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110th Congress                                             Rept. 110-42
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
            WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2007

                                _______
                                

                 March 9, 2007.--Ordered to be printed

                                _______
                                

  Mr. Waxman, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 985]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Oversight and Government Reform, to whom was 
referred the bill (H.R. 985) to amend title 5, United States 
Code, to clarify which disclosures of information are protected 
from prohibited personnel practices; to require a statement in 
nondisclosure policies, forms, and agreements to the effect 
that such policies, forms, and agreements are consistent with 
certain disclosure protections, and for other purposes, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     3
Legislative History..............................................     5
Section-By-Section...............................................     5
Explanation of Amendments........................................    10
Committee Consideration..........................................    10
Rollcall Votes...................................................    10
Application of Law to the Legislative Branch.....................    12
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    12
Statement of General Performance Goals and Objectives............    12
Constitutional Authority Statement...............................    12
Federal Advisory Committee Act...................................    12
Unfunded Mandate Statement.......................................    12
Earmark Identification...........................................    12
Committee Estimate...............................................    12
Budget Authority and Congressional Budget Office Cost Estimate...    13
Changes in Existing Law Made by the Bill, as Reported............    14
  The amendments (stated in terms of the page and line numbers 
of the introduced bill) are as follows:
  Page 4, line 4, strike ``employee'' and insert ``employee or 
applicant''.
  Page 10, line 12, strike ``controversy;'' and insert 
``controversy, and which action shall, at the request of either 
party to such action, be tried by the court with a jury;''.
  Page 10, after line 18, insert as a flush left sentence the 
following:

        An appeal from a final decision of a district court in 
        an action under this paragraph may, at the election of 
        the appellant, be taken to the Court of Appeals for the 
        Federal Circuit (which shall have jurisdiction of such 
        appeal), in lieu of the United States court of appeals 
        for the circuit embracing the district in which the 
        action was brought.
  Page 11, line 20, strike ``Circuit.'' and insert ``Circuit, 
except that in the case of a prohibited personnel practice 
described in section 2302(b)(8) (other than a case that, 
disregarding this paragraph, would otherwise be subject to 
paragraph (2)), such term means the United States Court of 
Appeals for the Federal Circuit and any United States court of 
appeals having jurisdiction over appeals from any United States 
district court which, under section 1221(k)(2), would be an 
appropriate United States district court for purposes of such 
prohibited personnel practice.''.
  Page 11, after line 20, insert the following (and redesignate 
the succeeding subsection accordingly):
          (c) Compensatory Damages.--Section 1221(g)(1)(A)(ii) 
        of such title 5 is amended by striking all after 
        ``travel expenses,'' and inserting ``any other 
        reasonable and foreseeable consequential damages, and 
        compensatory damages (including attorney's fees, 
        interest, reasonable expert witness fees, and 
        costs).''.
  Page 14, line 22, strike all after ``travel expenses,'' 
through the period on line 24, and insert ``any other 
reasonable and foreseeable consequential damages, and 
compensatory damages (including attorney's fees, interest, 
reasonable expert witness fees, and costs).''.
  Page 16, line 21, strike ``controversy.'' and insert 
``controversy, and which action shall, at the request of either 
party to such action, be tried by the court with a jury.''.
  Page 16, line 21, strike ``A petition'' and all that follows 
through line 24, and insert the following: ``An appeal from a 
final decision of a district court in an action under this 
paragraph may, at the election of the appellant, be taken to 
the Court of Appeals for the Federal Circuit (which shall have 
jurisdiction of such appeal), in lieu of the United States 
court of appeals for the circuit embracing the district in 
which the action was brought.''.
  Page 17, line 7, strike ``Circuit.'' and insert ``Circuit or 
any United States court of appeals having jurisdiction over 
appeals from any United States district court which, under 
section 1221(k)(2), would be an appropriate United States 
district court.''.
  Page 17, lines 18 and 21, strike ``plaintiff'' and insert 
``employee, former employee, or applicant''.
  Page 17, lines 19 and 24, strike ``plaintiff's'' and insert 
``employee's, former employee's, or applicant's''.
  Page 19, line 7, strike ``employee'' and insert ``employee, 
former employee, or applicant for employment''.
  Page 23, beginning on line 11, strike ``controversy.'' and 
insert ``controversy, and which action shall, at the request of 
either party to such action, be tried by the court with a 
jury.''.
  Page 24, line 14, strike ``controversy.'' and insert 
``controversy, and which action shall, at the request of either 
party to such action, be tried by the court with a jury.''.

                          Purpose and Summary

    H.R. 985, the Whistleblower Protection Enhancement Act, was 
introduced February 12, 2007, by Reps. Henry A. Waxman, Todd 
Platts, Chris Van Hollen, and Tom Davis. The legislation 
clarifies and expands federal employee and contractor 
whistleblower protection laws.
    The bill extends whistleblower protections to federal 
employees who work on national security issues; strengthens 
whistleblower rights for federal contractors; ensures that 
employees of the Transportation Security Agency (TSA), in 
particular its baggage screeners, have whistleblower rights; 
provides explicit protections for federal employees who report 
instances where federal research is suppressed or distorted for 
political reasons; overrides several court and administrative 
decisions that undermined existing whistleblower protections; 
and provides whistleblowers access to federal district courts 
if the Merit Systems Protection Board (MSPB) or the Inspector 
General (IG) does not take action on their claims within 180 
days.

