[Congressional Record Volume 156, Number 163 (Friday, December 10, 2010)]
[Senate]
[Pages S8809-S8825]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009

  Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the 
Senate proceed to Calendar No. 219, S. 372.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 372) 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.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on Homeland Security and 
Governmental Affairs, with an amendment to strike all after the 
enacting clause and insert in lieu thereof the following:

     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

[[Page S8810]]

     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.''.

[[Page S8811]]

     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

[[Page S8812]]

     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

[[Page S8813]]

     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

[[Page S8814]]

     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

[[Page S8815]]

     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;

[[Page S8816]]

       ``(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

[[Page S8817]]

     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.


                  Retaliatory Investigation Provisions

  Mr. GRASSLEY. Mr. President, the Whistleblower Protection Enhancement 
Act, S. 372, will strengthen and modernize protections for Federal 
whistleblowers. May I ask the Senator from Hawaii to clarify the intent 
of the provision providing relief for the consequences of retaliatory 
investigations? Am I correct that this provision does not in any way 
reduce or eliminate current protections against retaliatory 
investigations?
  Mr. AKAKA. The Senator from Iowa is correct. Remedies in S. 372 
provide relief for the consequences of preliminary retaliatory 
investigations when an employee prevails in litigation against a 
prohibited personnel practice. This provision does not in any way 
reduce or eliminate jurisdiction to challenge a retaliatory 
investigation before a formal personnel action occurs.
  In legislative history for 1994 amendments to the Whistleblower 
Protection Act, Representative McCloskey stated that alleged harassment 
can be a threatened personnel action if it ``is discriminatory, or 
could have a chilling effect on merit system duties and 
responsibilities.'' Congress specifically included retaliatory 
investigations initiated because of protected activity among the 
illustrations for ``threatened personnel actions,'' because they can be 
``preludes or preconditions to'' the entire list of formal personnel 
actions in section 2302(a)(2) of title 5. Jurisdiction to challenge 
retaliatory investigations as threatened personnel actions has been 
upheld repeatedly. The Office of Special Counsel also has used this 
authority to avoid the need for prolonged, costly litigation while 
employees are off the job from subsequent termination.
  Mr. LEAHY. Mr. President, today, the Senate will finally pass the 
bipartisan Whistleblower Protection Enhancement Act of 2010, S. 372. I 
thank Senator Akaka and Senator Collins for their dedication to this 
legislation and for working with me and Senator Grassley on key changes 
to make the bill even stronger in its protection of whistleblowers. I 
have worked for years to protect whistleblowers from retaliation, 
whether by government or corporate employers, and this bill is an 
important step forward in that ongoing process.
  Whistleblowers are instrumental in alerting the public and Congress 
to wrongdoing in Federal agencies. In many cases, their willingness to 
step forward has resulted in important governmental reform, and has 
even saved lives. Congress must encourage Federal employees with 
reasonable beliefs about government misconduct to report such fraud or 
abuse by offering meaningful protection to those who blow the whistle, 
rather than leaving them vulnerable to reprisals.
  Unfortunately, whistleblower laws have been weakened by many court 
decisions that have ignored congressional intent and eroded employee 
protections. The Whistleblower Protection Enhancement Act will help 
restore and expand the protections for Federal employees envisioned by 
the original Whistleblower Protection Act of 1989.
  Key provisions of the Whistleblower Protection Enhancement Act will 
offer additional methods to appeal whistleblower cases and provide 
additional protections to intelligence community employees and officers 
of the Transportation Security Administration. It will also correct the 
Federal circuit court's repeated misinterpretations of the 
whistleblower law and suspend that court's sole jurisdiction over 
Federal employee whistleblower cases for 5 years.
  Whistleblowers have proven to be important catalysts for much needed 
government change over the years. From corporate fraud to governmental 
misconduct to media integrity, whistleblowers have played an integral 
role in galvanizing reform. In these difficult financial times, we must 
be especially vigilant to ensure that public resources are not lost to 
waste, fraud, and abuse. Restoring credibility to our whistleblower 
laws is an important part of that work. Before Congress adjourns, I 
hope the House of Representatives will quickly consider this 
legislation, and send it to the President to be signed into law.
  Mrs. GILLIBRAND. I ask consent the committee-reported substitute 
amendment be considered, the Akaka amendment at the desk be agreed to 
and the committee-reported substitute amendment, as amended, be agreed 
to, and the bill as amended be read a third time and passed, the 
motions to reconsider be laid upon the table with no intervening action 
or debate, and any statements be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 4760, in the nature of a substitute, was agreed 
to.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The bill (S. 372), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed, 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. SHORT TITLE.

