(This measure has not been amended since it was passed by the House on September 28, 2012. The summary of that version is repeated here.)
Whistleblower Protection Enhancement Act of 2012 - Title I: Protection of Certain Disclosures of Information by Federal Employees - (Sec. 101) Amends federal personnel law relating to whistleblower protections to provide that such protections shall apply to a disclosure of any violation of law (currently, a violation of law).
Provides that a disclosure shall not be excluded from whistleblower protections because: (1) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant for employment reasonably believed to evidence gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety; (2) the disclosure revealed information that had been previously disclosed; (3) of the employee or applicant's motive for making the disclosure; (4) the disclosure was not made in writing; (5) the disclosure was made while the employee was off duty; or (6) of the amount of time which has passed since the occurrence of the events described in the disclosure.
Provides that a disclosure shall not be excluded from whistleblower protections if it is made during the normal course of duties of an employee with respect to whom another employee with authority took, failed to take, or threatened to take or fail to take a personnel action in reprisal for the disclosure.
(Sec. 102) Defines "disclosure" as a formal or informal communication or transmission, excluding a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant making the disclosure reasonably believes that it evidences: (1) any violation of any law, rule, or regulation; or (2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.
(Sec. 103) Provides that any presumption regarding a public officer's performance of a duty may be rebutted by substantial evidence.
Establishes a "disinterested observer" standard for evaluating the validity of disclosures that evidence violations of law, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
(Sec. 104) Includes as a prohibited personnel practice the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement that its 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.
Allows the enforcement of a nondisclosure policy, form, or agreement that was in effect prior to the effective date of this Act if the agency gives an affected employee notice of the statement required by this section.
Allows any action ordered to correct a prohibited personnel practice to include fees, costs, or damages reasonably incurred due to an agency investigation of an employee that was commenced, expanded, or extended in retaliation for the disclosure of protected activity that formed the basis of the corrective action.
(Sec. 105) Adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989 (WPA). Provides that a whistleblower cannot be deprived of WPA coverage unless the President removes the whistleblower's agency from coverage prior to a challenged personnel action taken against the whistleblower.
(Sec. 106) Revises the standard of proof in disciplinary proceedings against an agency employee who takes an adverse personnel action against a whistleblower to require the Office of Special Counsel to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
(Sec. 107) Authorizes: (1) the Merit Systems Protection Board (MSPB), in disciplinary actions, to require payment of reasonable attorney fees by the agency where the prevailing party is employed, or has applied for employment, if specified conditions apply; and (2) reasonable and foreseeable consequential and compensatory damages (including interest, reasonable expert witness fees, and costs) if MSPB orders corrective action.
(Sec. 108) Requires that, during the two-year period beginning on the effective date of this Act, a petition to review a final order or decision of the MSPB that raises no challenge to the MSPB's disposition of allegations of a prohibited personnel practice shall be filed in any court of appeals of competent jurisdiction (rather than exclusively in the Federal Circuit). Allows such court discretion to grant a petition for judicial review.
(Sec. 109) Extends whistleblower and other anti-discrimination protections to employees (and applicants for employment) of the Transportation Security Administration (TSA).
(Sec. 110) Extends whistleblower protections to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information.
(Sec. 111) Amends the Homeland Security Act of 2002 to provide that a permissible use of independently obtained infrastructure information includes the disclosure of such information for whistleblower purposes.
(Sec. 112) Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept classified in the interest of national defense or the conduct of foreign affairs.
(Sec. 113) Authorizes the Special Counsel to appear as amicus curiae in whistleblower actions.
(Sec. 114) Provides that corrective action relating to a prohibited personnel practice may not be ordered if, after a finding that a protected disclosure was a contributing factor in taking a personnel action, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.
(Sec. 115) Requires each government nondisclosure policy, form, or agreement to contain a specific statement that its 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. Prohibits implementing or enforcing any nondisclosure policy, form, or agreementthat does not contain such statement to the extent such policy, form, or agreement is inconsistent with such statement..
Permits nondisclosure policies, forms, and agreements in effect before the enactment of this Act to continue to be enforced with respect to: (1) current employees if the agency provides notice of the statement to such employees, and (2) former employees if the agency posts notice of the statement on its website.