                  Background and Need for Legislation

    A key component of government accountability is 
whistleblower protection. Federal employees are on the inside. 
They can see when taxpayer dollars are wasted and are often the 
first to see the signals of corrupt or incompetent management.
    Unfortunately, whistleblowers too often receive retaliation 
rather than recognition for their courage. They need adequate 
protections so they are not deterred from stepping forward to 
blow the whistle.
    There are many federal government workers who deserve 
whistleblower protection, but perhaps none more than national 
security officials. These are federal government employees who 
have undergone extensive background investigations, obtained 
security clearances, and handled classified information on a 
routine basis. Our government has concluded that they can be 
trusted to work on the most sensitive law enforcement and 
intelligence projects, yet these officials receive no 
protection when they come forward to identify abuses that are 
undermining our national security efforts. The Committee has 
documented numerous cases of retaliation against national 
security officials seeking to expose wrongdoing. This bill 
seeks to give these national security officials needed 
whistleblower protections.
    In addition, employees of federal contractors can also be 
subject to retaliation. Under current law, contract employees 
can protest company retaliation but have no remedy if the 
agency refuses to act. This bill gives them an avenue to seek a 
remedy in court.
    TSA baggage screeners currently do not have whistleblower 
rights. In Schott v. Department of Homeland Security, the MSPB 
ruled on August 12, 2004, that the ``Board jurisdiction over 
Screeners . . . is not found in the HSA [Homeland Security 
Act].'' To remedy this situation, this bill extends to 
screeners the same protections that all other Department of 
Homeland Security employees enjoy. TSA workers could, with full 
whistleblower protections of this bill, report violations of 
law, mismanagement, waste, abuse of authority, or dangers to 
public health and safety, including those regarding or relating 
solely to homeland or national security.
    The Committee has documented numerous examples of the 
political manipulation of science in federal agencies, 
including suppression of research or data that is perceived to 
conflict with Administration policy; appointment of advisory 
committee members on the basis of political affiliation or 
views; and the dissemination of false or misleading scientific 
information. While an employee may reasonably believe such 
actions to constitute ``abuse of authority,'' already a 
protected disclosure category, the Office of Special Counsel 
(OSC) has consistently denied whistleblower protections to 
employees attempting to draw attention to political 
interference with science. This bill clarifies that ``abuse of 
authority'' should be interpreted to include actions that 
compromise the validity and integrity of federal science.
    This bill also responds to decisions by the U.S. Court of 
Appeals for the Federal Circuit and the MSPB limiting the scope 
of disclosures covered under the federal whistleblower 
protection statute. Specifically, it clarifies that ``any'' 
disclosure means ``without restriction as to time, place, form, 
motive, context, or prior disclosure'' and includes formal or 
informal communication. In addition, the bill provides that a 
whistleblower could rebut the presumption that a federal 
official performed his or her duties in accordance with the law 
by providing substantial evidence to the contrary. Some prior 
court decisions have required a higher standard, irrefutable 
proof, to rebut this presumption. Furthermore, the bill 
requires every nondisclosure policy, form, or agreement of the 
government to contain the specific addendum set forth in the 
legislation informing employees of their rights, and makes it a 
prohibited personnel practice for any manager to implement or 
enforce any nondisclosure policy, form, or agreement that does 
not contain the specific statement mandated in the bill.
    Too often, a whistleblower brings his or her case to the 
OSC or the MSPB and the case lingers in limbo or a 
determination occurs so long after the alleged prohibited 
practice occurred that the fired employee has been without a 
paycheck for years. This bill allows whistleblowers access to 
federal district courts for a trial by jury if the MSPB (or the 
IG for cases involving national security officials or 
contractor whistleblowers) does not take action on their claims 
within 180 days.
    Finally, this bill permits the Federal Circuit or any other 
circuit court to hear whistleblower cases, ending the Federal 
Circuit's exclusive jurisdiction over whistleblower appeals. It 
is the decisions of the Federal Circuit that have created the 
need for many of the provisions of this bill. There is no 
reason that whistleblower cases need one specialized court as 
in patent law cases. To the contrary, whistleblower protection 
law should benefit from consideration in all circuits. This 
bill allows employees to have their cases heard in places were 
they live and increases opportunities for those cases to be 
heard eventually by the Supreme Court.

                          Legislative History

    H.R. 985, legislation to strengthen the federal employee 
whistleblower protection laws, was introduced on February 12, 
2007, and referred to the Committee on Oversight and Government 
Reform. Similar legislation, H.R. 1317 and section 8 of H.R. 
5112, was introduced in the 109th Congress and unanimously 
reported by the Committee. H.R. 985 builds on that legislation 
as well on earlier versions introduced in the 106th, 107th, and 
108th Congresses.
    The Committee held a hearing on February 13, 2007, on H.R. 
985. The witnesses were William G. Weaver, PhD, Associate 
Professor, University of Texas at El Paso, representing the 
National Security Whistleblower Coalition; Nick Schwellenbach, 
Investigator, Project on Government Oversight; Tom Devine, 
Legal Director, Government Accountability Project; and Mark 
Zaid, Attorney at Law, Krieger and Zaid, PLLC. Chairman McPhie 
of the MSPB and Stephen Kohn of the National Whistleblower 
Center submitted testimony for the record.
    The Committee held a markup to consider H.R. 985 on 
February 15, 2007, and ordered the bill to be reported, as 
amended, by a roll call vote of 280.

                           Section-By-Section


Section 1. Short title

    This section provides that the short title of H.R. 985 is 
the ``Whistleblower Protection Enhancement Act of 2007.''

Section 2. Clarification of disclosures covered

    This section clarifies current law to state that it applies 
to any disclosure, whether made as part of the duties of an 
employee, former employee, or applicant (hereinafter 
collectively referred to as ``employee''); concerns 
consequences of policy or individual misconduct; is oral or 
written; or is made to any audience inside or outside an 
agency; and without restriction to time, form, motive, context, 
or prior disclosure. These changes are intended as a response 
to Federal Circuit decisions that have limited the scope of 
disclosures permitted by law.

Section 3. Covered disclosures

    This section defines ``disclosure'' to include both formal 
and informal communications where the employee reasonably 
believes that the disclosure evidences any violation of law, 
rule, or regulation or gross mismanagement, waste, abuse of 
authority, or specific danger to public health or safety. 
However, a simple policy disagreement would not be considered a 
disclosure. This change is intended as a response to Federal 
Circuit decisions suggesting that only a formal communication 
may qualify as a disclosure.

Section 4. Rebuttable presumption

    This section codifies the reasonable belief test for all 
whistleblower disclosures: ``whether a disinterested observer 
with knowledge of the essential facts known to or readily 
ascertainable by the employee, former employee or applicant 
could reasonably conclude that the actions of the government 
evidence such violations, mismanagement, waste, abuse, or 
danger.'' In addition, this section provides that any 
presumption that the public official whose misconduct has been 
disclosed by the whistleblower acted in good faith may be 
rebutted by ``substantial evidence'' rather than ``irrefragable 
proof.'' The Federal Circuit had required the standard 
``irrefragable proof'' in a previous decision.

Section 5. Nondisclosure policies, forms, and agreements

    Subsection (a) states that implementation or enforcement of 
any nondisclosure policy, form, or agreement is a prohibited 
personnel practice.
    Subsection (b) prohibits any agency from implementing or 
enforcing any nondisclosure policy, form, or agreement, if the 
policy, form, or agreement does not contain specified language 
notifying the employee of his or her rights. Also, this 
subsection prohibits investigation, other than any ministerial 
or nondiscretionary fact-finding activities necessary for the 
agency to perform its mission, of any employee because of any 
activity protected under section 2302.

Section 6. Exclusion of agencies by the President

    This section requires the removal of any agency or unit by 
the President from whistleblower protection coverage be made 
prior to any personnel action being taken against a 
whistleblower at that agency.

Section 7. Disciplinary action

    This section states that the MSPB can discipline an 
employee if it finds that the protected activity was a 
``primary motivating factor'' in the employee's action. Under 
current MSPB case law, in order for the MSPB to discipline an 
employee, the OSC has to demonstrate that an adverse personnel 
action would not have occurred ``but for'' the whistleblower's 
protected activity.

Section 8. GAO study on revocation of security clearances

    Subsection (a) requires GAO to conduct a study of security 
clearance revocations.
    Subsection (b) requires that GAO report to the Committee 
and the Committee on Homeland Security and Governmental Affairs 
of the Senate within 270 days of the bill's enactment.

