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Suspend the Rules and Pass the Bill, S. 743, With an Amendment (The amendment strikes all after the enacting clause and inserts a new text)

112TH CONGRESS 2D SESSION

S. 743

IN THE HOUSE OF REPRESENTATIVES

MAY 9, 2012 Referred to the Committee on Oversight and Government Reform, and in addition to the Committees on Select 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

AN ACT
To amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited personnel practices; to require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections; to provide certain authority for the Special Counsel; and for other purposes.

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2 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 4
SECTION 1. SHORT TITLE.

This Act may be cited as the Whistleblower Protec-

5 tion Enhancement Act of 2012. 6 7 8 9 10 11

TITLE IPROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL EMPLOYEES

SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.

(a) IN GENERAL.Section 2302(b)(8) of title 5,

12 United States Code, is amended 13 14 15 16 17 18 (1) in subparagraph (A)(i), by striking a violation and inserting any violation; and (2) in subparagraph (B)(i), by striking a violation and inserting any violation (other than a violation of this section). (b) PROHIBITED PERSONNEL PRACTICES UNDER

19 SECTION 2302(b)(9). 20 21 22 23 24 25 (1) TECHNICAL

MENTS.Title AND CONFORMING AMEND-

5, United States Code, is amended

(A) in subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of section 1214 and in subsections (a), (e)(1), and (i) of section 1221, by inserting or section 2302(b)(9) (A)(i), (B), (C), or (D)

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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 after section 2302(b)(8) each place it appears; and (B) in section 2302(a)(2)(C)(i), by inserting or section 2302(b)(9) (A)(i), (B), (C), or (D) after (b)(8). (2) OTHER
REFERENCES.(A)

Title 5, United

States Code, is amended in subsection (b)(4)(B)(i) of section 1214 and in subsection (e)(1) of section 1221 by inserting or protected activity after disclosure each place it appears. (B) Section 2302(b)(9) of title 5, United States Code, is amended (i) by striking subparagraph (A) and inserting the following: (A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation (i) with regard to remedying a violation of paragraph (8); or (ii) other than with regard to remedying a violation of paragraph (8);; and (ii) in subparagraph (B), by inserting (i) or (ii) after subparagraph (A). (C) Section 2302 of title 5, United States Code, is amended by adding at the end the following:

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4 1 (f)(1) A disclosure shall not be excluded from sub2 section (b)(8) because 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 (A) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii); (B) the disclosure revealed information that had been previously disclosed; (C) of the employees or applicants 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

18 of duties of an employee, the disclosure shall not be ex19 cluded from subsection (b)(8) if any employee who has au20 thority to take, direct others to take, recommend, or ap21 prove any personnel action with respect to the employee 22 making the disclosure, took, failed to take, or threatened 23 to take or fail to take a personnel action with respect to 24 that employee in reprisal for the disclosure..

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5 1 2
SEC. 102. DEFINITIONAL AMENDMENTS.

Section 2302(a)(2) of title 5, United States Code, is

3 amended 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (1) in subparagraph (B)(ii), by striking and at the end; (2) in subparagraph (C)(iii), by striking the period at the end and inserting ; and; and (3) by adding at the end the following: (D) disclosure means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences (i) any violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety..
SEC. 103. REBUTTABLE PRESUMPTION.

Section 2302(b) of title 5, United States Code, is

22 amended by amending the matter following paragraph 23 (12) to read as follows: 24 This subsection shall not be construed to authorize the 25 withholding of information from Congress or the taking 26 of any personnel action against an employee who discloses
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6 1 information to Congress. For purposes of paragraph (8), 2 (i) any presumption relating to the performance of a duty 3 by an employee whose conduct is the subject of a disclo4 sure as defined under subsection (a)(2)(D) may be rebut5 ted by substantial evidence, and (ii) a determination as 6 to whether an employee or applicant reasonably believes 7 that such employee or applicant has disclosed information 8 that evidences any violation of law, rule, regulation, gross 9 mismanagement, a gross waste of funds, an abuse of au10 thority, or a substantial and specific danger to public 11 health or safety shall be made by determining whether a 12 disinterested observer with knowledge of the essential 13 facts known to and readily ascertainable by the employee 14 or applicant could reasonably conclude that the actions of 15 the Government evidence such violations, mismanagement, 16 waste, abuse, or danger.. 17 18 19
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL PRACTICES.

