← Back to Bill Feed
FederalIn Committee
Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011
Introduced Nov 1, 2011 · Last action Oct 1, 2012 — Committee on Intelligence (Permanent) discharged.
Track this bill
Save bills and get alerts when status changes.
Sign in to saved bills.
Summary
This legislation is called the Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011. Committee on Intelligence (Permanent) discharged.
Full bill text
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3289 Introduced in House (IH)]
112th CONGRESS
1st Session
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 1, 2011
Mr. Issa (for himself, Mr. Cummings, Mr. Platts, and Mr. Van Hollen)
introduced the following bill; which was referred to the Committee on
Oversight and Government Reform, and in addition to the Select
Committee on Intelligence (Permanent Select) and Homeland Security, for
a period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Whistleblower
Protection Enhancement Act of 2011''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
Sec. 101. Clarification of disclosures covered.
Sec. 102. Disclosure defined.
Sec. 103. Rebuttable presumption.
Sec. 104. Personnel actions and prohibited personnel practices.
Sec. 105. Exclusion of agencies by the President.
Sec. 106. Disciplinary action.
Sec. 107. Remedies.
Sec. 108. Judicial review.
Sec. 109. Prohibited personnel practices affecting the Transportation
Security Administration.
Sec. 110. Disclosure of censorship related to research, analysis, or
technical information.
Sec. 111. Clarification of whistleblower rights for critical
infrastructure information.
Sec. 112. Advising employees of rights.
Sec. 113. Special Counsel amicus curiae appearance.
Sec. 114. Scope of due process.
Sec. 115. Nondisclosure policies, forms, and agreements.
Sec. 116. Reporting requirements.
Sec. 117. Alternative review.
Sec. 118. Merit Systems Protection Board summary judgment.
Sec. 119. Disclosures of classified information.
Sec. 120. Whistleblower protection ombudsman.
Sec. 121. Pilot program for enhancement of contractor employee
whistleblower protections.
TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS
Sec. 201. Protection of intelligence community whistleblowers.
Sec. 202. Review of security clearance or access determinations.
Sec. 203. Revisions relating to the Intelligence Community
Whistleblower Protection Act.
Sec. 204. Regulations; reporting requirements; nonapplicability to
certain terminations.
TITLE III--EFFECTIVE DATE; SAVINGS PROVISION
Sec. 301. Effective date.
Sec. 302. Savings provision.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.
(a) In General.--Section 2302(b)(8) of title 5, United States Code,
is amended--
(1) in subparagraph (A)(i), by striking ``a violation'' and
inserting ``any violation''; and
(2) in subparagraph (B)(i)--
(A) by striking ``a violation'' and inserting ``any
violation''; and
(B) by striking ``regulation,'' and inserting
``regulation (other than this section or any rule or
regulation prescribed under this section)''.
(b) Prohibited Personnel Practices Under Section 2302(b)(9).--
(1) Technical and conforming amendments.--Title 5, United
States Code, is amended--
(A) in subsections (a)(3), (b)(4)(A), and
(b)(4)(B)(i) of section 1214 and subsections (a),
(e)(1), and (i) of section 1221, by inserting ``or
subparagraph (A)(i), (B), (C), or (D) of section
2302(b)(9)'' after ``section 2302(b)(8)'' each place it
appears; and
(B) in section 2302(a)(2)(C)(i), by inserting ``or
subsection (b)(9) (other than subparagraph (A)(ii)
thereof)'' after ``(b)(8)''.
(2) Other references.--(A) Title 5, United States Code, is
amended, in sections 1214(b)(4)(B)(i) and 1221(e), by inserting
``or protected activity'' after ``disclosure'' each place it
appears.
(B) Subparagraph (A) of section 2302(b)(9) of title 5,
United States Code, is amended to read as follows:
``(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);''.
(C) Section 2302 of title 5, United States Code, is amended
by adding at the end the following:
``(f)(1) A disclosure shall not be excluded from subsection (b)(8)
because--
``(A) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
or applicant reasonably believed to be covered by subsection
(b)(8)(A)(ii);
``(B) the disclosure revealed information that had been
previously disclosed;
``(C) of the employee's or applicant's motive for making
the disclosure;
``(D) the disclosure was not made in writing;
``(E) the disclosure was made while the employee was off
duty; or
``(F) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(2) If a disclosure is made during the normal course of duties of
an employee, the disclosure shall not be excluded from subsection
(b)(8) if any employee who has authority to take, direct others to
take, recommend, or approve any personnel action with respect to the
employee making the disclosure, took, failed to take, or threatened to
take or fail to take a personnel action with respect to that employee
in reprisal for the disclosure.''.
