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S. 372 (111th): Whistleblower Protection Enhancement Act of 2010


The text of the bill below is as of Dec 3, 2009 (Reported by Senate Committee).


II

Calendar No. 219

111th CONGRESS

1st Session

S. 372

[Report No. 111–101]

IN THE SENATE OF THE UNITED STATES

February 3, 2009

(for himself, Ms. Collins, Mr. Grassley, Mr. Levin, Mr. Lieberman, Mr. Voinovich, Mr. Leahy, Mr. Kennedy, Mr. Carper, Mr. Pryor, Ms. Mikulski, Mr. Cardin, and Mr. Burris) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

December 3, 2009

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other purposes.

1.

Protection of certain disclosures of information by Federal employees

(a)

Short title

This Act may be cited as the Whistleblower Protection Enhancement Act of 2009.

(b)

Clarification of disclosures covered

(1)

In general

Section 2302(b)(8) of title 5, United States Code, is amended—

(A)

in subparagraph (A)—

(i)

by striking which the employee or applicant reasonably believes evidences and inserting , without restriction to time, place, form, motive, context, forum, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties, that the employee or applicant reasonably believes is evidence of;

(ii)

in clause (i), by striking a violation and inserting any violation; and

(iii)

by striking or at the end;

(B)

in subparagraph (B)—

(i)

by striking which the employee or applicant reasonably believes evidences and inserting , without restriction to time, place, form, motive, context, forum, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties, of information that the employee or applicant reasonably believes is evidence of;

(ii)

in clause (i), by striking a violation and inserting any violation (other than a violation of this section); and

(iii)

in clause (ii), by adding or at the end; and

(C)

by adding at the end the following:

(C)

any disclosure that—

(i)

is made by an employee or applicant of information required by law or Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs that the employee or applicant reasonably believes is direct and specific evidence of—

(I)

any violation of any law, rule, or regulation;

(II)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or

(III)

a false statement to Congress on an issue of material fact; and

(ii)

is made to—

(I)

a member of a committee of Congress having a primary responsibility for oversight of a department, agency, or element of the Federal Government to which the disclosed information relates and who is authorized to receive information of the type disclosed;

(II)

any other Member of Congress who is authorized to receive information of the type disclosed; or

(III)

an employee of Congress who has the appropriate security clearance and is authorized to receive information of the type disclosed.

.

(2)

Prohibited personnel practices under Section 2302(b)(9)

(A)

Technical and conforming amendments

Title 5, United States Code, is amended in subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of section 1214, in subsections (a), (e)(1) and (i) of section 1221, and in subsection (a)(2)(C)(i) of 2302 by inserting or 2302(b)(9) (B) through (D) after section 2302(b)(8) or (b)(8) each place it appears.

(B)

Other references

Title 5, United States Code, is amended in subsection (b)(4)(B)(i) of section 1214 and in subsection (e)(1) of section 1221 by inserting or protected activity after disclosure each place it appears.

(c)

Definitional amendments

(1)

Disclosures

Section 2302(a)(2) of title 5, United States Code, is amended—

(A)

in subparagraph (B)(ii), by striking and at the end;

(B)

in subparagraph (C)(iii), by striking the period at the end and inserting ; and; and

(C)

by adding at the end the following:

(D)

disclosure means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences—

(i)

any violation of any law, rule, or regulation; or

(ii)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

.

(2)

Clear and convincing evidence

Sections 1214(b)(4)(B)(ii) and 1221(e)(2) of title 5, United States Code, are amended by adding at the end the following: For purposes of the preceding sentence, clear and convincing evidence means evidence indicating that the matter to be proved is highly probable or reasonably certain..

(d)

Rebuttable presumption

Section 2302(b) of title 5, United States Code, is amended by amending the matter following paragraph (12) to read as follows:

This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), any presumption relating to the performance of a duty by an employee who has authority to take, direct others to take, recommend, or approve any personnel action may be rebutted by substantial evidence. For purposes of paragraph (8), a determination as to whether an employee or applicant reasonably believes that they have disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.