Provides that a nondisclosure policy, form, or agreement for a person who is not a federal employee, but who is connected with the conduct of intelligence or intelligence-related activity, shall contain appropriate provisions that: (1) require nondisclosure of classified information, and (2) make it clear that the forms do not bar disclosures to Congress or an authorized official that are essential to reporting a substantial violation of law.
(Sec. 116) Requires the Comptroller General (GAO), not later than four years after the enactment of this Act, to report to specified congressional committees on the implementation of this title, including an analysis of changes in the number of cases filed with MSPB alleging violations, the outcome of such cases, and the impact the process has had on MSPB and the federal court system.
Requires MSPB to include in its annual program performance reports information on the number and outcome of whistleblower cases filed.
(Sec. 117) Amends the Inspector General Act of 1978 to require each inspector general of a federal agency, except any agency that is an element of the intelligence community or whose principal function is the conduct of foreign intelligence or counter intelligence activities, to designate a Whistleblower Protection Ombudsman to educate agency employees about prohibitions on retaliation for protected disclosures and rights and remedies against such retaliation. Terminates the authority for such Ombudsman five years after the enactment of this Act.
Title II: Savings Clause; Effective Date - (Sec. 201) Declares that nothing in this Act shall be construed to imply any limitation on any protections afforded to employees and applicants for employment by any other provision of law.
(Sec. 202) Makes this Act effective 30 days after its enactment, except for provisions relating to TSA employees or applicants for employment, which shall be effective on the enactment date of this Act.
[112th Congress Public Law 199]
[From the U.S. Government Publishing Office]
[[Page 126 STAT. 1465]]
Public Law 112-199
112th Congress
An Act
To amend chapter 23 of title 5, United States Code, to clarify the
disclosures of information protected from prohibited personnel
practices, require a statement in non-disclosure policies, forms, and
agreements that such policies, forms, and agreements conform with
certain disclosure protections, provide certain authority for the
Special Counsel, and for other purposes. <<NOTE: Nov. 27, 2012 - [S.
743]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Whistleblower
Protection Enhancement Act of 2012. 5 USC 101 note.>>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Whistleblower Protection Enhancement
Act of 2012''.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.
(a) In General.--Section 2302(b)(8) of title 5, United States Code,
is amended--
(1) in subparagraph (A)(i), by striking ``a violation'' and
inserting ``any violation''; and
(2) in subparagraph (B)(i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''.
(b) Prohibited Personnel Practices Under Section 2302(b)(9).--
(1) Technical and conforming amendments.--Title 5, United
States Code, is amended--
(A) in subsections (a)(3), (b)(4)(A), and
(b)(4)(B)(i) of section 1214 and in subsections (a),
(e)(1), and (i) of section 1221, by inserting ``or
section 2302(b)(9) (A)(i), (B), (C), or (D)'' after
``section 2302(b)(8)'' each place it appears; and
(B) in section 2302(a)(2)(C)(i), by inserting ``or
section 2302(b)(9) (A)(i), (B), (C), or (D)'' after
``(b)(8)''.
(2) Other references.--(A) Title 5, United States Code, is
amended in subsection (b)(4)(B)(i) of section 1214 and in
subsection (e)(1) of section 1221 by inserting ``or protected
activity'' after ``disclosure'' each place it appears.
(B) Section 2302(b)(9) of title 5, United States Code, is
amended--
(i) by striking subparagraph (A) and inserting the
following:
[[Page 126 STAT. 1466]]
``(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:
``(f)(1) A disclosure shall not be excluded from subsection (b)(8)
because--
``(A) the disclosure was made to a supervisor or to a person
who participated in an activity that the employee or applicant
reasonably believed to be covered by subsection (b)(8)(A)(i) and
(ii);
``(B) the disclosure revealed information that had been
previously disclosed;
``(C) of the employee's or applicant's motive for making the
disclosure;
``(D) the disclosure was not made in writing;
``(E) the disclosure was made while the employee was off
duty; or
``(F) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(2) If a disclosure is made during the normal course of duties of
an employee, the disclosure shall not be excluded from subsection (b)(8)
if any employee who has authority to take, direct others to take,
recommend, or approve any personnel action with respect to the employee
making the disclosure, took, failed to take, or threatened to take or
fail to take a personnel action with respect to that employee in
reprisal for the disclosure.''.
SEC. 102. DEFINITIONAL AMENDMENTS.
