[Congressional Record Volume 155, Number 21 (Tuesday, February 3, 2009)]
[Senate]
[Pages S1434-S1438]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. Akaka (for himself, Ms. Collins, Mr. Grassley, Mr. Levin, 
        Mr. Lieberman, Mr. Voinovich, Mr. Leahy, Mr. Kennedy, Mr. 
        Carper, Mr. Pryor, and Ms. Mikulski):
  S. 372. 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; to the Committee on Homeland 
Security and Governmental Affairs.
  Mr. AKAKA. Mr. President, today I rise to reintroduce the 
Whistleblower Protection Enhancement Act. I am pleased that Senators 
Collins, Grassley, Levin, Lieberman, Voinovich, Leahy, Kennedy, Carper, 
Pryor, and Mikulski have joined as cosponsors of this bill.
  I have been a long-time proponent of strengthening the rights and 
protections of federal whistleblowers. Last year, my bill, the Federal 
Employee Protection of Disclosures Act, S. 274, passed the Senate by 
unanimous consent in December 2007. A similar House bill, the 
Whistleblower Protection Enhancement Act, also passed in March 2008. 
Unfortunately, we were not able to reconcile the two bills and enact 
whistleblower protections before the 110th Congress adjourned.
  The need for strengthened whistleblower protections is clear. In this 
time of economic crisis, we cannot wait to act on measures to make sure 
the government uses tax dollars efficiently and effectively. Indeed, 
President Obama emphasized the need for improved accountability in his 
inaugural address, stating:

       Those of us who manage the public's dollars will be held to 
     account--to spend wisely, reform bad habits, and do our 
     business in the light of day--because only then can we 
     restore the vital trust between a people and their 
     government.

  This legislation will help us hold those who manage the public's 
dollars accountable by strengthening protections for Federal workers 
who shed light on Government waste, fraud, and abuse. Our bill also 
will contribute to public health and safety, civil rights and civil 
liberties, national security, and other valuable interests. Federal 
employees often are in the best position to observe and disclose 
Federal Government wrongdoing that can affect every aspect of our 
economy and our lives, and fewer employees will have the courage to 
disclose wrongdoing without meaningful whistleblower protections.

[[Page S1435]]

  The Whistleblower Protection Act, WPA, was intended to shield Federal 
whistleblowers from retaliation, but the Federal Circuit and the Merit 
Systems Protection Board repeatedly have issued decisions that 
misconstrue the WPA and scale back its protections. Federal 
whistleblowers have prevailed on the merits of their claims before the 
Federal Circuit Court of Appeals, which has sole jurisdiction over 
federal employee whistleblower appeals, only three times in hundreds of 
cases since 1994. That is why further action is necessary.
  I will highlight a few of the important provisions in this bill. Our 
bill would eliminate a number of restrictions that the Federal Circuit 
has read into the law regarding when disclosures are covered by the 
WPA. In light of the Federal Circuit's restrictive reading of the WPA, 
it would establish a pilot program to allow whistleblower appeals to be 
filed in the appropriate regional Federal Court of Appeals for five 
years, and would require a Government Accountability Office review of 
that change 40 months after enactment. This bill would bar agencies 
from enforcing a nondisclosure policy, revoking an employee's security 
clearance, or investigating an employee in retaliation for a protected 
disclosure.
  This bill also includes a few improvements in whistleblower 
protection that were not in S. 274. It would expand the coverage of the 
Whistleblower Protection Act to include employees of the Transportation 
Security Administration. Additionally, it would make clear that 
disclosures of censorship of scientific information that could lead to 
gross government waist or mismanagement, a substantial and specific 
danger to public health or safety, or a violation of law are protected.
  Congress has a duty to provide strong protections for Federal 
whistleblowers. Only when Federal employees are confident that they 
will not face retaliation will they feel comfortable coming forward to 
disclose information that can be used to improve government operations, 
our national security, and the health of our citizens.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 372

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

     SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION 
                   BY FEDERAL EMPLOYEES.

       (a) Short Title.--This Act may be cited as the 
     ``Whistleblower Protection Enhancement Act of 2009''.
       (b) Clarification of Disclosures Covered.--
       (1) In general.--Section 2302(b)(8) of title 5, United 
     States Code, is amended--
       (A) in subparagraph (A)--
       (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'';
       (ii) in clause (i), by striking ``a violation'' and 
     inserting ``any violation''; and
       (iii) by striking ``or'' at the end;
       (B) in subparagraph (B)--
       (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'';
       (ii) in clause (i), by striking ``a violation'' and 
     inserting ``any violation (other than a violation of this 
     section)''; and
       (iii) in clause (ii), by adding ``or'' at the end; and
       (C) by adding at the end the following:
       ``(C) any disclosure that--
       ``(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--

       ``(I) any violation of any law, rule, or regulation;
       ``(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) a false statement to Congress on an issue of 
     material fact; and

       ``(ii) is made to--

       ``(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;
       ``(II) any other Member of Congress who is authorized to 
     receive information of the type disclosed; or
       ``(III) an employee of Congress who has the appropriate 
     security clearance and is authorized to receive information 
     of the type disclosed.''.