(a) PERSONNEL ACTION.Section 2302(a)(2)(A) of

20 title 5, United States Code, is amended 21 22 23 24 (1) in clause (x), by striking and after the semicolon; and (2) by redesignating clause (xi) as clause (xii) and inserting after clause (x) the following:

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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and. (b) PROHIBITED PERSONNEL PRACTICE. (1) IN
GENERAL.Section

2302(b) of title 5,

United States Code, is amended (A) in paragraph (11), by striking or at the end; (B) in paragraph (12), by striking the period and inserting ; or; and (C) by inserting after paragraph (12) the following: (13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection.

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8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling... (2) AGENCY
WEBSITES.Agencies

making use

of any nondisclosure policy, form, or agreement shall also post the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions. (3) NONDISCLOSURE
POLICY, FORM, OR AGREE-

MENT IN EFFECT BEFORE THE EFFECTIVE DATE.

With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act, but that does not contain the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) for implementation or enforcement (A) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

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9 1 2 3 4 5 6 7 8 9 10 (B) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2) of this subsection. (c) RETALIATORY INVESTIGATIONS. (1) AGENCY
INVESTIGATION.Section

1214 of

title 5, United States Code, is amended by adding at the end the following: (h) Any corrective action ordered under this section

11 to correct a prohibited personnel practice may include fees, 12 costs, or damages reasonably incurred due to an agency 13 investigation of the employee, if such investigation was 14 commenced, expanded, or extended in retaliation for the 15 disclosure or protected activity that formed the basis of 16 the corrective action.. 17 18 19 20 (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

21 to correct a prohibited personnel practice may include fees, 22 costs, or damages reasonably incurred due to an agency 23 investigation of the employee, if such investigation was 24 commenced, expanded, or extended in retaliation for the

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10 1 disclosure or protected activity that formed the basis of 2 the corrective action.. 3 4
SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.

Section 2302(a)(2)(C) of title 5, United States Code,

5 is amended by striking clause (ii) and inserting the fol6 lowing: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and (II) as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or.
SEC. 106. DISCIPLINARY ACTION.

Section 1215(a)(3) of title 5, United States Code, is

23 amended to read as follows: 24 (3)(A) A final order of the Board may impose

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11 1 2 3 4 5 6 7 8 9 10 (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

11 which the Board finds that an employee has committed 12 a prohibited personnel practice under section 2302(b)(8), 13 or 2302(b)(9) (A)(i), (B), (C), or (D), the Board may im14 pose disciplinary action if the Board finds that the activity 15 protected under section 2302(b)(8), or 2302(b)(9) (A)(i), 16 (B), (C), or (D) was a significant motivating factor, even 17 if other factors also motivated the decision, for the employ18 ees decision to take, fail to take, or threaten to take or 19 fail to take a personnel action, unless that employee dem20 onstrates, by a preponderance of the evidence, that the 21 employee would have taken, failed to take, or threatened 22 to take or fail to take the same personnel action, in the 23 absence of such protected activity..

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12 1 2
SEC. 107. REMEDIES.

(a) ATTORNEY FEES.Section 1204(m)(1) of title 5,

3 United States Code, is amended by striking agency in4 volved and inserting agency where the prevailing party 5 was employed or had applied for employment at the time 6 of the events giving rise to the case. 7 (b) DAMAGES.Sections 1214(g)(2) and

8 1221(g)(1)(A)(ii) of title 5, United States Code, are 9 amended by striking all after travel expenses, and in10 serting any other reasonable and foreseeable consequen11 tial damages, and compensatory damages (including inter12 est, reasonable expert witness fees, and costs). each place 13 it appears. 14 15
SEC. 108. JUDICIAL REVIEW.

(a) IN GENERAL.Section 7703(b) of title 5, United

16 States Code, is amended by striking the matter preceding 17 paragraph (2) and inserting the following: 18 (b)(1)(A) Except as provided in subparagraph (B)

19 and paragraph (2) of this subsection, a petition to review 20 a final order or final decision of the Board shall be filed 21 in the United States Court of Appeals for the Federal Cir22 cuit. Notwithstanding any other provision of law, any peti23 tion for review shall be filed within 60 days after the 24 Board issues notice of the final order or decision of the 25 Board.