       This Act may be cited as the ``Whistleblower Protection 
     Enhancement Act of 2010''.

 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,

[[Page S8818]]

     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), (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)(1) A disclosure shall not be excluded from subsection 
     (b)(8) because--
       ``(A) 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);
       ``(B) the disclosure revealed information that had been 
     previously disclosed;
       ``(C) of the employee's or applicant's motive for making 
     the disclosure;
       ``(D) the disclosure was not made in writing;
       ``(E) the disclosure was made while the employee was off 
     duty; or
       ``(F) of the amount of time which has passed since the 
     occurrence of the events described in the disclosure.
       ``(2) If a disclosure is made during the normal course of 
     duties of an employee, the disclosure shall not be excluded 
     from subsection (b)(8) if any employee who has authority to 
     take, direct others to take, recommend, or approve any 
     personnel action with respect to the employee making the 
     disclosure, took, failed to take, or threatened to take or 
     fail to take a personnel action with respect to that employee 
     in reprisal for the disclosure.''.

     SEC. 102. DEFINITIONAL AMENDMENTS.

       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.''.

     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 whose conduct is the subject of a disclosure as 
     defined under subsection (a)(2)(D) 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 13526 (75 Fed. Reg. 
     707; relating to classified national security information), 
     or any successor thereto; Executive Order 12968 (60 Fed. Reg. 
     40245; relating to access to classified information), or any 
     successor thereto; 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, provided that the determination be made prior to 
     a 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), (C), or (D), the Board may impose disciplinary 
     action if the Board finds that the activity protected under 
     section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (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,

[[Page S8819]]

     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 was employed or 
     had applied for employment at the time of the events giving 
     rise to the case''.
       (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 2010, 
     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), (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. 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 2010, 
     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), (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. The granting of the petition for judicial review 
     shall be at the discretion of 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--
       (A) shall come within the protections of section 
     2302(b)(8)(A) of title 5, United States Code, if--
       (i) the employee or applicant reasonably believes that the 
     censorship related to research, analysis, or technical 
     information is or will cause--

       (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; and

       (ii) such disclosure is not specifically prohibited by law 
     or such information is not specifically required by Executive 
     order to be kept classified in the interest of national 
     defense or the conduct of foreign affairs; and
       (B) shall come within the protections of section 
     2302(b)(8)(B) 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, 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; and

       (ii) the disclosure is made to the Special Counsel, or to 
     the Inspector General of an agency or another person 
     designated by the head of the agency to receive such 
     disclosures, consistent with the protection of sources and 
     methods.
       (2) Disclosures not excluded.--A disclosure shall not be 
     excluded from paragraph (1) for any reason described under 
     section 2302(f)(1) or (2) of title 5, United States Code.
       (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

[[Page S8820]]

     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 classified 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 13526 (75 Fed. Reg. 707; relating to 
     classified national security information), or any successor 
     thereto; Executive Order 12968 (60 Fed. Reg. 40245; relating 
     to access to classified information), or any successor 
     thereto; 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, consistent with the protection 
     of sources and methods.

