[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1507 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 1507

    To amend chapter 23 of title 5, United States Code, relating to 
    disclosures of information protected from prohibited personnel 
                   practices, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 12, 2009

Mr. Van Hollen (for himself, Mr. Waxman, Mr. Towns, Mr. Braley of Iowa, 
 and Mr. Platts) introduced the following bill; which was referred to 
 the Committee on Oversight and Government Reform, and in addition to 
  the Committee on Homeland Security, for a period to be subsequently 
   determined by the Speaker, in each case for consideration of such 
 provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
    To amend chapter 23 of title 5, United States Code, relating to 
    disclosures of information protected from prohibited personnel 
                   practices, 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 2009''.
    (b) Table of Contents.--The table of contents of 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; security 
                            clearances; and retaliatory investigations.
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. Disclosure of censorship related to Federal research or 
                            technical information.
Sec. 14. Security clearances.
Sec. 15. Scope of due process.
Sec. 16. Clarification of whistleblower rights for critical 
                            infrastructure information.
Sec. 17. Advising employees of rights.
Sec. 18. Special counsel amicus curiae appearance.
Sec. 19. Attorney fees.
Sec. 20. 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; SECURITY 
              CLEARANCES; AND RETALIATORY INVESTIGATIONS.

    (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 (xiv); and
            (3) by inserting after clause (x) the following:
                            ``(xi) the implementation or enforcement of 
                        any nondisclosure policy, form, or agreement;
                            ``(xii) a suspension, revocation, or other 
                        determination relating to a security clearance 
                        or any other access determination by a covered 
                        agency;
                            ``(xiii) an investigation, other than any 
                        ministerial or nondiscretionary fact-finding 
                        activities necessary for the agency to perform 
                        its mission, of an employee or applicant for 
                        employment because of any activity protected 
                        under this section; 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); title VI of the National Security 
        Act of 1947 (50 U.S.C. 421 et seq.) (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 fact-finding 
        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:
                            ``(i)(I) the Federal Bureau of 
                        Investigation; or
                            ``(II) an element of the intelligence 
                        community (as defined in section 3(4) of the 
                        National Security Act of 1947 (50 U.S.C. 
                        401a(4))); or''.

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) 
was a significant motivating factor, even if other factors also 
motivated the decision, for the employee's decision to take, fail to 
take, or threaten to take or fail to take a personnel action, unless 
that employee demonstrates, by preponderance of 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) Study.--The Comptroller General shall conduct a study of 
security clearance revocations of Federal employees at a select sample 
of executive branch agencies. The study shall consist of an examination 
of the number of security clearances revoked, the process employed by 
each agency in revoking a clearance, the pay and employment status of 
agency employees during the revocation process, how often such 
revocations result in termination of employment or reassignment, how 
often such revocations are based on an improper disclosure of 
information, and such other factors the Comptroller General deems 
appropriate.
    (b) Report.--Not later than 18 months after the date of enactment 
of this Act, the Comptroller General shall submit to the Committee on 
Homeland Security and Governmental Affairs of the Senate and the 
Committee on Oversight and Government Reform of the House of 
Representatives a report on the results of the study required under 
this section.

