following:
(1) The days and hours the hotline is staffed by
trained personnel.
(2) The level of training which operators who are
designated to receive calls for the hotline possess,
including academic credentials and additional training.
(3) Whether the hotline is staffed by sufficient
personnel.
(4) Whether the hotline is operated in a manner
consistent with the requirements established by the
Sarbanes-Oxley Act of 2002 relating to whistleblower
protections which apply with respect to publicly traded
companies.
(5) Whether the hotline is operated independent of
conflicts of interest.
(6) Whether the hotline is accessible through
multiple methods of communication, such as electronic
mail, personal interview, and confidential mail
deposit.
(7) Whether sufficient protections from retaliation
are provided for employees reporting illegal or
unethical conduct or behavior.
(8) Whether the hotline is operated in a manner that
ensures sufficient confidentiality of disclosures made
using such hotline.
(9) Whether employees of the agency are encouraged
and made aware of their ability to submit disclosures
of perceived misconduct that they reasonably believe
evidence a violation of law, rule, or regulation, gross
waste, gross mismanagement, abuse of authority, or a
substantial and specific violation of public health or
safety.
(10) Any other issues which the Government
Accountability Office may determine.
(b) Definitions.--For purposes of this section--
(1) the term ``appropriate committees of Congress''
means the Committee on Oversight and Government Reform
of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the
Senate; and
(2) the term ``Federal agency'' means an agency, as
defined by section 2302(a)(2)(C) of title 5, United
States Code.
Page 11, beginning on line 15, move the margin of clause (ii)
2 ems to the left.
Page 35, on lines 10 and 12, insert ``at the end'' after
``the semicolon''.
Page 67, line 1, strike ``designating'' and insert
``redesignating''.
Strike subsection (a) of section 202 and insert the
following:
(a) In General.--Section 3001 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 435b) is amended--
(1) by redesignating subsection (i) as subsection
(k); and
(2) by inserting after subsection (h) the following
new subsection:
``(i) Review of Security Clearance or Access
Determinations.--
``(1) In general.--Not later than 180 days after the
date of enactment of the Platts-Van Hollen
Whistleblower Protection Enhancement Act of 2011, the
head of the entity selected pursuant to subsection (b)
shall--
``(A) develop policies and procedures that
permit, to the extent practicable, individuals
who challenge in good faith a determination to
suspend or revoke a security clearance or
access to classified information to retain
their government employment status while such
challenge is pending; and
``(B) develop and implement 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.
``(2) Limitation period.--Any limitation period
applicable to an agency appeal under paragraph (1)
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 (1) have
been established for the agency or the Director of
National Intelligence promulgates the policies and
procedures under paragraph (1). The policies and
procedures for appeals developed under paragraph (1)
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).''.
In subsection (b) of section 202, strike ``is amended by
adding at the end'' and insert ``, as amended by subsection (a)
of this section, is further amended by inserting after
subsection (i)''.
Page 2, after the item relating to section 121 (in the matter
following line 7), insert the following:
SEC. 122. STUDY.
Page 3, line 15, strike ``section)'' and insert
``section),''.
Page 21, line 11, insert ``or protected activity'' after
``disclosure''.
Page 35, line 2, strike the matter after ``under'' and before
``or'' and insert ``section 3105,''.
Page 47, lines 7 and 8, strike ``of title 5, United States
Code,''.
Page 52, line 20, insert a period at the end.
Page 66, line 24, strike ``Whistleblower Protection
Enhancement Review'' and insert ``Platts-Van Hollen
Whistleblower Protection Enhancement''.
Page 67, line 25, strike ``submission; and'' and insert
``submission.''.
Committee Statement and Views
PURPOSE AND SUMMARY
Whistleblowers are crucial in helping to expose waste,
fraud, abuse, mismanagement and criminal activity across the
Federal government. Their disclosures can save billions of
dollars, and even human lives. It is vital that Congress
encourage--not discourage--these well-intentioned individuals
from coming forward. To accomplish that, prospective
whistleblowers must be protected from reprisal.
BACKGROUND AND NEED FOR LEGISLATION
The American people and the Members of Congress who
represent them rely on well-intentioned whistleblowers to bring
forth information exposing waste, fraud, abuse, mismanagement,
or criminal behavior in the Federal bureaucracy. These
employees are well-positioned to shed light on malfeasance in a
manner that can save American lives as well as billions of
taxpayer dollars.
Enacted in 1989, the Whistleblower Protection Act (WPA)\1\
provides statutory protections for Federal employees who engage
in ``whistleblowing''--making a disclosure of illegal or
improper government activity.
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\1\P.L. 101-12.
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The protections of the WPA apply to most Federal Executive
Branch employees and become applicable where an adverse
personnel action (such as termination or demotion) is taken
because of a protected disclosure made by a covered employee.
Generally, whistleblower protections may be raised within three
statutory forums: (1) employee appeals to the Merit Systems
Protection Board (MSPB) of an agency's adverse action against
an employee; (2) actions instituted by the Office of Special
Counsel (OSC); and (3) individually maintained rights of action
(IRAs) before the MSPB.
The MSPB is an independent, quasi-judicial agency in the
Executive Branch tasked with protecting the Federal merit
systems and the rights of those within those systems. The OSC
is an independent agency separate from the MSPB. The OSC is
tasked with protecting employees, former employees, and
applicants, and has the authority to investigate instances of
prohibited personnel practices.
Current law provides that an employee, former employee, or
applicant has the independent right to seek review of
whistleblower reprisal cases by the MSPB 60 days after the OSC
closes an investigation, or 120 days after filing a complaint
with the OSC.
Unfortunately, however, the U.S. Court of Appeals for the
Federal District has eroded whistleblower protections over the
years through a series of decisions. This has adversely
impacted well-intentioned whistleblowers and led to an
unwillingness by many to step forward. The Whistleblower
Protection Enhancement Act, H.R. 3289, (WPEA) reestablishes
appropriate whistleblower protections from retaliation. It also
extends whistleblower protections to certain members of the
Intelligence Community, and strengthens the Intelligence
Community Whistleblower Protection Act (ICWPA).\2\ These
modifications are intended to reduce the often destructive
disclosures that occur through anonymous leaks by providing an
alternative in which institutional channels can be used by
whistleblowers assured of certain safeguards.
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\2\P.L. 105-272.
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LEGISLATIVE HISTORY
H.R. 3289 was introduced by Representatives Darrell Issa,
Elijah Cummings, Todd Platts, and Chris Van Hollen on November
1, 2011, and was referred to the Committees on Oversight and
Government Reform, Intelligence, and Homeland Security.
This legislation is substantially similar to a bill that
was negotiated and passed by the Senate (S. 372) during the
111th Congress on December 10, 2010. The House approved its
version of S. 372 with an amendment that struck the section of
the bill that would have extended whistleblower protections to
certain members of the Intelligence Community on December 22,
2010. No further action was taken in the 111th Congress.
On November 3, 2011, the Oversight and Government Reform
Committee considered the bill and reported the legislation
favorably, as amended, by a recorded vote of 35 Ayes to 0 Nays.
Section-by-Section
Section 1. Short title; table of contents
The short title was amended during the Committee markup and
changed to the: ``Platts-Van Hollen Whistleblower Protection
Enhancement Act of 2011.''
Section 101. Clarification of disclosures covered
Expands the scope of whistleblower protections to apply to
any lawful disclosure of any violation of any law, rule, or
regulation.
Section 102. Disclosure defined
A ``disclosure'' is defined as 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 any violation of any law, rule, or
regulation, and occurs during the conscientious carrying out of
official duties; or gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety.'' This definition covers
communications beyond the initial disclosure, but does not
apply to policy decisions.
Section 103. Rebuttable presumption
Reiterates that whistleblowers can disclose information to
Congress without fear of reprisal. In addition, states that any
presumption relating to the performance of a duty by an
employee whose conduct is the subject of a ``protected''
disclosure as defined under ``this section'' may be rebutted by
substantial evidence.
Section 104. Personnel actions and prohibited personnel practices
Includes as a prohibited personnel practice the
implementation or enforcement of any agency nondisclosure
policy, form, or agreement that does not contain a specific
statement clarifying that its provisions are consistent with
and cannot supersede requirements that preserve the right of
Federal employees to make disclosures of illegality, waste,
fraud, abuse, or public health or safety threats.
Also codifies the governing law for demonstrating that
retaliatory investigations are prohibited personnel practices
and permits corrective action awarded to whistleblowers to
include damages, fees, and costs incurred due to an agency
investigation of the employee.
Section 105. Exclusion of agencies by the President
Clarifies the President's flexibility to determine what
agencies should be exempted from whistleblower protections.
Explicit exceptions include the FBI, CIA, the National
Geospatial-Intelligence Agency, NSA, the Office of Director of
National Intelligence, and the National Reconnaissance Office.
This section does not change the President's existing authority
to exempt any Executive agency or unit thereof whose principal
function is the conduct of foreign intelligence or
counterintelligence activities, provided such determination is
made prior to the personnel action involved.
Section 106. Disciplinary action
Increases the Special Counsel's ability to obtain
disciplinary action from the MSPB against employees who commit
a prohibited personnel practice or knowingly and willfully fail
to comply with an order from the MSPB. Now the Board may
combine disciplinary action to include employment and civil
penalties.
