[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 985 Engrossed in House (EH)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
110th CONGRESS
  1st Session
                                H. R. 985

_______________________________________________________________________

                                 AN ACT


 
 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Whistleblower 
Protection Enhancement Act of 2007''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Clarification of disclosures covered.
Sec. 3. Definitional amendments.
Sec. 4. Rebuttable presumption.
Sec. 5. Nondisclosure policies, forms, and agreements.
Sec. 6. Exclusion of agencies by the President.
Sec. 7. Disciplinary action.
Sec. 8. Government Accountability Office study on revocation of 
                            security clearances.
Sec. 9. Alternative recourse.
Sec. 10. National security whistleblower rights.
Sec. 11. Enhancement of contractor employee whistleblower protections.
Sec. 12. Prohibited personnel practices affecting the Transportation 
                            Security Administration.
Sec. 13. Clarification of whistleblower rights relating to scientific 
                            and other research.
Sec. 14. Effective date.

SEC. 2. CLARIFICATION OF DISCLOSURES COVERED.

    (a) In General.--Section 2302(b)(8) of title 5, United States Code, 
is amended--
            (1) in subparagraph (A)--
                    (A) by striking ``which the employee or applicant 
                reasonably believes evidences'' and inserting ``, 
                without restriction as to time, place, form, motive, 
                context, forum, 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''; and
                    (B) in clause (i), by striking ``a violation'' and 
                inserting ``any violation''; and
            (2) in subparagraph (B)--
                    (A) by striking ``which the employee or applicant 
                reasonably believes evidences'' and inserting ``, 
                without restriction as to time, place, form, motive, 
                context, forum, 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''; and
                    (B) in clause (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).--Title 
5, United States Code, is amended in subsections (a)(3), (b)(4)(A), and 
(b)(4)(B)(i) of section 1214 and in subsections (a) and (e)(1) of 
section 1221 by inserting ``or 2302(b)(9)(B)-(D)'' after ``section 
2302(b)(8)'' each place it appears.

SEC. 3. DEFINITIONAL AMENDMENTS.

    (a) Disclosure.--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, 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) Clear and Convincing Evidence.--Sections 1214(b)(4)(B)(ii) and 
1221(e)(2) of title 5, United States Code, are amended by adding at the 
end the following: ``For purposes of the preceding sentence, `clear and 
convincing evidence' means evidence indicating that the matter to be 
proved is highly probable or reasonably certain.''.

SEC. 4. REBUTTABLE PRESUMPTION.

    Section 2302(b) of title 5, United States Code, is amended by 
adding at the end the following: ``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.''.

SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

    (a) Personnel Action.--Section 2302(a)(2)(A) of title 5, United 
States Code, is amended--
            (1) in clause (x), by striking ``and'' at the end;
            (2) by redesignating clause (xi) as clause (xii); and
            (3) by inserting after clause (x) the following:
                    ``(xi) the implementation or enforcement of any 
                nondisclosure policy, form, or agreement; and''.
    (b) Prohibited Personnel Practice.--Section 2302(b) of title 5, 
United States Code, is amended--
            (1) in paragraph (11), by striking ``or'' at the end;
            (2) by redesignating paragraph (12) as paragraph (14); and
            (3) by inserting after paragraph (11) the following:
            ``(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''.

SEC. 6. 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, 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''.

SEC. 7. DISCIPLINARY ACTION.

    Section 1215(a)(3) of title 5, United States Code, is amended to 
read as follows:
    ``(3)(A) A final order of the Board may impose--
            ``(i) disciplinary action consisting of removal, reduction 
        in grade, debarment from Federal employment for a period not to 
        exceed 5 years, suspension, or reprimand;
            ``(ii) an assessment of a civil penalty not to exceed 
        $1,000; or
            ``(iii) any combination of disciplinary actions described 
        under clause (i) and an assessment described under clause (ii).
    ``(B) In any case 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.''.

SEC. 8. GOVERNMENT ACCOUNTABILITY OFFICE STUDY ON REVOCATION OF 
              SECURITY CLEARANCES.