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 MSB 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 this section, 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) Choice of Forum.--Section 7703(d) of such title 5 is amended by 
inserting after ``policy directive.'' the following: ``The petition 
shall be moved to an appropriate United States Court of Appeals other 
than the Federal Circuit at the request of the Director or of the 
employee.''.
    (d) Compensatory Damages.--Sections 1214(g)(2) and 
1221(g)(1)(A)(ii) of such title 5 are 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).''.
    (e) 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 
        ``the United States Court of Appeals for the Federal Circuit'' 
        and inserting ``the appropriate United States Court of 
        Appeals'' and 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 under 
        section 2303 of this title, section 17(d)(5) of the Central 
        Intelligence Agency Act of 1949 (50 U.S.C. 403q(d)(5)), section 
        8H of the Inspector General Act of 1978 (5 U.S.C. App.), or any 
        other provision of law, an employee or former employee of 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 a disclosure of covered information that is 
        made--
                    ``(A) by an employee or former employee of 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 of which such 
                employee or former employee is or was employed.
    ``(b) Investigation of Complaints.--An employee or former employee 
of 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 a complaint under 
        subsection (b), the head of the covered agency shall, taking 
        into consideration the report of the Inspector General under 
        such subsection (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 such 
        employee or former employee would have held had the reprisal 
        not occurred, including 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, such head shall 
        issue a report to the employee or former employee detailing the 
        reasons for the denial.
            ``(2)(A) If the head of a 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 
        such 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 (that may 
        include a classified annex, if necessary) to the Inspector 
        General of such covered agency and to authorized Members of 
        Congress, detailing the circumstances of such covered 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.
            ``(3) If the head of a covered agency has not made a 
        determination under paragraph (1) within 180 days of the filing 
        of a complaint under subsection (b) (or such head 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 referred to 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.
            ``(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 that, 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 a 
        covered 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 of 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)) that 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) 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 Failed 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.--In 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; and
                    ``(B) an element of the intelligence community (as 
                defined in section 3(4) of the National Security Act of 
                1947 (50 U.S.C. 401a(4))).
            ``(3) The term `authorized Member of Congress' means--
                    ``(A) with respect to covered information about 
                sources, methods, and intelligence activities (as that 
                term is defined in Executive Order 12333) of an element 
                of the intelligence community (as defined in section 
                3(4) of the National Security Act of 1947 (50 U.S.C. 
                401a(4))), a member of the Permanent Select Committee 
                on Intelligence of the House of Representatives, the 
                Select Committee on Intelligence of the Senate, 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 Permanent Select Committee on 
                Intelligence or the Committee on Oversight and 
                Government Reform of the House of Representatives, the 
                Select Committee on Intelligence or the Committee on 
                Homeland Security and Governmental Affairs of the 
                Senate, or any other committees of the House of 
                Representatives or the Senate that have oversight over 
                the program which the covered information concerns.
            ``(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) Increased Protection From Reprisal.--Section 315(a) of the 
Federal Property and Administrative Services Act of 1949 (41 U.S.C. 
265) is amended by striking ``disclosing to a Member of Congress'' and 
all that follows through the end of the subsection and inserting the 
following: ``disclosing, including a disclosure in the ordinary course 
of an employee's duties, to a Member of Congress, a representative of a 
committee of Congress, an Inspector General, the Government 
Accountability Office, an agency employee responsible for contract 
oversight or management, an authorized official of an executive agency 
or the Department of Justice or other Federal regulatory or law 
enforcement agency, or a person with supervisory authority over the 
employee (or any other person who has the authority to investigate or 
act on misconduct, a court, or a grand jury) information that the 
employee reasonably believes is evidence of gross mismanagement of a 
contract or grant, gross waste of agency funds, an abuse of authority 
related to the implementation of a contract or grant, a substantial and 
specific danger to public health or safety, or a violation of a law, 
rule, or regulation related to a contract (including the competition 
for or negotiation of a contract) or grant.''.
    (b) Clarification of Inspector General Determination.--Subsection 
(b) of section 315 of such Act is amended--
            (1) by inserting ``(1)'' after ``Investigation of 
        Complaints.--'';
            (2) by adding at the end the following new paragraphs:
    ``(2)(A) Except as provided under subparagraph (B), the Inspector 
General shall make a determination that a complaint is frivolous or 
submit a report under paragraph (1) within 180 days after receiving the 
complaint.
    ``(B) If the Inspector General is unable to complete an 
investigation in time to submit a report within the 180-day period 
specified in subparagraph (A) and the person submitting the complaint 
agrees to an extension of time, the Inspector General shall submit a 
report under paragraph (1) within such additional period of time as 
shall be agreed upon between the Inspector General and the person 
submitting the complaint.
    ``(3)(A) A person alleging a reprisal under this section shall 
affirmatively establish the occurrence of the reprisal if the person 
demonstrates that a disclosure described in subsection (a) was a 
contributing factor in the reprisal. A disclosure may be demonstrated 
as a contributing factor for purposes of this paragraph by 
circumstantial evidence, including evidence as follows:
            ``(i) Evidence that the official undertaking the reprisal 
        knew of the disclosure.
            ``(ii) Evidence that the reprisal occurred within a period 
        of time after the disclosure such that a reasonable person 
        could conclude that the disclosure was a contributing factor in 
        the reprisal.
    ``(B) Except as provided in subparagraph (C), if a reprisal is 
affirmatively established under subparagraph (A), the Inspector General 
shall recommend in the report under paragraph (1) that corrective 
action be taken under subsection (c).
    ``(C) The Inspector General may not recommend corrective action 
under subparagraph (B) with respect to a reprisal that is affirmatively 
established under subparagraph (A) if the contractor demonstrates by 
clear and convincing evidence that the contractor would have taken the 
action constituting the reprisal in the absence of the disclosure.
    ``(4) The person alleging the reprisal shall have access to the 
complete investigation file of the Inspector General in accordance with 
section 552a of title 5, United States Code (popularly referred to as 
the `Privacy Act'). The investigation of the Inspector General shall be 
deemed closed for purposes of disclosure under such section when an 
employee files an appeal to an agency head or a court of competent 
jurisdiction.''.
    (c) Acceleration of Schedule for Denying Relief or Providing 
Remedy.--Subsection (c) of such section is amended--
            (1) in paragraph (1), by striking ``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'' and inserting the following: ``Not later than 30 days 
        after receiving an Inspector General report pursuant to 
        subsection (b), the head of the agency concerned shall 
        determine whether there is sufficient basis to conclude that 
        the contractor concerned has subjected the complainant to a 
        reprisal prohibited by subsection (a) and shall either issue an 
        order denying relief or shall'';
            (2) in paragraph (1)(B), by inserting after ``together 
        with'' the following: ``compensatory damages and'';
            (3) in paragraph (1)(C), by inserting at the end before the 
        period the following: ``or a court of competent jurisdiction'';
            (4) by redesignating paragraphs (2) and (3) as paragraphs 
        (3) and (4), respectively; and
            (5) by inserting after paragraph (1) the following new 
        paragraph:
    ``(2)(A) If the head of an executive agency issues an order denying 
relief under paragraph (1) or has not issued an order within 210 days 
after the submission of a complaint under subsection (b), or in the 
case of an extension of time under paragraph (b)(2)(B), not later than 
30 days after the expiration of the extension of time, 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 all administrative 
remedies with respect to the complaint, and the complainant may bring a 
de novo action at law or equity against the contractor 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. Such an action shall, at the request of either party to 
the action, be tried by the court with a jury.
    ``(B) In any action under subparagraph (A), the establishment of 
the occurrence of a reprisal shall be governed by the provisions of 
subsection (b)(3)(A), including the burden of proof in that subsection, 
and the establishment that an action alleged to constitute a reprisal 
did not constitute a reprisal shall be subject to the burden of proof 
specified in subsection (b)(3)(C).''; and
            (6) in paragraph (4), as so redesignated, by inserting at 
        the end before the period the following: ``and attorneys fees 
        and costs''.
    (d) Prohibition on Conditions of Employment.--Section 315 of such 
Act is further amended by redesignating subsection (e) as subsection 
(f) and inserting after subsection (d) the following new subsection 
(e):
    ``(e) Prohibition.--Notwithstanding any other provision of law--
            ``(1) subject to paragraph (3), the rights and remedies 
        provided for in this section may not be waived by any 
        agreement, policy, form, or condition of employment, including 
        by any predispute arbitration agreement;
            ``(2) subject to paragraph (3), no predispute arbitration 
        agreement shall be valid or enforceable if it requires 
        arbitration of a dispute arising under this section; and
            ``(3) an arbitration provision in a collective bargaining 
        agreement shall be enforceable as to disputes arising under the 
        collective bargaining agreement.''.
    (e) Definitions.--Subsection (f) of such section, as redesignated 
by subsection (d), is amended by inserting before the period at the end 
the following: ``and any Inspector General that receives funding from, 
or has oversight over contracts awarded for or on behalf of, an 
executive agency''.