Clarifies burdens of proof so the MSPB may impose
disciplinary action if it is determined that the exposure of
waste, fraud, mismanagement or abuse was a significant
motivating factor underlying the prohibited personnel practice.
Section 107. Remedies
Grants the MSPB authority to require payment of reasonable
attorney fees by the relevant agency. Current law states the
``agency involved'' should make that payment, which had been
interpreted to mean the Office of Special Counsel if it did not
prevail in a disciplinary action.
Expands the list of corrective actions available to the
Board.
Section 108. Judicial review
Under current law, a whistleblower may appeal the MSPB
decision to the United States Appeals Court for the Federal
Circuit. Because of the Federal Circuit has often times
misinterpreted Congressional intent when it comes to
whistleblowers, so-called ``pure'' whistleblower appeals--that
is, appeals only dealing with whistleblower claims--will now be
heard in the United States Court of Appeals for the District of
Columbia Circuit.
Grants the OPM authority to bring cases of substantial
impact on appeal to the United States Court of Appeals for the
District of Columbia Circuit.
Section 109. Prohibited personnel practices affecting the
Transportation Security Administration
Extends whistleblower and other anti-discrimination
protections to employees (and applicants for employment) of the
Transportation Security Administration.
Section 110. Disclosure of censorship related to research, analysis, or
technical information
Extends whistleblower protections to any current or
prospective Federal employee for disclosures that such employee
reasonably believes are evidence of censorship related to
research, analysis, or technical information.
Section 111. Clarification of whistleblower rights for critical
infrastructure information
Amends the Homeland Security Act of 2002 to bar Critical
Infrastructure Information from overriding Whistleblower
Protection Act free speech rights.
Section 112. Advising employees of rights
Requires Federal agency heads to advise their employees on
how to make a lawful disclosure of information that is required
to be kept secret in the interest of national defense or the
conduct of foreign affairs.
Section 113. Special counsel amicus curiae appearance
Allows the Office of Special Counsel to file ``friend of
the court'' briefs for whistleblower cases appealed from the
administrative level.
Section 114. Scope of due process
Current law prohibits corrective action to be ordered in a
whistleblower case if the agency can prove through clear and
convincing evidence that it would have taken the same action
against an employee on independently justified grounds despite
that employee making a protected disclosure. This provision
clarifies that before considering the independent justification
issue the MSPB first must issue a finding whether the protected
disclosure was a contributing factor to the conditions for
either the Special Counsel or the individual to seek corrective
action against an agency.
Section 115. Nondisclosure policies, forms, and agreements
Codifies and gives a remedy for the anti-gag statute from
overriding whistleblower rights. Specifically, the bill would
require every nondisclosure policy, form, or agreement of the
Government to contain specific language informing employees of
their rights.
Section 116. Reporting requirements
Requires the Comptroller General to submit a report to the
oversight committees of Congress analyzing: the number of cases
filed with the MSPB alleging prohibited personnel actions; the
outcome of those cases; and any other details as determined by
the Comptroller.
Requires the MSPB to include in its reports the outcome of
cases alleging prohibited personnel practices, including the
win-loss track record for decisions on each alleged prohibited
personnel practice.
Section 117. Alternative review
Allows a whistleblower access to an appropriate United
States district court to file for de novo review of their case.
An employee may seek de novo review if they seek corrective
action from the MSPB in a case alleging a prohibited personnel
practice occurred, or file an appeal with the MSPB under
certain circumstances.
Specifically, the employee may file in district court if no
final order or decision is issued by the MSPB within 270 days
after the request was submitted; or if the Board certifies it
is not likely to dispose of the case within 270 days after the
request was submitted, or that the case consists of multiple
claims, requires complex or extensive discovery, arises out of
the same set of facts as a civil action pending in a U.S.
court, or involves a question of law for which there is no
controlling precedent. Under this section, an employee may
submit a motion for certification to the MSPB within 30 days of
the original request for corrective action or appeal. The Board
shall rule on the motion within 90 days after the submission,
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.
In district court, after an employee demonstrates a prima
facie case that protected activity was a contributing factor to
a challenged personnel action, the agency may prevail if it
demonstrates by clear and convincing evidence that the agency
would have taken the same personnel action in the absence of a
protected disclosure. In district court, the employee may not
be represented by the Special Counsel. The court may award
damages, attorney's fees, and costs, but compensatory damages
may not exceed $300,000 and punitive damages are not permitted.
A pure whistleblower appeal will be filed in the United States
Court of Appeals for the District of Columbia Circuit; while
those appeals that also include allegations of violations of
other prohibited personnel practices (e.g. discrimination) will
be filed in United States Court of Appeals for the Federal
Circuit.
Section 118. Merit Systems Protection Board summary judgment
Provides the MSPB summary judgment authority.
Section 119. Disclosures of classified information
Provides that employees protected under the WPA may make
protected classified disclosures under the procedures set forth
for disclosing classified information under the Intelligence
Community Whistleblower Protection Act. These protections do
not in any way limit the right to communicate with Congress
under the Lloyd-La Follette Act, codified in 5 U.S.C. Sec.
7211, or other provisions of law.
Section 120. Whistleblower Protection Ombudsman
Instructs agency Inspectors General to designate a
Whistleblower Protection Ombudsman who will educate employees
about prohibitions on retaliations for protected disclosures,
as well as those who have made or are contemplating making a
protected disclosure.
Agency Inspectors General will appoint an Assistant
Inspector General for Auditing who will have the responsibility
for supervising the performance of auditing activities, and an
Assistant Inspector General for Investigations who will be
responsible for supervising the performance of the
investigative activities.
Section 121. Pilot program for enhancement of contractor employee
whistleblower protections
Establishes a two-year pilot program extending current
protections afforded to DOD contract employees to non-DOD
contract employees. To the extent practicable, the pilot
program should operate consistently with the equivalent rights
for civil service employees, including the burdens of proof
governing actions in the pilot program. It requires a report on
implementation of the pilot program by the Government
Accountability Office to help determine whether the program
should be made permanent.
Section 122. Study
Requires a GAO study and report to Congress on the use by
Federal agencies of whistleblower hotlines. GAO will examine
whether the hotline is operated consistent with best practices,
including being operated independent of conflicts of interest;
whether the hotline is accessible through multiple methods of
communication; and whether there are sufficient protections for
employees who use a hotline, among other criteria.
Section 201. Protection of intelligence community whistleblowers
Extends whistleblower protections to intelligence community
employees who make disclosures through institutional checks and
balances, such as the supervisory chain of command or the
Office of Inspector General, including those who work at the
Central Intelligence Agency (CIA), the Defense Intelligence
Agency (DIA), the National Geospatial Intelligence Agency, the
National Security Agency, the Office of the Director of
National Intelligence, and the National Reconnaissance Office.
Requires intelligence agency heads to advise their
employees on how to make a lawful disclosure of information
that is required to be kept secret in the interest of national
defense or the conduct of foreign affairs.
Section 202. Review of security clearance or access determinations
Requires the head of the entity chosen by the President
that is responsible for oversight of investigations and
adjudications for personnel security clearances to develop
policies and procedures that permit individuals who challenge a
determination to suspend or revoke a security clearance or
access to classified information to retain their government
employment status while the challenge is pending, and to
develop and implement uniform procedures to ensure proper
protections during the process for denying, suspending, or
revoking a security clearance, or access to classified
information. Codifies current Supreme Court and Merit Systems
Protection Board case law that decisions ancillary to the
clearance or access determination, such as eligibility,
investigations, compliance with agency procedures, and actions
subsequent to removal of clearance or access, are outside the
scope of Executive Orders 10865 and 12968, and will continue to
be under the Board's jurisdiction.
Requires intelligence agency heads to design an appeals
process with minimum internal due process standards equivalent
to that which exists under section 2308(b)(8) of title 5, USC.
In addition, that appeals process will provide: (1) for an
independent and impartial fact-finder; (2) for notice and the
opportunity to be heard, including the opportunity to present
evidence; (3) that the employee or former employee be
represented by counsel; (4) that the employee or former
employee has a right to a decision based on the record
developed during the appeal, with ex parte or classified
information sanitized or summarized for adequate notice so that
a decision is not made on secret grounds; (5) that not more
than 180 days shall pass from the filing of the appeal to the
report from the independent fact-finder to the agency head; (6)
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; and (7) that the individual
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.
Creates an appellate review board, which allows an
individual to appeal a final decision of an agency
determination. If the appellate review board finds there was an
adverse action taken against an employee or former employee in
violation of the Whistleblower Protection Act, it can find that
the action was illegal, recommend reinstatement of a security
clearance or access to classified information, and remand the
case for further agency proceedings. In addition, the appellate
review board can take corrective action to include
reinstatement, reimbursement of attorney's fees, and can award
compensatory damages not to exceed $300,000.
Section 203. Revisions relating to the Intelligence Community
Whistleblower Protection Act
Provides for the direct transmission of a complaint or
information under the Intelligence Community Whistleblower
Protection Act to the Director of National Intelligence if the
head of an establishment (i.e., cabinet level agency or
department) determines that such complaint or information would
create a conflict of interest for such head.
