Text: S.743 — 112th Congress (2011-2012)All Bill Information (Except Text)

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Public Law No: 112-199 (11/27/2012)

 
[112th Congress Public Law 199]
[From the U.S. Government Printing 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.

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