[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 372 Reported in Senate (RS)]
Calendar No. 219
111th CONGRESS
1st Session
S. 372
[Report No. 111-101]
To amend chapter 23 of title 5, United States Code, to clarify the
disclosures of information protected from prohibited personnel
practices, require a statement in nondisclosure policies, forms, and
agreements that such policies, forms, and agreements conform with
certain disclosure protections, provide certain authority for the
Special Counsel, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 3, 2009
Mr. Akaka (for himself, Ms. Collins, Mr. Grassley, Mr. Levin, Mr.
Lieberman, Mr. Voinovich, Mr. Leahy, Mr. Kennedy, Mr. Carper, Mr.
Pryor, Ms. Mikulski, Mr. Cardin, and Mr. Burris) introduced the
following bill; which was read twice and referred to the Committee on
Homeland Security and Governmental Affairs
December 3, 2009
Reported by Mr. Lieberman, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To amend chapter 23 of title 5, United States Code, to clarify the
disclosures of information protected from prohibited personnel
practices, require a statement in nondisclosure policies, forms, and
agreements that such policies, forms, and agreements conform with
certain disclosure protections, provide certain authority for the
Special Counsel, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY
FEDERAL EMPLOYEES.
<DELETED> (a) Short Title.--This Act may be cited as the
``Whistleblower Protection Enhancement Act of 2009''.</DELETED>
<DELETED> (b) Clarification of Disclosures Covered.--</DELETED>
<DELETED> (1) In general.--Section 2302(b)(8) of title 5,
United States Code, is amended--</DELETED>
<DELETED> (A) in subparagraph (A)--</DELETED>
<DELETED> (i) by striking ``which the
employee or applicant reasonably believes
evidences'' and inserting ``, without
restriction 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'';</DELETED>
<DELETED> (ii) in clause (i), by striking
``a violation'' and inserting ``any
violation''; and</DELETED>
<DELETED> (iii) by striking ``or'' at the
end;</DELETED>
<DELETED> (B) in subparagraph (B)--</DELETED>
<DELETED> (i) by striking ``which the
employee or applicant reasonably believes
evidences'' and inserting ``, without
restriction 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'';</DELETED>
<DELETED> (ii) in clause (i), by striking
``a violation'' and inserting ``any violation
(other than a violation of this section)'';
and</DELETED>
<DELETED> (iii) in clause (ii), by adding
``or'' at the end; and</DELETED>
<DELETED> (C) by adding at the end the
following:</DELETED>
<DELETED> ``(C) any disclosure that--</DELETED>
<DELETED> ``(i) is made by an employee or
applicant of information required by law or
Executive order to be kept secret in the
interest of national defense or the conduct of
foreign affairs that the employee or applicant
reasonably believes is direct and specific
evidence of--</DELETED>
<DELETED> ``(I) any violation of any
law, rule, or regulation;</DELETED>
<DELETED> ``(II) gross
mismanagement, a gross waste of funds,
an abuse of authority, or a substantial
and specific danger to public health or
safety; or</DELETED>
<DELETED> ``(III) a false statement
to Congress on an issue of material
fact; and</DELETED>
<DELETED> ``(ii) is made to--</DELETED>
<DELETED> ``(I) a member of a
committee of Congress having a primary
responsibility for oversight of a
department, agency, or element of the
Federal Government to which the
disclosed information relates and who
is authorized to receive information of
the type disclosed;</DELETED>
<DELETED> ``(II) any other Member of
Congress who is authorized to receive
information of the type disclosed;
or</DELETED>
<DELETED> ``(III) an employee of
Congress who has the appropriate
security clearance and is authorized to
receive information of the type
disclosed.''.</DELETED>
<DELETED> (2) Prohibited personnel practices under section
2302(b)(9).--</DELETED>
<DELETED> (A) Technical and conforming amendments.--
Title 5, United States Code, is amended in subsections
(a)(3), (b)(4)(A), and (b)(4)(B)(i) of section 1214, in
subsections (a), (e)(1) and (i) of section 1221, and in
subsection (a)(2)(C)(i) of 2302 by inserting ``or
2302(b)(9) (B) through (D)'' after ``section
2302(b)(8)'' or ``(b)(8)'' each place it
appears.</DELETED>
<DELETED> (B) Other references.--Title 5, United
States Code, is amended in subsection (b)(4)(B)(i) of
section 1214 and in subsection (e)(1) of section 1221
by inserting ``or protected activity'' after
``disclosure'' each place it appears.</DELETED>
<DELETED> (c) Definitional Amendments.--</DELETED>
<DELETED> (1) Disclosures.--Section 2302(a)(2) of title 5,
United States Code, is amended--</DELETED>
<DELETED> (A) in subparagraph (B)(ii), by striking
``and'' at the end;</DELETED>
<DELETED> (B) in subparagraph (C)(iii), by striking
the period at the end and inserting ``; and'';
and</DELETED>
<DELETED> (C) by adding at the end the
following:</DELETED>
<DELETED> ``(D) `disclosure' means a formal or informal
communication or transmission, but does not include a
communication concerning policy decisions that lawfully
exercise discretionary authority unless the employee or
applicant providing the disclosure reasonably believes that the
disclosure evidences--</DELETED>
<DELETED> ``(i) any violation of any law, rule, or
regulation; or</DELETED>
<DELETED> ``(ii) gross mismanagement, a gross waste
of funds, an abuse of authority, or a substantial and
specific danger to public health or
safety.''.</DELETED>
<DELETED> (2) 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.''.</DELETED>
<DELETED> (d) Rebuttable Presumption.--Section 2302(b) of title 5,
United States Code, is amended by amending the matter following
paragraph (12) to read as follows:</DELETED>
<DELETED>``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any personnel
action against an employee who discloses information to Congress. For
purposes of paragraph (8), any presumption relating to the performance
of a duty by an employee who has authority to take, direct others to
take, recommend, or approve any personnel action may be rebutted by
substantial evidence. For purposes of paragraph (8), a determination as
to whether an employee or applicant reasonably believes that they have
disclosed information that evidences any violation of law, rule,
regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety shall be made by determining whether a disinterested observer
with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the
actions of the Government evidence such violations, mismanagement,
waste, abuse, or danger.''.</DELETED>
<DELETED> (e) Personnel Actions and Prohibited Personnel
Practices.--</DELETED>
<DELETED> (1) Personnel action.--Section 2302(a)(2)(A) of
title 5, United States Code, is amended--</DELETED>
<DELETED> (A) in clause (x), by striking ``and''
after the semicolon; and</DELETED>
<DELETED> (B) by redesignating clause (xi) as clause
(xiv) and inserting after clause (x) the
following:</DELETED>
<DELETED> ``(xi) the implementation or
enforcement of any nondisclosure policy, form,
or agreement;</DELETED>
<DELETED> ``(xii) a suspension, revocation,
or other determination relating to a security
clearance or any other access determination by
a covered agency;</DELETED>
<DELETED> ``(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''</DELETED>
<DELETED> (2) Prohibited personnel practice.--Section
2302(b) of title 5, United States Code, is amended--</DELETED>
<DELETED> (A) in paragraph (11), by striking ``or''
at the end;</DELETED>
<DELETED> (B) in paragraph (12), by striking the
period and inserting a semicolon; and</DELETED>
<DELETED> (C) by inserting after paragraph (12) the
following:</DELETED>
<DELETED> ``(13) implement or enforce any nondisclosure
policy, form, or agreement, if such policy, form, or agreement
does not contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by 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 disclosure 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 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'; or</DELETED>
<DELETED> ``(14) 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.''.</DELETED>
<DELETED> (f) 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:</DELETED>
<DELETED> ``(ii)(I) the Federal Bureau of
Investigation, the Central Intelligence Agency, the
Defense Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security Agency;
and</DELETED>
<DELETED> ``(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''.</DELETED>
<DELETED> (g) Disciplinary Action.--Section 1215(a)(3) of title 5,
United States Code, is amended to read as follows:</DELETED>
<DELETED> ``(3)(A) A final order of the Board may impose--
</DELETED>
<DELETED> ``(i) disciplinary action consisting of
removal, reduction in grade, debarment from Federal
employment for a period not to exceed 5 years,
suspension, or reprimand;</DELETED>
<DELETED> ``(ii) an assessment of a civil penalty
not to exceed $1,000; or</DELETED>
<DELETED> ``(iii) any combination of disciplinary
actions described under clause (i) and an assessment
described under clause (ii).</DELETED>
<DELETED> ``(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 paragraph (8) or (9) of section 2302(b) 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.''.</DELETED>
<DELETED> (h) Remedies.--</DELETED>
<DELETED> (1) 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''.</DELETED>
<DELETED> (2) Damages.--Sections 1214(g)(2) and
1221(g)(1)(A)(ii) of title 5, United States Code, are amended
by striking all after ``travel expenses,'' and inserting ``any
other reasonable and foreseeable consequential damages, and
compensatory damages (including attorney's fees, interest,
reasonable expert witness fees, and costs).'' each place it
appears.</DELETED>
<DELETED> (i) Judicial Review.--</DELETED>
<DELETED> (1) In general.--Section 7703(b)(1) of title 5,
United States Code, is amended to read as follows:</DELETED>
<DELETED> ``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2), a petition to review a final order or final decision of
the Board shall be filed in the United States Court of Appeals for the
Federal Circuit. Notwithstanding any other provision of law, any
petition for review must be filed within 60 days after the date the
petitioner received notice of the final order or decision of the
Board.</DELETED>
<DELETED> ``(B) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2009, a
petition to review a final order or final decision of the Board in a
case alleging a violation of paragraph (8) or (9) of section 2302(b)
shall be filed in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as provided
under subsection (b)(2).''.</DELETED>
<DELETED> (2) Review obtained by office of personnel
management.--Section 7703(d) of title 5, United States Code, is
amended to read as follows:</DELETED>
<DELETED> ``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director of the
Office of Personnel Management. The Director of the Office of Personnel
Management may obtain review of any final order or decision of the
Board by filing, within 60 days after the date the Director received
notice of the final order or decision of the Board, a petition for
judicial review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in his discretion, that the Board
erred in interpreting a civil service law, rule, or regulation
affecting personnel management and that the Board's decision will have
a substantial impact on a civil service law, rule, regulation, or
policy directive. If the Director did not intervene in a matter before
the Board, the Director may not petition for review of a Board decision
under this section unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied. In
addition to the named respondent, the Board and all other parties to
the proceedings before the Board shall have the right to appear in the
proceeding before the Court of Appeals. The granting of the petition
for judicial review shall be at the discretion of the Court of
Appeals.</DELETED>
<DELETED> ``(2) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2009, this
paragraph shall apply to any review relating to paragraph (8) or (9) of
section 2302(b) obtained by the Director of the Office of Personnel
Management. The Director of the Office of Personnel Management may
obtain review of any final order or decision of the Board by filing,
within 60 days after the date the Director received notice of the final
order or decision of the Board, a petition for judicial review in the
United States Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction as provided under subsection (b)(2)
if the Director determines, in his discretion, that the Board erred in
interpreting paragraph (8) or (9) of section 2302(b). If the Director
did not intervene in a matter before the Board, the Director may not
petition for review of a Board decision under this section unless the
Director first petitions the Board for a reconsideration of its
decision, and such petition is denied. In addition to the named
respondent, the Board and all other parties to the proceedings before
the Board shall have the right to appear in the proceeding before the
court of appeals. The granting of the petition for judicial review
shall be at the discretion of the Court of Appeals.''.</DELETED>
<DELETED> (j) Merit System Protection Board Review of Security
Clearances.--</DELETED>
<DELETED> (1) In general.--Chapter 77 of title 5, United
States Code, is amended by inserting after section 7702 the
following:</DELETED>
<DELETED>``Sec. 7702a. Actions relating to security
clearances</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(1) shall determine whether paragraph (8) or (9)
of section 2302(b) was violated;</DELETED>
<DELETED> ``(2) may not order the President or the designee
of the President to restore a security clearance or otherwise
reverse a determination of clearance status or reverse an
access determination; and</DELETED>
<DELETED> ``(3) subject to paragraph (2), may issue
declaratory relief and any other appropriate relief.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (2) 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:</DELETED>
<DELETED>``7702a. Actions relating to security clearances.''.