     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 title.
       (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) 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) (A)(i), (B)(i), (C), or (D) 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; or
       ``(B) 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 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), (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) alleging as an 
     affirmative defense the commission of a prohibited personnel 
     practice described in section 2302(b) (8) or (9) (A)(i), (B), 
     (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, unless 
     the Board determines that the employee, former employee, or 
     applicant for employment engaged in conduct intended to delay 
     the issuance of a final order or decision by the Board; 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), (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

[[Page S8821]]

     described in section 2302(b) (8) or (9) (A)(i), (B), (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) under standard 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; and
       ``(ii)(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; or
       ``(II) the case--
       ``(aa) consists of multiple claims;
       ``(bb) requires complex or extensive discovery;
       ``(cc) 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
       ``(dd) involves a novel question of law.
       ``(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 the Board may 
     not issue a decision on the merits of a request for 
     corrective action within 15 days after granting or denying a 
     motion requesting certification.
       ``(6)(A) 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 described under paragraph (4)(ii) shall 
     be reviewed on appeal of a final order or decision of the 
     Board under section 7703 only if--
       ``(i) a motion requesting a certification was denied; and
       ``(ii) the reviewing court vacates the decision of the 
     Board on the merits of the claim under the standards set 
     forth in section 7703(c).
       ``(B) The decision to deny the certification shall be 
     overturned by the reviewing court, and an order granting 
     certification shall be issued by the reviewing court, if such 
     decision is found to be arbitrary, capricious, or an abuse of 
     discretion.
       ``(C) The reviewing court's decision 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 subsection (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), (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.'';
       (2) in subsection (c), by striking ``intelligence 
     committees'' and inserting ``appropriate committees'';
       (3) in subsection (d)--
       (A) in paragraph (1), by striking ``either or both of the 
     intelligence committees'' and inserting ``any of the 
     appropriate committees''; and
       (B) in paragraphs (2) and (3), by striking ``intelligence 
     committees'' each place that term appears and inserting 
     ``appropriate committees'';
       (4) in subsection (h)--
       (A) in paragraph (1)--
       (i) in subparagraph (A), by striking ``intelligence''; and
       (ii) in subparagraph (B), by inserting ``or an activity 
     involving classified information'' after ``an intelligence 
     activity''; and
       (B) by striking paragraph (2), and inserting the following:
       ``(2) The term `appropriate 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 
     `appropriate committees' means the committees of appropriate 
     jurisdiction.''.

     SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN.

       (a) In General.--Section 3 of the Inspector General Act of 
     1978 (5 U.S.C. App.) is amended by striking subsection (d) 
     and inserting the following:
       ``(d)(1) Each Inspector General shall, in accordance with 
     applicable laws and regulations governing the civil service--
       ``(A) appoint an Assistant Inspector General for Auditing 
     who shall have the responsibility for supervising the 
     performance of auditing activities relating to programs and 
     operations of the establishment;
       ``(B) appoint an Assistant Inspector General for 
     Investigations who shall have the responsibility for 
     supervising the performance of investigative activities 
     relating to such programs and operations; and
       ``(C) designate a Whistleblower Protection Ombudsman who 
     shall educate agency employees--
       ``(i) about prohibitions on retaliation for protected 
     disclosures; and
       ``(ii) who have made or are contemplating making a 
     protected disclosure about the rights and remedies against 
     retaliation for protected disclosures.
       ``(2) The Whistleblower Protection Ombudsman shall not act 
     as a legal representative, agent, or advocate of the employee 
     or former employee.
       ``(3) For the purposes of this section, the requirement of 
     the designation of a Whistleblower Protection Ombudsman under 
     paragraph (1)(C) shall not apply to--

[[Page S8822]]