Section 204. Regulations; reporting requirements; nonapplicability to
certain terminations
Requires the Director of National Intelligence to prescribe
regulations to ensure personnel actions are not taken against
employees of an intelligence community element for
whistleblowing.
The DNI, in consultation with the Secretary of Defense,
Attorney General, and appropriate agency heads, shall establish
an appellate review board to hear whistleblower appeals related
to security access determinations.
No later than 2 years after the date of enactment, the DNI
shall submit a report on the status of the implementation of
these regulations to the Committee on Oversight and Government
Reform of the House, the Permanent Select Committee on
Intelligence of the House, the Committee on Homeland Security
and Governmental Affairs of the Senate, and the Select
Committee on Intelligence of the Senate.
Section 301. Effective date
This act shall take effect 30 days after the date of
enactment of the Act.
Section 302. Savings provision
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. Rights in this Act shall
govern legal actions filed after its effective date.
Explanation of Amendments
At the beginning of debate, Ranking Member Cummings made a
unanimous consent request that the legislation be renamed as
the, ``Platts-Van Hollen Whistleblower Protection Enhancement
Act of 2011.'' This request was accepted without objection.
Representative John Tierney offered an amendment to grant
whistleblower protections to Intelligence Community employees
who also make a protected disclosure to their ``supervisor in
the chain of authority . . . who is authorized to access such
information.'' The Tierney amendment was adopted by voice vote.
Representative Jackie Speier offered an amendment which
added a GAO study and report to Congress on the use by Federal
agencies of whistleblower hotlines. The Speier amendment was
adopted by voice vote.
Representative Bruce Braley offered an amendment to give
Federal employee whistleblowers access to trials by jury for
the first time. Mr. Braley's amendment failed by a vote of 13-
20.
Committee Consideration
On November 3, 2011, the Committee met in open session and
ordered reported favorably the bill, H.R. 3289, as amended, by
a recorded vote of 35 Ayes to 0 Nays, a quorum being present.
Rollcall Votes
1. Mr. Braley offered an amendment (# 035) regarding jury
trials. The amendment was defeated by a recorded vote of 13
Ayes to 20 Nays.
Voting Aye: Platts, Cummings, Maloney, Norton, Tierney,
Clay, Lynch, Connolly, Quigley, Davis, Braley, Yarmuth and
Speier.
Voting Nay: Issa, Burton, Mica, McHenry, Jordan, Chaffetz,
Walberg, Lankford, Amash, Buerkle, Gosar, Labrador, Meehan,
DesJarlais, Walsh, Gowdy, Ross, Guinta, Farenthold and Kelly.
2. The bill, H.R. 3289, as amended, was ordered favorably
reported to the House, a quorum being present, by a recorded
vote of 35 Ayes to 0 Nays.
Voting Aye: Issa, Burton, Mica, Platts, McHenry, Jordan,
Chaffetz, Walberg, Lankford, Amash, Buerkle, Gosar, Labrador,
Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta, Farenthold,
Kelly, Cummings, Maloney, Norton, Kucinich, Tierney, Clay,
Lynch, Cooper, Connolly, Quigley, Davis, Braley, Yarmuth and
Speier.
Voting Nay: none.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill concerns the expansion of whistleblower protections
to current and prospective Federal employees. Legislative
branch employees and their families, to the extent that they
are otherwise eligible for the benefits provided by this
legislation, have equal access to its benefits.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 3289 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of Rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 3289. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 3289 from the Director of
Congressional Budget Office:
January 25, 2012.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3289, the Platts-
Van Hollen Whistleblower Protection Enhancement Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 3289--Platts-Van Hollen Whistleblower Protection Enhancement Act
of 2011
Summary: H.R. 3289 would amend the Whistleblower Protection
Act (WPA) to clarify current law and extend new legal
protections to federal employees who report abuse, fraud, and
waste related to government activities (such individuals are
known as whistleblowers). The legislation also would affect
activities of the Merit Systems Protection Board (MSPB) and the
Office of Special Counsel (OSC). Finally, it would establish an
oversight board within the intelligence community to review
whistleblower claims.
CBO estimates that implementing H.R. 3289 would cost $26
million over the 2012-2017 period, assuming appropriation of
the necessary amounts for awards to whistleblowers and
additional administrative costs. Enacting the bill would not
affect direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
H.R. 3289 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 3289 is shown in the following table.
The costs of this legislation primarily fall within budget
functions 800 (general government) and 050 (national defense),
as well as all other budget functions that include federal
salaries and expenses.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
----------------------------------------------------------------
2012 2013 2014 2015 2016 2017 2012-2017
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Cost of Corrective Actions:
Estimated Authorization Level.............. * 1 1 1 1 1 5
Estimated Outlays.......................... * 1 1 1 1 1 5
Intelligence Community Whistleblower Protection
Board:
Estimated Authorization Level.............. * 1 1 1 1 1 5
Estimated Outlays.......................... * 1 1 1 1 1 5
MSPB and OSC:
Estimated Authorization Level.............. * 2 2 2 2 2 10
Estimated Outlays.......................... * 2 2 2 2 2 10
Other Provisions:
Estimated Authorization Level.............. * 4 2 * * * 6
Estimated Outlays.......................... * 4 2 * * * 6
Total Changes:
Estimated Authorization Level.......... * 8 6 4 4 4 26
Estimated Outlays...................... * 8 6 4 4 4 26
----------------------------------------------------------------------------------------------------------------
Notes: MSPB = Merit Systems Protection Board; OSC = Office of Special Counsel.
* = less than $500,000.
Basis of the estimate: For this estimate, CBO assumes that
the bill will be enacted in fiscal year 2012, that the
necessary amounts will be made available from appropriated
funds, and that spending will follow historical patterns for
similar programs.
Under current law, the OSC investigates complaints
regarding reprisals against federal employees who inform
authorities of fraud or other improprieties in the operation of
federal programs. The OSC orders corrective action (such as job
restoration, back pay, and reimbursement of attorneys' fees and
medical costs) for valid complaints. If agencies fail to take
corrective actions, the OSC or the employee can pursue a case
through the MSPB for resolution. Whistleblower cases may also
be reviewed by the U.S. Court of Appeals.
Cost of corrective actions
When settling an employment dispute between the federal
government and an employee regarding prohibited personnel
practices, federal agencies are required to pay for an
employee's attorney, any retroactive salary payments, and any
travel and medical costs associated with the claim.
H.R. 3289 would expand legal protections for whistleblowers
and extend protections to passenger and baggage screeners
working for the Transportation Security Administration, and all
federal employees working primarily on scientific research. The
bill would authorize monetary awards to federal employees who
suffered retaliation by their agency of up to $300,000
(including compensatory damages).
According to the MSPB and OSC, approximately 450
whistleblower cases and around 2,000 complaints about
prohibited personnel practices (including engaging in reprisals
against whistleblowers) are filed against the federal
government each year. CBO is unaware of comprehensive
information on the current costs of corrective actions related
to those cases. Damage awards depend on the particular
circumstances of each case. Settlement amounts for
whistleblowers have been as high as $1 million, while the
average settlement is around $18,000 (most corrective action is
nonmonetary, for example, amending performance appraisals). In
addition, the Government Accountability Office has reported
that about $15 million is spent annually (from the Treasury's
Judgment Fund) on equal employment opportunity and
whistleblower cases. While it is uncertain how often damages
would be awarded in such whistleblower situations, CBO expects
that increasing the number of covered employees and legal
protections under the bill would increase costs for such awards
by about $1 million each year.
Intelligence Community Whistleblower Protection Board
Section 204 would require the Director of National
Intelligence, in consultation with the Secretary of Defense and
the Attorney General, to establish an appellate review board.
That board would adjudicate appeals from employees who believe
that they have been denied security clearances or other types
of authorizations to access restricted information in
retaliation for revealing certain types of misconduct. Based on
information from the Office of the Director of National
Intelligence about the staffing needs for similar activities,
CBO estimates that implementing this provision would cost $1
million annually.
MSBP and OSC
CBO expects that enacting the bill would increase the
workload of the MSPB and the OSC. For fiscal year 2012, the
MSPB received an appropriation of $40 million, and the OSC
received $19 million. Based on information from those agencies,
we estimate that when fully implemented, those offices would
spend about $2 million a year to hire additional professional
and administrative staff to handle additional cases.
Other provisions
H.R. 3289 also would establish a two-year pilot program to
protect employees of federal contractors who disclose
improprieties related to federal spending and would require
each Inspector General to designate a Whistleblower Protection
Ombudsman to educate employees about the rights of
whistleblowers. The bill would require the Government
Accountability Office to prepare two reports on whistleblowers.
In addition, agencies would be required to make changes to
their personnel training and nondisclosure policies. Based on
information from federal agencies and on the costs of similar
requirements, CBO estimates that implementing those provisions
would cost $6 million over the 2012-2017 period assuming
appropriation of the necessary amounts.
Pay-As-You-Go Considerations: None.
Intergovernmental and private-sector impact: H.R. 3289
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no significant costs on state,
local, or tribal governments.