<DELETED> (k) Prohibited Personnel Practices Affecting the
Transportation Security Administration.--</DELETED>
<DELETED> (1) In general.--Chapter 23 of title 5, United
States Code, is amended--</DELETED>
<DELETED> (A) by redesignating sections 2304 and
2305 as sections 2305 and 2306, respectively;
and</DELETED>
<DELETED> (B) by inserting after section 2303 the
following:</DELETED>
<DELETED>``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(1) the provisions of section 2302(b)(1), (8),
and (9);</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(3) any rule or regulation prescribed under any
provision of law referred to in paragraph (1) or (2).</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (2) Technical and conforming amendment.--The table
of sections for chapter 23 of title 5, United States Code, is
amended by striking the items relating to sections 2304 and
2305, respectively, and by inserting the following:</DELETED>
<DELETED>``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration.
<DELETED>``Sec. 2305. Responsibility of the Government Accountability
Office.
<DELETED>``Sec. 2306. Coordination with certain other provisions of
law.''.
<DELETED> (3) Effective date.--The amendments made by this
section shall take effect on the date of enactment of this
section.</DELETED>
<DELETED> (l) Disclosure of Censorship Related to Research,
Analysis, or Technical Information.--</DELETED>
<DELETED> (1) Definitions.--In this section--</DELETED>
<DELETED> (A) the term ``applicant'' means an
applicant for a covered position;</DELETED>
<DELETED> (B) the term ``censorship related to
research, analysis, or technical information'' means
any effort to alter, misrepresent, or suppress
research, analysis, or technical information;</DELETED>
<DELETED> (C) the term ``covered position'' has the
meaning given under section 2302(a)(2)(B) of title 5,
United States Code;</DELETED>
<DELETED> (D) the term ``employee'' means an
employee in a covered position; and</DELETED>
<DELETED> (E) the term ``disclosure'' has the
meaning given under section 2302(a)(2)(D) of title 5,
United States Code.</DELETED>
<DELETED> (2) Protected disclosure.--</DELETED>
<DELETED> (A) In general.--Any disclosure of
information by an employee or applicant for employment
that the employee or applicant reasonably believes is
evidence of censorship related to research, analysis,
or technical information shall come within the
protections of section 2302(b)(8)(A) of title 5, United
States Code, if--</DELETED>
<DELETED> (i) the employee or applicant
reasonably believes that the censorship related
to research, analysis, or technical information
is or will cause--</DELETED>
<DELETED> (I) any violation of law,
rule, or regulation; or</DELETED>
<DELETED> (II) gross mismanagement,
a gross waste of funds, an abuse of
authority, or a substantial and
specific danger to public health or
safety;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (iii) shall come within the
protections of section 2302(b)(8)(B) of title
5, United States Code, if--</DELETED>
<DELETED> (I) the conditions under
clause (i) of this subparagraph are
satisfied; and</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (B) Application.--Paragraph (1) shall
apply to any disclosure of information by an employee
or applicant without restriction 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.</DELETED>
<DELETED> (C) Rule of construction.--Nothing in this
section shall be construed to imply any limitation on
the protections of employees and applicants afforded by
any other provision of law, including protections with
respect to any disclosure of information believed to be
evidence of censorship related to research, analysis,
or technical information.</DELETED>
<DELETED> (m) 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.''.</DELETED>
<DELETED> (n) 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 such disclosures'' after ``chapter 12 of
this title''.</DELETED>
<DELETED> (o) Special Counsel Amicus Curiae Appearance.--Section
1212 of title 5, United States Code, is amended by adding at the end
the following:</DELETED>
<DELETED> ``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United States
related to any civil action brought in connection with section 2302(b)
(8) or (9), or subchapter III of chapter 73, or as otherwise authorized
by law. In any such action, the Special Counsel is authorized to
present the views of the Special Counsel with respect to compliance
with section 2302(b) (8) or (9) or subchapter III of chapter 73 and the
impact court decisions would have on the enforcement of such provisions
of law.</DELETED>
<DELETED> ``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such action for the
purposes described in subsection (a).''.</DELETED>
<DELETED> (p) Scope of Due Process.--</DELETED>
<DELETED> (1) 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''.</DELETED>
<DELETED> (2) 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''.</DELETED>
<DELETED> (q) Nondisclosure Policies, Forms, and Agreements.--
</DELETED>
<DELETED> (1) In general.--</DELETED>
<DELETED> (A) Requirement.--Each agreement in
Standard Forms 312 and 4414 of the Government and any
other nondisclosure policy, form, or agreement of the
Government shall contain the following statement:
``These restrictions 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
disclosure 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 et seq.) (governing disclosures that could
expose confidential Government agents); and the
statutes which protect against disclosure that may
compromise the national security, including sections
641, 793, 794, 798, and 952 of title 18, United States
Code, and section 4(b) of the Subversive Activities 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.''.</DELETED>
<DELETED> (B) Enforceability.--Any nondisclosure
policy, form, or agreement described under subparagraph
(A) that does not contain the statement required under
subparagraph (A) may not be implemented or enforced to
the extent such policy, form, or agreement is
inconsistent with that statement.</DELETED>
<DELETED> (2) Persons other than government employees.--
Notwithstanding paragraph (1), a nondisclosure policy, form, or
agreement that is to be executed by a person connected with the
conduct of an intelligence or intelligence-related activity,
other than an employee or officer of the United States
Government, may contain provisions appropriate to the
particular activity for which such document is to be used. Such
form or agreement shall, at a minimum, require that the person
will not disclose any classified information received in the
course of such activity unless specifically authorized to do so
by the United States Government. Such nondisclosure forms shall
also make it clear that such forms do not bar disclosures to
Congress or to an authorized official of an executive agency or
the Department of Justice that are essential to reporting a
substantial violation of law.</DELETED>
<DELETED> (r) Reporting Requirements.--</DELETED>
<DELETED> (1) Government accountability office.--</DELETED>
<DELETED> (A) In general.--</DELETED>
<DELETED> (i) Report.--Not later than 40
months after the date of enactment of this Act,
the Comptroller General shall submit a report
to the Committee on Homeland Security and
Governmental Affairs of the Senate and the
Committee on Oversight and Government Reform of
the House of Representatives on the
implementation of this Act.</DELETED>
<DELETED> (ii) Contents.--The report under
this paragraph shall include--</DELETED>
<DELETED> (I) an analysis of any
changes in the number of cases filed
with the United States Merit Systems
Protection Board alleging violations of
section 2302(b)(8) or (9) of title 5,
United States Code, since the effective
date of the Act;</DELETED>
<DELETED> (II) the outcome of the
cases described under clause (i),
including whether or not the United
States Merit Systems Protection Board,
the Federal Circuit Court of Appeals,
or any other court determined the
allegations to be frivolous or
malicious; and</DELETED>
<DELETED> (III) any other matter as
determined by the Comptroller
General.</DELETED>
<DELETED> (B) Study on revocation of security
clearances.--</DELETED>
<DELETED> (i) 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.</DELETED>
<DELETED> (ii) 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
subparagraph.</DELETED>
<DELETED> (2) Merit systems protection board.--</DELETED>
<DELETED> (A) In general.--Each report submitted
annually by the Merit Systems Protection Board under
section 1116 of title 31, United States Code, shall,
with respect to the period covered by such report,
include as an addendum the following:</DELETED>
<DELETED> (i) Information relating to the
outcome of cases decided during the applicable
year of the report in which violations of
section 2302(b)(8) or (9) of title 5, United
States Code, were alleged.</DELETED>
<DELETED> (ii) The number of such cases
filed in the regional and field offices, the
number of petitions for review filed in such
cases, and the outcomes of such
cases.</DELETED>
<DELETED> (B) First report.--The first report
described under subparagraph (A) submitted after the
date of enactment of this Act shall include an addendum
required under that subparagraph that covers the period
beginning on January 1, 2009 through the end of the
fiscal year 2009.</DELETED>
<DELETED> (s) Effective Date.--This Act shall take effect 30 days
after the date of enactment of this Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Whistleblower Protection Enhancement
Act of 2009''.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.