       ``(A) any agency that is an element of the intelligence 
     community (as defined in section 3(4) of the National 
     Security Act of 1947 (50 U.S.C. 401a(4))); or
       ``(B) as determined by the President, any executive agency 
     or unit thereof the principal function of which is the 
     conduct of foreign intelligence or counter intelligence 
     activities.''.
       (b) Technical and Conforming Amendment.--Section 8D(j) of 
     the Inspector General Act of 1978 (5 U.S.C. App.) is 
     amended--
       (1) by striking ``section 3(d)(1)'' and inserting ``section 
     3(d)(1)(A)''; and
       (2) by striking ``section 3(d)(2)'' and inserting ``section 
     3(d)(1)(B)''.
       (c) Sunset.--
       (1) In general.--The amendments made by this section shall 
     cease to have effect on the date that is 5 years after the 
     date of enactment of this Act.
       (2) Return to prior authority.--Upon the date described in 
     paragraph (1), section 3(d) and section 8D(j) of the 
     Inspector General Act of 1978 (5 U.S.C. App.) shall read as 
     such sections read on the day before the date of enactment of 
     this Act.

       TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS

     SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY 
                   WHISTLEBLOWERS.

       (a) In General.--Chapter 23 of title 5, United States Code, 
     is amended by inserting after section 2303 the following:

     ``Sec. 2303A. Prohibited personnel practices in the 
       intelligence community

       ``(a) Definitions.--In this section--
       ``(1) the term `agency' means an executive department or 
     independent establishment, as defined under sections 101 and 
     104, that contains an intelligence community element, except 
     the Federal Bureau of Investigation;
       ``(2) the term `intelligence community element'--
       ``(A) means--
       ``(i) 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) 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; and
       ``(B) does not include the Federal Bureau of Investigation; 
     and
       ``(3) the term `personnel action' means any action 
     described in clauses (i) through (x) of section 2302(a)(2)(A) 
     with respect to an employee in a position in an intelligence 
     community element (other than a position of a confidential, 
     policy-determining, policymaking, or policy-advocating 
     character).
       ``(b) In General.--Any employee of an agency who has 
     authority to take, direct others to take, recommend, or 
     approve any personnel action, shall not, with respect to such 
     authority, take or fail to take a personnel action with 
     respect to any employee of an intelligence community element 
     as a reprisal for a disclosure of information by the employee 
     to the Director of National Intelligence (or an employee 
     designated by the Director of National Intelligence for such 
     purpose), or to the head of the employing agency (or an 
     employee designated by the head of that agency for such 
     purpose), which the employee reasonably believes evidences--
       ``(1) a violation of any law, rule, or regulation, except 
     for an alleged violation that--
       ``(A) is a minor, inadvertent violation; and
       ``(B) occurs during the conscientious carrying out of 
     official duties; or
       ``(2) mismanagement, a gross waste of funds, an abuse of 
     authority, or a substantial and specific danger to public 
     health or safety.
       ``(c) Enforcement.--The President shall provide for the 
     enforcement of this section in a manner consistent with 
     applicable provisions of sections 1214 and 1221.
       ``(d) Existing Rights Preserved.--Nothing in this section 
     shall be construed to--
       ``(1) preempt or preclude any employee, or applicant for 
     employment, at the Federal Bureau of Investigation from 
     exercising rights currently provided under any other law, 
     rule, or regulation, including section 2303;
       ``(2) repeal section 2303; or
       ``(3) provide the President or Director of National 
     Intelligence the authority to revise regulations related to 
     section 2303, codified in part 27 of the Code of Federal 
     Regulations.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 23 of title 5, United States Code, is 
     amended by inserting after the item relating to section 2303 
     the following:

``2303A. Prohibited personnel practices in the intelligence 
              community.''.

