1.Short title; table of
contents
(a)This Act may be cited as the
Whistleblower Protection Enhancement Act of
2009
.
(b)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.
2.Clarification of
disclosures covered
(a)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.
3.
(a)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 EvidenceSections 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.
.
4.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.
.
5.Nondisclosure
policies, forms, and agreements; security clearances; and retaliatory
investigations
(a)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 PracticeSection 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
.
6.Exclusion of
agencies by the presidentSection 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
.
7.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.
.
8.Government
Accountability Office study on revocation of security clearances
(a)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)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.
9.
(a)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)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)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)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)
(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).
.
10.National
security whistleblower rights
(a)Chapter 23 of title 5, United States Code, is amended by
inserting after section 2303 the following:
2303a.National
security whistleblower rights
(a)
(1)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)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
ComplaintsAn 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)
(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 AgenciesAn 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)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)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)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.
.
11.Enhancement of
contractor employee whistleblower protections
(a)Increased
Protection From ReprisalSection 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 DeterminationSubsection (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 RemedySubsection (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 employmentSection 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)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)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
.
12.Prohibited
personnel practices affecting the Transportation Security
Administration
(a)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:
2304.Prohibited
personnel practices affecting the Transportation Security
Administration
(a)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)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)This section shall take effect as of the date of the
enactment of this
section.
.
(b)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.
.
13.Disclosure of
censorship related to Federal research or technical information
(a)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)
(1)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)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)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.
14.
(a)Chapter 77 of title
5, United States Code, is amended by inserting after section 7702 the
following:
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 amendmentThe 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.
.
15.
(a)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)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
.
16.Clarification of
whistleblower rights for critical infrastructure informationSection 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.
.
17.Advising
employees of rightsSection
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
.
18.Special counsel
amicus curiae appearanceSection 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.
.
19.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
.
20.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).