(a) In General.--Section 2302(b)(8) of title 5, United States Code,
is amended--
(1) in subparagraph (A)(i)--
(A) by striking ``a violation'' and inserting ``any
violation''; and
(B) by adding ``except for an alleged violation
that is a minor, inadvertent violation, and occurs
during the conscientious carrying out of official
duties,'' after ``regulation,''; and
(2) in subparagraph (B)(i)--
(A) by striking ``a violation'' and inserting ``any
violation (other than a violation of this section)'';
and
(B) by adding ``except for an alleged violation
that is a minor, inadvertent violation, and occurs
during the conscientious carrying out of official
duties,'' after regulation,''.
(b) Prohibited Personnel Practices Under Section 2302(b)(9).--
(1) Technical and conforming amendments.--Title 5, United
States Code, is amended in subsections (a)(3), (b)(4)(A), and
(b)(4)(B)(i) of section 1214, in subsections (a), (e)(1), and
(i) of section 1221, and in subsection (a)(2)(C)(i) of section
2302, by inserting ``or section 2302(b)(9)(A)(i), (B)(i), (C),
or (D)'' after ``section 2302(b)(8)'' or ``(b)(8)'' each place
it appears.
(2) Other references.--(A) Title 5, United States Code, is
amended in subsection (b)(4)(B)(i) of section 1214 and in
subsection (e)(1) of section 1221, by inserting ``or protected
activity'' after ``disclosure'' each place it appears.
(B) Section 2302(b)(9) of title 5, United States Code, is
amended--
(i) by striking subparagraph (A)and inserting the
following:
``(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation--
``(i) with regard to remedying a violation
of paragraph (8); or
``(ii) with regard to remedying a violation
of any other law, rule, or regulation;''; and
(ii) in subparagraph (B), by inserting ``(i) or
(ii)'' after ``subparagraph (A)''.
(C) Section 2302 of title 5, United States Code, is amended
by adding at the end the following:
``(f) A disclosure shall not be excluded from subsection (b)(8)
because--
``(1) the disclosure was made during the normal course of
the duties of the employee;
``(2) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
or applicant reasonably believed to be covered by subsection
(b)(8)(A)(ii);
``(3) the disclosure revealed information that had been
previously disclosed;
``(4) of the employee or applicant's motive for making the
disclosure;
``(5) the disclosure was not made in writing;
``(6) the disclosure was made while the employee was off
duty; or
``(7) of the amount of time which has passed since the
occurrence of the events described in the disclosure.''.
SEC. 102. DEFINITIONAL AMENDMENTS.
(a) Disclosures.--Section 2302(a)(2) of title 5, United States
Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee or applicant
providing the disclosure reasonably believes that the
disclosure evidences--
``(i) any violation of any law, rule, or
regulation, except for an alleged violation that is a
minor, inadvertent violation, and occurs during the
conscientious carrying out of official duties; 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 the degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to
be established.''.
SEC. 103. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended by
amending the matter following paragraph (12) to read as follows:
``This subsection shall not be construed to authorize the withholding
of information from Congress or the taking of any personnel action
against an employee who discloses information to Congress. For purposes
of paragraph (8), any presumption relating to the performance of a duty
by an employee who has authority to take or 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
and readily ascertainable by the employee could reasonably conclude
that the actions of the Government evidence such violations,
mismanagement, waste, abuse, or danger.''.
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL PRACTICES.
(a) Personnel Action.--Section 2302(a)(2)(A) of title 5, United
States Code, is amended--
(1) in clause (x), by striking ``and'' after the semicolon;
and
(2) by redesignating clause (xi) as clause (xii) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of
any nondisclosure policy, form, or agreement;
and''.
(b) Prohibited Personnel Practice.--
(1) In general.--Section 2302(b) of title 5, United States
Code, is amended--
(A) in paragraph (11), by striking ``or'' at the
end;
(B) in paragraph (12), by striking the period and
inserting ``; or''; and
(C) by inserting after paragraph (12) the
following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by 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 disclosure 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 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.'''.
(2) Nondisclosure policy, form, or agreement in effect
before the date of enactment.--A nondisclosure policy, form, or
agreement that was in effect before the date of enactment of
this Act, but that does not contain the statement required
under section 2302(b)(13) of title 5, United States Code, (as
added by this Act) for implementation or enforcement--
(A) may be enforced with regard to a current
employee if the agency gives such employee notice of
the statement; and
(B) may continue to be enforced after the effective
date of this Act with regard to a former employee if
the agency posts notice of the statement on the agency
website for the 1-year period following that effective
date.
(c) Retaliatory Investigations.--
(1) Agency investigation.--Section 1214 of title 5, United
States Code, is amended by adding at the end the following:
``(h) Any corrective action ordered under this section to correct a
prohibited personnel practice may include fees, costs, or damages
reasonably incurred due to an agency investigation of the employee, if
such investigation was commenced, expanded, or extended in retaliation
for the disclosure or protected activity that formed the basis of the
corrective action.''.
(2) Damages.--Section 1221(g) of title 5, United States
Code, is amended by adding at the end the following:
``(4) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.''.
SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.
Section 2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of
Investigation, the Central Intelligence Agency,
the Defense Intelligence Agency, the National
Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of
National Intelligence, and the National
Reconnaissance Office; and
``(II) 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. 106. DISCIPLINARY ACTION.
Section 1215(a)(3) of title 5, United States Code, is amended to
read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal,
reduction in grade, debarment from Federal employment
for a period not to exceed 5 years, suspension, or
reprimand;
``(ii) an assessment of a civil penalty not to
exceed $1,000; or
``(iii) any combination of disciplinary actions
described under clause (i) and an assessment described
under clause (ii).
``(B) In any case brought under paragraph (1) in which the
Board finds that an employee has committed a prohibited
personnel practice under section 2302(b)(8), or
2302(b)(9)(A)(i), (B)(i), (C) , or (D), the Board shall impose
disciplinary action if the Board finds that the activity
protected under section 2302(b)(8), or 2302(b)(9)(A)(i),
(B)(i), (C), or (D) was a significant motivating factor, even
if other factors also motivated the decision, for the
employee's decision to take, fail to take, or threaten to take
or fail to take a personnel action, unless that employee
demonstrates, by 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. 107. REMEDIES.
(a) Attorney Fees.--Section 1204(m)(1) of title 5, United States
Code, is amended by striking ``agency involved'' and inserting ``agency
where the prevailing party is employed or has applied for employment''.
(b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 5,
United States Code, are amended by striking all after ``travel
expenses,'' and inserting ``any other reasonable and foreseeable
consequential damages, and compensatory damages (including interest,
reasonable expert witness fees, and costs).'' each place it appears.
SEC. 108. JUDICIAL REVIEW.
(a) In General.--Section 7703(b) of title 5, United States Code, is
amended by striking the matter preceding paragraph (2) and inserting
the following:
``(b)(1)(A) Except as provided in subparagraph (B) and paragraph
(2) of this subsection, a petition to review a final order or final
decision of the Board shall be filed in the United States Court of
Appeals for the Federal Circuit. Notwithstanding any other provision of
law, any petition for review shall be filed within 60 days after the
Board issues notice of the final order or decision of the Board.
``(B) During the 5-year period beginning on the effective date of
the Whistleblower Protection Enhancement Act of 2009, a petition to
review a final order or final decision of the Board that raises no
challenge to the Board's disposition of allegations of a prohibited
personnel practice described in section 2302(b) other than practices
described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B)(i), (C), or
(D) shall be filed in the United States Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction as
provided under paragraph (2).''.
(b) Review Obtained by Office of Personnel Management.--Section
7703(d) of title 5, United States Code, is amended to read as follows:
``(d)(1) Except as provided under paragraph (2), this paragraph
shall apply to any review obtained by the Director of the Office of
Personnel Management. The Director of the Office of Personnel
Management may obtain review of any final order or decision of the
Board by filing, within 60 days after the Board issues notice of the
final order or decision of the Board, a petition for judicial review in
the United States Court of Appeals for the Federal Circuit if the
Director determines, in the discretion of the Director, that the Board
erred in interpreting a civil service law, rule, or regulation
affecting personnel management and that the Board's decision will have
a substantial impact on a civil service law, rule, regulation, or
policy directive. If the Director did not intervene in a matter before
the Board, the Director may not petition for review of a Board decision
under this section unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied. In
addition to the named respondent, the Board and all other parties to
the proceedings before the Board shall have the right to appear in the
proceeding before the Court of Appeals.
``(2) During the 5-year period beginning on the effective date of
the Whistleblower Protection Enhancement Act of 2009, this paragraph
shall apply to any review obtained by the Director of the Office of
Personnel Management that raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice described
in section 2302(b) other than practices described in section
2302(b)(8), or 2302(b)(9)(A)(i), (B)(i), (C), or (D). The Director of
the Office of Personnel Management may obtain review of any final order
or decision of the Board by filing, within 60 days after the Board
issues notice of the final order or decision of the Board, a petition
for judicial review in the United States Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction as
provided under subsection (b)(2) if the Director determines, in the
discretion of the Director, that the Board erred in interpreting a
civil service law, rule, or regulation affecting personnel management
and that the Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the Director did
not intervene in a matter before the Board, the Director may not
petition for review of a Board decision under this section unless the
Director first petitions the Board for a reconsideration of its
decision, and such petition is denied. In addition to the named
respondent, the Board and all other parties to the proceedings before
the Board shall have the right to appear in the proceeding before the
court of appeals.''.
SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION
SECURITY ADMINISTRATION.
(a) In General.--Chapter 23 of title 5, United States Code, is
amended--
(1) by redesignating sections 2304 and 2305 as sections
2305 and 2306, respectively; and
(2) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of law, any
individual holding or applying for a position within the Transportation
Security Administration shall be covered by--
``(1) the provisions of section 2302(b)(1), (8), and (9);
``(2) any provision of law implementing section 2302(b)
(1), (8), or (9) by providing any right or remedy available to
an employee or applicant for employment in the civil service;
and
``(3) any rule or regulation prescribed under any provision
of law referred to in paragraph (1) or (2).