Section 2302(a)(2) of title 5, United States Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication concerning
policy decisions that lawfully exercise discretionary authority
unless the employee or applicant providing the disclosure
reasonably believes that the disclosure evidences--
``(i) any violation of any law, rule, or regulation;
or
``(ii) gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific
danger to public health or safety.''.
SEC. 103. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended by
amending the matter following paragraph (12) to read as follows:
``This subsection shall not be construed to authorize the withholding of
information from Congress or the taking of any personnel action against
an employee who discloses <<NOTE: Determination.>> information to
Congress. For purposes of paragraph (8), (i) any presumption relating to
the performance of a duty by an employee whose conduct is the subject of
a disclosure as defined under subsection (a)(2)(D) may be rebutted
[[Page 126 STAT. 1467]]
by substantial evidence, and (ii) a determination as to whether an
employee or applicant reasonably believes that such employee or
applicant has disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health or
safety shall be made by determining whether a disinterested observer
with knowledge of the essential facts known to and readily ascertainable
by the employee or applicant could reasonably conclude that the actions
of the Government evidence such violations, mismanagement, waste, abuse,
or danger.''.
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL PRACTICES.
(a) Personnel Action.--Section 2302(a)(2)(A) of title 5, United
States Code, is amended--
(1) in clause (x), by striking ``and'' after the semicolon;
and
(2) by redesignating clause (xi) as clause (xii) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and''.
(b) Prohibited Personnel Practice.--
(1) In general.--Section 2302(b) of title 5, United States
Code, is amended--
(A) in paragraph (11), by striking ``or'' at the
end;
(B) in paragraph (12), by striking the period and
inserting ``; or''; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or liabilities
created by existing statute or Executive order relating to (1)
classified information, (2) communications to Congress, (3) the
reporting to an Inspector General of a violation of any law,
rule, or regulation, or mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger to
public health or safety, or (4) any other whistleblower
protection. The definitions, requirements, obligations, rights,
sanctions, and liabilities created by controlling Executive
orders and statutory provisions are incorporated into this
agreement and are controlling.'.''.
(2) Agency <<NOTE: 5 USC 2302 note.>> 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) <<NOTE: 5 USC 2302 note.>> Nondisclosure policy, form,
or agreement in effect before the effective date.--With respect
to a nondisclosure policy, form, or agreement that was in effect
before the effective date of this Act, but that does not contain
the statement required under section 2302(b)(13) of title 5,
United States Code (as added by this Act) for implementation or
enforcement--
[[Page 126 STAT. 1468]]
(A) it shall not be a prohibited personnel practice
to enforce that policy, form, or agreement with regard
to a current employee if the agency gives such employee
notice of the statement; and
(B) it shall not be a prohibited personnel practice
to enforce that policy, form, or agreement after the
effective date of this Act with regard to a former
employee if the agency complies with paragraph (2) of
this subsection.
(c) Retaliatory Investigations.--
(1) Agency investigation.--Section 1214 of title 5, United
States Code, is amended by adding at the end the following:
``(h) Any corrective action ordered under this section to correct a
prohibited personnel practice may include fees, costs, or damages
reasonably incurred due to an agency investigation of the employee, if
such investigation was commenced, expanded, or extended in retaliation
for the disclosure or protected activity that formed the basis of the
corrective action.''.
(2) Damages.--Section 1221(g) of title 5, United States
Code, is amended by adding at the end the following:
``(4) Any corrective action ordered under this section to correct a
prohibited personnel practice may include fees, costs, or damages
reasonably incurred due to an agency investigation of the employee, if
such investigation was commenced, expanded, or extended in retaliation
for the disclosure or protected activity that formed the basis of the
corrective action.''.
SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.
Section 2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security Agency,
the Office of the Director of National
Intelligence, and the National Reconnaissance
Office; and
``(II) <<NOTE: Determination.>> as determined
by the President, any Executive agency or unit
thereof the principal function of which is the
conduct of foreign intelligence or
counterintelligence activities, provided that the
determination be made prior to a personnel action;
or''.
SEC. 106. DISCIPLINARY ACTION.
Section 1215(a)(3) of title 5, United States Code, is amended to
read as follows:
``(3)(A) A final order of the Board may impose--
``(i) <<NOTE: Time period.>> disciplinary action consisting
of removal, reduction in grade, debarment from Federal
employment for a period not to exceed 5 years, suspension, or
reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause (ii).