Section 9. Alternative recourse

    Subsection (a) provides that an employee who seeks 
corrective action (or on behalf of whom corrective action is 
sought) from the MSPB with respect to a prohibited personnel 
practice described in section 2302(b)(8) may bring an action in 
federal district court for a trial by jury (1) if the MSPB does 
not take final action on the claims within 180 days or (2) 
within 90 days of final action by the MSPB. The employee could 
file his or her action in the United States district court for 
the district where the alleged prohibited personnel practice 
occurred, the district in which employment records are 
maintained and administered, or the district in which the 
whistleblower resides. The district court is to apply the 
standards and award the relief in the same manner as the MSPB. 
The district court decision may be appealed to the U.S. court 
of appeals having jurisdiction over appeals from the district 
court in which the case was brought.
    Subsection (b) allows a whistleblower to seek review of a 
final order or decision of the MSPB in the Federal Circuit or 
the circuit of appeals for the circuit where the alleged 
prohibited personnel practice occurred, the circuit in which 
the employment records are maintained and administered, or the 
circuit in which the whistleblower resides.
    Subsection (c) provides that the MSPB can award 
compensatory damages including interest and expert witness 
fees.
    Subsection (d) prohibits an employee who has filed a case 
in district court under subsection (a) from also appealing an 
order or decision of the MSPB directly to a court of appeals.

Section 10. National security whistleblower rights

    Subsection (a) provides that, in addition to rights he or 
she may already have, an employee of a covered agency may not 
be discharged or discriminated against, including by denying, 
suspending, or revoking a security clearance or otherwise 
restricting access to classified or sensitive information, as a 
reprisal for disclosing covered information to an authorized 
Member of Congress, authorized executive official, or the IG of 
the covered agency. A disclosure means any disclosure, whether 
that disclosure is made as part of an employee's, former 
employee's, or applicant's duties, concerns consequences of 
policy or individual misconduct, is oral or written, or is made 
to any audience inside or outside an agency, without 
restriction to time, form, motive, context, or prior 
disclosure.
    Subsection (b) provides that an employee, former employee, 
or applicant who believes he or she has been the subject of a 
reprisal prohibited by subsection (a) may submit a complaint to 
the IG and the agency head. The IG will investigate the 
complaint and report findings to the employee and the agency 
head within 120 days.
    Subsection (c) provides that within 180 days of filing of 
the complaint, the agency head, taking into account the IG 
report, will determine whether the employee has been subjected 
to a reprisal prohibited by subsection (a) and will either 
issue an order denying relief or implement corrective action to 
return the employee, as nearly as possible, to his pre-reprisal 
condition, including voiding any action denying, suspending, or 
revoking a security clearance or other access to classified or 
sensitive information, ordering back pay, benefits, medical 
costs, and travel expenses and paying consequential damages and 
compensatory damages including attorney's fees, interest, 
reasonable expert fees, and costs. If the agency head issues an 
order denying relief, he is required to issue a report to the 
employee detailing the reasons for the denial.
    The subsection further provides that where corrective 
action by an agency head involves voiding a suspension or 
revocation of a security clearance or other access to sensitive 
or classified information, the agency head may re-initiate 
procedures to suspend the clearance or restrict access only if 
the new actions are based exclusively on national security 
concerns and not related to the original reprisal. In this 
case, the agency head is required to issue a report to the IG 
and authorized members of Congress explaining how the actions 
are based exclusively on national security concerns, provide 
periodic updates on the actions, and respond promptly to 
inquiries from authorized members of Congress on the procedure 
status.
    The subsection also provides that an employee may seek 
corrective action, in federal district court for a trial by 
jury, if (1) the agency head has not made a determination 
within 180 days or (2) within 90 days of the order issuance. 
The employee could file his or her action in the United States 
district court for the district where the alleged prohibited 
personnel practice occurred, for the district in which the 
employment records are maintained and administered, or for the 
district in which the whistleblower resides. The district court 
decision may be appealed to the U.S. court of appeals having 
jurisdiction over appeals from the district court in which the 
case was brought.
    In addition, the employee may, within 60 days, have any 
order issued under this section reviewed by the Federal Circuit 
or court of appeals for the circuit where the alleged 
prohibited personnel practice occurred, the circuit in which 
the employment records are maintained and administered, or the 
circuit in which the whistleblower resides.
    Also, this subsection contains limitations on the executive 
agency's assertion of the so-called ``state secrets privilege'' 
in actions for damages or relief under this section. 
Specifically, if the assertion of this privilege prevents the 
employee from establishing an element in support of his or her 
claim, the court will resolve the disputed issue of fact of law 
in favor of the employee. When the privilege is asserted, the 
agency head must issue a report to authorized Members of 
Congress describing why it was asserted and why the court 
cannot protect the classified information in order to hear the 
issue.
    Subsection (d) provides that an employee in a non-covered 
agency should, for the purpose of disclosing covered classified 
or sensitive information, be entitled to the same protections 
as if the agency were a covered agency. The intention of this 
section is to provide whistleblower rights to those individuals 
whose job functions make them eligible for the protections of 
this section even though their agencies are not specified such 
as intelligence analysts and information sharing employees with 
access to classified information within the Department of 
Homeland Security's Office of Intelligence and Analysis or 
Foreign Service Diplomatic Security Special Agents at the 
Department of State.
    Subsection (e) provides that nothing in this section is to 
be construed to authorize discharge, demotion, or 
discrimination against an employee for a disclosure other than 
one protected by this section or to limit a right or remedy 
otherwise available to the employee, former employee, or 
applicant, including any rights or remedies available under the 
Lloyd-La Follette Act.
    Subsection (f) contains definitions.
    The term ``covered information'' means information, 
including classified or sensitive information, that an 
employee, former employee, or applicant, reasonably believes 
provides evidence of any violation of any law, rule, or 
regulation, or gross mismanagement, or waste of funds, abuse of 
authority, or substantial and specific danger to public health 
or safety.
    The term ``covered agencies'' means the Federal Bureau of 
Investigation, the Central Intelligence Agency, the Defense 
Intelligence Agency, the National Geospatial-Intelligence 
Agency, National Security Agency, the National Reconnaissance 
Office and any other agency or element thereof involved in 
foreign intelligence or counterintelligence activities as 
determined by the President.
    The term ``authorized Member of Congress'' means a member 
of the House Permanent Select Committee on Intelligence, the 
Senate Select Committee on Intelligence, the House Committee on 
Oversight and Government Reform, the Senate Committee on 
Homeland Security and Governmental Affairs and the committees 
of the House or Senate that have oversight over the program 
about which the information is disclosed. Members of Congress 
often receive communications through their staff. A 
communication to a staff member of an authorized Member should 
be considered a communication with the authorized Member if the 
staff has the appropriate clearances and the purpose of the 
communication is to convey information to the authorized 
Member.
    The term ``authorized office of an executive agency'' is to 
be defined by the Office of Personnel Management. However, this 
definition will include the immediate supervisor of the 
employee or former employee and each successive supervisor 
(immediately above such immediate supervisor) in the chain of 
authority as well as the head, general counsel, and ombudsman 
of the agency.
    The term ``authorized official of the Department of 
Justice'' means any employee of the Department of Justice whose 
duties include the investigation, enforcement, or prosecution 
of any law or regulation.