``(b) Rule of Construction.--Nothing in this section shall be
construed to affect any rights, apart from those described in
subsection (a), to which an individual described in subsection (a)
might otherwise be entitled under law.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 23 of title 5, United States Code, is amended by striking the
items relating to sections 2304 and 2305, respectively, and 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.''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date of enactment of this section.
SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR
TECHNICAL INFORMATION.
(a) Definitions.--In this subsection--
(1) the term ``agency'' has the meaning given under section
2302(a)(2)(C) of title 5, United States Code;
(2) the term ``applicant'' means an applicant for a covered
position;
(3) the term ``censorship related to research, analysis, or
technical information'' means any effort to distort,
misrepresent, or suppress research, analysis, or technical
information;
(4) the term ``covered position'' has the meaning given
under section 2302(a)(2)(B) of title 5, United States Code;
(5) the term ``employee'' means an employee in a covered
position in an agency; and
(6) the term ``disclosure'' has the meaning given under
section 2302(a)(2)(D) of title 5, United States Code.
(b) Protected Disclosure.--
(1) In general.--Any disclosure of information by an
employee or applicant for employment that the employee or
applicant reasonably believes is evidence of censorship related
to research, analysis, or technical information shall come
within the protections of section 2302(b)(8)(A) of title 5,
United States Code, if--
(A) the employee or applicant reasonably believes
that the censorship related to research, analysis, or
technical information is or will cause--
(i) any violation of any law, rule, or
regulation, except for an alleged violation
that is a minor, inadvertent violation, and
occurs during the conscientious carrying out of
official duties; 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) 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
(C) shall come within the protections of section
2302(b)(8)(B) of title 5, United States Code, if--
(i) the conditions under subparagraph (A)
of this paragraph 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.--Subsection (a) shall apply to any
disclosure of information by an employee or applicant without
restriction 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.
(3) Rule of construction.--Nothing in this section shall be
construed to imply any limitation on the protections of
employees and applicants afforded by any other provision of
law, including protections with respect to any disclosure of
information believed to be evidence of censorship related to
research, analysis, or technical information.
SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL
INFRASTRUCTURE INFORMATION.
Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C.
133(c)) is amended by adding at the end the following: ``For purposes
of this section a permissible use of independently obtained information
includes the disclosure of such information under section 2302(b)(8) of
title 5, United States Code.''.
SEC. 112. ADVISING EMPLOYEES OF RIGHTS.
Section 2302(c) of title 5, United States Code, is amended by
inserting ``, including how to make a lawful disclosure of information
that is specifically required by law or Executive order to be kept
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 such
disclosures'' after ``chapter 12 of this title''.
SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.
Section 1212 of title 5, United States Code, is amended by adding
at the end the following:
``(h)(1) The Special Counsel is authorized to appear as amicus
curiae in any action brought in a court of the United States related to
any civil action brought in connection with section 2302(b) (8) or (9),
or as otherwise authorized by law. In any such action, the Special
Counsel is authorized to present the views of the Special Counsel with
respect to compliance with section 2302(b) (8) or (9) and the impact
court decisions would have on the enforcement of such provisions of
law.
``(2) A court of the United States shall grant the application of
the Special Counsel to appear in any such action for the purposes
described under subsection (a).''.
SEC. 114. SCOPE OF DUE PROCESS.
(a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5, United
States Code, is amended by inserting ``, after a finding that a
protected disclosure was a contributing factor,'' after ``ordered if''.
(b) Individual Action.--Section 1221(e)(2) of title 5, United
States Code, is amended by inserting ``, after a finding that a
protected disclosure was a contributing factor,'' after ``ordered if''.
SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.
(a) In General.--
(1) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These restrictions 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 disclosure 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 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes which
protect against disclosure that may compromise the national
security, including sections 641, 793, 794, 798, and 952 of
title 18, United States Code, and section 4(b) of the
Subversive Activities 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.''.
(2) Enforceability.--
(A) In general.--Any nondisclosure policy, form, or
agreement described under paragraph (1) that does not
contain the statement required under paragraph (1) may
not be implemented or enforced to the extent such
policy, form, or agreement is inconsistent with that
statement.
(B) Nondisclosure policy, form, or agreement in
effect before the date of enactment.--A nondisclosure
policy, form, or agreement that was in effect before
the date of enactment of this Act, but that does not
contain the statement required under paragraph (1)--
(i) may be enforced with regard to a
current employee if the agency gives such
employee notice of the statement; and
(ii) may continue to be enforced after the
effective date of this Act with regard to a
former employee if the agency posts notice of
the statement on the agency website for the 1-
year period following that effective date.
(b) Persons Other Than Government Employees.--Notwithstanding
subsection (a), a nondisclosure policy, form, or agreement that is to
be executed by a person connected with the conduct of an intelligence
or intelligence-related activity, other than an employee or officer of
the United States Government, may contain provisions appropriate to the
particular activity for which such document is to be used. Such policy,
form, or agreement shall, at a minimum, require that the person will
not disclose any classified information received in the course of such
activity unless specifically authorized to do so by the United States
Government. Such nondisclosure policy, form, or agreement shall also
make it clear that such forms do not bar disclosures to Congress or to
an authorized official of an executive agency or the Department of
Justice that are essential to reporting a substantial violation of law.
SEC. 116. REPORTING REQUIREMENTS.
(a) Government Accountability Office.--
(1) Report.--Not later than 40 months after the date of
enactment of this Act, the Comptroller General shall submit a
report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives on the
implementation of this Act.
(2) Contents.--The report under this paragraph shall
include--
(A) an analysis of any changes in the number of
cases filed with the United States Merit Systems
Protection Board alleging violations of section
2302(b)(8) or (9) of title 5, United States Code, since
the effective date of this Act;
(B) the outcome of the cases described under
subparagraph (A), including whether or not the United
States Merit Systems Protection Board, the Federal
Circuit Court of Appeals, or any other court determined
the allegations to be frivolous or malicious;
(C) an analysis of the outcome of cases described
under subparagraph (A) that were decided by a United
States District Court and the impact the process has on
the Merit Systems Protection Board and the Federal
court system; and
(D) any other matter as determined by the
Comptroller General.
(b) Study on Revocation of Security Clearances.--
(1) Study.--The Council of the Inspectors General on
Integrity and Efficiency, including the Inspectors General of
the Department of Justice, the Office of the Director of
National Intelligence, and the Office of Personnel Management,
shall conduct a study of security clearance revocations of
Federal employees at a select sample of executive branch
agencies and the appeals process in place at those agencies and
at the Intelligence Community Whistleblower Protection Board.
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, how often security
clearances are reinstated following an appeal, how often
security clearances remain revoked following a finding of
retaliation for making a disclosure, and such other factors the
Inspectors General determine appropriate.
(2) Report.--Not later than 18 months after the date of
enactment of this Act, the Inspectors 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 paragraph.
(c) Merit Systems Protection Board.--
(1) In general.--Each report submitted annually by the
Merit Systems Protection Board under section 1116 of title 31,
United States Code, shall, with respect to the period covered
by such report, include as an addendum the following:
(A) Information relating to the outcome of cases
decided during the applicable year of the report in
which violations of section 2302(b)(8) or (9) of title
5, United States Code, were alleged.
(B) The number of such cases filed in the regional
and field offices, the number of petitions for review
filed in such cases, and the outcomes of such cases.
(2) First report.--The first report described under
paragraph (1) submitted after the date of enactment of this Act
shall include an addendum required under that subparagraph that
covers the period beginning on January 1, 2009 through the end
of the fiscal year 2009.
SEC. 117. ALTERNATIVE REVIEW.
(a) In General.--Section 1221 of title 5, United States Code, is
amended by adding at the end the following:
``(k)(1) In 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
judicial district in which--
``(A) the prohibited personnel practice is alleged to have
been committed;
``(B) the employment records relevant to such practice are
maintained and administered; or
``(C) the employee, former employee, or applicant for
employment allegedly affected by such practice resides.
``(2)(A) An employee, former employee, or applicant for employment
in any case to which paragraph (3) or (4) applies may file an action at
law or equity for de novo review in the appropriate United States
district court in accordance with this subsection.
``(B) Upon initiation of any action under subparagraph (A), the
Board shall stay any other claims of such employee, former employee, or
applicant pending before the Board at that time which arise out of the
same set of operative facts. Such claims shall be stayed pending
completion of the action filed under subparagraph (A) before the
appropriate United States district court and any associated appellate
review.
``(3) This paragraph applies in any case that--
``(A) an employee, former employee, or applicant for
employment--
``(i) seeks corrective action from the Merit
Systems Protection Board under section 1221(a) based on
an alleged prohibited personnel practice described in
section 2302(b)(8) for which the associated personnel
action is an action covered under section 7512 or 7542;
or
``(ii) files an appeal under section 7701(a)(1)
alleging as an affirmative defense the commission of a
prohibited personnel practice described in section
2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) for which
the associated personnel action is an action covered
under section 7512 or 7542;
``(B) no final order or decision is issued by the Board
within 270 days after the date on which a request for that
corrective action or appeal has been duly submitted; and
``(C) such employee, former employee, or applicant provides
written notice to the Board of filing an action under this
subsection before the filing of that action.
``(4) This paragraph applies in any case in which--
``(A) an employee, former employee, or applicant for employment --
``(i) seeks corrective action from the Merit Systems
Protection Board under section 1221(a) based on an alleged
prohibited personnel practice described in section 2302(b) (8)
or (9) (A)(i), (B)(i), (C), or (D) for which the associated
personnel action is an action covered under section 7512 or
7542; or
``(ii) files an appeal under section 7701(a)(1) alleging as
an affirmative defense the commission of a prohibited personnel
practice described in section 2302(b) (8) or (9) (A)(i),
(B)(i), (C), or (D) for which the associated personnel action
is an action covered under section 7512 or 7542;
``(B)(i) within 30 days after the date on which the request for
corrective action or appeal was duly submitted, such employee, former
employee, or applicant for employment files a motion requesting a
certification consistent with subparagraph (C) to the Board, any
administrative law judge appointed by the Board under section 3105 of
this title and assigned to the case, or any employee of the Board
designated by the Board and assigned to the case; and
``(ii) such employee has not previously filed a motion under clause
(i) related to that request for corrective action; and
``(C) the Board, any administrative law judge appointed by the
Board under section 3105 of this title and assigned to the case, or any
employee of the Board designated by the Board and assigned to the case
certifies that--
``(i) the Board is not likely to dispose of the case within
270 days after the date on which a request for that corrective
action has been duly submitted;
``(ii) the case--
``(I) consists of multiple claims;
``(II) requires complex or extensive discovery;
``(III) arises out of the same set of operative
facts as any civil action against the Government filed
by the employee, former employee, or applicant pending
in a Federal court; or
``(IV) involves a novel question of law; or
``(iii) under standards applicable to the review of motions
to dismiss under rule 12(b)(6) of the Federal Rules of Civil
Procedure, including rule 12(d), the request for corrective
action (including any allegations made with the motion under
subparagraph (B)) would not be subject to dismissal.