     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 180 days after the date of enactment 
     of the Whistleblower Protection Enhancement Act of 2010--
       ``(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 or the head of 
     the agency certifies that a longer suspension is needed 
     before a final decision on denial or revocation to prevent 
     imminent harm to the national security.
       ``Any limitation period applicable to an agency appeal 
     under paragraph (7) shall be tolled until the head of the 
     agency (or in the case of any component of the Department of 
     Defense, the Secretary of Defense) determines, with the 
     concurrence of the Director of National Intelligence, that 
     the policies and procedures described in paragraph (7) have 
     been established for the agency or the Director of National 
     Intelligence promulgates the policies and procedures under 
     paragraph (7). The policies and procedures for appeals 
     developed under paragraph (7) shall be comparable to the 
     policies and procedures pertaining to prohibited personnel 
     practices defined under section 2302(b)(8) of title 5, United 
     States Code, and provide--
       ``(A) for an independent and impartial fact-finder;
       ``(B) for notice and the opportunity to be heard, including 
     the opportunity to present relevant evidence, including 
     witness testimony;
       ``(C) that the employee or former employee may be 
     represented by counsel;
       ``(D) that the employee or former employee has a right to a 
     decision based on the record developed during the appeal;
       ``(E) that 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, 
     unless--
       ``(i) the employee and the agency concerned agree to an 
     extension; or
       ``(ii) the impartial fact-finder determines in writing that 
     a greater period of time is required in the interest of 
     fairness or national security;
       ``(F) for the use of information specifically required by 
     Executive order to be kept classified 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
       ``(G) that the employee or former employee shall have no 
     right to compel the production of information specifically 
     required by Executive order to be kept classified 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's security 
     clearance or access determination because of--
       ``(A) any disclosure of information to the Director of 
     National Intelligence (or an employee designated by the 
     Director of National Intelligence for such purpose) or the 
     head of the employing agency (or employee designated by the 
     head of that agency for such purpose) by an employee that the 
     employee 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;
       ``(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 
     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--
       ``(i) subsection (a)(1), (d), or (h) of section 8H of the 
     Inspector General Act of 1978 (5 U.S.C. App.);

[[Page S8823]]

       ``(ii) subsection (d)(5)(A), (D), or (G) of section 17 of 
     the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); 
     or
       ``(iii) subsection (k)(5)(A), (D), or (G), of section 103H 
     of the National Security Act of 1947 (50 U.S.C. 403-3h);
       ``(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 required by Executive 
     order to be kept classified in the interest of national 
     defense or the conduct of foreign affairs.
       ``(2) Rule of construction.--Consistent with the protection 
     of sources and methods, nothing in paragraph (1) 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.
       ``(3) Disclosures.--
       ``(A) In general.--A disclosure shall not be excluded from 
     paragraph (1) because--
       ``(i) the disclosure was made to a person, including a 
     supervisor, who participated in an activity that the employee 
     reasonably believed to be covered by paragraph (1)(A)(ii);
       ``(ii) the disclosure revealed information that had been 
     previously disclosed;
       ``(iii) of the employee's motive for making the disclosure;
       ``(iv) the disclosure was not made in writing;
       ``(v) the disclosure was made while the employee was off 
     duty; or
       ``(vi) of the amount of time which has passed since the 
     occurrence of the events described in the disclosure.
       ``(B) Reprisals.--If a disclosure is made during the normal 
     course of duties of an employee, the disclosure shall not be 
     excluded from paragraph (1) if any employee who has authority 
     to take, direct others to take, recommend, or approve any 
     personnel action with respect to the employee making the 
     disclosure, took, failed to take, or threatened to take or 
     fail to take a personnel action with respect to that employee 
     in reprisal for the disclosure.
       ``(4) Agency adjudication.--
       ``(A) Remedial procedure.--An employee or former employee 
     who believes that he or she has been subjected to a reprisal 
     prohibited by paragraph (1) of this subsection may, within 90 
     days after the issuance of notice of such decision, appeal 
     that decision within the agency of that employee or former 
     employee through proceedings authorized by paragraph (7) of 
     subsection (a), 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 not longer than 1 year (or a longer 
     period in accordance with a certification made under 
     subsection (b)(7)).
       ``(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 or former 
     employee, as nearly as practicable and reasonable, to the 
     position such employee or former employee 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.
       ``(5) Appellate review of security clearance access 
     determinations by director of national intelligence.--
       ``(A) Definition.--In this paragraph, the term `Board' 
     means the appellate review board established under section 
     204 of the Whistleblower Protection Enhancement Act of 2010.
       ``(B) Appeal.--Within 60 days after receiving notice of an 
     adverse final agency determination under a proceeding under 
     paragraph (4), an employee or former employee may appeal that 
     determination to the Board.
       ``(C) 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 (B). 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.
       ``(D) 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.
       ``(E) 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 remand the matter to the agency from 
     which it originated for additional proceedings in accordance 
     with the rules of procedure issued by the Board.
       ``(F) De novo determination.--The Board shall make a de 
     novo determination, based on the entire record and under the 
     standards specified in paragraph (4), of whether the employee 
     or former employee 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.
       ``(G) 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 
     (60 Fed. Reg. 40245; relating to access to classified 
     information) or any successor thereto (including any 
     adjudicative guidelines promulgated under such orders) or any 
     subsequent Executive order, regulation, or policy concerning 
     access to classified information.
       ``(H) 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 or former 
     employee, as nearly as practicable and reasonable, to the 
     position such employee or former employee 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. The Board may 
     order that the former employee be treated as though the 
     employee were transferring from the most recent position held 
     when seeking other positions within the executive branch. Any 
     corrective action shall not include the reinstating of any 
     security clearance or access determination. The agency head 
     shall take the actions so ordered within 90 days, unless the 
     Director of National Intelligence, the Secretary of Energy, 
     or the Secretary of Defense, in the case of any component of 
     the Department of Defense, determines that doing so would 
     endanger national security.
       ``(ii) Recommended action.--If the Board finds that 
     reinstating the employee or former employee'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.
       ``(I) Congressional notification.--
       ``(i) Orders.--Consistent with the protection of sources 
     and methods, at the time the Board issues an order, the 
     Chairperson of the Board shall notify--