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 paragraphs (1), (8), and (9) of 
        section 2302(b);
            ``(2) any provision of law implementing paragraph (1), (8), 
        or (9) of section 2302(b) 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. DISCLOSURE OF CENSORSHIP RELATED TO FEDERAL RESEARCH OR 
              TECHNICAL INFORMATION.

    (a) Definitions.--In this section--
            (1) the term ``applicant'' means an applicant for a covered 
        position;
            (2) the term ``censorship related to Federal research or 
        technical information'' means any effort to alter, 
        misrepresent, or suppress--
                    (A) Federal research; or
                    (B) technical information;
            (3) the term ``covered position'' has the meaning given 
        under section 2302(a)(2)(B) of title 5, United States Code;
            (4) the term ``employee'' means an employee in a covered 
        position; and
            (5) the term ``disclosure'' has the meaning given under 
        section 2302(a)(2)(D) of title 5, United States Code.
    (b) Protected Disclosure.--
            (1) In general.--Any disclosure of information by an 
        employee or applicant for employment that the employee or 
        applicant reasonably believes is evidence of censorship related 
        to Federal research or technical information--
                    (A) shall come within the protections of section 
                2302(b)(8)(A) of title 5, United States Code, if--
                            (i) the employee or applicant reasonably 
                        believes that the censorship related to Federal 
                        research or technical information is or will 
                        cause--
                                    (I) any violation of law, rule, or 
                                regulation; or
                                    (II) gross mismanagement, a gross 
                                waste of funds, an abuse of authority, 
                                or a substantial and specific danger to 
                                public health or safety; and
                            (ii) the disclosure and information satisfy 
                        the conditions stated in the matter following 
                        clause (ii) of section 2302(b)(8)(A) of title 
                        5, United States Code; and
                    (B) shall come within the protections of section 
                2302(b)(8)(B) of title 5, United States Code, if--
                            (i) the conditions under subparagraph 
                        (A)(i) are satisfied; and
                            (ii) the disclosure is made to an 
                        individual referred to in the matter preceding 
                        clause (i) of section 2302(b)(8)(B) of title 5, 
                        United States Code, for the receipt of 
                        disclosures.
            (2) Application.--Paragraph (1) shall apply to any 
        disclosure of information by an employee or applicant without 
        restriction 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.
            (3) Rule of construction.--Nothing in this section shall be 
        construed to imply any limitation on the protections of 
        employees and applicants afforded by any other provision of 
        law, including protections with respect to any disclosure of 
        information believed to be evidence of censorship related to 
        Federal research or technical information.