    (a) Requirement.--The Comptroller General shall conduct a study of 
security clearance revocations, taking effect after 1996, with respect 
to personnel that filed claims under chapter 12 of title 5, United 
States Code, in connection therewith. The study shall consist of an 
examination of the number of such clearances revoked, the number 
restored, and the relationship, if any, between the resolution of 
claims filed under such chapter and the restoration of such clearances.
    (b) Report.--Not later than 270 days after the date of the 
enactment of this Act, the Comptroller General shall submit to the 
Committee on Oversight and Government Reform of the House of 
Representatives and the Committee on Homeland Security and Governmental 
Affairs of the Senate a report on the results of the study required by 
subsection (a).

SEC. 9. ALTERNATIVE RECOURSE.

    (a) In General.--Section 1221 of title 5, United States Code, is 
amended by adding at the end the following:
    ``(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) or 2302(b)(9)(B)-(D), 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 in controversy, 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.''.
    (b) Review of MSPB Decisions.--Section 7703(b) of such title 5 is 
amended--
            (1) in the first sentence of paragraph (1), by striking 
        ``the United States Court of Appeals for the Federal Circuit'' 
        and inserting ``the appropriate United States court of 
        appeals''; and
            (2) by adding at the end the following:
    ``(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) or 
2302(b)(9)(B)-(D) (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) 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).''.
     (d) Conforming Amendments.--
            (1) Section 1221(h) of such title 5 is amended by adding at 
        the end the following:
    ``(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).''.
            (2) Section 7703(c) of such title 5 is amended by striking 
        ``court.'' and inserting ``court, and in the case of a 
        prohibited personnel practice described in section 2302(b)(8) 
        or 2302(b)(9)(B)-(D) 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).''.

SEC. 10. NATIONAL SECURITY WHISTLEBLOWER RIGHTS.

    (a) In General.--Chapter 23 of title 5, United States Code, is 
amended by inserting after section 2303 the following:
``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 or former employee 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 or former employee in a 
                covered agency (without restriction as to time, place, 
                form, motive, context, or prior disclosure made to any 
                person by an employee or former employee, 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, or the 
                Inspector General of the covered agency in which such 
                employee or former employee is or was employed.
    ``(b) Investigation of Complaints.--An employee or former employee 
in a covered agency who believes that such employee or former employee 
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 or former employee (as the case may be) 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 or former employee 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 or former employee, 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 or former employee 
        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 or former employee 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. 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 or former employee 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 or former employee from establishing an element in 
        support of the employee's or former employee's claim, the court 
        shall resolve the disputed issue of fact or law in favor of the 
        employee or former employee, provided that an Inspector General 
        investigation under subsection (b) has resulted in substantial 
        confirmation of that element, or those elements, of the 
        employee's or former employee'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 or former employee, 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 or former 
employee 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 or former employee 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 or former employee; 
        or
            ``(2) to preempt, modify, limit, or derogate any rights or 
        remedies available to an employee or former employee 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 or former 
employee 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 or former employee, means any information 
        (including classified or sensitive information) which the 
        employee or former employee 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 
                Office of the Director of National Intelligence, 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) with respect to covered information about 
                sources and methods of the Central Intelligence Agency, 
                the Director of National Intelligence, and the National 
                Intelligence Program (as defined in section 3(6) of the 
                National Security Act of 1947), a member of the House 
                Permanent Select Committee on Intelligence, the Senate 
                Select Committee on Intelligence, or any other 
                committees of the House of Representatives or Senate to 
                which this type of information is customarily provided;
                    ``(B) with respect to special access programs 
                specified in section 119 of title 10, an appropriate 
                member of the Congressional defense committees (as 
                defined in such section); and
                    ``(C) with respect to other covered information, 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, or any other 
                committees of the House of Representatives or the 
                Senate that have oversight over the program which the 
                covered information concerns; and
            ``(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 or former employee in an agency, 
        include the head, the general counsel, and the ombudsman of 
        such agency.''.
    (b) Clerical Amendment.--The table of sections for chapter 23 of 
title 5, United States Code, is amended by inserting after the item 
relating to section 2303 the following:

``2303a. National security whistleblower rights.''.