Estimate prepared by: Federal Costs: Matthew Pickford and
Jason Wheelock; Impact on State, Local, and Tribal Governments:
Elizabeth Cove Delisle; Impact on the Private Sector: Paige
Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
* * * * * * *
CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION
* * * * * * *
SUBCHAPTER I--MERIT SYSTEMS PROTECTION BOARD
* * * * * * *
Sec. 1204. Powers and functions of the Merit Systems Protection Board
(a) * * *
(b)(1) * * *
* * * * * * *
(3) With respect to a request for corrective action based on
an alleged prohibited personnel practice described in section
2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section
2302(b)(9) 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, or any employee of the Board designated by the Board may,
with respect to any party, grant a motion for summary judgment.
[(3)] (4) Witnesses (whether appearing voluntarily or under
subpoena) shall be paid the same fee and mileage allowances
which are paid subpoenaed witnesses in the courts of the United
States.
* * * * * * *
(m)(1) Except as provided in paragraph (2) of this
subsection, the Board, or an administrative law judge or other
employee of the Board designated to hear a case arising under
section 1215, may require payment by the [agency involved]
agency in which the prevailing party was employed or with which
the prevailing party had applied for employment at the time of
the events giving rise to the case of reasonable attorney fees
incurred by an employee or applicant for employment if the
employee or applicant is the prevailing party and the Board,
administrative law judge, or other employee (as the case may
be) determines that payment by the agency is warranted in the
interest of justice, including any case in which a prohibited
personnel practice was engaged in by the agency or any case in
which the agency's action was clearly without merit.
* * * * * * *
SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL
* * * * * * *
Sec. 1212. Powers and functions of the Office of Special Counsel
(a) * * *
* * * * * * *
(h)(1) The Special Counsel may appear as amicus curiae in any
action brought in a court of the United States related to any
civil action brought in connection with paragraph (8) or (9) of
section 2302(b), or as otherwise authorized by law. In any such
action, the Special Counsel may present the views of the
Special Counsel with respect to compliance with the provisions
of paragraph (8) or (9) of section 2302(b) and the impact court
decisions would have on the enforcement of such provisions.
(2) A court of the United States shall grant the application
of the Special Counsel to appear in any such action for the
purposes described under subsection (a).
* * * * * * *
Sec. 1214. Investigation of prohibited personnel practices; corrective
action
(a)(1) * * *
* * * * * * *
(3) Except in a case in which an employee, former employee,
or applicant for employment has the right to appeal directly to
the Merit Systems Protection Board under any law, rule, or
regulation, any such employee, former employee, or applicant
shall seek corrective action from the Special Counsel before
seeking corrective action from the Board. An employee, former
employee, or applicant for employment may seek corrective
action from the Board under section 1221, if such employee,
former employee, or applicant seeks corrective action for a
prohibited personnel practice described in section 2302(b)(8)
or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9)
from the Special Counsel and--
(A) * * *
* * * * * * *
(b)(1) * * *
* * * * * * *
(4)(A) The Board shall order such corrective action as the
Board considers appropriate, if the Board determines that the
Special Counsel has demonstrated that a prohibited personnel
practice, other than one described in section 2302(b)(8) or
subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9),
has occurred, exists, or is to be taken.
(B)(i) Subject to the provisions of clause (ii), in any case
involving an alleged prohibited personnel practice as described
under section 2302(b)(8) or subparagraph (A)(i), (B), (C), or
(D) of section 2302(b)(9), the Board shall order such
corrective action as the Board considers appropriate if the
Special Counsel has demonstrated that a disclosure or protected
activity described under section 2302(b)(8) or subparagraph
(A)(i), (B), (C), or (D) of section 2302(b)(9) was a
contributing factor in the personnel action which was taken or
is to be taken against the individual.
(ii) Corrective action under clause (i) may not be ordered
if, after a finding by the Board that a protected disclosure
was a contributing factor, the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel
action in the absence of such disclosure.
* * * * * * *
(g) If the Board orders corrective action under this section,
such corrective action may include--
(1) * * *
(2) reimbursement for attorney's fees, back pay and
related benefits, medical costs incurred, travel
expenses, [and any other reasonable and foreseeable
consequential damages.] any other reasonable and
foreseeable consequential damages, and compensatory
damages (including interest, reasonable expert witness
fees, and costs).
(h) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.
Sec. 1215. Disciplinary action
(a)(1) * * *
* * * * * * *
[(3) A final order of the Board may impose disciplinary
action consisting of removal, reduction in grade, debarment
from Federal employment for a period not to exceed 5 years,
suspension, reprimand, or an assessment of a civil penalty not
to exceed $1,000.]
(3)(A) A final order of the Board may impose--
(i) disciplinary action consisting of removal,
reduction in grade, debarment from Federal employment
for a period not to exceed 5 years, suspension, or
reprimand;
(ii) an assessment of a civil penalty not to exceed
$1,000; or
(iii) any combination of disciplinary actions
described under clause (i) and an assessment described
under clause (ii).
(B) In any case brought under paragraph (1) in which the
Board finds that an employee has committed a prohibited
personnel practice under section 2302(b)(8), or subparagraph
(A)(i), (B), (C), or (D) of section 2302(b)(9), the Board may
impose disciplinary action if the Board finds that the activity
protected under section 2302(b)(8) or subparagraph (A)(i), (B),
(C), or (D) of section 2302(b)(9) 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.
* * * * * * *
SUBCHAPTER III--INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
Sec. 1221. Individual right of action in certain reprisal cases
(a) * * *
* * * * * * *
(e)(1) Subject to the provisions of paragraph (2), in any
case involving an alleged prohibited personnel practice as
described under section 2302(b)(8), the Board shall order such
corrective action as the Board considers appropriate if the
employee, former employee, or applicant for employment has
demonstrated that a disclosure or protected activity described
under section 2302(b)(8) was a contributing factor in the
personnel action which was taken or is to be taken against such
employee, former employee, or applicant. The employee may
demonstrate that the disclosure or protected activity was a
contributing factor in the personnel action through
circumstantial evidence, such as evidence that--
(A) the official taking the personnel action knew of
the disclosure or protected activity; and
(B) the personnel action occurred within a period of
time such that a reasonable person could conclude that
the disclosure or protected activity was a contributing
factor in the personnel action.
(2) Corrective action under paragraph (1) may not be ordered
if, after a finding that a protected disclosure or protected
activity was a contributing factor, the agency demonstrates by
clear and convincing evidence that it would have taken the same
personnel action in the absence of such disclosure or protected
activity.
* * * * * * *
(g)(1)(A) If the Board orders corrective action under this
section, such corrective action may include--
(i) * * *
(ii) back pay and related benefits, medical costs
incurred, travel expenses, [and any other reasonable
and foreseeable consequential changes.] any other
reasonable and foreseeable consequential damages, and
compensatory damages (including interest, reasonable
expert witness fees, and costs).
* * * * * * *
(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.
* * * * * * *
(k)(1) For purposes of 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) such prohibited personnel practice is alleged to
have been committed; or
(B) the employee, former employee, or applicant for
employment allegedly affected by such prohibited
personnel practice resides.
(2) An employee, former employee, or applicant for employment
in any case to which paragraph (4) or (5) applies may file an
action at law or equity for de novo review in the appropriate
United States district court.
(3) Upon initiation of any action under paragraph (2), 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
paragraph (2) before the appropriate United States district
court.
(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
subparagraph (A)(i), (B), (C), or (D) of
section 2302(b)(9), 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 subparagraph
(A)(i), (B), (C), or (D) of section 2302(b)(9),
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.
(5) 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
subparagraph (A)(i), (B), (C), or (D) of
section 2302(b)(9), for which the associated
personnel action is an action covered under
section 7512 or 7542; or
(ii) files an appeal under section 7701(a)(1)
alleging as an affirmative defense the
commission of a prohibited personnel practice,
described in section 2302(b)(8) or subparagraph
(A)(i), (B), (C), or (D) of section 2302(b)(9),
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 or an administrative law judge or other employee
of the Board designated to hear the case; and
(ii) such employee has not previously filed a motion
under clause (i) related to that request for corrective
action; and
(C) the Board or an administrative law judge or other
employee of the Board designated to hear the case
certifies that--
(i) under standards applicable to the review
of motions to dismiss under rule 12(b)(6) of
the Federal Rules of Civil Procedure, including
rule 12(d) thereof, the request for corrective
action (including any allegations made with the
motion under subparagraph (B)) would not be
subject to dismissal; and
(ii)(I) the Board is not likely to dispose of
the case within 270 days after the date on
which a request for that corrective action has
been duly submitted; or
(II) the case--
(aa) consists of multiple claims;
(bb) requires complex or extensive
discovery;
(cc) arises out of the same set of
operative facts as any civil action
against the Government filed by the
employee, former employee, or applicant
pending in a court of the United
States; or
(dd) involves a question of law for
which there is no controlling
precedent.
(6) The Board shall grant or deny any motion requesting a
certification described under paragraph (5)(C)(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.
(7)(A) Any decision of the Board or an administrative law
judge or other employee of the Board designated to hear the
case to grant or deny a certification described under paragraph
(5)(C)(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, 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.