``(B) In any case brought under paragraph (1) in which the Board
finds that an employee has committed a prohibited personnel practice
under section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D), the
Board may impose disciplinary action if the Board finds that the
activity protected under section 2302(b)(8), or 2302(b)(9)
[[Page 126 STAT. 1469]]
(A)(i), (B), (C), or (D) was a significant motivating factor, even if
other factors also motivated the decision, for the employee's decision
to take, fail to take, or threaten to take or fail to take a personnel
action, unless that employee demonstrates, by a preponderance of the
evidence, that the employee would have taken, failed to take, or
threatened to take or fail to take the same personnel action, in the
absence of such protected activity.''.
SEC. 107. REMEDIES.
(a) Attorney Fees.--Section 1204(m)(1) of title 5, United States
Code, is amended by striking ``agency involved'' and inserting ``agency
where the prevailing party was employed or had applied for employment at
the time of the events giving rise to the case''.
(b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 5,
United States Code, are amended by striking all after ``travel
expenses,'' and inserting ``any other reasonable and foreseeable
consequential damages, and compensatory damages (including interest,
reasonable expert witness fees, and costs).'' each place it appears.
SEC. 108. JUDICIAL REVIEW.
(a) In General.--Section 7703(b) of title 5, United States Code, is
amended by striking the matter preceding paragraph (2) and inserting the
following:
``(b)(1)(A) <<NOTE: Deadlines. Notices.>> Except as provided in
subparagraph (B) and paragraph (2) of this subsection, a petition to
review a final order or final decision of the Board shall be filed in
the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for review
shall be filed within 60 days after the Board issues notice of the final
order or decision of the Board.
``(B) <<NOTE: Time period.>> During the 2-year period beginning on
the effective date of the Whistleblower Protection Enhancement Act of
2012, a petition to review a final order or final decision of the Board
that raises no challenge to the Board's disposition of allegations of a
prohibited personnel practice described in section 2302(b) other than
practices described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B),
(C), or (D) shall be filed in the United States Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction.
Notwithstanding any other provision of law, any petition for review
shall be filed within 60 days after the Board issues notice of the final
order or decision of the Board.''.
(b) Review Obtained by Office of Personnel Management.--Section
7703(d) of title 5, United States Code, is amended to read as follows:
``(d)(1) <<NOTE: Applicability. Deadlines. Notices. Determinations.>>
Except as provided under paragraph (2), this paragraph shall apply to
any review obtained by the Director of the Office of Personnel
Management. The Director may obtain review of any final order or
decision of the Board by filing, within 60 days after the Board issues
notice of the final order or decision of the Board, a petition for
judicial review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in the discretion of the Director,
that the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the Board's decision
will have a substantial impact on a civil service law, rule, regulation,
or policy directive. If the Director did not intervene in a matter
before the Board, the Director may not petition for review of a Board
decision under this section unless
[[Page 126 STAT. 1470]]
the Director first petitions the Board for a reconsideration of its
decision, and such petition is denied. In addition to the named
respondent, the Board and all other parties to the proceedings before
the Board shall have the right to appear in the proceeding before the
Court of Appeals. The granting of the petition for judicial review shall
be at the discretion of the Court of Appeals.
``(2) <<NOTE: Time period.>> During the 2-year period beginning on
the effective date of the Whistleblower Protection Enhancement Act of
2012, this paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management that raises no challenge to the
Board's disposition of allegations of a prohibited personnel practice
described in section 2302(b) other than practices described in section
2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). The Director may
obtain review of any final order or decision of the Board by filing,
within 60 days after the Board issues notice of the final order or
decision of the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit or any court of appeals
of competent jurisdiction if the Director determines, in the discretion
of the Director, that the Board erred in interpreting a civil service
law, rule, or regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil service law,
rule, regulation, or policy directive. If the Director did not intervene
in a matter before the Board, the Director may not petition for review
of a Board decision under this section unless the Director first
petitions the Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the Board and
all other parties to the proceedings before the Board shall have the
right to appear in the proceeding before the court of appeals. The
granting of the petition for judicial review shall be at the discretion
of the court of appeals.''.
SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE
TRANSPORTATION SECURITY ADMINISTRATION.
(a) In General.--Chapter 23 of title 5, United States Code, is
amended--
(1) by redesignating sections 2304 and 2305 as sections 2305
and 2306, respectively; and
(2) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of law, any
individual holding or applying for a position within the Transportation
Security Administration shall be covered by--
``(1) the provisions of section 2302(b) (1), (8), and (9);
``(2) any provision of law implementing section 2302(b) (1),
(8), or (9) by providing any right or remedy available to an
employee or applicant for employment in the civil service; and
``(3) any rule or regulation prescribed under any provision
of law referred to in paragraph (1) or (2).