SEC. 102. DISCLOSURE DEFINED.
Section 2302(a)(2) of title 5, United States Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority, unless the employee or applicant
providing the disclosure reasonably believes that the
disclosure evidences--
``(i) any violation of any law, rule, or
regulation, and occurs during the conscientious
carrying out of official duties; or
``(ii) gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific
danger to public health or safety.''.
SEC. 103. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended by
amending the matter following paragraph (12) to read as follows:
``This subsection shall not be construed to authorize the withholding
of information from Congress or the taking of any personnel action
against an employee who discloses information to Congress. For purposes
of paragraph (8), 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.''.
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL PRACTICES.
(a) Personnel Action.--Section 2302(a)(2)(A) of title 5, United
States Code, is amended--
(1) in clause (x), by striking ``and'' after the semicolon;
(2) by redesignating clause (xi) as clause (xii); and
(3) by inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement that does not
contain the statement required under subsection
(b)(13); and''.
(b) Prohibited Personnel Practice.--
(1) In general.--Section 2302(b) of title 5, United States
Code, is amended--
(A) in paragraph (11), by striking ``or'' at the
end;
(B) in paragraph (12), by striking the period and
inserting ``; or''; and
(C) by inserting after paragraph (12) the
following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by Executive Order 13526 (75 Fed. Reg. 707,
relating to classified national security information), or any
successor thereto; Executive Order 12968 (60 Fed. Reg. 40245,
relating to access to classified information), or any successor
thereto; section 7211 (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.'.''.
(2) Nondisclosure policy, form, or agreement in effect
before the date of enactment.--A nondisclosure policy, form, or
agreement that was in effect before the effective date of this
Act, but that does not contain the statement required under
section 2302(b)(13) of title 5, United States Code (as added by
paragraph (1)(C)) for implementation or enforcement--
(A) may be enforced with regard to a current
employee if the employing agency gives such employee
notice of the statement before the employee makes the
disclosure with respect to which the enforcement
relates; and
(B) may continue to be enforced after the effective
date of this Act with regard to a former employee if
the agency posts notice of the statement on the agency
website for the 1-year period following that effective
date, except that such notice shall not be required as
a condition for continued enforcement if the condition
under subparagraph (A) has been satisfied with respect
to such former employee.
(c) Retaliatory Investigations.--
(1) Agency investigation.--Section 1214 of title 5, United
States Code, is amended by adding at the end the following:
``(h) Any corrective action ordered under this section to correct a
prohibited personnel practice may include fees, costs, or damages
reasonably incurred due to an agency investigation of the employee, if
such investigation was commenced, expanded, or extended in retaliation
for the disclosure or protected activity that formed the basis of the
corrective action.''.
(2) Damages.--Section 1221(g) of title 5, United States
Code, is amended by adding at the end the following:
``(4) Any corrective action ordered under this section to correct a
prohibited personnel practice may include fees, costs, or damages
reasonably incurred due to an agency investigation of the employee, if
such investigation was commenced, expanded, or extended in retaliation
for the disclosure or protected activity that formed the basis of the
corrective action.''.
SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.
Section 2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of
Investigation, the Central Intelligence Agency,
the Defense Intelligence Agency, the National
Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of
National Intelligence, and the National
Reconnaissance Office; and
``(II) as determined by the President, any
Executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
provided that the determination be made prior
to the personnel action involved; or''.
SEC. 106. DISCIPLINARY ACTION.
Section 1215(a)(3) of title 5, United States Code, is amended to
read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not to
exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause (ii).
``(B) In any case brought under paragraph (1) in which the Board
finds that an employee has committed a prohibited personnel practice
under section 2302(b)(8), or 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.''.
SEC. 107. REMEDIES.
(a) Attorney Fees.--Section 1204(m)(1) of title 5, United States
Code, is amended by striking ``agency involved'' and inserting ``agency
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''.
(b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 5,
United States Code, are amended by striking all after ``travel
expenses,'' and inserting ``any other reasonable and foreseeable
consequential damages, and compensatory damages (including interest,
reasonable expert witness fees, and costs).'' each place it appears.
SEC. 108. JUDICIAL REVIEW.
(a) In General.--Section 7703(b)(1) of title 5, United States Code,
is amended--
(1) by striking ``(b)(1) Except as provided in paragraph
(2) of this subsection,'' and inserting ``(b)(1)(A) Except as
provided in subparagraph (B) or paragraph (2),''; and
(2) by adding at the end the following:
``(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.''.
(b) Review Obtained by Office of Personnel Management.--Section
7703(d) of title 5, United States Code, is amended by inserting ``or
the United States Court of Appeals for the District of Columbia
Circuit'' after ``the United States Court of Appeals for the Federal
Circuit''.