Section 11. Enhancement of contractor employee whistleblower 
        protections

    Subsection (a) requires that the head of a civilian 
executive agency make a determination, within 180 days after 
the submission of a complaint by a contractor employee, about 
whether the contractor concerned has subjected the contractor 
employee to a reprisal. The agency head will either issue an 
order denying relief or take corrective action. If the head of 
the executive agency fails to issue an order or take correction 
action within 180 days, the contractor employee may bring an 
action in district court to seek compensatory and other relief.
    Subsection (b) applies the requirements of subsection (a) 
to contractor employees under the Department of Defense and 
National Aeronautics and Space Administration contracts.

Section 12. Prohibited personnel practices affecting employees of the 
        Transportation Security Administration

    This section grants employees at TSA, including those 
carrying out screener functions, the same whistleblower 
protections as other federal employees. This section is 
intended to be a response to the MSPB decision in Schott v. 
Department of Homeland Security where the MSPB ruled TSA 
screeners did not have whistleblower rights.

Section 13. Clarification of whistleblower rights relating to 
        scientific and other research

    This section clarifies that the term ``abuse of authority'' 
includes political interference with science, such as actions 
that compromise the validity or accuracy of federally funded 
research or analysis and the dissemination of false or 
misleading scientific, medical, or technical information. The 
Committee is aware of OSC determinations denying whistleblower 
protections to employees attempting to disclose political 
interference with science. This change is intended to confirm 
that these disclosures are to be protected.

Section 14. Effective date

    This section provides that the provisions of H.R. 985 takes 
effect 30 days after date of enactment of the Act.

                       Explanation of Amendments

    The following amendments were adopted in Committee:
    Mr. Van Hollen and Mr. Platts offered an amendment, passed 
by voice vote, to allow a whistleblower to file an appeal of a 
whistleblower case in the Federal Circuit or the court of 
appeals for the circuit where the alleged prohibited personnel 
practice occurred, where the employment records are maintained 
and administered, or where the whistleblower resides. Mr. Issa 
raised a point of order against this amendment claiming it was 
not germane because it regarded issues in the jurisdiction of 
the Committee on the Judiciary. After consulting the House 
Parliamentarian, the Chair ruled against Mr. Issa's point of 
order explaining that the entire bill deals with rights of 
redress and appeal and the amendment does not amend title 18 of 
the U.S. Code but only grants a right to appeal.
    Mr. Braley offered an amendment, which passed by voice 
vote, clarifying that the bill allows for jury trials at the 
district court level.
    Mr. Braley offered an amendment, which passed by voice 
vote, clarifying what types of damages a whistleblower can 
recover if the MSPB or a district court rules in his or her 
favor. Under the original text, the words ``compensatory 
damages'' were used in one section but not in another. The 
Braley amendment clarifies that compensatory damages are 
available to all federal employees and contractors. Further, it 
details some of the items the MSPB or a district court could 
award including interest and expert witness fees.

                        Committee Consideration

    On Wednesday, February 14, 2007, the Committee ordered the 
bill reported to the House by a recorded vote.

                             Rollcall Votes



              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill provides enhanced transparency to the operations of 
the executive branch. As such this bill does not relate to 
employment or access to public services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the descriptive portions of this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 985. Article I, Section 8, Clause 18 of the 
Constitution of the United States grants the Congress the power 
to enact this law.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement whether 
the provisions of the reported bill include unfunded mandates. 
In compliance with this requirement the Committee has received 
a letter from the Congressional Budget Office included herein.

                         Earmark Identification

    H.R. 1255 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e), or 9(f) of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 985. However, clause 3(d)(3)(B) of that rule provides that 
this requirement does not apply when the Committee has included 
in its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 985 from the Director of 
Congressional Budget Office:

                                                     March 9, 2007.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 985, the 
Whistleblower Protection Enhancement Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 985--Whistleblower Protection Enhancement Act of 2007

    H.R. 985 would amend the Whistleblower Protection Act 
(WPA), clarify current law, and give new protections to federal 
employees and contractors who report abuse, fraud, and waste 
involving government activities. The legislation also would 
make several changes to the laws governing the Merit Systems 
Protection Board (MSPB) and the Office of Special Counsel 
(OSC). In addition, the legislation would require a study by 
the Government Accountability Office (GAO) regarding the 
revocation of security clearances.
    CBO estimates that implementing H.R. 985 would cost $5 
million a year and about $25 million over the 2008-2012 period, 
assuming appropriation of the necessary amounts. Enacting the 
legislation could affect direct spending, but we estimate any 
amounts would not be significant in any year. Enacting the bill 
would not affect revenues. H.R. 985 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of state, local, or tribal governments.
    Under current law, the OSC investigates complaints 
regarding reprisals against federal employees that inform 
authorities of fraud or other improprieties in the operation of 
federal programs (such individuals are known as 
whistleblowers). The OSC seeks corrective action for valid 
complaints. If agencies fail to take corrective action, the OSC 
or the employee can pursue a case through the MSPB for 
resolution. Whistleblower cases may also be reviewed by the 
U.S. Court of Appeals.
    According to the MSPB and OSC, there generally are between 
400 and 500 whistleblower cases per year. Major provisions of 
H.R. 985 would expand the definition of protected 
whistleblowing, and extend employee protections to federal 
contractors, Transportation Security Administration passenger 
and baggage screeners, and federal employees working on 
scientific research or national security issues. The bill would 
allow for access to jury trials for federal employees and 
contractors in whistleblower cases, authorize the payment of 
compensatory damages for employees involved in such cases, and 
remove the exclusive jurisdiction of the U.S. Court of Appeals 
over whistleblower appeals.
    In 2007, the MSPB received an appropriation of $36 million, 
and the OSC received $15 million. CBO expects that the bill's 
changes in whistleblower laws would increase the workload of 
the MSPB and OSC. Based on information from those agencies, we 
estimate that implementing this bill would cost up to $3 
million a year to cover additional staffing, travel, and 
security clearance reviews.
    When implementing corrective actions to settle an 
employment dispute between the federal government and its 
employees regarding prohibited personnel practices, federal 
agencies are required to spend appropriated funds to pay for an 
employee's attorney, back pay, and any associated travel and 
medical costs. Under H.R. 985, federal employees and 
contractors could also receive compensatory damages for 
employment disputes.
    CBO cannot estimate the cost of compensatory damage awards 
in such cases because the amount awarded would depend on the 
particular circumstances of each case and the frequency of 
cases involving such damages. Recent settlement amounts under 
the Whistleblower Protection Act have ranged from $20,000 to 
$200,000. While it is uncertain how often compensatory damages 
would be awarded in such cases, OSC and MSPB believe such 
awards could more than double the cost of some settlements. 
Hence, CBO expects that this provision would add a few million 
dollars each year to the cost of agency settlements, which are 
paid from individual agency appropriations.
    In addition, the legislation would require the GAO to 
prepare a study within nine months on security clearance 
revocations since 1996. Based on the cost of similar reports, 
CBO estimates that preparing the report would cost less than 
$500,000 over the 2007-2008 period, assuming the availability 
of appropriated funds.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *



PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

           *       *       *       *       *       *       *


CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, 
AND EMPLOYEE RIGHT OF ACTION