``(b) Rule of Construction.--Nothing in this section shall be
construed to affect any rights, apart from those described in subsection
(a), to which an individual described in subsection (a) might otherwise
be entitled under law.''.
[[Page 126 STAT. 1471]]
(b) Technical and Conforming Amendment.--The table of sections for
chapter 23 of title 5, United States Code, is amended by striking the
items relating to sections 2304 and 2305, respectively, and inserting
the following:
``2304. Prohibited personnel practices affecting the Transportation
Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.
(c) <<NOTE: 5 USC 2304 note.>> Effective Date.--The amendments made
by this section shall take effect on the date of enactment of this
section.
SEC. 110. <<NOTE: 5 USC 2302 note.>> DISCLOSURE OF CENSORSHIP
RELATED TO RESEARCH, ANALYSIS, OR
TECHNICAL INFORMATION.
(a) Definitions.--In this subsection--
(1) the term ``agency'' has the meaning given under section
2302(a)(2)(C) of title 5, United States Code;
(2) the term ``applicant'' means an applicant for a covered
position;
(3) the term ``censorship related to research, analysis, or
technical information'' means any effort to distort,
misrepresent, or suppress research, analysis, or technical
information;
(4) the term ``covered position'' has the meaning given
under section 2302(a)(2)(B) of title 5, United States Code;
(5) the term ``employee'' means an employee in a covered
position in an agency; and
(6) the term ``disclosure'' has the meaning given under
section 2302(a)(2)(D) of title 5, United States Code.
(b) Protected Disclosure.--
(1) In general.--Any disclosure of information by an
employee or applicant for employment that the employee or
applicant reasonably believes is evidence of censorship related
to research, analysis, or technical information--
(A) shall come within the protections of section
2302(b)(8)(A) of title 5, United States Code, if--
(i) the employee or applicant reasonably
believes that the censorship related to research,
analysis, or technical information is or will
cause--
(I) any violation of law, rule, or
regulation; or
(II) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; and
(ii) such disclosure is not specifically
prohibited by law or such information is not
specifically required by Executive order to be
kept classified in the interest of national
defense or the conduct of foreign affairs; and
(B) shall come within the protections of section
2302(b)(8)(B) of title 5, United States Code, if--
(i) the employee or applicant reasonably
believes that the censorship related to research,
analysis, or technical information is or will
cause--
(I) any violation of law, rule, or
regulation; or
(II) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety; and
[[Page 126 STAT. 1472]]
(ii) the disclosure is made to the Special
Counsel, or to the Inspector General of an agency
or another person designated by the head of the
agency to receive such disclosures, consistent
with the protection of sources and methods.
(2) Disclosures not excluded.--A disclosure shall not be
excluded from paragraph (1) for any reason described under
section 2302(f)(1) or (2) of title 5, United States Code.
(3) Rule of construction.--Nothing in this section shall be
construed to imply any limitation on the protections of
employees and applicants afforded by any other provision of law,
including protections with respect to any disclosure of
information believed to be evidence of censorship related to
research, analysis, or technical information.
SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL
INFRASTRUCTURE INFORMATION.
Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C.
133(c)) is amended by adding at the end the following: ``For purposes of
this section a permissible use of independently obtained information
includes the disclosure of such information under section 2302(b)(8) of
title 5, United States Code.''.
SEC. 112. ADVISING EMPLOYEES OF RIGHTS.
Section 2302(c) of title 5, United States Code, is amended by
inserting ``, including how to make a lawful disclosure of information
that is specifically required by law or Executive order to be kept
classified in the interest of national defense or the conduct of foreign
affairs to the Special Counsel, the Inspector General of an agency,
Congress, or other agency employee designated to receive such
disclosures'' after ``chapter 12 of this title''.
SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.
Section 1212 of title 5, United States Code, is amended by adding at
the end the following:
``(h)(1) The Special Counsel is authorized to appear as amicus
curiae in any action brought in a court of the United States related to
section 2302(b) (8) or (9), or as otherwise authorized by law. In any
such action, the Special Counsel is authorized to present the views of
the Special Counsel with respect to compliance with section 2302(b) (8)
or (9) and the impact court decisions would have on the enforcement of
such provisions of law.