(c) Effective Date.--The amendments made by this section shall
apply with respect to any final order or decision rendered on or after
the effective date of this Act.
SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION
SECURITY ADMINISTRATION.
(a) In General.--Chapter 23 of title 5, United States Code, is
amended--
(1) by redesignating sections 2304 and 2305 as sections
2305 and 2306, respectively; and
(2) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of law, any
individual holding or applying for a position within the Transportation
Security Administration shall be covered by--
``(1) the provisions of 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.''.
(b) Clerical Amendment.--The table of sections for chapter 23 of
title 5, United States Code, is amended by striking the items relating
to sections 2304 and 2305, respectively, and inserting the following:
``2304. Prohibited personnel practices affecting the Transportation
Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date of enactment of this Act.
SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR
TECHNICAL INFORMATION.
(a) Definitions.--In this subsection--
(1) the term ``agency'' has the meaning given such term
under section 2302(a)(2)(C) of title 5, United States Code;
(2) the term ``applicant'' means an applicant for a covered
position;
(3) the term ``censorship related to research, analysis, or
technical information'' means any effort to distort,
misrepresent, or suppress research, analysis, or technical
information;
(4) the term ``covered position'' has the meaning given
such term under section 2302(a)(2)(B) of title 5, United States
Code;
(5) the term ``employee'' means an employee in a covered
position in an agency; and
(6) the term ``disclosure'' has the meaning given such term
under section 2302(a)(2)(D) of title 5, United States Code (as
amended by section 102(3)).
(b) Protected Disclosure.--
(1) In general.--Any disclosure of information by an
employee or applicant for employment that the employee or
applicant reasonably believes is evidence of censorship related
to research, analysis, or technical information--
(A) shall come within the protections of section
2302(b)(8)(A) of title 5, United States Code, if--
(i) the employee or applicant reasonably
believes that such censorship is or will
cause--
(I) any violation of law, rule, or
regulation, and occurs during the
conscientious carrying out of official
duties; or
(II) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; and
(ii) such disclosure is not specifically
prohibited by law or such information is not
specifically required by Executive order to be
kept classified in the interest of national
defense or the conduct of foreign affairs; and
(B) shall come within the protections of section
2302(b)(8)(B) of title 5, United States Code, if--
(i) the employee or applicant reasonably
believes that such censorship is or will
cause--
(I) any violation of law, rule, or
regulation, and occurs during the
conscientious carrying out of official
duties; or
(II) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; and
(ii) the disclosure is made to the Special
Counsel, or to the Inspector General of an
agency or another person designated by the head
of the agency to receive such disclosures,
consistent with the protection of sources and
methods.
(2) Disclosures not excluded.--A disclosure shall not be
excluded from paragraph (1) for any reason described under
paragraph (1) or (2) of section 2302(f) of title 5, United
States Code (as amended by section 101(b)(2)(C)).
(3) Rule of construction.--Nothing in this section shall be
construed to imply any limitation on the protections of
employees and applicants afforded by any other provision of
law, including protections with respect to any disclosure of
information believed to be evidence of censorship related to
research, analysis, or technical information.
SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL
INFRASTRUCTURE INFORMATION.
Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C.
133(c)) is amended by adding at the end the following: ``For purposes
of this section, a permissible use of independently obtained
information includes the disclosure of such information under section
2302(b)(8) of title 5, United States Code.''.
SEC. 112. ADVISING EMPLOYEES OF RIGHTS.
Section 2302(c) of title 5, United States Code, is amended by
inserting ``, including how to make a lawful disclosure of information
that is specifically required by law or Executive order to be kept
classified in the interest of national defense or the conduct of
foreign affairs to the Special Counsel, the Inspector General of an
agency, Congress, or other agency employee designated to receive such a
disclosure'' after ``chapter 12 of this title''.
SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.
Section 1212 of title 5, United States Code, is amended by adding
at the end the following:
``(h)(1) The Special Counsel 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. 114. SCOPE OF DUE PROCESS.
(a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5, United
States Code, is amended by inserting ``, after a finding by the Board
that a protected disclosure was a contributing factor,'' after
``ordered if''.
(b) Individual Action.--Section 1221(e)(2) of title 5, United
States Code, is amended by inserting ``, after a finding that a
protected disclosure was a contributing factor,'' after ``ordered if''.
SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.