``(5) The Board shall grant or deny any motion requesting a
certification described under paragraph (4)(ii) within 90 days after
the submission of such motion and, in any event, not later than 15 days
before issuing a decision on the merits of a request for corrective
action.
``(6) Any decision of the Board, any administrative law judge
appointed by the Board under section 3105 of this title and assigned to
the case, or any employee of the Board designated by the Board and
assigned to the case to grant or deny a certification under this
paragraph shall be reviewed only on appeal of a final order or decision
of the Board under section 7703, if--
``(A) the reviewing court determines that the decision by the Board
on the merits of the alleged prohibited personnel described in section
2302(b)(8) or (9) (A)(i), (B)(i), (C), or (D) failed to meet the
standards of section 7703(c); and
``(B) the decision to deny the certification shall be overturned by
the reviewing court if such decision is found to be arbitrary,
capricious, or an abuse of discretion; and
``(C) shall not be considered evidence of any determination by the
Board, any administrative law judge appointed by the Board under
section 3105 of this title, or any employee of the Board designated by
the Board on the merits of the underlying allegations during the course
of any action at law or equity for de novo review in the appropriate
United States district court in accordance with this subsection.
``(7) In any action filed under this subsection--
``(A) the district court shall have jurisdiction without
regard to the amount in controversy;
``(B) at the request of either party, such action shall be
tried by the court with a jury;
``(C) the court--
``(i) subject to clause (iii), shall apply the
standards set forth in subsection (e); and
``(ii) may award any relief which the court
considers appropriate under subsection (g), except--
``(I) relief for compensatory damages may
not exceed $300,000; and
``(II) relief may not include punitive
damages; and
``(iii) notwithstanding section (e)(2), may not
order relief if the agency demonstrates by a
preponderance of the evidence that the agency would
have taken the same personnel action in the absence of
such disclosure; and
``(D) the Special Counsel may not represent the employee,
former employee, or applicant for employment.
``(8) An appeal from a final decision of a district court in an
action under this subsection shall be taken to the Court of Appeals for
the Federal Circuit or any court of appeals of competent jurisdiction.
``(9) This subsection applies with respect to any appeal, petition,
or other request for corrective action duly submitted to the Board,
whether under section 1214(b)(2), the preceding provisions of this
section, section 7513(d), section 7701, or any otherwise applicable
provisions of law, rule, or regulation.''.
(b) Sunset.--
(1) In general.--Except as provided under paragraph (2),
the amendments made by this section shall cease to have effect
5 years after the effective date of this Act.
(2) Pending claims.--The amendments made by this section
shall continue to apply with respect to any claim pending
before the Board on the last day of the 5-year period described
under paragraph (1).
SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY JUDGMENT.
(a) In General.--Section 1204(b) of title 5, United States Code, is
amended--
(1) by redesignating paragraph (3) as paragraph (4);
(2) by inserting after paragraph (2) the following:
``(3) With respect to a request for corrective action based
on an alleged prohibited personnel practice described in
section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) for which
the associated personnel action is an action covered under
section 7512 or 7542, the Board, any administrative law judge
appointed by the Board under section 3105 of this title, or any
employee of the Board designated by the Board may, with respect
to any party, grant a motion for summary judgment when the
Board or the administrative law judge determines that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.''.
(b) Sunset.--
(1) In general.--Except as provided under paragraph (2),
the amendments made by this section shall cease to have effect
5 years after the effective date of this Act.
(2) Pending claims.--The amendments made by this section
shall continue to apply with respect to any claim pending
before the Board on the last day of the 5-year period described
under paragraph (1).
SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION.
(a) Prohibited Personnel Practices.--Section 2302(b)(8) of title 5,
United States Code, is amended--
(1) in subparagraph (A), by striking ``or'' after the
semicolon;
(2) in subparagraph (B), by adding ``or'' after the
semicolon; and
(3) by adding at the end the following:
``(C) any communication that complies with
subsection (a)(1), (d), or (h) of section 8H of the
Inspector General Act of 1978 (5 U.S.C. App);''.
(b) Inspector General Act of 1978.--Section 8H of the Inspector
General Act of 1978 (5 U.S.C. App) is amended--
(1) in subsection (a)(1), by adding at the end the
following:
``(D) An employee of any agency, as that term is
defined under section 2302(a)(2)(C) of title 5, United
States Code, who intends to report to Congress a
complaint or information with respect to an urgent
concern may report the complaint or information to the
Inspector General, or designee, of the agency of which
that employee is employed;''; and
(2) in subsection (h), by striking paragraph (2), and
inserting the following:
``(2) The term `intelligence committees' means the
Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the
Senate, except that with respect to disclosures made by
employees described in subsection (a)(1)(D), the term
`intelligence committees' means the committees of appropriate
jurisdiction.''.
SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN.
(a) In General.--Section 3(d) of the Inspector General Act of 1978
(5 U.S.C. App.) is amended--
(1) in paragraph (1), by striking ``and'' after the
semicolon;
(2) in paragraph (2), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(3) designate a Whistleblower Protection Ombudsman who
shall advocate for the interests of agency employees or
applicants who make protected disclosures of information,
educate agency personnel about prohibitions on retaliation for
protected disclosures, and advise agency employees, applicants,
or former employees who have made or are contemplating making a
protected disclosure.''.
(b) Central Intelligence Agency.--Section 17(e) of the Central
Intelligence Agency Act of 1949 (50 U.S.C. 403q(e)) is amended by
adding at the end the following:
``(9) The Inspector General shall designate a Whistleblower
Protection Ombudsman who shall advocate for the interests of agency
employees or applicants who make protected disclosures of information,
educate agency personnel about prohibitions on retaliation for
protected disclosures, and advise agency employees, applicants, or
former employees who have made or are contemplating making a protected
disclosure.''.
(c) Application to Intelligence Community.--Notwithstanding section
8K of the Inspector General Act of 1978 (5 U.S.C. App.) or any other
provision of law, the amendment made by subsection (a) shall apply to
each Office of Inspector General 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))).
TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS
SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY WHISTLEBLOWERS.
(a) In General.--Title I of the National Security Act of 1947 (50
U.S.C. 402 et seq.) is amended by adding at the end the following:
``SEC. 120. INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION BOARD.
``(a) Establishment.--There is established within the Office of the
Director of National Intelligence the Intelligence Community
Whistleblower Protection Board (in this section referred to as the
`Board') .
``(b) Membership.--(1) The Board shall consist of--
``(A) a Chairperson who shall be appointed by the
President, by and with the advice and consent of the Senate (in
this section referred to as the `Chairperson');
``(B) 2 members who shall be designated by the President--
``(i) from individuals serving as an inspectors
general of any agency or department of the United
States who have been appointed by the President, by and
with the advice and consent of the Senate; and
``(ii) after consultation with members of the
Council of Inspectors General on Integrity and
Efficiency; and
``(C) 2 members who shall be appointed by the President, by
and with the advice and consent of the Senate, after
consultation with the Attorney General, the Director of
National Intelligence, and the Secretary of Defense.
``(D)(i) A member of the Board who serves as the inspector
general of an agency or department shall recuse themselves from
any matter brought to the Board by a former employee, employee,
or applicant of the agency or department for which that member
serves as inspector general.
``(2) The President shall designate 2 alternate members of the
Board from individuals serving as an inspector general of an agency or
department of the United States. If a member of the Board recuses
themselves from a matter pending before the Board, an alternate shall
serve in place of that member for that matter.
``(3) The members of the Board shall be individuals of sound and
independent judgment who shall collectively possess substantial
experience in national security and personnel matters.
``(4)(A) The Chairperson shall be compensated at a rate equal to
the daily equivalent of the annual rate of basic pay prescribed for
level III of the Executive Schedule under section 5314 of title 5,
United States Code, plus 3 percent for each day (including travel time)
during which the Chairperson is engaged in the performance of the
duties of the Board.
``(B) The members designated under paragraph (1)(B) and alternate
members designated under paragraph (2) shall serve without compensation
in addition to that received for their services as inspectors general.
``(C) The members appointed under paragraph (1)(C) shall--
``(i) perform their duties for a period not to
exceed 130 days during any period of 365 consecutive
days; and
``(ii) shall be compensated at the rate of pay for
the Chairperson specified in paragraph (A).
``(D)(i) The members of the Board shall serve 4-year terms
at the pleasure of the President, except that of the members
first appointed or designated--
``(I) the Chairperson shall have a term of 6 years;
``(II) 2 members shall have a term of 5 years; and
``(III) 2 members shall have a term of 4 years.
``(ii) A member designated under paragraph (1)(B) shall be
ineligible to serve on the Board if that member ceases to serve
as an inspector general for an agency or department of the
United States.
``(iii) A member of the Board may serve on the Board after
the expiration of the term of that member until a successor for
that member has taken office as a member of the Board.
``(iv) An individual appointed to fill a vacancy occurring,
other than by the expiration of a term of office, shall be
appointed only for the unexpired term of the member that
individual succeeds.
``(5) Three members shall constitute a quorum of the Board.
``(c) Resources and Authority.--(1) The Office of the Director of
National Intelligence shall provide the Board with appropriate and
adequate office space, together with such equipment, office supplies,
and communications facilities and services as may be necessary for the
operation of the Board, and shall provide necessary maintenance
services for the Board and the equipment and facilities located
therein.
``(2)(A) For each fiscal year, the Chairperson shall transmit a
budget estimate and request to the Director of National Intelligence.