``(2) A court of the United States shall grant the application of
the Special Counsel to appear in any such action for the purposes
described under subsection (a).''.
SEC. 114. SCOPE OF DUE PROCESS.
(a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5, United
States Code, is amended by inserting ``, after a finding that a
protected disclosure was a contributing factor,'' after ``ordered if''.
(b) Individual Action.--Section 1221(e)(2) of title 5, United States
Code, is amended by inserting ``, after a finding that a protected
disclosure was a contributing factor,'' after ``ordered if''.
SEC. 115. <<NOTE: 5 USC 2302 note.>> NONDISCLOSURE POLICIES,
FORMS, AND AGREEMENTS.
(a) In General.--
[[Page 126 STAT. 1473]]
(1) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy, form,
or agreement of the Government shall contain the following
statement: ``These provisions are consistent with and do not
supersede, conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by existing statute
or Executive order relating to (1) classified information, (2)
communications to Congress, (3) the reporting to an Inspector
General of a violation of any law, rule, or regulation, or
mismanagement, a gross waste of funds, an abuse of authority, or
a substantial and specific danger to public health or safety, or
(4) any other whistleblower protection. The definitions,
requirements, obligations, rights, sanctions, and liabilities
created by controlling Executive orders and statutory provisions
are incorporated into this agreement and are controlling.''.
(2) Agency websites.--Agencies making use of any
nondisclosure policy, form, or agreement shall also post the
statement required under paragraph (1) on the agency website,
accompanied by the specific list of controlling Executive orders
and statutory provisions.
(3) Enforceability.--
(A) In general.--Any nondisclosure policy, form, or
agreement described under paragraph (1) that does not
contain the statement required under paragraph (1) may
not be implemented or enforced to the extent such
policy, form, or agreement is inconsistent with that
statement.
(B) Nondisclosure policy, form, or agreement in
effect before the effective date.--With respect to a
nondisclosure policy, form, or agreement that was in
effect before the effective date of this Act, but that
does not contain the statement required under paragraph
(1) for implementation or enforcement--
(i) it shall not be a prohibited personnel
practice to enforce that policy, form, or
agreement with regard to a current employee if the
agency gives such employee notice of the
statement; and
(ii) it shall not be a prohibited personnel
practice to enforce that policy, form, or
agreement after the effective date of this Act
with regard to a former employee if the agency
complies with paragraph (2).
(b) Persons Other Than Government Employees.--Notwithstanding
subsection (a), a nondisclosure policy, form, or agreement that is to be
executed by a person connected with the conduct of an intelligence or
intelligence-related activity, other than an employee or officer of the
United States Government, may contain provisions appropriate to the
particular activity for which such document is to be used. Such policy,
form, or agreement shall, at a minimum, require that the person will not
disclose any classified information received in the course of such
activity unless specifically authorized to do so by the United States
Government. Such nondisclosure policy, form, or agreement shall also
make it clear that such forms do not bar disclosures to Congress or to
an authorized official of an executive agency or the Department of
Justice that are essential to reporting a substantial violation of law,
consistent with the protection of sources and methods.
[[Page 126 STAT. 1474]]
SEC. 116. REPORTING REQUIREMENTS.
(a) Government Accountability Office.--
(1) Report.--Not later than 4 years after the date of
enactment of this Act, the Comptroller General shall submit a
report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives on the
implementation of this title.
(2) Contents.--The report under this subsection shall
include--
(A) an analysis of any changes in the number of
cases filed with the Merit Systems Protection Board
alleging violations of section 2302(b)(8) or (9) of
title 5, United States Code, since the effective date of
this Act;
(B) the outcome of the cases described under
subparagraph (A), including whether or not the Merit
Systems Protection Board, the United States Court of
Appeals for the Federal Circuit, or any other court
determined the allegations to be frivolous or malicious
as well as a recommendation whether Congress should
grant the Merit Systems Protection Board summary
judgment authority for cases described under
subparagraph (A);
(C) a recommendation regarding whether Congress
should grant jurisdiction for some subset of cases
described under subparagraph (A) to be decided by a
district court of the United States and an evaluation of
the impact that would have on the Merit Systems
Protection Board and the Federal court system; and
(D) any other matter as determined by the
Comptroller General.