       ``(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;
       ``(IV) the Permanent Select Committee on Intelligence of 
     the House of Representatives; and
       ``(V) the committees of the Senate and the House of 
     Representatives that have jurisdiction over the employing 
     agency, including in the case of a final order or decision of 
     the Defense Intelligence Agency, the National Geospatial-
     Intelligence Agency, the National Security Agency, or the 
     National Reconnaissance Office, the Committee on Armed 
     Services of the Senate and the Committee on Armed Services 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 
     committees described in subclauses (I) through (V) of clause 
     (i).
       ``(6) Judicial review.--Nothing in this section shall be 
     construed to permit or require judicial review of any--
       ``(A) agency action under this section; or
       ``(B) action of the appellate review board established 
     under section 204 of the Whistleblower Protection Enhancement 
     Act of 2010.

[[Page S8824]]

       ``(7) Private cause of action.--Nothing in this section 
     shall be construed to permit, authorize, or require a private 
     cause of action to challenge the merits of a security 
     clearance determination.''.
       (c) Access Determination Defined.--Section 3001(a) of the 
     Intelligence Reform and Terrorism Prevention Act of 2004 (50 
     U.S.C. 435b(a)) is amended by adding at the end the 
     following:
       ``(9) The term `access determination' means the process for 
     determining whether an employee--
       ``(A) is eligible for access to classified information in 
     accordance with Executive Order 12968 (60 Fed. Reg. 40245; 
     relating to access to classified information), or any 
     successor thereto, and Executive Order 10865 (25 Fed. Reg. 
     1583; relating to safeguarding classified information with 
     industry); and
       ``(B) possesses a need to know under that Order.''.
       (d) Rule of Construction.--Nothing in section 3001 of the 
     Intelligence Reform and Terrorism Prevention Act of 2004 (50 
     U.S.C. 435b), as amended by this Act, shall be construed to 
     require the repeal or replacement of agency appeal procedures 
     implementing Executive Order 12968 (60 Fed. Reg. 40245; 
     relating to classified national security information), or any 
     successor thereto, and Executive Order 10865 (25 Fed. Reg. 
     1583; relating to safeguarding classified information with 
     industry), or any successor thereto, that meet the 
     requirements of section 3001(b)(7) of such Act, as so 
     amended.