(8) In any action filed under this subsection--
(A) the appropriate United States district court
shall have jurisdiction without regard to the amount in
controversy;
(B) 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 that--
(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
clear and convincing evidence that the agency
would have taken the same personnel action in
the absence of such disclosure; and
(C) the Special Counsel may not represent the
employee, former employee, or applicant for employment.
(9) A petition to review a final order or final decision of a
United States district court under this subsection that raises
no challenge to the district court's disposition of allegations
of a prohibited personnel practice described in section 2302(b)
other than practices described in section 2302(b)(8) or
subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9)
shall be filed in the United States Court of Appeals for the
District of Columbia Circuit. All other petitions to review any
final order or final decision of a United States district court
in an action brought under this subsection shall be filed in
the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review under this paragraph must be filed within 60 days after
the date the petitioner received notice of the final order or
final decision of the United States district court.
(10) 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 provision of law, rule, or regulation.
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART A--GENERAL PROVISIONS
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
Sec.
2301. Merit system principles.
* * * * * * *
[2304. Responsibility of the Government Accountability Office.
[2305. Coordination with certain other provisions of law.]
2303a. Prohibited personnel practices in the intelligence community.
2304. Prohibited personnel practices affecting the Transportation
Security Administration.
2305. Responsibility of the Government Accountability Office.
2306. Coordination with certain other provisions of law.
* * * * * * *
Sec. 2302. Prohibited personnel practices
(a)(1) * * *
(2) For the purpose of this section--
(A) ``personnel action'' means--
(i) * * *
* * * * * * *
(x) a decision to order psychiatric testing
or examination; [and]
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement that
does not contain the statement required under
subsection (b)(13); and
[(xi)] (xii) any other significant change in
duties, responsibilities, or working
conditions;
with respect to an employee in, or applicant for, a
covered position in an agency, and in the case of an
alleged prohibited personnel practice described in
subsection (b)(8), an employee or applicant for
employment in a Government corporation as defined in
section 9101 of title 31;
(B) ``covered position'' means, with respect to any
personnel action, any position in the competitive
service, a career appointee position in the Senior
Executive Service, or a position in the excepted
service, but does not include any position which is,
prior to the personnel action--
(i) * * *
(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of good
administration; [and]
(C) ``agency'' means an Executive agency and the
Government Printing Office, but does not include--
(i) a Government corporation, except in the
case of an alleged prohibited personnel
practice described under subsection (b)(8) or
subsection (b)(9) (other than subparagraph
(A)(ii) thereof);
[(ii) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security
Agency, and, as determined by the President,
any Executive agency or unit thereof the
principal function of which is the conduct of
foreign intelligence or counterintelligence
activities; or]
(ii)(I) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security
Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance
Office; and
(II) as determined by the President, any
Executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
provided that the determination be made prior
to the personnel action involved; or
(iii) the Government Accountability
Office[.]; and
(D) ``disclosure'' means a formal or informal
communication or transmission, but does not include a
communication concerning policy decisions that lawfully
exercise discretionary authority, unless the employee
or applicant providing the disclosure reasonably
believes that the disclosure evidences--
(i) any violation of any law, rule, or
regulation, and occurs during the conscientious
carrying out of official duties; or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(1) * * *
* * * * * * *
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences--
(i) [a violation] any violation of
any law, rule, or regulation, or
* * * * * * *
if such disclosure is not specifically
prohibited by law and if such information is
not specifically required by Executive order to
be kept secret in the interest of national
defense or the conduct of foreign affairs; [or]
(B) any disclosure to the Special Counsel, or
to the Inspector General of an agency or
another employee designated by the head of the
agency to receive such disclosures, of
information which the employee or applicant
reasonably believes evidences--
(i) [a violation] any violation of
any law, rule, or [regulation,]
regulation (other than this section or
any rule or regulation prescribed under
this section), or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; or
(C) any communication that complies with
subsection (a)(1), (d), and (h) of section 8H
of the Inspector General Act of 1978 (5 U.S.C.
App.);
(9) take or fail to take, or threaten to take or fail
to take, any personnel action against any employee or
applicant for employment because of--
[(A) the exercise of any appeal, complaint,
or grievance right granted by any law, rule, or
regulation;]
(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 any rule
or regulation prescribed under such
paragraph; or
(ii) with regard to remedying a
violation of any law, rule, or
regulation not described in clause (i);
* * * * * * *
(11)(A) * * *
(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action
would violate a veterans' preference requirement; [or]
(12) take or fail to take any other personnel action
if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title[.]; or
(13) implement or enforce any nondisclosure policy,
form, or agreement, if such policy, form, or agreement
does not contain the following statement: ``These
provisions are consistent with and do not supersede,
conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by
Executive Order 13526 (75 Fed. Reg. 707, relating to
classified national security information), or any
successor thereto; Executive Order 12968 (60 Fed. Reg.
40245, relating to access to classified information),
or any successor thereto; section 7211 (governing
disclosures to Congress); section 1034 of title 10
(governing disclosure to Congress by members of the
military); subsection (b)(8) (governing disclosures of
illegality, waste, fraud, abuse, or public health or
safety threats); the Intelligence Identities Protection
Act of 1982 (50 U.S.C. 421 et seq., governing
disclosures that could expose confidential Government
agents); and the statutes which protect against
disclosures that could compromise national security,
including sections 641, 793, 794, 798, and 952 of title
18 and section 4(b) of the Subversive Activities
Control Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights,
sanctions, and liabilities created by such Executive
orders and such statutory provisions are incorporated
into this agreement and are controlling.''.
[This subsection shall not be construed to authorize the
withholding of information from the Congress or the taking of
any personnel action against an employee who discloses
information to the Congress.]
This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses information
to Congress. For purposes of paragraph (8), any presumption
relating to the performance of a duty by an employee whose
conduct is the subject of a protected disclosure under this
section may be rebutted by substantial evidence. For purposes
of paragraph (8), a determination as to whether an employee or
applicant reasonably believes that such employee or applicant
has disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger to
public health or safety shall be made by determining whether a
disinterested observer with knowledge of the essential facts
known to or readily ascertainable by the employee could
reasonably conclude that the actions of the Government evidence
such a violation, mismanagement, waste, abuse, or danger.
(c) The head of each agency shall be responsible for the
prevention of prohibited personnel practices, for the
compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel
management, and for ensuring (in consultation with the Office
of Special Counsel) that agency employees are informed of the
rights and remedies available to them under this chapter and
chapter 12 of this title, including how to make a lawful
disclosure of information that is specifically required by law
or Executive order to be kept classified in the interest of
national defense or the conduct of foreign affairs to the
Special Counsel, the Inspector General of an agency, Congress,
or other agency employee designated to receive such a
disclosure. Any individual to whom the head of an agency
delegates authority for personnel management, or for any aspect
thereof, shall be similarly responsible within the limits of
the delegation.
* * * * * * *
(f)(1) A disclosure shall not be excluded from subsection
(b)(8) because--
(A) the disclosure was made to a person, including a
supervisor, who participated in an activity that the
employee or applicant reasonably believed to be covered
by subsection (b)(8)(A)(ii);
(B) the disclosure revealed information that had been
previously disclosed;
(C) of the employee's or applicant's motive for
making the disclosure;
(D) the disclosure was not made in writing;
(E) the disclosure was made while the employee was
off duty; or
(F) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
(2) If a disclosure is made during the normal course of
duties of an employee, the disclosure shall not be excluded
from subsection (b)(8) if any employee who has authority to
take, direct others to take, recommend, or approve any
personnel action with respect to the employee making the
disclosure, took, failed to take, or threatened to take or fail
to take a personnel action with respect to that employee in
reprisal for the disclosure.
* * * * * * *
Sec. 2303a. Prohibited personnel practices in the intelligence
community
(a) Definitions.--In this section--
(1) the term ``agency'' means an executive department
or independent establishment, as defined under sections
101 and 104, that contains an intelligence community
element, except the Federal Bureau of Investigation;
(2) the term ``intelligence community element''--
(A) means--
(i) the Central Intelligence Agency,
the Defense Intelligence Agency, the
National Geospatial-Intelligence
Agency, the National Security Agency,
the Office of the Director of National
Intelligence, and the National
Reconnaissance Office; and
(ii) any executive agency or unit
thereof determined by the President
under section 2302(a)(2)(C)(ii) 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), to the
head of the employing agency (or an employee designated by the
head of that agency for such purpose), or to a supervisor in
the chain of authority of such employee who is authorized to
access such information which the employee reasonably believes
evidences--
(1) a violation of any law, rule, or regulation,
except for an alleged violation that occurs during the
conscientious carrying out of official duties; or
(2) mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to
public health or safety.
(c) Enforcement.--The President shall provide for the
enforcement of this section in a manner consistent with
applicable provisions of sections 1214 and 1221.
(d) Existing Rights Preserved.--Nothing in this section shall
be construed to--
(1) preempt or preclude any employee, or applicant
for employment, at the Federal Bureau of Investigation
from exercising rights currently provided under any
other law, rule, or regulation, including section 2303;
(2) repeal section 2303; or
(3) provide the President or Director of National
Intelligence the authority to revise regulations
related to section 2303, codified in part 27 of the
Code of Federal Regulations.