           *       *       *       *       *       *       *



SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL

           *       *       *       *       *       *       *



Sec.  1215. Disciplinary action

  (a)(1) * * *

           *       *       *       *       *       *       *

  [(3) A final order of the Board may impose disciplinary 
action consisting of removal, reduction in grade, debarment 
from Federal employment for a period not to exceed 5 years, 
suspension, reprimand, or an assessment of a civil penalty not 
to exceed $1,000.]
  (3)(A) A final order of the Board may impose--
          (i) disciplinary action consisting of removal, 
        reduction in grade, debarment from Federal employment 
        for a period not to exceed 5 years, suspension, or 
        reprimand;
          (ii) an assessment of a civil penalty not to exceed 
        $1,000; or
          (iii) any combination of disciplinary actions 
        described under clause (i) and an assessment described 
        under clause (ii).
  (B) In any case in which the Board finds that an employee has 
committed a prohibited personnel practice under paragraph (8) 
or (9) of section 2302(b), the Board shall impose disciplinary 
action if the Board finds that the activity protected under 
such paragraph (8) or (9) (as the case may be) was the primary 
motivating factor, unless that employee demonstrates, by a 
preponderance of the evidence, that the employee would have 
taken, failed to take, or threatened to take or fail to take 
the same personnel action, in the absence of such protected 
activity.

           *       *       *       *       *       *       *


  SUBCHAPTER III--INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES

Sec.  1221. Individual right of action in certain reprisal cases

  (a) * * *

           *       *       *       *       *       *       *

  (g)(1)(A) If the Board orders corrective action under this 
section, such corrective action may include--
          (i) * * *
          (ii) back pay and related benefits, medical costs 
        incurred, travel expenses, [and any other reasonable 
        and foreseeable consequential changes.] any other 
        reasonable and foreseeable consequential damages, and 
        compensatory damages (including attorney's fees, 
        interest, reasonable expert witness fees, and costs).

           *       *       *       *       *       *       *

  (h)(1) * * *

           *       *       *       *       *       *       *

  (3) Judicial review under this subsection shall not be 
available with respect to any decision or order as to which the 
employee, former employee, or applicant has filed a petition 
for judicial review under subsection (k).

           *       *       *       *       *       *       *

  (k)(1) If, in the case of an employee, former employee, or 
applicant for employment who seeks corrective action (or on 
behalf of whom corrective action is sought) from the Merit 
Systems Protection Board based on an alleged prohibited 
personnel practice described in section 2302(b)(8), no final 
order or decision is issued by the Board within 180 days after 
the date on which a request for such corrective action has been 
duly submitted (or, in the event that a final order or decision 
is issued by the Board, whether within that 180-day period or 
thereafter, then, within 90 days after such final order or 
decision is issued, and so long as such employee, former 
employee, or applicant has not filed a petition for judicial 
review of such order or decision under subsection (h))--
          (A) such employee, former employee, or applicant may, 
        after providing written notice to the Board, bring an 
        action at law or equity for de novo review in the 
        appropriate United States district court, which shall 
        have jurisdiction over such action without regard to 
        the amount incontroversy, and which action shall, at 
        the request of either party to such action, be tried by 
        the court with a jury; and
          (B) in any such action, the court--
                  (i) shall apply the standards set forth in 
                subsection (e); and
                  (ii) may award any relief which the court 
                considers appropriate, including any relief 
                described in subsection (g).
An appeal from a final decision of a district court in an 
action under this paragraph may, at the election of the 
appellant, be taken to the Court of Appeals for the Federal 
Circuit (which shall have jurisdiction of such appeal), in lieu 
of the United States court of appeals for the circuit embracing 
the district in which the action was brought.
  (2) For purposes of this subsection, the term ``appropriate 
United States district court'', as used with respect to an 
alleged prohibited personnel practice, means the United States 
district court for the district in which the prohibited 
personnel practice is alleged to have been committed, the 
judicial district in which the employment records relevant to 
such practice are maintained and administered, or the judicial 
district in which resides the employee, former employee, or 
applicant for employment allegedly affected by such practice.
  (3) This subsection applies with respect to any appeal, 
petition, or other request for corrective action duly submitted 
to the Board, whether pursuant to section 1214(b)(2), the 
preceding provisions of this section, section 7513(d), or any 
otherwise applicable provisions of law, rule, or regulation.

           *       *       *       *       *       *       *


PART III--EMPLOYEES

           *       *       *       *       *       *       *


Subpart A--General Provisions

           *       *       *       *       *       *       *


                  CHAPTER 23--MERIT SYSTEM PRINCIPLES

Sec.
2301.  Merit system principles.
     * * * * * * *
[2304.  Responsibility of the Government Accountability Office.
[2305.  Coordination with certain other provisions of law.]
2303a.  National security whistleblower rights.
2304.  Prohibited personnel practices affecting the Transportation 
          Security Administration.
2305.  Responsibility of the Government Accountability Office.
2306.  Coordination with certain other provisions of law.

           *       *       *       *       *       *       *


Sec.  2302. Prohibited personnel practices

  (a)(1) * * *
  (2) For the purpose of this section--
          (A) ``personnel action'' means--
                  (i) * * *

           *       *       *       *       *       *       *

                  (x) a decision to order psychiatric testing 
                or examination; [and]
                  (xi) the implementation or enforcement of any 
                nondisclosure policy, form, or agreement; and
                  [(xi)] (xii) any other significant change in 
                duties, responsibilities, or working 
                conditions;

           *       *       *       *       *       *       *

          (B) ``covered position'' means, with respect to any 
        personnel action, any position in the competitive 
        service, a career appointee position in the Senior 
        Executive Service, or a position in the excepted 
        service, but does not include any position which is, 
        prior to the personnel action--
                  (i) * * *
                  (ii) excluded from the coverage of this 
                section by the President based on a 
                determination by the President that it is 
                necessary and warranted by conditions of good 
                administration; [and]
          (C) ``agency'' means an Executive agency and the 
        Government Printing Office, but does not include--
                  (i) * * *
                  [(ii) the Federal Bureau of Investigation, 
                the Central Intelligence Agency, the Defense 
                Intelligence Agency, the National Geospatial-
                Intelligence Agency, the National Security 
                Agency, and, as determined by the President, 
                any Executive agency or unit thereof the 
                principal function of which is the conduct of 
                foreign intelligence or counterintelligence 
                activities; or]
                  (ii)(I) the Federal Bureau of Investigation, 
                the Central Intelligence Agency, the Defense 
                Intelligence Agency, the National Geospatial-
                Intelligence Agency, or the National Security 
                Agency; or
                  (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, 
                if the determination (as that determination 
                relates to a personnel action) is made before 
                that personnel action; or
                  (iii) the Government Accountability 
                Office[.]; and
          (D) ``disclosure'' means a formal or informal 
        communication, 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.
  (b) Any employee who has authority to take, direct others to 
take, recommend, or approve any personnel action, shall not, 
with respect to such authority--
          (1) * * *

           *       *       *       *       *       *       *

          (8) take or fail to take, or threaten to take or fail 
        to take, a personnel action with respect to any 
        employee or applicant for employment because of--
                  (A) any disclosure of information by an 
                employee or applicant [which the employee or 
                applicant reasonably believes evidences], 
                without restriction as to time, place, form, 
                motive, context, or prior disclosure made to 
                any person by an employee or applicant, 
                including a disclosure made in the ordinary 
                course of an employee's duties, that the 
                employee or applicant reasonably believes is 
                evidence of--
                          (i) [a violation] any violation of 
                        any law, rule, or regulation, or