     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 Director of National Intelligence. 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 Director of National Intelligence 
     shall consult with the members of the appellate review board 
     established under section 204 of the Whistleblower Protection 
     Enhancement Review Act of 2010 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 Director of National Intelligence. In 
     such a case the requirements of this subsection for the 
     Director apply to the recipient of the Inspector General's 
     submission; and''; 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.''.

     SEC. 204. REGULATIONS; REPORTING REQUIREMENTS; 
                   NONAPPLICABILITY TO CERTAIN TERMINATIONS.

       (a) Definitions.--In this section--
       (1) the term ``congressional oversight committees'' means 
     the--
       (A) the Committee on Homeland Security and Government 
     Affairs of the Senate;
       (B) the Select Committee on Intelligence of the Senate;
       (C) the Committee on Oversight and Government Reform of the 
     House of Representatives; and
       (D) the Permanent Select Committee on Intelligence of the 
     House of Representatives; and
       (2) the term ``intelligence community element''--
       (A) means--
       (i) 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) 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; and
       (B) does not include the Federal Bureau of Investigation.
       (b) Regulations.--
       (1) In general.--The Director of National Intelligence 
     shall prescribe regulations to ensure that a personnel action 
     shall not be taken against an employee of an intelligence 
     community element as a reprisal for any disclosure of 
     information described in section 2303A(b) of title 5, United 
     States Code, as added by this Act.
       (2) Appellate review board.--Not later than 180 days after 
     the date of enactment of this Act, the Director of National 
     Intelligence, in consultation with the Secretary of Defense, 
     the Attorney General, and the heads of appropriate agencies, 
     shall establish an appellate review board that is broadly 
     representative of affected Departments and agencies and is 
     made up of individuals with expertise in merit systems 
     principles and national security issues--
       (A) to hear whistleblower appeals related to security 
     clearance access determinations described in section 3001(j) 
     of the Intelligence Reform and Terrorism Prevention Act of 
     2004 (50 U.S.C. 435b), as added by this Act; and
       (B) that shall include a subpanel that reflects the 
     composition of the intelligence committee, which shall be 
     composed of intelligence community elements and inspectors 
     general from intelligence community elements, for the purpose 
     of hearing cases that arise in elements of the intelligence 
     community.
       (c) Report on the Status of Implementation of 
     Regulations.--Not later than 2 years after the date of 
     enactment of this Act, the Director of National Intelligence 
     shall submit a report on the status of the implementation of 
     the regulations promulgated under subsection (b) to the 
     congressional oversight committees.
       (d) Nonapplicability to Certain Terminations.--Section 
     2303A of title 5, United States Code, as added by this Act, 
     and section 3001 of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (50 U.S.C. 435b), as amended by this 
     Act, shall not apply to adverse security clearance or access 
     determinations if the affected employee is concurrently 
     terminated under--
       (1) section 1609 of title 10, United States Code;
       (2) 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--
       (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) not later than 5 days after such termination, 
     notifies the congressional oversight committees of the 
     termination;
       (3) 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--
       (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) not later than 5 days after such termination, 
     notifies the congressional oversight committees of the 
     termination; or
       (4) section 7532 of title 5, United States Code, if--
       (A) the agency head personally 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) not later than 5 days after such termination, 
     notifies the congressional oversight committees of the 
     termination.

               TITLE III--SAVINGS CLAUSE; EFFECTIVE DATE

     SEC. 301. SAVINGS CLAUSE.

       Nothing in this Act shall be construed to imply any 
     limitation on any protections afforded by any other provision 
     of law to employees and applicants.

     SEC. 302. EFFECTIVE DATE.

       This Act shall take effect 30 days after the date of 
     enactment of this Act.

[[Page S8825]]



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