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13 1 (B) During the 2-year period beginning on the effec2 tive date of the Whistleblower Protection Enhancement 3 Act of 2012, a petition to review a final order or final 4 decision of the Board that raises no challenge to the 5 Boards disposition of allegations of a prohibited personnel 6 practice described in section 2302(b) other than practices 7 described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), 8 (C), or (D) shall be filed in the United States Court of 9 Appeals for the Federal Circuit or any court of appeals 10 of competent jurisdiction. Notwithstanding any other pro11 vision of law, any petition for review shall be filed within 12 60 days after the Board issues notice of the final order 13 or decision of the Board.. 14 (b) REVIEW OBTAINED
BY

OFFICE

OF

PERSONNEL

15 MANAGEMENT.Section 7703(d) of title 5, United States 16 Code, is amended to read as follows: 17 (d)(1) Except as provided under paragraph (2), this

18 paragraph shall apply to any review obtained by the Direc19 tor of the Office of Personnel Management. The Director 20 may obtain review of any final order or decision of the 21 Board by filing, within 60 days after the Board issues no22 tice of the final order or decision of the Board, a petition 23 for judicial review in the United States Court of Appeals 24 for the Federal Circuit if the Director determines, in the 25 discretion of the Director, that the Board erred in inter-

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14 1 preting a civil service law, rule, or regulation affecting per2 sonnel management and that the Boards decision will 3 have a substantial impact on a civil service law, rule, regu4 lation, or policy directive. If the Director did not intervene 5 in a matter before the Board, the Director may not peti6 tion for review of a Board decision under this section un7 less the Director first petitions the Board for a reconsider8 ation of its decision, and such petition is denied. In addi9 tion to the named respondent, the Board and all other 10 parties to the proceedings before the Board shall have the 11 right to appear in the proceeding before the Court of Ap12 peals. The granting of the petition for judicial review shall 13 be at the discretion of the Court of Appeals. 14 (2) During the 2-year period beginning on the effec-

15 tive date of the Whistleblower Protection Enhancement 16 Act of 2012, this paragraph shall apply to any review ob17 tained by the Director of the Office of Personnel Manage18 ment that raises no challenge to the Boards disposition 19 of allegations of a prohibited personnel practice described 20 in section 2302(b) other than practices described in sec21 tion 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). 22 The Director may obtain review of any final order or deci23 sion of the Board by filing, within 60 days after the Board 24 issues notice of the final order or decision of the Board, 25 a petition for judicial review in the United States Court

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15 1 of Appeals for the Federal Circuit or any court of appeals 2 of competent jurisdiction if the Director determines, in the 3 discretion of the Director, that the Board erred in inter4 preting a civil service law, rule, or regulation affecting per5 sonnel management and that the Boards decision will 6 have a substantial impact on a civil service law, rule, regu7 lation, or policy directive. If the Director did not intervene 8 in a matter before the Board, the Director may not peti9 tion for review of a Board decision under this section un10 less the Director first petitions the Board for a reconsider11 ation of its decision, and such petition is denied. In addi12 tion to the named respondent, the Board and all other 13 parties to the proceedings before the Board shall have the 14 right to appear in the proceeding before the court of ap15 peals. The granting of the petition for judicial review shall 16 be at the discretion of the court of appeals.. 17 18 19 20
SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION SECURITY ADMINISTRATION.

(a) IN GENERAL.Chapter 23 of title 5, United

21 States Code, is amended 22 23 24 25 (1) by redesignating sections 2304 and 2305 as sections 2305 and 2306, respectively; and (2) by inserting after section 2303 the following:

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16 1 2304. Prohibited personnel practices affecting the 2 3

Transportation Security Administration

(a) IN GENERAL.Notwithstanding any other pro-

4 vision of law, any individual holding or applying for a posi5 tion within the Transportation Security Administration 6 shall be covered by 7 8 9 10 11 12 13 14 15 16 (1) the provisions of section 2302(b) (1), (8), and (9); (2) any provision of law implementing section 2302(b) (1), (8), or (9) by providing any right or remedy available to an employee or applicant for employment in the civil service; and (3) any rule or regulation prescribed under any provision of law referred to in paragraph (1) or (2). (b) RULE
OF

CONSTRUCTION.Nothing in this sec-

17 tion shall be construed to affect any rights, apart from 18 those described in subsection (a), to which an individual 19 described in subsection (a) might otherwise be entitled 20 under law.. 21 (b) TECHNICAL
AND

CONFORMING AMENDMENT.

22 The table of sections for chapter 23 of title 5, United 23 States Code, is amended by striking the items relating to 24 sections 2304 and 2305, respectively, and inserting the 25 following:

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17
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

2 this section shall take effect on the date of enactment of 3 this section. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR TECHNICAL INFORMATION.