The budget request shall specify the aggregate amount of funds
requested for such fiscal year for the operations of the Board.
``(B) In transmitting a proposed budget to the President for
approval, the Director of National Intelligence shall include--
``(i) the amount requested by the Chairperson; and
``(ii) any comments of the Chairperson with respect to the
amount requested.
``(3) Subject to applicable law and the policies of the Director of
National Intelligence, the Chairperson, for the purposes of enabling
the Board to fulfill its statutorily assigned functions, is authorized
to select, appoint, and employ such officers and employees as may be
necessary for carrying out the functions, powers, and duties of the
Office.
``(4) In consultation with the Attorney General, the Director of
National Intelligence, and the Secretary of Defense, the Board may
promulgate rules, regulations, and guidance and issue orders to fulfill
its functions. The Director of National Intelligence, Secretary of
Defense, and Attorney General shall jointly approve any rules,
regulations, or guidance issued under section 121(c)(1)(B).
``(5) The number of individuals employed by or on detail to the
Board shall not be counted against any limitation on the number of
personnel, positions, or full-time equivalents in the Office of the
Director of National Intelligence.
``SEC. 121. INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS.
``(a) Definitions.--In this section:
``(1) The term `agency' means an Executive department or
independent establishment, as defined under sections 101 and
104 of title 5, United States Code, that contains an
intelligence community element.
``(2) The term `intelligence community element' means--
``(A) the Federal Bureau of Investigation, the
Central Intelligence Agency, the Defense Intelligence
Agency, the National Geospatial-Intelligence Agency,
the National Security Agency, the Office of the
Director of National Intelligence, and the National
Reconnaissance Office; and
``(B) any executive agency or unit thereof
determined by the President under section
2302(a)(2)(C)(ii) of title 5, United States Code, to
have as its principal function 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.
``(3) The term `personnel action'--
``(A) means any action taken against an employee of
an intelligence community element that would be
considered a personnel action, as defined in section
2302(a)(2)(A) of title 5, United States Code, if taken
against an employee subject to such section 2302; and
``(B) shall not include the denial, suspension, or
revocation of a security clearance or denying access to
classified or sensitive information or a suspension
with pay pending an investigation.
``(4) The term `prohibited personnel practice' means any
action prohibited by subsection (b) of this section.
``(b) Prohibited Personnel Practices.--(1) No person who has
authority to take, direct others to take, recommend, or approve any
personnel action, shall, with respect to such authority--
``(A) take or fail to take, or threaten to take or fail to
take, a personnel action with respect to any intelligence
community element employee or applicant for employment because
of--
``(i) any disclosure of information to an official
of an agency by an employee or applicant which the
employee or applicant reasonably believes evidences--
``(I) any violation of law, rule, or
regulation except for an alleged violation that
is a minor, inadvertent violation, and occurs
during the conscientious carrying out of
official duties; or
``(II) gross mismanagement, a gross waste
of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety,
if such disclosure is not specifically prohibited by
law and if such information is not specifically
required by Executive order to be kept secret in the
interest of national defense or the conduct of foreign
affairs;
``(ii) any disclosure to the inspector general of
an agency or another employee designated by the head of
the agency to receive such disclosures, of information
which the employee or applicant reasonably believes
evidences--
``(I) any violation of law, rule, or
regulation, except for an alleged violation
that is a minor, inadvertent violation, and
occurs during the conscientious carrying out of
official duties; or
``(II) gross mismanagement, a gross waste
of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety; or
``(iii) any communication that complies with
subsection (a)(1), (d), or (h) of section 8H of the
Inspector General Act of 1978 (5 U.S.C. App.) or that
complies with subparagraphs (A), (D), or (H) of section
17(d)(5) of the Central Intelligence Agency Act of 1949
(50 U.S.C. 403q); or
``(B) take or fail to take, or threaten to take or fail to
take, any personnel action against any intelligence community
element employee or applicant for employment because of--
``(i) the exercise of any appeal, complaint, or
grievance right granted by subsection (c);
``(ii) testifying for or otherwise lawfully
assisting any individual in the exercise of any right
referred to in clause (i); or
``(iii) cooperating with or disclosing information
to the inspector general of an agency in connection
with an audit, inspection, or investigation conducted
by the inspector general, in accordance with applicable
provisions of law,
if the actions described under clauses (i), (ii), and (iii) do
not result in the employee or applicant unlawfully disclosing
information specifically required by Executive order to be kept
secret in the interest of national defense or the conduct of
foreign affairs or any other information the disclosure of
which is specifically prohibited by law.
``(2) A disclosure shall not be excluded from paragraph (1)
because--
``(A) the disclosure was made during the normal course of
the duties of the employee;
``(B) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
or applicant reasonably believed to be covered by paragraph
(1)(A)(ii);
``(C) the disclosure revealed information that had been
previously disclosed;
``(D) of the employee or applicant's motive for making the
disclosure;
``(E) the disclosure was not made in writing;
``(F) the disclosure was made while the employee was off
duty; or
``(G) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(3) Nothing in this subsection shall be construed to authorize
the withholding of information from the Congress or the taking of any
personnel action against an employee who discloses information to the
Congress.
``(c) Remedial Procedure.--(1)(A) An employee, applicant, or former
employee of an intelligence community element who believes that such
employee, applicant, or former employee has been subjected to a
prohibited personnel practice may petition for an appeal of the
personnel action to the agency head or the designee of the agency head
within 60 days after discovery of the alleged adverse personnel action.
``(B) The appeal shall be conducted within the agency according to
rules of procedure issued by the Intelligence Community Whistleblower
Protection Board under section 120(c)(4). Those rules shall be based on
those pertaining to prohibited personnel practices defined under
section 2302(b)(8) of title 5, United States Code, and provide--
``(i) for an independent and impartial fact-finder;
``(ii) for notice and the opportunity to be heard,
including the opportunity to present relevant evidence,
including witness testimony;
``(iii) that the employee, applicant, or former employee
may be represented by counsel;
``(iv) that the employee, applicant, or former employee has
a right to a decision based on the record developed during the
appeal;
``(v) that, unless agreed to by the employee and the agency
concerned, not more than 180 days shall pass from the filing of
the appeal to the report of the impartial fact-finder to the
agency head or the designee of the agency head;
``(vi) for the use of information specifically required by
Executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs in a manner
consistent with the interests of national security, including
ex parte submissions where the agency determines that the
interests of national security so warrant; and
``(vii) that the employee, applicant, or former employee
shall have no right to compel the production of information
specifically required by Executive order to be kept secret in
the interest of national defense or the conduct of foreign
affairs, except evidence necessary to establish that the
employee made the disclosure or communication such employee
alleges was protected by subsection (b)(1)(A).
``(C) If the Board certifies that agency procedures in effect on
the date of enactment of this section, including procedures promulgated
under section 2303 of title 5, United States Code, before that date,
adequately provide guaranties required under subparagraph (B)(i)
through (vi), the appeal may be conducted according to those
procedures.
``(2) On the basis of the record developed during the appeal, the
impartial fact-finder shall prepare a report to the agency head or the
designee of the agency head setting forth findings, conclusions, and,
if applicable, recommended corrective action. After reviewing the
record and the impartial fact-finder's report, the agency head or the
designee of the agency head shall determine whether the employee,
former employee, or applicant has been subjected to a prohibited
personnel practice, and shall either issue an order denying relief or
shall implement corrective action to return the employee, former
employee, or applicant, as nearly as practicable and reasonable, to the
position such employee, former employee, or applicant would have held
had the prohibited personnel practice not occurred. Such corrective
action shall include reasonable attorney's fees and any other
reasonable costs incurred, and may include back pay and related
benefits, travel expenses, and compensatory damages not to exceed
$300,000. Unless the employee, former employee, or applicant consents,
no more than 60 days shall pass from the submission of the report by
the impartial fact-finder to the agency head and the final decision by
the agency head or the designee of the agency head.
``(3) In determining whether the employee, former employee, or
applicant has been subjected to a prohibited personnel practice, the
agency head or the designee of the agency head shall find that a
prohibited personnel practice occurred if a disclosure described in
subsection (b) was a contributing factor in the personnel action which
was taken against the individual, unless the agency demonstrates by
clear and convincing evidence that it would have taken the same
personnel action in the absence of such disclosure.
``(4)(A) Any employee, former employee, or applicant adversely
affected or aggrieved by a final order or decision of the agency head
or the designee of the agency head under paragraph (1) may appeal that
decision to the Intelligence Community Whistleblower Protection Board
within 60 days after the issuance of such order. Such appeal shall be
conducted under rules of procedure issued by the Board under section
120(c)(4).
``(B) The Board's review shall be on the agency record. The Board
may not hear witnesses or admit additional evidence. Any portions of
the record that were submitted ex parte during the agency proceedings
shall not be disclosed to the employee, former employee, or applicant
during proceedings before the Board.
``(C) If the Board concludes that further fact-finding is necessary
or finds that the agency improperly denied the employee, former
employee, or applicant the opportunity to present evidence that, if
admitted, would have a substantial likelihood of altering the outcome,
the Board shall--
``(i) remand the matter to the agency from which it
originated for additional proceedings in accordance with the
rules of procedure issued by the Board; or
``(ii) refer the matter to another agency for additional
proceedings in accordance with the rules of procedure issued by
the Board.
``(D) The Board shall make a de novo determination, based on the
entire record, of whether the employee, former employee, or applicant
suffered a prohibited personnel practice. In considering the record,
the Board may weigh the evidence, judge the credibility of witnesses,
and determine controverted questions of fact; in doing so, the Board
may consider the prior fact-finder's opportunity to see and hear the
witnesses.
``(E) On the basis of the agency record, the Board shall determine
whether the employee, former employee, or applicant has been subjected
to a prohibited personnel practice, and shall either issue an order
denying relief or shall order the agency head to take specific
corrective action to return the employee, former employee, or
applicant, as nearly as practicable and reasonable, to the position
such employee, former employee, or applicant would have held had the
prohibited personnel practice not occurred. Such corrective action
shall include reasonable attorney's fees and any other reasonable costs
incurred, and may include back pay and related benefits, travel
expenses, and compensatory damages not to exceed $300,000. The Board
may recommend, but may not order, reinstatement or hiring of a former
employee or applicant. The agency head shall take the actions so
ordered, unless the President determines that doing so would endanger
national security. Unless the employee, former employee, or applicant
consents, no more than 180 days shall pass from the filing of the
appeal with the Board to the final decision by the Board. Any period of
time during which the Board lacks a sufficient number of members to
undertake a review shall be excluded from the 180-day period.