(a) In General.--
(1) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These restrictions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
Executive Order 13526 (75 Fed. Reg. 707, relating to classified
national security information), or any successor thereto;
Executive Order 12968 (60 Fed. Reg. 40245, relating to access
to classified information), or any successor thereto; section
7211 of title 5, United States Code (governing disclosures to
Congress); section 1034 of title 10, United States Code
(governing disclosure to Congress by members of the military);
section 2302(b)(8) of title 5, United States Code (governing
disclosures of illegality, waste, fraud, abuse, or public
health or safety threats); the Intelligence Identities
Protection Act of 1982 (50 U.S.C. 421 et seq., governing
disclosures that could expose confidential Government agents);
and the statutes which protect against disclosure that may
compromise the national security, including sections 641, 793,
794, 798, and 952 of title 18, United States Code, and section
4(b) of the Subversive Activities Act of 1950 (50 U.S.C.
783(b)). The definitions, requirements, obligations, rights,
sanctions, and liabilities created by such Executive orders and
such statutory provisions are incorporated into this agreement
and are controlling.''.
(2) Enforceability.--
(A) In general.--Any nondisclosure policy, form, or
agreement described under paragraph (1) that does not
contain the statement required under paragraph (1) may
not be implemented or enforced to the extent such
policy, form, or agreement is inconsistent with that
statement.
(B) Nondisclosure policy, form, or agreement in
effect before the date of enactment.--A nondisclosure
policy, form, or agreement that was in effect before
the date of enactment of this Act, but that does not
contain the statement required under paragraph (1)--
(i) may be enforced with regard to a
current employee if the agency gives such
employee notice of the statement; and
(ii) may continue to be enforced after the
effective date of this Act with regard to a
former employee if the agency posts notice of
the statement on the agency website for the 1-
year period following that effective date,
except that such notice shall not be required
as a condition for continued enforcement if the
condition under clause (i) has been satisfied
with respect to such former employee.
(b) Persons Other Than Government Employees.--Notwithstanding
subsection (a), a nondisclosure policy, form, or agreement that is to
be executed by a person connected with the conduct of an intelligence
or intelligence-related activity, other than an employee or officer of
the United States Government, may contain provisions appropriate to the
particular activity for which such document is to be used. Such policy,
form, or agreement shall, at a minimum, require that the person will
not disclose any classified information received in the course of such
activity unless specifically authorized to do so by the United States
Government. Such nondisclosure policy, form, or agreement shall also
make it clear that such forms do not bar disclosures to Congress or to
an authorized official of an Executive agency or the Department of
Justice to report a substantial violation of law, consistent with the
protection of sources and methods, pursuant to the requirements of
section 2302(b)(8) of title 5, United States Code.
SEC. 116. REPORTING REQUIREMENTS.
(a) Government Accountability Office.--
(1) Report.--Not later than 40 months after the date of
enactment of this Act, the Comptroller General shall submit a
report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives on the
implementation of this title.
(2) Contents.--The report under this subsection shall
include--
(A) an analysis of any changes in the number of
cases filed with the Merit Systems Protection Board
alleging violations of paragraph (8) or (9) of section
2302(b) of title 5, United States Code, since the
effective date of this Act;
(B) the outcome of the cases described under
subparagraph (A), including whether or not the Merit
Systems Protection Board, the Federal Circuit Court of
Appeals, or any other court determined the allegations
to be frivolous or malicious;
(C) an analysis of the outcome of cases described
under subparagraph (A) that were decided by the United
States Court of Appeals for the District of Columbia
Circuit and the impact the process has on the Merit
Systems Protection Board and the Federal court system;
and
(D) any other matter as determined by the
Comptroller General.
(b) Merit Systems Protection Board.--
(1) In general.--Each report submitted by the Merit Systems
Protection Board under section 1116 of title 31, United States
Code, shall, with respect to the period covered by such report,
include as an addendum the following:
(A) Information relating to the outcome of cases
decided during the applicable year of the report in
which violations of section 2302(b)(8) or subparagraph
(A)(i), (B)(i), (C), or (D) of section 2302(b)(9) of
title 5, United States Code, were alleged.
(B) The number of such cases filed in the regional
and field offices, the number of petitions for review
filed in such cases, and the outcomes of such cases.
(2) First report.--The first report described under
paragraph (1) submitted after the date of enactment of this Act
shall include an addendum required under that paragraph that
covers the period beginning on the first day of the calendar
year in which occurs the date of enactment of this Act and
ending on the last day of the fiscal year in which such date of
enactment occurs.
SEC. 117. ALTERNATIVE REVIEW.
Section 1221 of title 5, United States Code, is amended by adding
at the end the following:
``(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.''.
SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY JUDGMENT.
Section 1204(b) of title 5, United States Code, is amended--
(1) by redesignating paragraph (3) as paragraph (4);
(2) by inserting after paragraph (2) the following:
``(3) With respect to a request for corrective action based on an
alleged prohibited personnel practice described in section 2302(b)(8)
or 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<SUP>TM</SUP>, or any employee of the
Board designated by the Board may, with respect to any party, grant a
motion for summary judgment.''.
SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION.
(a) Prohibited Personnel Practices.--Section 2302(b)(8) of title 5,
United States Code, is amended--
(1) in subparagraph (A), by striking ``or'' after the
semicolon;
(2) in subparagraph (B), by adding ``or'' after the
semicolon; and
(3) by adding at the end the following:
``(C) any communication that complies with
subsection (a)(1), (d), and (h) of section 8H of the
Inspector General Act of 1978 (5 U.S.C. App.);''.
(b) Inspector General Act of 1978.--Section 8H of the Inspector
General Act of 1978 (5 U.S.C. App.) is amended--
(1) in subsection (a)(1), by adding at the end the
following:
``(D) An employee of any agency, as that term is defined under
section 2302(a)(2)(C) of title 5, United States Code, who intends to
report to Congress a complaint or information with respect to an urgent
concern may report the complaint or information to the Inspector
General (or designee) of the agency of which that employee is
employed.'';
(2) in subsection (c), by striking ``intelligence
committees'' and inserting ``appropriate committees'';
(3) in subsection (d)--
(A) in paragraph (1), by striking ``either or both
of the intelligence committees'' and inserting ``any of
the appropriate committees''; and
(B) in paragraphs (2) and (3), by striking
``intelligence committees'' each place it appears and
inserting ``appropriate committees''; and
(4) in subsection (h)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking
``intelligence''; and
(ii) in subparagraph (B), by inserting ``or
an activity involving classified information''
after ``an intelligence activity''; and
(B) by striking paragraph (2) and inserting the
following:
``(2) The term `appropriate committees' means the Permanent
Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the
Senate, except that, with respect to disclosures made by
employees described in subsection (a)(1)(D), the term
`appropriate committees' means the committees of appropriate
jurisdiction.''.
SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN.
(a) In General.--Section 3 of the Inspector General Act of 1978 (5
U.S.C. App.) is amended by striking subsection (d) and inserting the
following:
``(d)(1) Each Inspector General shall, in accordance with
applicable laws and regulations governing the civil service--
``(A) appoint an Assistant Inspector General for Auditing,
who shall have the responsibility for supervising the
performance of auditing activities relating to programs and
operations of the establishment;
``(B) appoint an Assistant Inspector General for
Investigations, who shall have the responsibility for
supervising the performance of investigative activities
relating to such programs and operations; and
``(C) designate a Whistleblower Protection Ombudsman, who
shall educate agency employees--
``(i) about prohibitions on retaliation for
protected disclosures; and
``(ii) who have made or are contemplating making a
protected disclosure about the rights and remedies
against retaliation for protected disclosures.
``(2) The Whistleblower Protection Ombudsman shall not act as a
legal representative, agent, or advocate of the employee or former
employee.
``(3) For the purposes of this section, the requirement of the
designation of a Whistleblower Protection Ombudsman under paragraph
(1)(C) shall not apply to--
``(A) any agency that is an element of the intelligence
community (as defined in section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4))); or
``(B) as determined by the President, any executive agency
or unit thereof the principal function of which is the conduct
of foreign intelligence or counter intelligence activities.''.
(b) Technical and Conforming Amendment.--Section 8D(j) of the
Inspector General Act of 1978 (5 U.S.C. App.) is amended--
(1) by striking ``section 3(d)(1)'' and inserting ``section
3(d)(1)(A)''; and
(2) by striking ``section 3(d)(2)'' and inserting ``section
3(d)(1)(B)''.
SEC. 121. PILOT PROGRAM FOR ENHANCEMENT OF CONTRACTOR EMPLOYEE
WHISTLEBLOWER PROTECTIONS.
(a) Pilot Program.--
(1) In general.--Chapter 47 of title 41, United States
Code, is amended by inserting after section 4705 the following
new section:
``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
Whistleblower Protection Enhancement Act of 2011.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 47 of title 41, United States Code, is
amended by inserting after the item relating to section 4705
the following new item:
``4705a. Pilot program for enhancement of protection of contractor
employees from reprisal for disclosure of
certain information.''.
(b) Suspension of Effectiveness of Section 4705 While Pilot Program
in Effect.--Section 4705 of title 41, United States Code, is amended by
adding at the end the following new subsection:
``(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.''.
(c) Government Accountability Office Study and Report.--
(1) Study.--Not later than one year after the date of the
enactment of this Act, the Comptroller General shall begin
conducting a study to evaluate the implementation of section
4705a of title 41, United States Code, as added by subsection
(a).