Sec. 2304. Prohibited personnel practices affecting the Transportation
Security Administration
(a) In General.--Notwithstanding any other provision of law,
any individual holding or applying for a position within the
Transportation Security Administration shall be covered by--
(1) the provisions of paragraph (1), (8), or (9) of
section 2302(b);
(2) any provision of law implementing paragraph (1),
(8), or (9) of section 2302(b) by making any right or
remedy available to an employee or applicant for
employment in the civil service; and
(3) any rule or regulation prescribed under any
provision of law referred to in paragraph (1) or (2).
(b) Rule of Construction.--Nothing in this section shall be
construed to affect any rights, apart from those described in
subsection (a), to which an individual described in subsection
(a) might otherwise be entitled under law.
Sec. [2304.] 2305. Responsibility of the Government Accountability
Office
If requested by either House of the Congress (or any
committee thereof), or if considered necessary by the
Comptroller General, the Government Accountability Office shall
conduct audits and reviews to assure compliance with the laws,
rules, and regulations governing employment in the executive
branch and in the competitive service and to assess the
effectiveness and soundness of Federal personnel management.
Sec. [2305.] 2306. Coordination with certain other provisions of law
No provision of this chapter, or action taken under this
chapter, shall be construed to impair the authorities and
responsibilities set forth in section 102 of the National
Security Act of 1947 (61 Stat. 495; 50 U.S.C. 403), the Central
Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a
and following), the Act entitled ``An Act to provide certain
administrative authorities for the National Security Agency,
and for other purposes'', approved May 29, 1959 (73 Stat. 63;
50 U.S.C. 402 note), and the Act entitled ``An Act to amend the
Internal Security Act of 1950'', approved March 26, 1964 (78
Stat. 168; 50 U.S.C. 831-835).
* * * * * * *
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
* * * * * * *
CHAPTER 77--APPEALS
* * * * * * *
Sec. 7703. Judicial review of decisions of the Merit Systems Protection
Board
(a) * * *
[(b)(1) Except as provided in paragraph (2) of this
subsection,] (b)(1)(A) Except as provided in subparagraph (B)
or paragraph (2), a petition to review a final order or final
decision of the Board shall be filed in the United States Court
of Appeals for the Federal Circuit. Notwithstanding any other
provision of law, any petition for review must be filed within
60 days after the date the petitioner received notice of the
final order or decision of the Board.
(B) 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 subparagraph (A)(i), (B), (C), or (D) of section
2302(b)(9) shall be filed in the United States Court of Appeals
for the District of Columbia Circuit. Notwithstanding any other
provision of law, any petition for review under this
subparagraph must be filed within 60 days after the date the
petitioner received notice of the final order or decision of
the Board.
* * * * * * *
(d) The Director of the Office of Personnel Management may
obtain review of any final order or decision of the Board by
filing, within 60 days after the date the Director received
notice of the final order or decision of the Board, a petition
for judicial review in the United States Court of Appeals for
the Federal Circuit or the United States Court of Appeals for
the District of Columbia Circuit if the Director determines, in
his discretion, that the Board erred in interpreting a civil
service law, rule, or regulation affecting personnel management
and that the Board's decision will have a substantial impact on
a civil service law, rule, regulation, or policy directive. If
the Director did not intervene in a matter before the Board,
the Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such petition
is denied. In addition to the named respondent, the Board and
all other parties to the proceedings before the Board shall
have the right to appear in the proceeding before the Court of
Appeals. The granting of the petition for judicial review shall
be at the discretion of the Court of Appeals.
* * * * * * *
----------
HOMELAND SECURITY ACT OF 2002
* * * * * * *
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
* * * * * * *
Subtitle B--Critical Infrastructure Information
* * * * * * *
SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE
INFORMATION.
(a) * * *
* * * * * * *
(c) Independently Obtained Information.--Nothing in this
section shall be construed to limit or otherwise affect the
ability of a State, local, or Federal Government entity,
agency, or authority, or any third party, under applicable law,
to obtain critical infrastructure information in a manner not
covered by subsection (a), including any information lawfully
and properly disclosed generally or broadly to the public and
to use such information in any manner permitted by law. For
purposes of this section, a permissible use of independently
obtained information includes the disclosure of such
information under section 2302(b)(8) of title 5, United States
Code.
* * * * * * *
----------
INSPECTOR GENERAL ACT OF 1978
* * * * * * *
APPOINTMENT AND REMOVAL OF OFFICERS
Sec. 3. (a) * * *
* * * * * * *
[(d) Each Inspector General shall, in accordance with
applicable laws and regulations governing the civil service--
[(1) appoint an Assistant Inspector General for
Auditing who shall have the responsibility for
supervising the performance of auditing activities
relating to programs and operations of the
establishment, and
[(2) appoint an Assistant Inspector General for
Investigations who shall have the responsibility for
supervising the performance of investigative activities
relating to such programs and operations.]
(d)(1) Each Inspector General shall, in accordance with
applicable laws and regulations governing the civil service--
(A) appoint an Assistant Inspector General for
Auditing, who shall have the responsibility for
supervising the performance of auditing activities
relating to programs and operations of the
establishment;
(B) appoint an Assistant Inspector General for
Investigations, who shall have the responsibility for
supervising the performance of investigative activities
relating to such programs and operations; and
(C) designate a Whistleblower Protection Ombudsman,
who shall educate agency employees--
(i) about prohibitions on retaliation for
protected disclosures; and
(ii) who have made or are contemplating
making a protected disclosure about the rights
and remedies against retaliation for protected
disclosures.
(2) The Whistleblower Protection Ombudsman shall not act as a
legal representative, agent, or advocate of the employee or
former employee.
(3) For the purposes of this section, the requirement of the
designation of a Whistleblower Protection Ombudsman under
paragraph (1)(C) shall not apply to--
(A) any agency that is an element of the intelligence
community (as defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4))); or
(B) as determined by the President, any executive
agency or unit thereof the principal function of which
is the conduct of foreign intelligence or counter
intelligence activities.
* * * * * * *
SPECIAL PROVISIONS CONCERNING THE DEPARTMENT OF THE TREASURY
Sec. 8D. (a) * * *
* * * * * * *
(j) An individual appointed to the position of Treasury
Inspector General for Tax Administration, the Assistant
Inspector General for Auditing of the Office of the Treasury
Inspector General for Tax Administration under [section
3(d)(1)] section 3(d)(1)(A), the Assistant Inspector General
for Investigations of the Office of the Treasury Inspector
General for Tax Administration under [section 3(d)(2)] section
3(d)(1)(B), or any position of Deputy Inspector General of the
Office of the Treasury Inspector General for Tax Administration
may not be an employee of the Internal Revenue Service--
(1) * * *
* * * * * * *
Sec. 8H. (a)(1)(A) * * *
* * * * * * *
(D) An employee of any agency, as that term is defined under
section 2302(a)(2)(C) of title 5, United States Code, who
intends to report to Congress a complaint or information with
respect to an urgent concern may report the complaint or
information to the Inspector General (or designee) of the
agency of which that employee is employed.
* * * * * * *
(b)(1) Not later than the end of the 14-calendar day period
beginning on the date of receipt of an employee complaint or
information under subsection (a), the Inspector General shall
determine whether the complaint or information appears
credible. Upon making such a determination, the Inspector
General shall transmit to the head of the establishment notice
of that determination, together with the complaint or
information.
(2) If the head of an establishment determines that a
complaint or information transmitted under paragraph (1) would
create a conflict of interest for the head of the
establishment, the head of the establishment shall return the
complaint or information to the Inspector General with that
determination and the Inspector General shall make the
transmission to the Director of National Intelligence. In such
a case, the requirements of this section for the head of the
establishment apply to the recipient of the Inspector General's
transmission. The Director of National Intelligence shall
consult with the members of the appellate review board
established under section 204 of the Platts-Van Hollen
Whistleblower Protection Enhancement Act of 2011 regarding all
transmissions under this paragraph.
(c) Upon receipt of a transmittal from the Inspector General
under subsection (b), the head of the establishment shall,
within 7 calendar days of such receipt, forward such
transmittal to the [intelligence committees] appropriate
committees, together with any comments the head of the
establishment considers appropriate.
(d)(1) If the Inspector General does not find credible under
subsection (b) a complaint or information submitted to the
Inspector General under subsection (a), or does not transmit
the complaint or information to the head of the establishment
in accurate form under subsection (b), the employee (subject to
paragraph (2)) may submit the complaint or information to
Congress by contacting [either or both of the intelligence
committees] any of the appropriate committees directly.
(2) The employee may contact the [intelligence committees]
appropriate committees directly as described in paragraph (1)
only if the employee--
(A) before making such a contact, furnishes to the
head of the establishment, through the Inspector
General, a statement of the employee's complaint or
information and notice of the employee's intent to
contact the [intelligence committees] appropriate
committees directly; and
(B) obtains and follows from the head of the
establishment, through the Inspector General, direction
on how to contact the [intelligence committees]
appropriate committees in accordance with appropriate
security practices.
(3) A member or employee of one of the [intelligence
committees] appropriate committees who receives a complaint or
information under paragraph (1) does so in that member or
employee's official capacity as a member or employee of that
committee.