           *       *       *       *       *       *       *

                  (B) any disclosure to the Special Counsel, or 
                to the Inspector General of an agency or 
                another employee designated by the head of the 
                agency to receive such disclosures, of 
                information [which the employee or applicant 
                reasonably believes evidences], without 
                restriction as to time, place, form, motive, 
                context, or prior disclosure made to any person 
                by an employee or applicant, including a 
                disclosure made in the ordinary course of an 
                employee's duties, of information that the 
                employee or applicant reasonably believes is 
                evidence of--
                          (i) [a violation] any violation 
                        (other than a violation of this 
                        section) of any law, rule, or 
                        regulation, or

           *       *       *       *       *       *       *

          (11)(A) * * *
          (B) knowingly fail to take, recommend, or approve any 
        personnel action if the failure to take such action 
        would violate a veterans' preference requirement; [or]
          (12) implement or enforce any nondisclosure policy, 
        form, or agreement, if such policy, form, or agreement 
        does not contain the following statement: ``These 
        provisions are consistent with and do not supersede, 
        conflict with, or otherwise alter the employee 
        obligations, rights, or liabilities created by 
        Executive Order No. 12958; section 7211 of title 5, 
        United States Code (governing disclosures to Congress); 
        section 1034 of title 10, United States Code (governing 
        disclosures to Congress by members of the military); 
        section 2302(b)(8) of title 5, United States Code 
        (governing disclosures of illegality, waste, fraud, 
        abuse, or public health or safety threats); the 
        Intelligence Identities Protection Act of 1982 (50 
        U.S.C. 421 and following) (governing disclosures that 
        could expose confidential Government agents); and the 
        statutes which protect against disclosures that could 
        compromise national security, including sections 641, 
        793, 794, 798, and 952 of title 18, United States Code, 
        and section 4(b) of the Subversive Activities Control 
        Act of 1950 (50 U.S.C. 783(b)). The definitions, 
        requirements, obligations, rights, sanctions, and 
        liabilities created by such Executive order and such 
        statutory provisions are incorporated into this 
        agreement and are controlling.'';
          (13) conduct, or cause to be conducted, an 
        investigation, other than any ministerial or 
        nondiscretionary factfinding activities necessary for 
        the agency to perform its mission, of an employee or 
        applicant for employment because of any activity 
        protected under this section; or
          [(12)] (14) take or fail to take any other personnel 
        action if the taking of or failure to take such action 
        violates any law, rule, or regulation implementing, or 
        directly concerning, the merit system principles 
        contained in section 2301 of this title.
This subsection shall not be construed to authorize the 
withholding of information from the Congress or the taking of 
any personnel action against an employee who discloses 
information to the Congress. For purposes of paragraph (8), any 
presumption relating to the performance of a duty by an 
employee who has authority to take, direct others to take, 
recommend, or approve any personnel action may be rebutted by 
substantial evidence. For purposes of paragraph (8), a 
determination as to whether an employee or applicant reasonably 
believes that such employee or applicant has disclosed 
information that evidences any violation of law, rule, 
regulation, gross mismanagement, a gross waste of funds, an 
abuse of authority, or a substantial and specific danger to 
public health or safety shall be made by determining whether a 
disinterested observer with knowledge of the essential facts 
known to or readily ascertainable by the employee or applicant 
could reasonably conclude that the actions of the Government 
evidence such violations, mismanagement, waste, abuse, or 
danger.

           *       *       *       *       *       *       *

  (f) As used in section 2302(b)(8), the term ``abuse of 
authority'' includes--
          (1) any action that compromises the validity or 
        accuracy of federally funded research or analysis; and
          (2) the dissemination of false or misleading 
        scientific, medical, or technical information.