(2) Report.--Not later than 18 months after the date of the
enactment of this Act, the Comptroller General shall submit to
Congress a report on the results of the study required by
paragraph (1), with such findings and recommendations as the
Comptroller General considers appropriate.
TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS
SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY WHISTLEBLOWERS.
(a) In General.--Chapter 23 of title 5, United States Code, is
amended by inserting after section 2303 the following:
``Sec. 2303a. Prohibited personnel practices in the intelligence
community
``(a) Definitions.--In this section--
``(1) the term `agency' means an executive department or
independent establishment, as defined under sections 101 and
104, that contains an intelligence community element, except
the Federal Bureau of Investigation;
``(2) the term `intelligence community element'--
``(A) means--
``(i) the Central Intelligence Agency, the
Defense Intelligence Agency, the National
Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of
National Intelligence, and the National
Reconnaissance Office; and
``(ii) any executive agency or unit thereof
determined by the President under section
2302(a)(2)(C)(ii) of title 5, United States
Code, to have as its principal function the
conduct of foreign intelligence or
counterintelligence activities; and
``(B) does not include the Federal Bureau of
Investigation; and
``(3) the term `personnel action' means any action
described in clauses (i) through (x) of section 2302(a)(2)(A)
with respect to an employee in a position in an intelligence
community element (other than a position of a confidential,
policy-determining, policymaking, or policy-advocating
character).
``(b) In General.--Any employee of an agency who has authority to
take, direct others to take, recommend, or approve any personnel
action, shall not, with respect to such authority, take or fail to take
a personnel action with respect to any employee of an intelligence
community element as a reprisal for a disclosure of information by the
employee to the Director of National Intelligence (or an employee
designated by the Director of National Intelligence for such purpose),
or to the head of the employing agency (or an employee designated by
the head of that agency for such purpose), which the employee
reasonably believes evidences--
``(1) a violation of any law, rule, or regulation, except
for an alleged violation that occurs during the conscientious
carrying out of official duties; or
``(2) mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety.
``(c) Enforcement.--The President shall provide for the enforcement
of this section in a manner consistent with applicable provisions of
sections 1214 and 1221.
``(d) Existing Rights Preserved.--Nothing in this section shall be
construed to--
``(1) preempt or preclude any employee, or applicant for
employment, at the Federal Bureau of Investigation from
exercising rights currently provided under any other law, rule,
or regulation, including section 2303;
``(2) repeal section 2303; or
``(3) provide the President or Director of National
Intelligence the authority to revise regulations related to
section 2303, codified in part 27 of the Code of Federal
Regulations.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 23 of title 5, United States Code, is amended by inserting
after the item relating to section 2303 the following:
``2303a. Prohibited personnel practices in the intelligence
community.''.
SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS DETERMINATIONS.
(a) In General.--Section 3001(b) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 435b(b)) is amended--
(1) in the matter preceding paragraph (1), by striking
``Not'' and inserting ``Except as otherwise provided, not'';
(2) in paragraph (5), by striking ``and'' after the
semicolon;
(3) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(4) by inserting after paragraph (6) the following:
``(7) not later than 180 days after the date of enactment
of the Whistleblower Protection Enhancement Act of 2011--
``(A) developing policies and procedures that
permit, to the extent practicable, individuals who
challenge in good faith a determination to suspend or
revoke a security clearance or access to classified
information to retain their government employment
status while such challenge is pending; and
``(B) developing and implementing uniform and
consistent policies and procedures to ensure proper
protections during the process for denying, suspending,
or revoking a security clearance or access to
classified information, including the provision of a
right to appeal such a denial, suspension, or
revocation, except that there shall be no appeal of an
agency's suspension of a security clearance or access
determination for purposes of conducting an
investigation, if that suspension lasts no longer than
1 year or the head of the agency certifies that a
longer suspension is needed before a final decision on
denial or revocation to prevent imminent harm to the
national security.
Any limitation period applicable to an agency appeal under paragraph
(7) shall be tolled until the head of the agency (or in the case of any
component of the Department of Defense, the Secretary of Defense)
determines, with the concurrence of the Director of National
Intelligence, that the policies and procedures described in paragraph
(7) have been established for the agency or the Director of National
Intelligence promulgates the policies and procedures under paragraph
(7). The policies and procedures for appeals developed under paragraph
(7) shall be comparable to the policies and procedures pertaining to
prohibited personnel practices defined under section 2302(b)(8) of
title 5, United States Code, and provide--
``(i) for an independent and impartial fact-finder;
``(ii) for notice and the opportunity to be heard,
including the opportunity to present relevant evidence,
including witness testimony;
``(iii) that the employee or former employee may be
represented by counsel;
``(iv) that the employee or former employee has a right to
a decision based on the record developed during the appeal;
``(v) 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;
``(vi) 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
``(vii) that the employee or former employee shall have no
right to compel the production of information specifically
required by Executive order to be kept classified in the
interest of national defense or the conduct of foreign affairs,
except evidence necessary to establish that the employee made
the disclosure or communication such employee alleges was
protected by subparagraphs (A), (B), and (C) of subsection
(j)(1).''