* * * * * * *
(h) An individual who has submitted a complaint or
information to an Inspector General under this section may
notify any member of Congress or congressional staff member of
the fact that such individual has made a submission to that
particular Inspector General, and of the date on which such
submission was made.
[(h)] (i) In this section:
(1) The term ``urgent concern'' means any of the
following:
(A) A serious or flagrant problem, abuse,
violation of law or Executive order, or
deficiency relating to the funding,
administration, or operations of an
[intelligence] activity involving classified
information, but does not include differences
of opinions concerning public policy matters.
(B) A false statement to Congress, or a
willful withholding from Congress, on an issue
of material fact relating to the funding,
administration, or operation of an intelligence
activity or an activity involving classified
information.
* * * * * * *
[(2) The term ``intelligence committees'' means the
Permanent Select Committee on Intelligence of the House
of Representatives and the Select Committee on
Intelligence of the Senate.]
(2) The term ``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.
* * * * * * *
----------
CHAPTER 47 OF TITLE 41, UNITED STATES CODE
CHAPTER 47--MISCELLANEOUS
Sec.
4701. Determinations and decisions.
* * * * * * *
4705a. Pilot program for enhancement of protection of contractor
employees from reprisal for disclosure of certain information.
* * * * * * *
Sec. 4705. Protection of contractor employees from reprisal for
disclosure of certain information
(a) * * *
* * * * * * *
(f) Two-Year Suspension of Effectiveness While Pilot Program
in Effect.--While section 4705a of this title is in effect,
this section shall not be in effect.
Sec. 4705a. Pilot program for enhancement of protection of contractor
employees from reprisal for disclosure of certain
information
(a) Definitions.--In this section:
(1) Contract.--The term ``contract'' means a contract
awarded by the head of an executive agency.
(2) Contractor.--The term ``contractor'' means a
person awarded a contract or a grant with an executive
agency.
(3) Inspector general.--The term ``Inspector
General'' means an Inspector General appointed under
the Inspector General Act of 1978 (5 U.S.C. App.) and
any Inspector General that receives funding from, or
has oversight over contracts awarded for or on behalf
of, an executive agency.
(b) Prohibition of Reprisals.--An employee of a contractor
may not be discharged, demoted, or otherwise discriminated
against as a reprisal for disclosing to a Member of Congress, a
representative of a committee of Congress, an Inspector
General, the Government Accountability Office, an agency
employee responsible for contract oversight or management, an
authorized official of an executive agency or the Department of
Justice information that the employee reasonably believes is
evidence of gross mismanagement of a contract or grant, a gross
waste of agency funds, a substantial and specific danger to
public health or safety, or a violation of a law related to a
contract (including the competition for or negotiation of a
contract) or grant.
(c) Investigation of Complaints.--
(1) Investigation.--An individual who believes that
the individual has been subjected to a reprisal
prohibited by subsection (b) may submit a complaint to
the Inspector General of the executive agency. Unless
the Inspector General determines that the complaint is
frivolous, the Inspector General shall investigate the
complaint and, on completion of the investigation,
submit a report of the findings of the investigation to
the individual, the contractor concerned, and the head
of the agency. If the executive agency does not have an
Inspector General, the duties of the Inspector General
under this section shall be performed by an official
designated by the head of the executive agency.
(2) Deadline.--(A) Except as provided under
subparagraph (B), the Inspector General shall make a
determination that a complaint is frivolous or submit a
report under paragraph (1) within 180 days after
receiving the complaint.
(B) If the Inspector General is unable to complete an
investigation in time to submit a report within the
180-day period specified in subparagraph (A) and the
person submitting the complaint agrees to an extension
of time, the Inspector General shall submit a report
under paragraph (1) within such additional period of
time as shall be agreed upon between the Inspector
General and the person submitting the complaint.
(d) Remedy and Enforcement Authority.--
(1) Actions contractor may be ordered to take.--Not
later than 30 days after receiving an Inspector General
report pursuant to subsection (c), the head of the
agency concerned shall determine whether there is
sufficient basis to conclude that the contractor
concerned has subjected the complainant to a reprisal
prohibited by subsection (b) and shall either issue an
order denying relief or shall take one or more of the
following actions:
(A) Abatement.--Order the contractor to take
affirmative action to abate the reprisal.
(B) Reinstatement.--Order the contractor to
reinstate the individual to the position that
the individual held before the reprisal,
together with the compensation (including back
pay), employment benefits, and other terms and
conditions of employment that would apply to
the individual in that position if the reprisal
had not been taken.
(C) Payment.--Order the contractor to pay the
complainant an amount equal to the aggregate
amount of all costs and expenses (including
attorneys' fees and expert witnesses' fees)
that the complainant reasonably incurred for,
or in connection with, bringing the complaint
regarding the reprisal, as determined by the
head of the executive agency.
(2) De novo action.--If the head of an executive
agency issues an order denying relief under paragraph
(1) or has not issued an order within 210 days after
the submission of a complaint under subsection (c), or
in the case of an extension of time under paragraph
(c)(2)(B), not later than 30 days after the expiration
of the extension of time, and there is no showing that
such delay is due to the bad faith of the complainant,
the complainant shall be deemed to have exhausted all
administrative remedies with respect to the complaint,
and the complainant may bring a de novo action at law
or equity against the contractor to seek compensatory
damages and other relief available under this section
in the appropriate district court of the United States,
which shall have jurisdiction over such an action
without regard to the amount in controversy. Such an
action shall, at the request of either party to the
action, be tried by the court with a jury.
(3) Evidence.--An Inspector General determination and
an agency head order denying relief under paragraph (2)
shall be admissible in evidence in any de novo action
at law or equity brought pursuant to this subsection.
(4) Enforcement order.--When a contractor fails to
comply with an order issued under paragraph (1), the
head of the executive agency shall file an action for
enforcement of the order in the United States district
court for a district in which the reprisal was found to
have occurred. In an action brought under this
paragraph, the court may grant appropriate relief,
including injunctive relief and compensatory and
exemplary damages.
(5) Review of enforcement order.--A person adversely
affected or aggrieved by an order issued under
paragraph (1) may obtain review of the order's
conformance with this subsection, and regulations
issued to carry out this section, in the United States
court of appeals for a circuit in which the reprisal is
alleged in the order to have occurred. A petition
seeking review must be filed no more than 60 days after
the head of the agency issues the order. Review shall
conform to chapter 7 of title 5.
(e) Scope of Section.--This section does not--
(1) authorize the discharge of, demotion of, or
discrimination against an employee for a disclosure
other than a disclosure protected by subsection (b); or
(2) modify or derogate from a right or remedy
otherwise available to the employee.
(f) Duration of Section.--This section shall be in effect for
the two-year period beginning on the date of the enactment of
the Platts-Van Hollen Whistleblower Protection Enhancement Act
of 2011.
* * * * * * *
----------
INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
* * * * * * *
TITLE III--SECURITY CLEARANCES
SEC. 3001. SECURITY CLEARANCES.
(a) Definitions.--In this section:
(1) * * *
* * * * * * *
(9) The term ``access determination'' means the
process for determining whether an employee--
(A) is eligible for access to classified
information in accordance with Executive Order
12968 (60 Fed. Reg. 40245; relating to 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.
* * * * * * *
(i) Review of Security Clearance or Access Determinations.--
(1) In general.--Not later than 180 days after the
date of enactment of the Platts-Van Hollen
Whistleblower Protection Enhancement Act of 2011, the
head of the entity selected pursuant to subsection (b)
shall--
(A) develop policies and procedures that
permit, to the extent practicable, individuals
who challenge in good faith a determination to
suspend or revoke a security clearance or
access to classified information to retain
their government employment status while such
challenge is pending; and
(B) develop and implement 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.
(2) Limitation period.--Any limitation period
applicable to an agency appeal under paragraph (1)
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 (1) have
been established for the agency or the Director of
National Intelligence promulgates the policies and
procedures under paragraph (1). The policies and
procedures for appeals developed under paragraph (1)
shall be comparable to the policies and procedures
pertaining to prohibited personnel practices defined
under section 2302(b)(8) of title 5, United States
Code, and provide--
(A) for an independent and impartial fact-
finder;
(B) for notice and the opportunity to be
heard, including the opportunity to present
relevant evidence, including witness testimony;
(C) that the employee or former employee may
be represented by counsel;
(D) that the employee or former employee has
a right to a decision based on the record
developed during the appeal;
(E) that not more than 180 days shall pass
from the filing of the appeal to the report of
the impartial fact-finder to the agency head or
the designee of the agency head, unless--
(i) the employee and the agency
concerned agree to an extension; or
(ii) the impartial fact-finder
determines in writing that a greater
period of time is required in the
interest of fairness or national
security;
(F) for the use of information specifically
required by Executive order to be kept
classified in the interest of national defense
or the conduct of foreign affairs in a manner
consistent with the interests of national
security, including ex parte submissions if the
agency determines that the interests of
national security so warrant; and
(G) that the employee or former employee
shall have no right to compel the production of
information specifically required by Executive
order to be kept classified in the interest of
national defense or the conduct of foreign
affairs, except evidence necessary to establish
that the employee made the disclosure or
communication such employee alleges was
protected by subparagraphs (A), (B), and (C) of
subsection (j)(1).