SEC. 14. SECURITY CLEARANCES.

    (a) In General.--Chapter 77 of title 5, United States Code, is 
amended by inserting after section 7702 the following:

``SEC. 7702A. ACTIONS RELATING TO SECURITY CLEARANCES.

    ``(a) In any appeal relating to the suspension, revocation, or 
other determination relating to a security clearance or access 
determination, the Merit Systems Protection Board or any reviewing 
court--
            ``(1) shall determine whether paragraph (8) or (9) of 
        section 2302(b) was violated; and
            ``(2) may issue declaratory relief and any other 
        appropriate relief.
    ``(b)(1) If, in any final judgment, the Board or court declares 
that any suspension, revocation, or other determination with regard to 
a security clearance or access determination was made in violation of 
paragraph (8) or (9) of section 2302(b), the affected agency shall 
conduct a review of that suspension, revocation, access determination, 
or other determination, giving great weight to the Board or court 
judgment.
    ``(2) Not later than 30 days after any Board or court judgment 
declaring that a security clearance suspension, revocation, access 
determination, or other determination was made in violation of 
paragraph (8) or (9) of section 2302(b), the affected agency shall 
issue an unclassified report to the congressional committees of 
jurisdiction (with a classified annex if necessary), detailing the 
circumstances of the agency's security clearance suspension, 
revocation, other determination, or access determination. A report 
under this paragraph shall include any proposed agency action with 
regard to the security clearance or access determination.
    ``(c) An allegation that a security clearance or access 
determination was revoked or suspended in retaliation for a protected 
disclosure shall receive expedited review by the Office of Special 
Counsel, the Merit Systems Protection Board, and any reviewing court.
    ``(d) For purposes of this section, corrective action may not be 
ordered if the agency demonstrates by a preponderance of the evidence 
that it would have taken the same personnel action in the absence of 
such disclosure.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 77 of title 5, United States Code, is amended by inserting 
after the item relating to section 7702 the following:

``7702a. Actions relating to security clearances.''.

SEC. 15. SCOPE OF DUE PROCESS.

    (a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5, United 
States Code, is amended by inserting ``, after a finding that a 
protected disclosure was a contributing factor,'' after ``ordered if''.
    (b) Individual Action.--Section 1221(e)(2) of title 5, United 
States Code, is amended by inserting ``, after a finding that a 
protected disclosure was a contributing factor,'' after ``ordered if''.

SEC. 16. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL 
              INFRASTRUCTURE INFORMATION.

    Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C. 
133(c)) is amended by adding at the end the following: ``For purposes 
of this section, a permissible use of independently obtained 
information includes the disclosure of such information under section 
2302(b)(8) of title 5, United States Code.''.

SEC. 17. ADVISING EMPLOYEES OF RIGHTS.

    Section 2302(c) of title 5, United States Code, is amended by 
inserting, ``, including how to make a lawful disclosure of information 
that is specifically required by law or Executive order to be kept 
secret in the interest of national defense or the conduct of foreign 
affairs to the Special Counsel, the Inspector General of an agency, 
Congress, or other agency employee designated to receive disclosures'' 
after ``chapter 12 of this title''.

SEC. 18. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.

    Section 1212 of title 5, United States Code, is amended by adding 
at the end the following:
    ``(h) The Special Counsel may appear as amicus curiae in any action 
brought in a court of the United States related to any civil action 
brought in connection with paragraph (8) or (9) of section 2302(b) or 
subchapter III of chapter 73, or as otherwise authorized by law. In any 
such action, the Special Counsel may present the views of the Special 
Counsel with respect to compliance with paragraph (8) or (9) of section 
2302(b) or subchapter III of chapter 73 and the impact court decisions 
would have on the enforcement of those provisions of law.''.

SEC. 19. ATTORNEY FEES.

    Section 1204(m)(1) of title 5, United States Code, is amended by 
striking ``agency involved'' and inserting ``agency where the 
prevailing party is employed or has applied for employment''.

SEC. 20. 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).
                                 <all>