       (2) Prohibited personnel practices under section 
     2302(b)(9).--
       (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.
       (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.
       (c) Definitional Amendments.--
       (1) Disclosures.--Section 2302(a)(2) of title 5, United 
     States Code, is amended--
       (A) in subparagraph (B)(ii), by striking ``and'' at the 
     end;
       (B) in subparagraph (C)(iii), by striking the period at the 
     end and inserting ``; and''; and
       (C) 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; or
       ``(ii) gross mismanagement, a gross waste of funds, an 
     abuse of authority, or a substantial and specific danger to 
     public health or safety.''.
       (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.''.
       (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:
     ``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.''.
       (e) Personnel Actions and Prohibited Personnel Practices.--
       (1) Personnel action.--Section 2302(a)(2)(A) of title 5, 
     United States Code, is amended--
       (A) in clause (x), by striking ``and'' after the semicolon; 
     and
       (B) by redesignating clause (xi) as clause (xiv) and 
     inserting after clause (x) the following:
       ``(xi) the implementation or enforcement of any 
     nondisclosure policy, form, or agreement;
       ``(xii) a suspension, revocation, or other determination 
     relating to a security clearance or any other access 
     determination by a covered agency;
       ``(xiii) an investigation, other than any ministerial or 
     nondiscretionary fact finding activities necessary for the 
     agency to perform its mission, of an employee or applicant 
     for employment because of any activity protected under this 
     section; and''
       (2) Prohibited personnel practice.--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 
     a semicolon; 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

[[Page S1436]]

     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
       ``(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.''.
       (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:
       ``(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
       ``(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''.
       (g) Disciplinary Action.--Section 1215(a)(3) of title 5, 
     United States Code, is amended to read as follows:
       ``(3)(A) A final order of the Board may impose--
       ``(i) disciplinary action consisting of removal, reduction 
     in grade, debarment from Federal employment for a period not 
     to exceed 5 years, suspension, or reprimand;
       ``(ii) an assessment of a civil penalty not to exceed 
     $1,000; or
       ``(iii) any combination of disciplinary actions described 
     under clause (i) and an assessment described under clause 
     (ii).
       ``(B) In any case in which the Board finds that an employee 
     has committed a prohibited personnel practice under paragraph 
     (8) or (9) of section 2302(b), the Board shall impose 
     disciplinary action if the Board finds that the activity 
     protected under 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.''.
       (h) Remedies.--
       (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''.
       (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.
       (i) Judicial Review.--
       (1) In general.--Section 7703(b)(1) of title 5, United 
     States Code, is amended to read as follows:
       ``(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.
       ``(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).''.
       (2) 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 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.
       ``(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.''.
       (j) Merit System Protection Board Review of Security 
     Clearances.--
       (1) In general.--Chapter 77 of title 5, United States Code, 
     is amended by inserting after section 7702 the following:

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

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

``7702a. Actions relating to security clearances.''.
       (k) Prohibited Personnel Practices Affecting the 
     Transportation Security Administration.--
       (1) In general.--Chapter 23 of title 5, United States Code, 
     is amended--
       (A) by redesignating sections 2304 and 2305 as sections 
     2305 and 2306, respectively; and
       (B) 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

[[Page S1437]]

     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.''.
       (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:

``Sec. 2304. Prohibited personnel practices affecting the 
              Transportation Security Administration.
``Sec. 2305. Responsibility of the Government Accountability Office.
``Sec. 2306. Coordination with certain other provisions of law.''.
       (3) Effective date.--The amendments made by this section 
     shall take effect on the date of enactment of this section.
       (l) Disclosure of Censorship Related to Research, Analysis, 
     or Technical Information.--
       (1) Definitions.--In this section--
       (A) the term ``applicant'' means an applicant for a covered 
     position;
       (B) the term ``censorship related to research, analysis, or 
     technical information'' means any effort to alter, 
     misrepresent, or suppress research, analysis, or technical 
     information;
       (C) the term ``covered position'' has the meaning given 
     under section 2302(a)(2)(B) of title 5, United States Code;
       (D) the term ``employee'' means an employee in a covered 
     position; and
       (E) the term ``disclosure'' has the meaning given under 
     section 2302(a)(2)(D) of title 5, United States Code.
       (2) Protected disclosure.--
       (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--
       (i) the employee or applicant reasonably believes that the 
     censorship related to research, analysis, or technical 
     information is or will cause--

       (I) any violation of law, rule, or regulation; or
       (II) gross mismanagement, a gross waste of funds, an abuse 
     of authority, or a substantial and specific danger to public 
     health or safety; and

       (ii) the disclosure and information satisfy the conditions 
     stated in the matter following clause (ii) of section 
     2302(b)(8)(A) of title 5, United States Code; and
       (iii) shall come within the protections of section 
     2302(b)(8)(B) of title 5, United States Code, if--

       (I) the conditions under clause (i) of this subparagraph 
     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.

       (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.
       (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.
       (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.''.
       (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''.
       (o) 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 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.
       ``(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).''.
       (p) Scope of Due Process.--
       (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''.
       (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''.
       (q) Nondisclosure Policies, Forms, and Agreements.--
       (1) In general.--
       (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.''.
       (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.
       (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.
       (r) Reporting Requirements.--
       (1) Government accountability office.--
       (A) In general.--
       (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.
       (ii) Contents.--The report under this paragraph shall 
     include--

       (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;
       (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
       (III) any other matter as determined by the Comptroller 
     General.

       (B) Study on revocation of security clearances.--
       (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.
       (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.
       (2) Merit systems protection board.--

[[Page S1438]]

       (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:
       (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.
       (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.
       (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.
       (s) Effective Date.--This Act shall take effect 30 days 
     after the date of enactment of this Act.
                                 ______