           *       *       *       *       *       *       *


Sec. 2303a. National security whistleblower rights

  (a) Prohibition of Reprisals.--
          (1) In general.--In addition to any rights provided 
        in section 2303 of this title, title VII of Public Law 
        105-272, or any other provision of law, an employee, 
        former employee, or applicant for employment in a 
        covered agency may not be discharged, demoted, or 
        otherwise discriminated against (including by denying, 
        suspending, or revoking a security clearance, or by 
        otherwise restricting access to classified or sensitive 
        information) as a reprisal for making a disclosure 
        described in paragraph (2).
          (2) Disclosures described.--A disclosure described in 
        this paragraph is any disclosure of covered information 
        which is made--
                  (A) by an employee, former employee, or 
                applicant for employment in a covered agency 
                (without restriction as to time, place, form, 
                motive, context, or prior disclosure made to 
                any person by an employee, former employee, or 
                applicant, including a disclosure made in the 
                course of an employee's duties); and
                  (B) to an authorized Member of Congress, an 
                authorized official of an Executive agency, an 
                authorized official of the Department of 
                Justice, or the Inspector General of the 
                covered agency in which such employee is 
                employed, such former employee was employed, or 
                such applicant seeks employment.
  (b) Investigation of Complaints.--An employee, former 
employee, or applicant for employment in a covered agency who 
believes that such employee, former employee, or applicant has 
been subjected to a reprisal prohibited by subsection (a) may 
submit a complaint to the Inspector General and the head of the 
covered agency. The Inspector General shall investigate the 
complaint and, unless the Inspector General determines that the 
complaint is frivolous, submit a report of the findings of the 
investigation within 120 days to the employee, former employee, 
or applicant and to the head of the covered agency.
  (c) Remedy.--
          (1) Within 180 days of the filing of the complaint, 
        the head of the covered agency shall, taking into 
        consideration the report of the Inspector General under 
        subsection (b) (if any), determine whether the 
        employee, former employee, or applicant has been 
        subjected to a reprisal prohibited by subsection (a), 
        and shall either issue an order denying relief or shall 
        implement corrective action to return the employee, 
        former employee, or applicant, as nearly as possible, 
        to the position he would have held had the reprisal not 
        occurred, including voiding any directive or order 
        denying, suspending, or revoking a security clearance 
        or otherwise restricting access to classified or 
        sensitive information that constituted a reprisal, as 
        well as providing back pay and related benefits, 
        medical costs incurred, travel expenses, any other 
        reasonable and foreseeable consequential damages, and 
        compensatory damages (including attorney's fees, 
        interest, reasonable expert witness fees, and costs). 
        If the head of the covered agency issues an order 
        denying relief, he shall issue a report to the 
        employee, former employee, or applicant detailing the 
        reasons for the denial.
          (2)(A) If the head of the covered agency, in the 
        process of implementing corrective action under 
        paragraph (1), voids a directive or order denying, 
        suspending, or revoking a security clearance or 
        otherwise restricting access to classified or sensitive 
        information that constituted a reprisal, the head of 
        the covered agency may re-initiate procedures to issue 
        a directive or order denying, suspending, or revoking a 
        security clearance or otherwise restricting access to 
        classified or sensitive information only if those re-
        initiated procedures are based exclusively on national 
        security concerns and are unrelated to the actions 
        constituting the original reprisal.
          (B) In any case in which the head of a covered agency 
        re-initiates procedures under subparagraph (A), the 
        head of the covered agency shall issue an unclassified 
        report to its Inspector General and to authorized 
        Members of Congress (with a classified annex, if 
        necessary), detailing the circumstances of the agency's 
        re-initiated procedures and describing the manner in 
        which those procedures are based exclusively on 
        national security concerns and are unrelated to the 
        actions constituting the original reprisal. The head of 
        the covered agency shall also provide periodic updates 
        to the Inspector General and authorized Members of 
        Congress detailing any significant actions taken as a 
        result of those procedures, and shall respond promptly 
        to inquiries from authorized Members of Congress 
        regarding the status of those procedures.
          (3) If the head of the covered agency has not made a 
        determination under paragraph (1) within 180 days of 
        the filing of the complaint (or he has issued an order 
        denying relief, in whole or in part, whether within 
        that 180-day period or thereafter, then, within 90 days 
        after such order is issued), the employee, former 
        employee, or applicant for employment may bring an 
        action at law or equity for de novo review to seek any 
        corrective action described in paragraph (1) in the 
        appropriate United States district court (as defined by 
        section 1221(k)(2)), which shall have jurisdiction over 
        such action without regard to the amount in 
        controversy, and which action shall, at the request of 
        either party to such action, be tried by the court with 
        a jury. An appeal from a final decision of a district 
        court in an action under this paragraph may, at the 
        election of the appellant, be taken to the Court of 
        Appeals for the Federal Circuit (which shall have 
        jurisdiction of such appeal), in lieu of the United 
        States court of appeals for the circuit embracing the 
        district in which the action was brought.
          (4) An employee, former employee, or applicant 
        adversely affected or aggrieved by an order issued 
        under paragraph (1), or who seeks review of any 
        corrective action determined under paragraph (1), may 
        obtain judicial review of such order or determination 
        in the United States Court of Appeals for the Federal 
        Circuit or any United States court of appeals having 
        jurisdiction over appeals from any United States 
        district court which, under section 1221(k)(2), would 
        be an appropriate United States district court. No 
        petition seeking such review may be filed more than 60 
        days after issuance of the order or the determination 
        to implement corrective action by the head of the 
        agency. Review shall conform to chapter 7.
          (5)(A) If, in any action for damages or relief under 
        paragraph (3) or (4), an Executive agency moves to 
        withhold information from discovery based on a claim 
        that disclosure would be inimical to national security 
        by asserting the privilege commonly referred to as the 
        ``state secrets privilege'', and if the assertion of 
        such privilege prevents the employee, former employee, 
        or applicant from establishing an element in support of 
        the employee's, former employee's, or applicant's 
        claim, the court shall resolve the disputed issue of 
        fact or law in favor of the employee, former employee, 
        or applicant, provided that an Inspector General 
        investigation under subsection (b) has resulted in 
        substantial confirmation of that element, or those 
        elements, of the employee's, former employee's, or 
        applicant's claim.
          (B) In any case in which an Executive agency asserts 
        the privilege commonly referred to as the ``state 
        secrets privilege'', whether or not an Inspector 
        General has conducted an investigation under subsection 
        (b), the head of that agency shall, at the same time it 
        asserts the privilege, issue a report to authorized 
        Members of Congress, accompanied by a classified annex 
        if necessary, describing the reasons for the assertion, 
        explaining why the court hearing the matter does not 
        have the ability to maintain the protection of 
        classified information related to the assertion, 
        detailing the steps the agency has taken to arrive at a 
        mutually agreeable settlement with the employee, former 
        employee, or applicant for employment, setting forth 
        the date on which the classified information at issue 
        will be declassified, and providing all relevant 
        information about the underlying substantive matter.
  (d) Applicability to Non-Covered Agencies.--An employee, 
former employee, or applicant for employment in an Executive 
agency (or element or unit thereof) that is not a covered 
agency shall, for purposes of any disclosure of covered 
information (as described in subsection (a)(2)) which consists 
in whole or in part of classified or sensitive information, be 
entitled to the same protections, rights, and remedies under 
this section as if that Executive agency (or element or unit 
thereof) were a covered agency.
  (e) Construction.--Nothing in this section may be construed--
          (1) to authorize the discharge of, demotion of, or 
        discrimination against an employee, former employee, or 
        applicant for employment for a disclosure other than a 
        disclosure protected by subsection (a) or (d) of this 
        section or to modify or derogate from a right or remedy 
        otherwise available to an employee, former employee, or 
        applicant for employment; or
          (2) to preempt, modify, limit, or derogate any rights 
        or remedies available to an employee, former employee, 
        or applicant for employment under any other provision 
        of law, rule, or regulation (including the Lloyd-La 
        Follette Act).
No court or administrative agency may require the exhaustion of 
any right or remedy under this section as a condition for 
pursuing any other right or remedy otherwise available to an 
employee, former employee, or applicant under any other 
provision of law, rule, or regulation (as referred to in 
paragraph (2)).
  (f) Definitions.--For purposes of this section--
          (1) the term ``covered information'', as used with 
        respect to an employee, former employee, or applicant 
        for employment, means any information (including 
        classified or sensitive information) which the 
        employee, former employee, or applicant reasonably 
        believes evidences--
                  (A) any violation of any law, rule, or 
                regulation; or
                  (B) gross mismanagement, a gross waste of 
                funds, an abuse of authority, or a substantial 
                and specific danger to public health or safety;
          (2) the term ``covered agency'' means--
                  (A) the Federal Bureau of Investigation, the 
                Central Intelligence Agency, the Defense 
                Intelligence Agency, the National Geospatial-
                Intelligence Agency, the National Security 
                Agency, and the National Reconnaissance Office; 
                and
                  (B) any other Executive agency, or element or 
                unit thereof, determined by the President under 
                section 2302(a)(2)(C)(ii)(II) to have as its 
                principal function the conduct of foreign 
                intelligence or counterintelligence activities;
          (3) the term ``authorized Member of Congress'' means 
        a member of the House Permanent Select Committee on 
        Intelligence, the Senate Select Committee on 
        Intelligence, the House Committee on Oversight and 
        Government Reform, the Senate Committee on Homeland 
        Security and Governmental Affairs, and the committees 
        of the House of Representatives or the Senate that have 
        oversight over the program about which the covered 
        information is disclosed;
          (4) the term ``authorized official of an Executive 
        agency'' shall have such meaning as the Office of 
        Personnel Management shall by regulation prescribe, 
        except that such term shall, with respect to any 
        employee, former employee, or applicant for employment 
        in an agency, include--
                  (A) the immediate supervisor of the employee 
                or former employee and each successive 
                supervisor (immediately above such immediate 
                supervisor) within the employee's or former 
                employee's chain of authority (as determined 
                under such regulations); and
                  (B) the head, general counsel, and ombudsman 
                of such agency; and
          (5) the term ``authorized official of the Department 
        of Justice'' means any employee of the Department of 
        Justice, the duties of whose position include the 
        investigation, enforcement, or prosecution of any law, 
        rule, or regulation.