SEC. 11. ENHANCEMENT OF CONTRACTOR EMPLOYEE WHISTLEBLOWER PROTECTIONS.

    (a) Civilian Agency Contracts.--Section 315(c) of the Federal 
Property and Administrative Services Act of 1949 (41 U.S.C. 265(c)) is 
amended--
            (1) in paragraph (1), by striking ``If the head'' and all 
        that follows through ``actions:'' and inserting the following: 
        ``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:''; and
            (2) by redesignating paragraph (3) as paragraph (4) and 
        adding after paragraph (2) the following new paragraph (3):
    ``(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.''.
    (b) Armed Services Contracts.--Section 2409(c) of title 10, United 
States Code, is amended--
            (1) in paragraph (1), by striking ``If the head'' and all 
        that follows through ``actions:'' and inserting the following: 
        ``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:''; and
            (2) by redesignating paragraph (3) as paragraph (4) and 
        adding after paragraph (2) the following new paragraph (3):
    ``(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.''.

SEC. 12. 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 2303a (as inserted by 
        section 10) 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.
    ``(c) Effective Date.--This section shall take effect as of the 
date of the enactment of this section.''.
    (b) Clerical Amendment.--The table of sections for chapter 23 of 
title 5, United States Code, is amended by striking the items relating 
to sections 2304 and 2305, respectively, and by 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.''.

SEC. 13. CLARIFICATION OF WHISTLEBLOWER RIGHTS RELATING TO SCIENTIFIC 
              AND OTHER RESEARCH.