``(F) In determining whether the employee, former employee, or
applicant has been subjected to a prohibited personnel practice, the
agency head or the designee of the agency head shall find that a
prohibited personnel practice occurred if a disclosure described in
subsection (b) of this section was a contributing factor in the
personnel action which was taken against the individual, unless the
agency demonstrates by clear and convincing evidence that it would have
taken the same personnel action in the absence of such disclosure.
``(5)(A)(i) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2009, an
employee, former employee, applicant, or an agency may file a petition
to review a final order of the Board in the United States Court of
Appeals for the Federal Circuit or the United States court of appeals
for a circuit in which the reprisal is alleged in the order to have
occurred. Notwithstanding any other provision of law, any petition for
review shall be filed within 60 days after the date of issuance of the
final order of the Board.
``(ii) After the 5-year period described under clause (i), a
petition to review a final order described under that clause shall be
filed in the United States Court of Appeals for the Federal Circuit.
``(B) The court of appeals shall review the record and hold
unlawful and set aside any agency action, findings, or conclusions
found to be--
``(i) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
``(ii) obtained without procedures required by law, rule,
or regulation having been followed; or
``(iii) unsupported by substantial evidence.
``(C) Any portions of the record that were submitted ex parte
during the agency proceedings shall be submitted ex parte to the Board
and any reviewing court.
``(D) At the time the Board issues an order, the Chairperson shall
notify the chairpersons and ranking members of--
``(i) the Committee on Homeland Security and Government
Affairs of the Senate;
``(ii) the Select Committee on Intelligence of the Senate;
``(iii) the Committee on Oversight and Government Reform of
the House of Representatives; and
``(iv) the Permanent Select Committee on Intelligence of
the House of Representatives.
``(d) Except as expressly provided in this section, there shall be
no judicial review of agency actions under this section.
``(e) This section shall not apply to terminations executed under--
``(1) section 1609 of title 10, United States Code;
``(2) the authority of the Director of National
Intelligence under section 102A(m) of this Act, if--
``(A) the Director personally summarily terminates
the individual; and
``(B) the Director--
``(i) determines the termination to be in
the interest of the United States;
``(ii) determines that the procedures
prescribed in other provisions of law that
authorize the termination of the employment of
such employee cannot be invoked in a manner
consistent with the national security; and
``(iii) notifies the congressional
oversight committees of such termination within
5 days after the termination;
``(3) the authority of the Director of the Central
Intelligence Agency under section 104A(e) of this Act, if--
``(A) the Director personally summarily terminates
the individual; and
``(B) the Director--
``(i) determines the termination to be in
the interest of the United States;
``(ii) determines that the procedures
prescribed in other provisions of law that
authorize the termination of the employment of
such employee cannot be invoked in a manner
consistent with the national security; and
``(iii) notifies the congressional
oversight committees of such termination within
5 days after the termination; or
``(4) section 7532 of title 5, United States Code, if--
``(A) the agency head personally summarily
terminates the individual; and
``(B) the agency head--
``(i) determines the termination to be in
the interest of the United States,
``(ii) determines that the procedures
prescribed in other provisions of law that
authorize the termination of the employment of
such employee cannot be invoked in a manner
consistent with the national security; and
``(iii) notifies the congressional
oversight committees of such termination within
5 days after the termination.
``(f) If an employee, former employee, or applicant seeks to
challenge both a prohibited personnel practice under this section and
an adverse security clearance or access determination under section
3001(j) of the Intelligence Reform and Terrorism Prevention Act of 2004
(50 U.S.C. 435b(j)), the employee shall bring both claims under the
procedure set forth in 3001(j) of that Act for challenging an adverse
security clearance or access determination. If the Board awards
compensatory damages for such claim or claims, the total amount of
compensatory damages ordered shall not exceed $300,000.''.
(b) Repeal of Section 2303.--
(1) In general.--Title 5, United States Code is amended--
(A) by striking section 2303; and
(B) by striking the item relating to section 2303
in the table of sections for chapter 23 of that title.
(2) Effective date.--This paragraph shall take effect on
the date on which rules are issued as required under section
121(c)(1)(B) of the National Security Act of 1947 (as added by
this Act).
(c) Technical and Conforming Amendment.--The table of contents for
the National Security Act of 1947 (50 U.S.C. 401 note) is amended by
inserting after the item relating to section 119B the following:
``Sec. 120. Intelligence Community Whistleblower Protection Board.
``Sec. 121. Intelligence community whistleblower protections.''.
SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS DETERMINATIONS.
(a) In General.--Section 3001(b) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 435b(b)) is amended--
(1) in the matter preceding paragraph (1), by striking
``Not'' and inserting ``Except as otherwise provided, not'';
(2) in paragraph (5), by striking ``and'' after the
semicolon;
(3) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(4) by inserting after paragraph (6) the following:
``(7) not later than 30 days after the date of enactment of
the Whistleblower Protection Enhancement Act of 2009--
``(A) developing policies and procedures that
permit, to the extent practicable, individuals who
challenge in good faith a determination to suspend or
revoke a security clearance or access to classified
information to retain their government employment
status while such challenge is pending; and
``(B) developing and implementing uniform and
consistent policies and procedures to ensure proper
protections during the process for denying, suspending,
or revoking a security clearance or access to
classified information, including the provision of a
right to appeal such a denial, suspension, or
revocation, except that there shall be no appeal of an
agency's suspension of a security clearance or access
determination for purposes of conducting an
investigation, if that suspension lasts no longer than
1 year, including such policies and procedures for
appeals based on those pertaining to prohibited
personnel practices defined under section 2302(b)(8) of
title 5, United States Code, and that provide--
``(i) for an independent and impartial
fact-finder;
``(ii) for notice and the opportunity to be
heard, including the opportunity to present
relevant evidence, including witness testimony;
``(iii) that the employee, applicant, or
former employee may be represented by counsel;
``(iv) that the employee, applicant, or
former employee has a right to a decision based
on the record developed during the appeal;
``(v) that, unless agreed to by the
employee and the agency concerned, no more than
180 days shall pass from the filing of the
appeal to the report of the impartial fact
finder to the agency head or the designee of
the agency head;
``(vi) for the use of information
specifically required by Executive order to be
kept secret in the interest of national defense
or the conduct of foreign affairs in a manner
consistent with the interests of national
security, including ex parte submissions if the
agency determines that the interests of
national security so warrant; and
``(vii) that the employee, applicant, or
former employee shall have no right to compel
the production of information specifically
required by Executive order to be kept secret
in the interest of national defense or the
conduct of foreign affairs, except evidence
necessary to establish that the employee made
the disclosure or communication such employee
alleges was protected by subparagraphs (A),
(B), and (C) of subsection (j)(1).''.
(b) Retaliatory Revocation of Security Clearances and Access
Determinations.--Section 3001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (50 U.S.C. 435b) is amended by adding at the end
the following:
``(j) Retaliatory Revocation of Security Clearances and Access
Determinations.--
``(1) In general.--Agency personnel with authority over
personnel security clearance or access determinations shall not
take or fail to take, or threaten to take or fail to take, any
action with respect to any employee or applicant's security
clearance or access determination because of--
``(A) any disclosure of information to an official
of an Executive agency by an employee or applicant
which the employee or applicant reasonably believes
evidences--
``(i) a violation of any law, rule, or
regulation, except for an alleged violation
that is a minor, inadvertent violation, and
occurs during the conscientious carrying out of
official duties; or
``(ii) gross mismanagement, a gross waste
of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety,
if such disclosure is not specifically prohibited by
law and if such disclosure does not reveal information
specifically authorized under criteria established by
statute, Executive Order, Presidential directive, or
Presidential memorandum to be kept secret in the
interest of national defense or the conduct of foreign
affairs;
``(B) any disclosure to the Inspector General of an
agency or another employee designated by the head of
the agency to receive such disclosures, of information
which the employee or applicant reasonably believes
evidences--
``(i) a violation of any law, rule, or
regulation, except for an alleged violation
that is a minor, inadvertent violation, and
occurs during the conscientious carrying out of
official duties; or
``(ii) gross mismanagement, a gross waste
of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety;
``(C) any communication that complies with
subsection (a)(1), (d), or (h) of section 8H of the
Inspector General Act of 1978 (5 U.S.C. App.) or that
complies with subsection (d)(5)(A), (D), or (H) of
section 17 of the Central Intelligence Agency Act of
1949 (50 U.S.C. 403q);
``(D) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation;
``(E) testifying for or otherwise lawfully
assisting any individual in the exercise of any right
referred to in subparagraph (D); or
``(F) cooperating with or disclosing information to
the inspector general of an agency, in accordance with
applicable provisions of law in connection with an
audit, inspection, or investigation conducted by the
inspector general,
if the actions described under subparagraphs (D) through (F) do
not result in the employee or applicant unlawfully disclosing
information specifically authorized under criteria established
by Executive Order, statute, Presidential Directive, or
Presidential memorandum to be kept secret in the interest of
national defense or the conduct of foreign affairs.
Nothing in this paragraph shall be construed to authorize the
withholding of information from the Congress or the taking of
any personnel action against an employee who discloses
information to the Congress.
``(2) Disclosures.--A disclosure shall not be excluded from
paragraph (1) because--
``(A) the disclosure was made during the normal
course of the duties of the employee;
``(B) the disclosure was made to a person,
including a supervisor, who participated in an activity
that the employee or applicant reasonably believed to
be covered by paragraph (1)(A)(ii);
``(C) the disclosure revealed information that had
been previously disclosed;
``(D) of the employee or applicant's motive for
making the disclosure;
``(E) the disclosure was not made in writing;
``(F) the disclosure was made while the employee
was off duty; or
``(G) of the amount of time which has passed since
the occurrence of the events described in the
disclosure.