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.
  (c) Effective Date.--This section shall take effect as of the 
date of the enactment of this section.

Sec.  [2304.] 2305. Responsibility of the Government Accountability 
                    Office

  If requested by either House of the Congress (or any 
committee thereof), or if considered necessary by the 
Comptroller General, the Government Accountability Office shall 
conduct audits and reviews to assure compliance with the laws, 
rules, and regulations governing employment in the executive 
branch and in the competitive service and to assess the 
effectiveness and soundness of Federal personnel management.

Sec.  [2305.] 2306. Coordination with certain other provisions of law

  No provision of this chapter, or action taken under this 
chapter, shall be construed to impair the authorities and 
responsibilities set forth in section 102 of the National 
Security Act of 1947 (61 Stat. 495; 50 U.S.C. 403), the Central 
Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a 
and following), the Act entitled ``An Act to provide certain 
administrative authorities for the National Security Agency, 
and for other purposes'', approved May 29, 1959 (73 Stat. 63; 
50 U.S.C. 402 note), and the Act entitled ``An Act to amend the 
Internal Security Act of 1950'', approved March 26, 1964 (78 
Stat. 168; 50 U.S.C. 831-835).

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Subpart F--Labor-Management and Employee Relations

           *       *       *       *       *       *       *


CHAPTER 77--APPEALS

           *       *       *       *       *       *       *


Sec. 7703. Judicial review of decisions of the Merit Systems Protection 
                    Board

  (a) * * *

           *       *       *       *       *       *       *

  (b)(1) Except as provided in paragraph (2) of this 
subsection, 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] the appropriate 
United States court of appeals. Notwithstanding any other 
provision of law, any petition for review must be filed within 
60 days after the date the petitioner received notice of the 
final order or decision of the Board.

           *       *       *       *       *       *       *

  (3) For purposes of the first sentence of paragraph (1), the 
term ``appropriate United States court of appeals'' means the 
United States Court of Appeals for the Federal Circuit, except 
that in the case of a prohibited personnel practice described 
in section 2302(b)(8) (other than a case that, disregarding 
this paragraph, would otherwise be subject to paragraph (2)), 
such term means the United States Court of Appeals for the 
Federal Circuit and any United States court of appeals having 
jurisdiction over appeals from any United States district court 
which, under section 1221(k)(2), would be an appropriate United 
States district court for purposes of such prohibited personnel 
practice.
  (c) In any case filed in the United States Court of Appeals 
for the Federal Circuit, the court shall review the record and 
hold unlawful and set aside any agency action, findings, or 
conclusions found to be--
          (1) arbitrary, capricious, an abuse of discretion, or 
        otherwise not in accordance with law;
          (2) obtained without procedures required by law, 
        rule, or regulation having been followed; or
          (3) unsupported by substantial evidence;
except that in the case of discrimination brought under any 
section referred to in subsection (b)(2) of this section, the 
employee or applicant shall have the right to have the facts 
subject to trial de novo by the reviewing [court.] court, and 
in the case of a prohibited personnel practice described in 
section 2302(b)(8) brought under any provision of law, rule, or 
regulation described in section 1221(k)(3), the employee or 
applicant shall have the right to de novo review in accordance 
with section 1221(k).

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                              ----------                              


FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949

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TITLE III--PROCUREMENT PROCEDURE

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SEC. 315. CONTRACTOR EMPLOYEES: PROTECTION FROM REPRISAL FOR DISCLOSURE 
                    OF CERTAIN INFORMATION.

  (a) * * *

           *       *       *       *       *       *       *

  (c) Remedy and Enforcement Authority.--(1) [If the head of an 
executive agency determines that a contractor has subjected a 
person to a reprisal prohibited by subsection (a), the head of 
the executive agency may take one or more of the following 
actions:] Not later than 180 days after submission of a 
complaint under subsection (b), the head of the executive 
agency concerned shall determine whether the contractor 
concerned has subjected the complainant to a reprisal 
prohibited by subsection (a) and shall either issue an order 
denying relief or shall take one or more of the following 
actions:
          (A) * * *

           *       *       *       *       *       *       *

  (3) If the head of an executive agency has not issued an 
order within 180 days after the submission of a complaint under 
subsection (b) and there is no showing that such delay is due 
to the bad faith of the complainant, the complainant shall be 
deemed to have exhausted his administrative remedies with 
respect to the complaint, and the complainant may bring an 
action at law or equity for de novo review to seek compensatory 
damages and other relief available under this section in the 
appropriate district court of the United States, which shall 
have jurisdiction over such an action without regard to the 
amount in controversy, and which action shall, at the request 
of either party to such action, be tried by the court with a 
jury.
  [(3)] (4) Any person adversely affected or aggrieved by an 
order issued under paragraph (1) may obtain review of the 
order's conformance with this subsection, and any regulations 
issued to carry out this section, in the United States court of 
appeals for a circuit in which the reprisal is alleged in the 
order to have occurred. No petition seeking such review may be 
filed more than 60 days after issuance of the order by the head 
of the agency. Review shall conform to chapter 7 of title 5, 
United States Code.

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                              ----------                              


TITLE 10, UNITED STATES CODE

           *       *       *       *       *       *       *


Subtitle A--General Military Law

           *       *       *       *       *       *       *


PART IV--SERVICE, SUPPLY, AND PROCUREMENT

           *       *       *       *       *       *       *


CHAPTER 141--MISCELLANEOUS PROCUREMENT PROVISIONS

           *       *       *       *       *       *       *


Sec. 2409. Contractor employees: protection from reprisal for 
                    disclosure of certain information

  (a) * * *

           *       *       *       *       *       *       *

  (c) Remedy and Enforcement Authority.--(1) [If the head of 
the agency determines that a contractor has subjected a person 
to a reprisal prohibited by subsection (a), the head of the 
agency may take one or more of the following actions:]  Not 
later than 180 days after submission of a complaint under 
subsection (b), the head of the agency concerned shall 
determine whether the contractor concerned has subjected the 
complainant to a reprisal prohibited by subsection (a) and 
shall either issue an order denying relief or shall take one or 
more of the following actions:
          (A) * * *

           *       *       *       *       *       *       *

  (3) If the head of an agency has not issued an order within 
180 days after the submission of a complaint under subsection 
(b) and there is no showing that such delay is due to the bad 
faith of the complainant, the complainant shall be deemed to 
have exhausted his administrative remedies with respect to the 
complaint, and the complainant may bring an action at law or 
equity for de novo review to seek compensatory damages and 
other relief available under this section in the appropriate 
district court of the United States, which shall have 
jurisdiction over such an action without regard to the amount 
in controversy, and which action shall, at the request of 
either party to such action, be tried by the court with a jury.
  [(3)] (4) Any person adversely affected or aggrieved by an 
order issued under paragraph (1) may obtain review of the 
order's conformance with this subsection, and any regulations 
issued to carry out this section, in the United States court of 
appeals for a circuit in which the reprisal is alleged in the 
order to have occurred. No petition seeking such review may be 
filed more than 60 days after issuance of the order by the head 
of the agency. Review shall conform to chapter 7 of title 5.

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