    (a) In General.--Section 2302 of title 5, United States Code, is 
amended by adding at the end the following:
    ``(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;
            ``(2) the dissemination of false or misleading scientific, 
        medical, or technical information;
            ``(3) any action that restricts or prevents an employee or 
        any person performing federally funded research or analysis 
        from publishing in peer-reviewed journals or other scientific 
        publications or making oral presentations at professional 
        society meetings or other meetings of their peers; and
            ``(4) any action that discriminates for or against any 
        employee or applicant for employment on the basis of religion, 
        as defined by section 13(b) of the Whistleblower Protection 
        Enhancement Act of 2007.''.
    (b) Definition.--As used in section 2302(f)(3) of title 5, United 
States Code (as amended by subsection (a)), the term ``on the basis of 
religion'' means--
            (1) prohibiting personal religious expression by Federal 
        employees to the greatest extent possible, consistent with 
        requirements of law and interests in workplace efficiency;
            (2) requiring religious participation or non-participation 
        as a condition of employment, or permitting religious 
        harassment;
            (3) failing to accommodate employees' exercise of their 
        religion;
            (4) failing to treat all employees with the same respect 
        and consideration, regardless of their religion (or lack 
        thereof);
            (5) restricting personal religious expression by employees 
        in the Federal workplace except where the employee's interest 
        in the expression is outweighed by the government's interest in 
        the efficient provision of public services or where the 
        expression intrudes upon the legitimate rights of other 
        employees or creates the appearance, to a reasonable observer, 
        of an official endorsement of religion;
            (6) regulating employees' personal religious expression on 
        the basis of its content or viewpoint, or suppressing 
        employees' private religious speech in the workplace while 
        leaving unregulated other private employee speech that has a 
        comparable effect on the efficiency of the workplace, including 
        ideological speech on politics and other topics;
            (7) failing to exercise their authority in an evenhanded 
        and restrained manner, and with regard for the fact that 
        Americans are used to expressions of disagreement on 
        controversial subjects, including religious ones;
            (8) failing to permit an employee to engage in private 
        religious expression in personal work areas not regularly open 
        to the public to the same extent that they may engage in 
        nonreligious private expression, subject to reasonable content- 
        and viewpoint-neutral standards and restrictions;
            (9) failing to permit an employee to engage in religious 
        expression with fellow employees, to the same extent that they 
        may engage in comparable nonreligious private expression, 
        subject to reasonable and content-neutral standards and 
        restrictions;
            (10) failing to permit an employee to engage in religious 
        expression directed at fellow employees, and may even attempt 
        to persuade fellow employees of the correctness of their 
        religious views, to the same extent as those employees may 
        engage in comparable speech not involving religion;
            (11) inhibiting an employee from urging a colleague to 
        participate or not to participate in religious activities to 
        the same extent that, consistent with concerns of workplace 
        efficiency, they may urge their colleagues to engage in or 
        refrain from other personal endeavors, except that the employee 
        must refrain from such expression when a fellow employee asks 
        that it stop or otherwise demonstrates that it is unwelcome;
            (12) failing to prohibit expression that is part of a 
        larger pattern of verbal attacks on fellow employees (or a 
        specific employee) not sharing the faith of the speaker;
            (13) preventing an employee from--
                    (A) wearing personal religious jewelry absent 
                special circumstances (such as safety concerns) that 
                might require a ban on all similar nonreligious 
                jewelry; or
                    (B) displaying religious art and literature in 
                their personal work areas to the same extent that they 
                may display other art and literature, so long as the 
                viewing public would reasonably understand the 
                religious expression to be that of the employee acting 
                in her personal capacity, and not that of the 
                government itself;
            (14) prohibiting an employee from using their private time 
        to discuss religion with willing coworkers in public spaces to 
        the same extent as they may discuss other subjects, so long as 
        the public would reasonably understand the religious expression 
        to be that of the employees acting in their personal 
        capacities;
            (15) discriminating against an employee on the basis of 
        their religion, religious beliefs, or views concerning their 
        religion by promoting, refusing to promote, hiring, refusing to 
        hire, or otherwise favoring or disfavoring, an employee or 
        potential employee because of his or her religion, religious 
        beliefs, or views concerning religion, or by explicitly or 
        implicitly, insisting that the employee participate in 
        religious activities as a condition of continued employment, 
        promotion, salary increases, preferred job assignments, or any 
        other incidents of employment or insisting that an employee 
        refrain from participating in religious activities outside the 
        workplace except pursuant to otherwise legal, neutral 
        restrictions that apply to employees' off-duty conduct and 
        expression in general (such as restrictions on political 
        activities prohibited by the Hatch Act);
            (16) prohibiting a supervisor's religious expression where 
        it is not coercive and is understood to be his or her personal 
        view, in the same way and to the same extent as other 
        constitutionally valued speech;
            (17) permitting a hostile environment, or religious 
        harassment, in the form of religiously discriminatory 
        intimidation, or pervasive or severe religious ridicule or 
        insult, whether by supervisors or fellow workers, as determined 
        by its frequency or repetitiveness, and severity;
            (18) failing to accommodate an employee's exercise of their 
        religion unless such accommodation would impose an undue 
        hardship on the conduct of the agency's operations, based on 
        real rather than speculative or hypothetical cost and without 
        disfavoring other, nonreligious accommodations; and
            (19) in those cases where an agency's work rule imposes a 
        substantial burden on a particular employee's exercise of 
        religion, failing to grant the employee an exemption from that 
        rule, absent a compelling interest in denying the exemption and 
        where there is no less restrictive means of furthering that 
        interest.
    (c) Rule of Construction.--Nothing in this section shall be 
construed to create any new right, benefit, or trust responsibility, 
substantive or procedural, enforceable at law or equity by a party 
against the United States, its agencies, its officers, or any person.

SEC. 14. EFFECTIVE DATE.

    This Act shall take effect 30 days after the date of the enactment 
of this Act, except as provided in the amendment made by section 
12(a)(2).

            Passed the House of Representatives March 14, 2007.

            Attest:

                                                                 Clerk.
110th CONGRESS

  1st Session

                               H. R. 985

_______________________________________________________________________

                                 AN ACT

 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.