.

(e)

Personnel actions and prohibited personnel practices

(1)

Personnel action

Section 2302(a)(2)(A) of title 5, United States Code, is amended—

(A)

in clause (x), by striking and after the semicolon; and

(B)

by redesignating clause (xi) as clause (xiv) and inserting after clause (x) the following:

(xi)

the implementation or enforcement of any nondisclosure policy, form, or agreement;

(xii)

a suspension, revocation, or other determination relating to a security clearance or any other access determination by a covered agency;

(xiii)

an investigation, other than any ministerial or nondiscretionary fact finding activities necessary for the agency to perform its mission, of an employee or applicant for employment because of any activity protected under this section; and

(2)

Prohibited personnel practice

Section 2302(b) of title 5, United States Code, is amended—

(A)

in paragraph (11), by striking or at the end;

(B)

in paragraph (12), by striking the period and inserting a semicolon; and

(C)

by inserting after paragraph (12) the following:

(13)

implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5, United States Code (governing disclosures of illegality, waste, fraud, abuse, or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosures that could compromise national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are controlling; or

(14)

conduct, or cause to be conducted, an investigation, other than any ministerial or nondiscretionary fact finding activities necessary for the agency to perform its mission, of an employee or applicant for employment because of any activity protected under this section.

.

(f)

Exclusion of agencies by the President

Section 2302(a)(2)(C) of title 5, United States Code, is amended by striking clause (ii) and inserting the following:

(ii)
(I)

the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency; and

(II)

as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, if the determination (as that determination relates to a personnel action) is made before that personnel action; or

.

(g)

Disciplinary action

Section 1215(a)(3) of title 5, United States Code, is amended to read as follows:

(3)
(A)

A final order of the Board may impose—

(i)

disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand;

(ii)

an assessment of a civil penalty not to exceed $1,000; or

(iii)

any combination of disciplinary actions described under clause (i) and an assessment described under clause (ii).

(B)

In any case in which the Board finds that an employee has committed a prohibited personnel practice under paragraph (8) or (9) of section 2302(b), the Board shall impose disciplinary action if the Board finds that the activity protected under paragraph (8) or (9) of section 2302(b) was a significant motivating factor, even if other factors also motivated the decision, for the employee’s decision to take, fail to take, or threaten to take or fail to take a personnel action, unless that employee demonstrates, by preponderance of evidence, that the employee would have taken, failed to take, or threatened to take or fail to take the same personnel action, in the absence of such protected activity.

.

(h)

Remedies

(1)

Attorney fees

Section 1204(m)(1) of title 5, United States Code, is amended by striking agency involved and inserting agency where the prevailing party is employed or has applied for employment.

(2)

Damages

Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 5, United States Code, are amended by striking all after travel expenses, and inserting any other reasonable and foreseeable consequential damages, and compensatory damages (including attorney's fees, interest, reasonable expert witness fees, and costs). each place it appears.

(i)

Judicial review

(1)

In general

Section 7703(b)(1) of title 5, United States Code, is amended to read as follows:

(b)
(1)
(A)

Except as provided in subparagraph (B) and paragraph (2), a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.

(B)

During the 5-year period beginning on the effective date of the Whistleblower Protection Enhancement Act of 2009, a petition to review a final order or final decision of the Board in a case alleging a violation of paragraph (8) or (9) of section 2302(b) shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction as provided under subsection (b)(2).

.

(2)

Review obtained by office of personnel management

Section 7703(d) of title 5, United States Code, is amended to read as follows:

(d)
(1)

Except as provided under paragraph (2), this paragraph shall apply to any review obtained by the Director of the Office of Personnel Management. The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, within 60 days after the date the Director received notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

(2)

During the 5-year period beginning on the effective date of the Whistleblower Protection Enhancement Act of 2009, this paragraph shall apply to any review relating to paragraph (8) or (9) of section 2302(b) obtained by the Director of the Office of Personnel Management. The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, within 60 days after the date the Director received notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction as provided under subsection (b)(2) if the Director determines, in his discretion, that the Board erred in interpreting paragraph (8) or (9) of section 2302(b). If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the court of appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

.

