[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