(a) DEFINITIONS.In this subsection (1) the term agency has the meaning given under section 2302(a)(2)(C) of title 5, United States Code; (2) the term applicant means an applicant for a covered position; (3) the term censorship related to research, analysis, or technical information means any effort to distort, misrepresent, or suppress research, analysis, or technical information; (4) the term covered position has the meaning given under section 2302(a)(2)(B) of title 5, United States Code; (5) the term employee means an employee in a covered position in an agency; and

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18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (6) the term disclosure has the meaning given under section 2302(a)(2)(D) of title 5, United States Code. (b) PROTECTED DISCLOSURE. (1) IN
GENERAL.Any

disclosure of informa-

tion by an employee or applicant for employment that the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information (A) shall come within the protections of section 2302(b)(8)(A) of title 5, United States Code, if (i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause (I) any violation of law, rule, or regulation; or (II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and (ii) such disclosure is not specifically prohibited by law or such information is not specifically required by Executive order

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19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 to be kept classified in the interest of national defense or the conduct of foreign affairs; and (B) shall come within the protections of section 2302(b)(8)(B) of title 5, United States Code, if (i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause (I) any violation of law, rule, or regulation; or (II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and (ii) the disclosure is made to the Special Counsel, or to the Inspector General of an agency or another person designated by the head of the agency to receive such disclosures, consistent with the protection of sources and methods. (2) DISCLOSURES
NOT EXCLUDED.A

disclo-

sure shall not be excluded from paragraph (1) for

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20 1 2 3 4 5 6 7 8 9 10 11 12 13 any reason described under section 2302(f)(1) or (2) of title 5, United States Code. (3) RULE
OF CONSTRUCTION.Nothing

in this

section shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any disclosure of information believed to be evidence of censorship related to research, analysis, or technical information.
SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL INFRASTRUCTURE INFORMATION.

Section 214(c) of the Homeland Security Act of 2002

14 (6 U.S.C. 133(c)) is amended by adding at the end the 15 following: For purposes of this section a permissible use 16 of independently obtained information includes the disclo17 sure of such information under section 2302(b)(8) of title 18 5, United States Code.. 19 20
SEC. 112. ADVISING EMPLOYEES OF RIGHTS.

Section 2302(c) of title 5, United States Code, is

21 amended by inserting , including how to make a lawful 22 disclosure of information that is specifically required by 23 law or Executive order to be kept classified in the interest 24 of national defense or the conduct of foreign affairs to the 25 Special Counsel, the Inspector General of an agency, Con-

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21 1 gress, or other agency employee designated to receive such 2 disclosures after chapter 12 of this title. 3 4 5
SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.

Section 1212 of title 5, United States Code, is

6 amended by adding at the end the following: 7 (h)(1) The Special Counsel is authorized to appear

8 as amicus curiae in any action brought in a court of the 9 United States related to section 2302(b) (8) or (9), or as 10 otherwise authorized by law. In any such action, the Spe11 cial Counsel is authorized to present the views of the Spe12 cial Counsel with respect to compliance with section 13 2302(b) (8) or (9) and the impact court decisions would 14 have on the enforcement of such provisions of law. 15 (2) A court of the United States shall grant the ap-

16 plication of the Special Counsel to appear in any such ac17 tion for the purposes described under subsection (a).. 18 19
SEC. 114. SCOPE OF DUE PROCESS.

(a) SPECIAL COUNSEL.Section 1214(b)(4)(B)(ii) of

20 title 5, United States Code, is amended by inserting , 21 after a finding that a protected disclosure was a contrib22 uting factor, after ordered if. 23 (b) INDIVIDUAL ACTION.Section 1221(e)(2) of title

24 5, United States Code, is amended by inserting , after

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22 1 a finding that a protected disclosure was a contributing 2 factor, after ordered if. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

(a) IN GENERAL. (1) REQUIREMENT.Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling..

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23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (2) AGENCY
WEBSITES.Agencies

making use

of any nondisclosure policy, form, or agreement shall also post the statement required under paragraph (1) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions. (3) ENFORCEABILITY. (A) IN
GENERAL.Any

nondisclosure pol-

icy, form, or agreement described under paragraph (1) that does not contain the statement required under paragraph (1) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement. (B) NONDISCLOSURE
POLICY, FORM, OR

AGREEMENT IN EFFECT BEFORE THE EFFECTIVE DATE.With

respect to a nondisclosure

policy, form, or agreement that was in effect before the effective date of this Act, but that does not contain the statement required under paragraph (1) for implementation or enforcement (i) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a cur-