(b) Retaliatory Revocation of Security Clearances and Access
Determinations.--Section 3001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (50 U.S.C. 435b) is amended by adding at the end
the following:
``(j) Retaliatory Revocation of Security Clearances and Access
Determinations.--
``(1) In general.--Agency personnel with authority over
personnel security clearance or access determinations shall not
take or fail to take, or threaten to take or fail to take, any
action with respect to any employee's security clearance or
access determination because of--
``(A) any disclosure of information to the Director
of National Intelligence (or an employee designated by
the Director of National Intelligence for such purpose)
or the head of the employing agency (or employee
designated by the head of that agency for such purpose)
by an employee that the employee reasonably believes
evidences--
``(i) a violation of any law, rule, or
regulation, and occurs during the conscientious
carrying out of official duties; or
``(ii) gross mismanagement, a gross waste
of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety;
``(B) any disclosure to the Inspector General of an
agency or another employee designated by the head of
the agency to receive such disclosures, of information
which the employee reasonably believes evidences--
``(i) a violation of any law, rule, or
regulation, and occurs during the conscientious
carrying out of official duties; or
``(ii) gross mismanagement, a gross waste
of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety;
``(C) any communication that complies with--
``(i) subsection (a)(1), (d), or (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 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 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.''.
(c) Access Determination Defined.--Section 3001(a) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C.
435b(a)) is amended by adding at the end the following:
``(9) The term `access determination' means the process for
determining whether an employee--
``(A) is eligible for access to classified
information in accordance with Executive Order 12968
(60 Fed. Reg. 40245; relating to access to classified
information), or any successor thereto, and Executive
Order 10865 (25 Fed. Reg. 1583; relating to
safeguarding classified information with industry); and
``(B) possesses a need to know under that Order.''.
(d) Rule of Construction.--Nothing in section 3001 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C.
435b), as amended by this Act, shall be construed to require the repeal
or replacement of agency appeal procedures implementing Executive Order
12968 (60 Fed. Reg. 40245; relating to classified national security
information), or any successor thereto, and Executive Order 10865 (25
Fed. Reg. 1583; relating to safeguarding classified information with
industry), or any successor thereto, that meet the requirements of
section 3001(b)(7) of such Act, as so amended.
SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE COMMUNITY
WHISTLEBLOWER PROTECTION ACT.
(a) In General.--Section 8H of the Inspector General Act of 1978 (5
U.S.C. App.) is amended--
(1) in subsection (b)--
(A) by inserting ``(1)'' after ``(b)''; and
(B) by adding at the end the following:
``(2) If the head of an establishment determines that a complaint
or information transmitted under paragraph (1) would create a conflict
of interest for the head of the establishment, the head of the
establishment shall return the complaint or information to the
Inspector General with that determination and the Inspector General
shall make the transmission to the Director of National Intelligence.
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 Whistleblower Protection Enhancement Review Act of 2011
regarding all transmissions under this paragraph.'';
(2) by designating subsection (h) as subsection (i); and
(3) by inserting after subsection (g), the following:
``(h) An individual who has submitted a complaint or information to
an Inspector General under this section may notify any member of
Congress or congressional staff member of the fact that such individual
has made a submission to that particular Inspector General, and of the
date on which such submission was made.''.
(b) Central Intelligence Agency.--Section 17(d)(5) of the Central
Intelligence Agency Act of 1949 (50 U.S.C. 403q) is amended--
(1) in subparagraph (B)--
(A) by inserting ``(i)'' after ``(B)''; and
(B) by adding at the end the following:
``(ii) If the Director determines that a complaint or information
transmitted under paragraph (1) would create a conflict of interest for
the Director, the Director shall return the complaint or information to
the Inspector General with that determination and the Inspector General
shall make the transmission to the Director of National Intelligence.
In such a case the requirements of this subsection for the Director
apply to the recipient of the Inspector General's submission; and'';
and
(2) by adding at the end the following:
``(H) An individual who has submitted a complaint or information to
the Inspector General under this section may notify any member of
Congress or congressional staff member of the fact that such individual
has made a submission to the Inspector General, and of the date on
which such submission was made.''.