(j) Retaliatory Revocation of Security Clearances and Access
Determinations.--
(1) In general.--Agency personnel with authority over
personnel security clearance or access determinations
shall not take or fail to take, or threaten to take or
fail to take, any action with respect to any employee's
security clearance or access determination because of--
(A) any disclosure of information to the
Director of National Intelligence (or an
employee designated by the Director of National
Intelligence for such purpose) or the head of
the employing agency (or employee designated by
the head of that agency for such purpose) by an
employee that the employee reasonably believes
evidences--
(i) a violation of any law, rule, or
regulation, and occurs during the
conscientious carrying out of official
duties; or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety;
(B) any disclosure to the Inspector General
of an agency or another employee designated by
the head of the agency to receive such
disclosures, of information which the employee
reasonably believes evidences--
(i) a violation of any law, rule, or
regulation, and occurs during the
conscientious carrying out of official
duties; or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety;
(C) any communication that complies with--
(i) subsection (a)(1), (d), or (h) of
section 8H of the Inspector General Act
of 1978 (5 U.S.C. App.);
(ii) subsection (d)(5) (A), (D), or
(G) of section 17 of the Central
Intelligence Agency Act of 1949 (50
U.S.C. 403q); or
(iii) subsection (k)(5) (A), (D), or
(G), of section 103H of the National
Security Act of 1947 (50 U.S.C. 403-
3h);
(D) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation;
(E) testifying for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in subparagraph (D); or
(F) cooperating with or disclosing
information to the Inspector General of an
agency, in accordance with applicable
provisions of law in connection with an audit,
inspection, or investigation conducted by the
Inspector General,
if the actions described under subparagraphs (D)
through (F) do not result in the employee or applicant
unlawfully disclosing information specifically required
by Executive order to be kept classified in the
interest of national defense or the conduct of foreign
affairs.
(2) Rule of construction.--Consistent with the
protection of sources and methods, nothing in paragraph
(1) shall be construed to authorize the withholding of
information from the Congress or the taking of any
personnel action against an employee who discloses
information to the Congress.
(3) Disclosures.--
(A) In general.--A disclosure shall not be
excluded from paragraph (1) because--
(i) the disclosure was made to a
person, including a supervisor, who
participated in an activity that the
employee reasonably believed to be
covered by paragraph (1)(A)(ii);
(ii) the disclosure revealed
information that had been previously
disclosed;
(iii) of the employee's motive for
making the disclosure;
(iv) the disclosure was not made in
writing;
(v) the disclosure was made while the
employee was off duty; or
(vi) of the amount of time which has
passed since the occurrence of the
events described in the disclosure.
(B) Reprisals.--If a disclosure is made
during the normal course of duties of an
employee, the disclosure shall not be excluded
from paragraph (1) if any employee who has
authority to take, direct others to take,
recommend, or approve any personnel action with
respect to the employee making the disclosure,
took, failed to take, or threatened to take or
fail to take a personnel action with respect to
that employee in reprisal for the disclosure.
(4) Agency adjudication.--
(A) Remedial procedure.--An employee or
former employee who believes that he or she has
been subjected to a reprisal prohibited by
paragraph (1) of this subsection may, within 90
days after the issuance of notice of such
decision, appeal that decision within the
agency of that employee or former employee
through proceedings authorized by paragraph (7)
of subsection (a), except that there shall be
no appeal of an agency's suspension of a
security clearance or access determination for
purposes of conducting an investigation, if
that suspension lasts not longer than 1 year
(or a longer period in accordance with a
certification made under subsection (b)(7)).
(B) Corrective action.--If, in the course of
proceedings authorized under subparagraph (A),
it is determined that the adverse security
clearance or access determination violated
paragraph (1) of this subsection, the agency
shall take specific corrective action to return
the employee or former employee, as nearly as
practicable and reasonable, to the position
such employee or former employee would have
held had the violation not occurred. Such
corrective action shall include reasonable
attorney's fees and any other reasonable costs
incurred, and may include compensatory damages
not to exceed $300,000, back pay and related
benefits, and travel expenses.
(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 clear and convincing 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 Platts-Van
Hollen Whistleblower Protection Enhancement Act
of 2011.
(B) Appeal.--Within 60 days after receiving
notice of an adverse final agency determination
under a proceeding under paragraph (4), an
employee or former employee may appeal that
determination to the Board.
(C) Policies and procedures.--The Board, in
consultation with the Attorney General,
Director of National Intelligence, and the
Secretary of Defense, shall develop and
implement policies and procedures for
adjudicating the appeals authorized by
subparagraph (B). The Director of National
Intelligence and Secretary of Defense shall
jointly approve any rules, regulations, or
guidance issued by the Board concerning the
procedures for the use or handling of
classified information.
(D) Review.--The Board's review shall be on
the complete agency record, which shall be made
available to the Board. The Board may not hear
witnesses or admit additional evidence. Any
portions of the record that were submitted ex
parte during the agency proceedings shall be
submitted ex parte to the Board.
(E) Further fact-finding or improper
denial.--If the Board concludes that further
fact-finding is necessary or finds that the
agency improperly denied the employee or former
employee the opportunity to present evidence
that, if admitted, would have a substantial
likelihood of altering the outcome, the Board
shall remand the matter to the agency from
which it originated for additional proceedings
in accordance with the rules of procedure
issued by the Board.
(F) De novo determination.--The Board shall
make a de novo determination, based on the
entire record and under the standards specified
in paragraph (4), of whether the employee or
former employee received an adverse security
clearance or access determination in violation
of paragraph (1). In considering the record,
the Board may weigh the evidence, judge the
credibility of witnesses, and determine
controverted questions of fact. In doing so,
the Board may consider the prior fact-finder's
opportunity to see and hear the witnesses.
(G) Adverse security clearance or access
determination.--If the Board finds that the
adverse security clearance or access
determination violated paragraph (1), it shall
then separately determine whether reinstating
the security clearance or access determination
is clearly consistent with the interests of
national security, with any doubt resolved in
favor of national security, under Executive
Order 12968 (60 Fed. Reg. 40245; relating to
access to classified information) or any
successor thereto (including any adjudicative
guidelines promulgated under such orders) or
any subsequent Executive order, regulation, or
policy concerning access to classified
information.
(H) Remedies.--
(i) Corrective action.--If the Board
finds that the adverse security
clearance or access determination
violated paragraph (1), it shall order
the agency head to take specific
corrective action to return the
employee or former employee, as nearly
as practicable and reasonable, to the
position such employee or former
employee would have held had the
violation not occurred. Such corrective
action shall include reasonable
attorney's fees and any other
reasonable costs incurred, and may
include compensatory damages not to
exceed $300,000 and back pay and
related benefits. 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 Platts-Van
Hollen Whistleblower Protection Enhancement Act
of 2011.
(7) Private cause of action.--Nothing in this section
shall be construed to permit, authorize, or require a
private cause of action to challenge the merits of a
security clearance determination.
[(i)] (k) Authorization of Appropriations.--There is
authorized to be appropriated such sums as may be necessary for
fiscal year 2005 and each fiscal year thereafter for the
implementation, maintenance, and operation of the database
required by subsection (e).
* * * * * * *
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CENTRAL INTELLIGENCE AGENCY ACT OF 1949
* * * * * * *
SEC. 17. INSPECTOR GENERAL FOR THE AGENCY.
(a) * * *
* * * * * * *
(d) Semiannual Reports; Immediate Reports of Serious or
Flagrant Problems; Reports of Functional Problems; Reports to
Congress on Urgent Concerns.--(1) * * *
* * * * * * *
(5)(A) * * *
(B)(i) Not later than the end of the 14-calendar day period
beginning on the date of receipt from an employee of a
complaint or information under subparagraph (A), the Inspector
General shall determine whether the complaint or information
appears credible. Upon making such a determination, the
Inspector General shall transmit to the Director notice of that
determination, together with the complaint or information.
(ii) If the Director determines that a complaint or
information transmitted under paragraph (1) would create a
conflict of interest for the Director, the Director shall
return the complaint or information to the Inspector General
with that determination and the Inspector General shall make
the transmission to the Director of National Intelligence. In
such a case the requirements of this subsection for the
Director apply to the recipient of the Inspector General's
submission.
* * * * * * *
(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.
* * * * * * *
ADDITIONAL VIEWS
The Whistleblower Protection Enhancement Act would help
reduce waste, fraud, and abuse by significantly expanding the
protections available to government whistleblowers.
Whistleblowers play a critical role in exposing wrongdoing
within the government. This bill responds to decisions by the
U.S. Court of Appeals for the Federal Circuit that have limited
when whistleblower disclosures are protected. The bill would
establish a pilot program to afford whistleblower protections
to civilian contractor employees, which would increase the
accountability of federal contractors by protecting contract
employees who expose fraud and other wrongdoing.
Unfortunately, the Committee failed to adopt the amendment
offered by Representative Braley that would have provided
whistleblowers with the right to request a jury trial.
Providing whistleblowers with a jury trial would provide a
check on the Merit System Protection Board and would bring the
Whistleblower Protection Act in line with other whistleblower
and discrimination laws.
Elijah E. Cummings.