``(3) Agency adjudication.--
``(A) Appeal.--An employee, former employee, or
applicant for employment who believes that he or she
has been subjected to a reprisal prohibited by
paragraph (1) of this subsection may, within 60 days
after the issuance of notice of such decision, appeal
that decision within the agency of that employee,
former employee, or applicant through proceedings
authorized by paragraph (8) of subsection (b), except
that there shall be no appeal of an agency's suspension
of a security clearance or access determination for
purposes of conducting an investigation, if that
suspension lasts no longer than 1 year.
``(B) Corrective action.--If, in the course of
proceedings authorized under subparagraph (A), it is
determined that the adverse security clearance or
access determination violated paragraph (1) of this
subsection, the agency shall take specific corrective
action to return the employee, former employee, or
applicant, as nearly as practicable and reasonable, to
the position such employee, former employee, or
applicant would have held had the violation not
occurred. Such corrective action shall include
reasonable attorney's fees and any other reasonable
costs incurred, and may include back pay and related
benefits, travel expenses, and compensatory damages not
to exceed $300,000.
``(C) Contributing factor.--In determining whether
the adverse security clearance or access determination
violated paragraph (1) of this subsection, the agency
shall find that paragraph (1) of this subsection was
violated if a disclosure described in paragraph (1) was
a contributing factor in the adverse security clearance
or access determination taken against the individual,
unless the agency demonstrates by a preponderance of
the evidence that it would have taken the same action
in the absence of such disclosure, giving the utmost
deference to the agency's assessment of the particular
threat to the national security interests of the United
States in the instant matter.
``(4) Review by the intelligence community whistleblower
protection board.--
``(A) Appeal.--Within 60 days after receiving
notice of an adverse final agency determination under a
proceeding under paragraph (3), an employee, former
employee, or applicant for employment may appeal that
determination to the Intelligence Community
Whistleblower Protection Board.
``(B) Policies and procedures.--The Board, in
consultation with the Attorney General, Director of
National Intelligence, and the Secretary of Defense,
shall develop and implement policies and procedures for
adjudicating the appeals authorized by subparagraph
(A). The Director of National Intelligence and
Secretary of Defense shall jointly approve any rules,
regulations, or guidance issued by the Board concerning
the procedures for the use or handling of classified
information.
``(C) Review.--The Board's review shall be on the
complete agency record, which shall be made available
to the Board. The Board may not hear witnesses or admit
additional evidence. Any portions of the record that
were submitted ex parte during the agency proceedings
shall be submitted ex parte to the Board.
``(D) Further fact-finding or improper denial.--If
the Board concludes that further fact-finding is
necessary or finds that the agency improperly denied
the employee or former employee the opportunity to
present evidence that, if admitted, would have a
substantial likelihood of altering the outcome, the
Board shall--
``(i) remand the matter to the agency from
which it originated for additional proceedings
in accordance with the rules of procedure
issued by the Board; or
``(ii) refer the case to an intelligence
community agency for additional proceedings in
accordance with the rules of procedure issued
by the Board.
``(E) De novo determination.--The Board shall make
a de novo determination, based on the entire record, of
whether the employee, former employee, or applicant
received an adverse security clearance or access
determination in violation of paragraph (1). In
considering the record, the Board may weigh the
evidence, judge the credibility of witnesses, and
determine controverted questions of fact. In doing so,
the Board may consider the prior fact-finder's
opportunity to see and hear the witnesses.
``(F) Adverse security clearance or access
determination.--If the Board finds that the adverse
security clearance or access determination violated
paragraph (1), it shall then separately determine
whether reinstating the security clearance or access
determination is clearly consistent with the interests
of national security, with any doubt resolved in favor
of national security, under Executive Order 12968
(including any adjudicative guidelines promulgated
under such orders) or any subsequent Executive order,
regulation, or policy concerning access to classified
information.
``(G) Remedies.--
``(i) Corrective action.--If the Board
finds that the adverse security clearance or
access determination violated paragraph (1), it
shall order the agency head to take specific
corrective action to return the employee,
former employee, or applicant, as nearly as
practicable and reasonable, to the position
such employee, former employee, or applicant
would have held had the violation not occurred.
Such corrective action shall include reasonable
attorney's fees and any other reasonable costs
incurred, and may include back pay and related
benefits, travel expenses, and compensatory
damages not to exceed $300,000. The Board may
recommend, but may not order, reinstatement or
hiring of a former employee or applicant, and
any relief shall not include the reinstating of
any security clearance or access determination.
The agency head shall take the actions so
ordered, unless the President determines that
doing so would endanger national security.
``(ii) Recommended action.--If the Board
finds that reinstating the employee, former
employee, or applicant's security clearance or
access determination is clearly consistent with
the interests of national security, it shall
recommend such action to the head of the entity
selected under subsection (b) and the head of
the affected agency.
``(H) Congressional notification.--
``(i) Orders.--At the time the Board issues
an order, the Chairperson of the Board shall
notify the chairpersons and ranking members
of--
``(I) the Committee on Homeland
Security and Government Affairs of the
Senate;
``(II) the Select Committee on
Intelligence of the Senate;
``(III) the Committee on Oversight
and Government Reform of the House of
Representatives; and
``(IV) the Permanent Select
Committee on Intelligence of the House
of Representatives.
``(ii) Recommendations.--If the agency head
and the head of the entity selected under
subsection (b) do not follow the Board's
recommendation to reinstate a clearance, the
head of the entity selected under subsection
(b) shall notify the chairpersons and ranking
members of the committees described in
subclauses (I) through (IV) of clause (i).
``(5) Judicial review.--Nothing in this section should be
construed to permit or require judicial review of agency or
Board actions under this section.
``(6) Nonapplicability to certain terminations.--This
section shall not apply to adverse security clearance or access
determinations if the affected employee is concurrently
terminated under--
``(A) section 1609 of title 10, United States Code;
``(B) the authority of the Director of National
Intelligence under section 102A(m) of the National
Security Act of 1947 (50 U.S.C. 403-1(m)), if--
``(i) the Director personally summarily
terminates the individual; and
``(ii) the Director--
``(I) determines the termination to
be in the interest of the United
States;
``(II) determines that the
procedures prescribed in other
provisions of law that authorize the
termination of the employment of such
employee cannot be invoked in a manner
consistent with the national security,
and
``(III) notifies the congressional
oversight committees of such
termination within 5 days after the
termination;
``(C) the authority of the Director of the Central
Intelligence Agency under section 104A(e) of the
National Security Act of 1947 (50 U.S.C. 403-4a(e)),
if--
``(i) the Director personally summarily
terminates the individual; and
``(ii) the Director--
``(I) determines the termination to
be in the interest of the United
States;
``(II) determines that the
procedures prescribed in other
provisions of law that authorize the
termination of the employment of such
employee cannot be invoked in a manner
consistent with the national security;
and
``(III) notifies the congressional
oversight committees of such
termination within 5 days after the
termination; or
``(D) section 7532 of title 5, United States Code,
if--
``(i) the agency head personally summarily
terminates the individual; and
``(ii) the agency head--
``(I) determines the termination to
be in the interest of the United
States;
``(II) determines that the
procedures prescribed in other
provisions of law that authorize the
termination of the employment of such
employee cannot be invoked in a manner
consistent with the national security;
and
``(III) notifies the congressional
oversight committees of such
termination within 5 days after the
termination.''.
SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE COMMUNITY
WHISTLEBLOWER PROTECTION ACT.
(a) In General.--Section 8H of the Inspector General Act of 1978 (5
U.S.C. App.) is amended--
(1) in subsection (b)--
(A) by inserting ``(1)'' after ``(b)''; and
(B) by adding at the end the following:
``(2) If the head of an establishment determines that a complaint
or information transmitted under paragraph (1) would create a conflict
of interest for the head of the establishment, the head of the
establishment shall return the complaint or information to the
Inspector General with that determination and the Inspector General
shall make the transmission to the Chair of the Intelligence Community
Whistleblower Protection Board. In such a case, the requirements of
this section for the head of the establishment apply to the recipient
of the Inspector General's transmission. The Chair shall consult with
the other members of the Intelligence Community Whistleblower
Protection Board regarding all transmissions under this paragraph.'';
(2) by designating subsection (h) as subsection (i); and
(3) by inserting after subsection (g), the following:
``(h) An individual who has submitted a complaint or information to
an inspector general under this section may notify any member of
Congress or congressional staff member of the fact that such individual
has made a submission to that particular inspector general, and of the
date on which such submission was made.''.
(b) Central Intelligence Agency.--Section 17(d)(5) of the Central
Intelligence Agency Act of 1949 (50 U.S.C. 403q) is amended--
(1) in subparagraph (B)--
(A) by inserting ``(i)'' after ``(B)''; and
(B) by adding at the end the following:
``(ii) If the Director determines that a complaint or information
transmitted under paragraph (1) would create a conflict of interest for
the Director, the Director shall return the complaint or information to
the Inspector General with that determination and the Inspector General
shall make the transmission to the Chair of the Intelligence Community
Whistleblower Protection Board. In such a case--
``(I) the requirements of this subsection for the Director
apply to the recipient of the Inspector General's submission;
and
``(II) the Chairperson shall consult with the other members
of the Intelligence Community Whistleblower Protection Board
regarding all submissions under this section.''; and
(2) by adding at the end the following:
``(H) An individual who has submitted a complaint or information to
the Inspector General under this section may notify any member of
Congress or congressional staff member of the fact that such individual
has made a submission to the Inspector General, and of the date on
which such submission was made.''.
TITLE III--EFFECTIVE DATE
SEC. 301. EFFECTIVE DATE.
This Act shall take effect 30 days after the date of enactment of
this Act.
Calendar No. 219
111th CONGRESS
1st Session
S. 372
[Report No. 111-101]
_______________________________________________________________________
A BILL
To amend chapter 23 of title 5, United States Code, to clarify the
disclosures of information protected from prohibited personnel
practices, require a statement in nondisclosure policies, forms, and
agreements that such policies, forms, and agreements conform with
certain disclosure protections, provide certain authority for the
Special Counsel, and for other purposes.
_______________________________________________________________________
December 3, 2009
Reported with an amendment