(b) <<NOTE: 31 USC 1116 note.>> Merit Systems Protection Board.--
(1) In general.--Each report submitted annually by the Merit
Systems Protection Board under section 1116 of title 31, United
States Code, shall, with respect to the period covered by such
report, include as an addendum the following:
(A) Information relating to the outcome of cases
decided by the Merit Systems Protection Board during the
period covered by such report in which violations of
section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) of
title 5, United States Code, were alleged.
(B) The number of such cases filed in the regional
and field offices, and the number of petitions for
review filed in such cases, during the period covered by
such report, and the outcomes of any such cases or
petitions for review (irrespective of when filed)
decided during such period.
(2) <<NOTE: Time period.>> First report.--The first report
described under paragraph (1) submitted after the date of
enactment of this Act shall include an addendum required under
that paragraph that covers the period beginning on the effective
date of this Act and ending at the end of the fiscal year in
which such effective date occurs.
SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN.
(a) In General.--Section 3 of the Inspector General Act of 1978 (5
U.S.C. App.) is amended by striking subsection (d) and inserting the
following:
[[Page 126 STAT. 1475]]
``(d)(1) <<NOTE: Appointments.>> 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) <<NOTE: Designation.>> 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) <<NOTE: Determination. President.>> as determined by
the President, any executive agency or unit thereof the
principal function of which is the conduct of foreign
intelligence or counter intelligence activities.''.
(b) Technical and Conforming Amendment.--Section 8D(j) of the
Inspector General Act of 1978 (5 U.S.C. App.) is amended--
(1) by striking ``section 3(d)(1)'' and inserting ``section
3(d)(1)(A)''; and
(2) by striking ``section 3(d)(2)'' and inserting ``section
3(d)(1)(B)''.
(c) <<NOTE: 5 USC app. 3 note.>> Sunset.--
(1) In general.--The amendments made by this section shall
cease to have effect on the date that is 5 years after the date
of enactment of this Act.
(2) Return to prior authority.--Upon the date described in
paragraph (1), section 3(d) and section 8D(j) of the Inspector
General Act of 1978 (5 U.S.C. App.) shall read as such sections
read on the day before the date of enactment of this Act.
TITLE II--SAVINGS CLAUSE; EFFECTIVE DATE
SEC. 201. <<NOTE: 5 USC 2302 note.>> SAVINGS CLAUSE.
Nothing in this Act shall be construed to imply any limitation on
any protections afforded by any other provision of law to employees and
applicants.
[[Page 126 STAT. 1476]]
SEC. 202. <<NOTE: 5 USC 1204 note.>> EFFECTIVE DATE.
Except as otherwise provided in section 109, this Act shall take
effect 30 days after the date of enactment of this Act.
Approved November 27, 2012.
LEGISLATIVE HISTORY--S. 743 (H.R. 3289):
---------------------------------------------------------------------------
HOUSE REPORTS: No. 112-508, Pt. 1 (Comm. on Oversight and Government
Reform) accompanying H.R. 3289.
SENATE REPORTS: No. 112-155 (Comm. on Homeland Security and Governmental
Affairs).
CONGRESSIONAL RECORD, Vol. 158 (2012):
May 8, considered and passed Senate.
Sept. 28, considered and passed House, amended.
Nov. 13, Senate concurred in House amendment.
<all>
Committee on Oversight and Government discharged.
Committee on Oversight and Government discharged.
Committee on Intelligence (Permanent) discharged.
Committee on Intelligence (Permanent) discharged.
Committee on Homeland Security discharged.
Committee on Homeland Security discharged.
Considered by unanimous consent. (consideration: CR H6286-6296; text as received in House: CR H6286-6293)
Passed/agreed to in House: On passage Passed without objection.
On passage Passed without objection.
Motion to reconsider laid on the table Agreed to without objection.
Message on House action received in Senate and at desk: House amendment to Senate bill.
Resolving differences -- Senate actions: Senate agreed to House amendment to the bill (S.743) by Unanimous Consent.(consideration: CR S6761; text as Senate agreed to House amendment: CR S6761)
Enacted as Public Law 112-199
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Senate agreed to House amendment to the bill (S.743) by Unanimous Consent. (consideration: CR S6761; text as Senate agreed to House amendment: CR S6761)
Message on Senate action sent to the House.
Presented to President.
Presented to President.
Signed by President.
Signed by President.
Became Public Law No: 112-199.
Became Public Law No: 112-199.