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24 1 2 3 4 5 6 7 8 9 10 rent employee if the agency gives such employee notice of the statement; and (ii) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2). (b) PERSONS OTHER THAN GOVERNMENT EMPLOYEES.Notwithstanding

subsection (a), a nondisclosure

11 policy, form, or agreement that is to be executed by a per12 son connected with the conduct of an intelligence or intel13 ligence-related activity, other than an employee or officer 14 of the United States Government, may contain provisions 15 appropriate to the particular activity for which such docu16 ment is to be used. Such policy, form, or agreement shall, 17 at a minimum, require that the person will not disclose 18 any classified information received in the course of such 19 activity unless specifically authorized to do so by the 20 United States Government. Such nondisclosure policy, 21 form, or agreement shall also make it clear that such 22 forms do not bar disclosures to Congress or to an author23 ized official of an executive agency or the Department of 24 Justice that are essential to reporting a substantial viola-

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25 1 tion of law, consistent with the protection of sources and 2 methods. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SEC. 116. REPORTING REQUIREMENTS.

(a) GOVERNMENT ACCOUNTABILITY OFFICE. (1) REPORT.Not later than 4 years after the date of enactment of this Act, the Comptroller General shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives on the implementation of this title. (2) CONTENTS.The report under this subsection shall include (A) an analysis of any changes in the number of cases filed with the Merit Systems Protection Board alleging violations of section 2302(b)(8) or (9) of title 5, United States Code, since the effective date of this Act; (B) the outcome of the cases described under subparagraph (A), including whether or not the Merit Systems Protection Board, the United States Court of Appeals for the Federal Circuit, or any other court determined the allegations to be frivolous or malicious as well as a recommendation whether Congress should

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26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 grant the Merit Systems Protection Board summary judgment authority for cases described under subparagraph (A); (C) a recommendation regarding whether Congress should grant jurisdiction for some subset of cases described under subparagraph (A) to be decided by a district court of the United States and an evaluation of the impact that would have on the Merit Systems Protection Board and the Federal court system; and (D) any other matter as determined by the Comptroller General. (b) MERIT SYSTEMS PROTECTION BOARD. (1) IN
GENERAL.Each

report submitted an-

nually by the Merit Systems Protection Board under section 1116 of title 31, United States Code, shall, with respect to the period covered by such report, include as an addendum the following: (A) Information relating to the outcome of cases decided by the Merit Systems Protection Board during the period covered by such report in which violations of section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) of title 5, United States Code, were alleged.

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27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 (B) The number of such cases filed in the regional and field offices, and the number of petitions for review filed in such cases, during the period covered by such report, and the outcomes of any such cases or petitions for review (irrespective of when filed) decided during such period. (2) FIRST
REPORT.The

first report described

under paragraph (1) submitted after the date of enactment of this Act shall include an addendum required under that paragraph that covers the period beginning on the effective date of this Act and ending at the end of the fiscal year in which such effective date occurs.
SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN.

(a) IN GENERAL.Section 3 of the Inspector General

17 Act of 1978 (5 U.S.C. App.) is amended by striking sub18 section (d) and inserting the following: 19 (d)(1) Each Inspector General shall, in accordance

20 with applicable laws and regulations governing the civil 21 service 22 23 24 25 (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;

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28 1 2 3 4 5 6 7 8 9 10 11 12 13 (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

14 not act as a legal representative, agent, or advocate of the 15 employee or former employee. 16 (3) For the purposes of this section, the requirement

17 of the designation of a Whistleblower Protection Ombuds18 man under paragraph (1)(C) shall not apply to 19 20 21 22 23 24 (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

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29 1 2 3 which is the conduct of foreign intelligence or counter intelligence activities.. (b) TECHNICAL
AND

CONFORMING AMENDMENT.

4 Section 8D(j) of the Inspector General Act of 1978 (5 5 U.S.C. App.) is amended 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 (1) by striking section 3(d)(1) and inserting section 3(d)(1)(A); and (2) by striking section 3(d)(2) and inserting section 3(d)(1)(B). (c) SUNSET. (1) IN
GENERAL.The

amendments made by

this section shall cease to have effect on the date that is 5 years after the date of enactment of this Act. (2) RETURN
TO PRIOR AUTHORITY.Upon

the

date described in paragraph (1), section 3(d) and section 8D(j) of the Inspector General Act of 1978 (5 U.S.C. App.) shall read as such sections read on the day before the date of enactment of this Act.

TITLE IISAVINGS CLAUSE; EFFECTIVE DATE

SEC. 201. SAVINGS CLAUSE.

Nothing in this Act shall be construed to imply any

24 limitation on any protections afforded by any other provi25 sion of law to employees and applicants.

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30 1 2
SEC. 202. EFFECTIVE DATE.

Except as otherwise provided in section 109, this Act

3 shall take effect 30 days after the date of enactment of 4 this Act.

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