SEC. 204. REGULATIONS; REPORTING REQUIREMENTS; NONAPPLICABILITY TO
CERTAIN TERMINATIONS.
(a) Definitions.--In this section--
(1) the term ``congressional oversight committees'' means--
(A) the Committee on Homeland Security and
Government Affairs of the Senate;
(B) the Select Committee on Intelligence of the
Senate;
(C) the Committee on Oversight and Government
Reform of the House of Representatives; and
(D) the Permanent Select Committee on Intelligence
of the House of Representatives; and
(2) the term ``intelligence community element''--
(A) means--
(i) the Central Intelligence Agency, the
Defense Intelligence Agency, the National
Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of
National Intelligence, and the National
Reconnaissance Office; and
(ii) any executive agency or unit thereof
determined by the President under section
2302(a)(2)(C)(ii) of title 5, United States
Code, to have as its principal function the
conduct of foreign intelligence or
counterintelligence activities; and
(B) does not include the Federal Bureau of
Investigation.
(b) Regulations.--
(1) In general.--The Director of National Intelligence
shall prescribe regulations to ensure that a personnel action
shall not be taken against an employee of an intelligence
community element as a reprisal for any disclosure of
information described in section 2303a(b) of title 5, United
States Code, as added by this Act.
(2) Appellate review board.--Not later than 180 days after
the date of enactment of this Act, the Director of National
Intelligence, in consultation with the Secretary of Defense,
the Attorney General, and the heads of appropriate agencies,
shall establish an appellate review board that is broadly
representative of affected Departments and agencies and is made
up of individuals with expertise in merit systems principles
and national security issues--
(A) to hear whistleblower appeals related to
security clearance access determinations described in
section 3001(j) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 435b), as
added by this Act; and
(B) that shall include a subpanel that reflects the
composition of the intelligence committee, which shall
be composed of intelligence community elements and
inspectors general from intelligence community
elements, for the purpose of hearing cases that arise
in elements of the intelligence community.
(c) Report on the Status of Implementation of Regulations.--Not
later than 2 years after the date of enactment of this Act, the
Director of National Intelligence shall submit a report on the status
of the implementation of the regulations promulgated under subsection
(b) to the congressional oversight committees.
(d) Nonapplicability to Certain Terminations.--Section 2303a of
title 5, United States Code, as added by this Act, and section 3001 of
the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C.
435b), as amended by this Act, shall not apply to adverse security
clearance or access determinations if the affected employee is
concurrently terminated under--
(1) section 1609 of title 10, United States Code;
(2) the authority of the Director of National Intelligence
under section 102A(m) of the National Security Act of 1947 (50
U.S.C. 403-1(m)), if--
(A) the Director personally summarily terminates
the individual; and
(B) the Director--
(i) determines the termination to be in the
interest of the United States;
(ii) determines that the procedures
prescribed in other provisions of law that
authorize the termination of the employment of
such employee cannot be invoked in a manner
consistent with the national security; and
(iii) not later than 5 days after such
termination, notifies the congressional
oversight committees of the termination;
(3) the authority of the Director of the Central
Intelligence Agency under section 104A(e) of the National
Security Act of 1947 (50 U.S.C. 403-4a(e)), if--
(A) the Director personally summarily terminates
the individual; and
(B) the Director--
(i) determines the termination to be in the
interest of the United States;
(ii) determines that the procedures
prescribed in other provisions of law that
authorize the termination of the employment of
such employee cannot be invoked in a manner
consistent with the national security; and
(iii) not later than 5 days after such
termination, notifies the congressional
oversight committees of the termination; or
(4) section 7532 of title 5, United States Code, if--
(A) the agency head personally terminates the
individual; and
(B) the agency head--
(i) determines the termination to be in the
interest of the United States;
(ii) determines that the procedures
prescribed in other provisions of law that
authorize the termination of the employment of
such employee cannot be invoked in a manner
consistent with the national security; and
(iii) not later than 5 days after such
termination, notifies the congressional
oversight committees of the termination.
TITLE III--EFFECTIVE DATE; SAVINGS PROVISION
SEC. 301. EFFECTIVE DATE.
Except as otherwise provided in this Act, this Act shall take
effect 30 days after the date of enactment of this Act.
SEC. 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.
<all>Official legislative text sourced from the public record (cached on CivicsHQ).
Official source
View the original bill, actions, and full legislative record on Congress.gov.
Status
In Committee
- 1Introduced
- 2Committee
- 3Floor
- 4Passed
- 5Signed
Timeline reflects current normalized status only. Full action history is not yet stored in the API.
Sponsors
- Rep. Issa, Darrell [R-CA-48]RHouseCA
Votes
Voting records are not yet available for this bill.