(j)

Merit system protection board review of security clearances

(1)

In general

Chapter 77 of title 5, United States Code, is amended by inserting after section 7702 the following:

7702a.

Actions relating to security clearances

(a)

In any appeal relating to the suspension, revocation, or other determination relating to a security clearance or access determination, the Merit Systems Protection Board or any reviewing court—

(1)

shall determine whether paragraph (8) or (9) of section 2302(b) was violated;

(2)

may not order the President or the designee of the President to restore a security clearance or otherwise reverse a determination of clearance status or reverse an access determination; and

(3)

subject to paragraph (2), may issue declaratory relief and any other appropriate relief.

(b)
(1)

If, in any final judgment, the Board or court declares that any suspension, revocation, or other determination with regard to a security clearance or access determination was made in violation of paragraph (8) or (9) of section 2302(b), the affected agency shall conduct a review of that suspension, revocation, access determination, or other determination, giving great weight to the Board or court judgment.

(2)

Not later than 30 days after any Board or court judgment declaring that a security clearance suspension, revocation, access determination, or other determination was made in violation of paragraph (8) or (9) of section 2302(b), the affected agency shall issue an unclassified report to the congressional committees of jurisdiction (with a classified annex if necessary), detailing the circumstances of the agency’s security clearance suspension, revocation, other determination, or access determination. A report under this paragraph shall include any proposed agency action with regard to the security clearance or access determination.

(c)

An allegation that a security clearance or access determination was revoked or suspended in retaliation for a protected disclosure shall receive expedited review by the Office of Special Counsel, the Merit Systems Protection Board, and any reviewing court.

(d)

For purposes of this section, corrective action may not be ordered if the agency demonstrates by a preponderance of the evidence that it would have taken the same personnel action in the absence of such disclosure.

.

(2)

Technical and conforming amendment

The table of sections for chapter 77 of title 5, United States Code, is amended by inserting after the item relating to section 7702 the following:

7702a. Actions relating to security clearances.

.

(k)

Prohibited personnel practices affecting the Transportation Security Administration

(1)

In general

Chapter 23 of title 5, United States Code, is amended—

(A)

by redesignating sections 2304 and 2305 as sections 2305 and 2306, respectively; and

(B)

by inserting after section 2303 the following:

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.

.

(2)

Technical and conforming amendment

The table of sections for chapter 23 of title 5, United States Code, is amended by striking the items relating to sections 2304 and 2305, respectively, and by inserting the following:

Sec. 2304. Prohibited personnel practices affecting the Transportation Security Administration.

Sec. 2305. Responsibility of the Government Accountability Office.

Sec. 2306. Coordination with certain other provisions of law.

.

(3)

Effective date

The amendments made by this section shall take effect on the date of enactment of this section.

(l)

Disclosure of censorship related to research, analysis, or technical information

(1)

Definitions

In this section—

(A)

the term applicant means an applicant for a covered position;

(B)

the term censorship related to research, analysis, or technical information means any effort to alter, misrepresent, or suppress research, analysis, or technical information;

(C)

the term covered position has the meaning given under section 2302(a)(2)(B) of title 5, United States Code;

(D)

the term employee means an employee in a covered position; and

(E)

the term disclosure has the meaning given under section 2302(a)(2)(D) of title 5, United States Code.

(2)

Protected disclosure

(A)

In general

Any disclosure of information by an employee or applicant for employment that the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information shall come within the protections of section 2302(b)(8)(A) of title 5, United States Code, if—

(i)

the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—

(I)

any violation of law, rule, or regulation; or

(II)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(ii)

the disclosure and information satisfy the conditions stated in the matter following clause (ii) of section 2302(b)(8)(A) of title 5, United States Code; and

(iii)

shall come within the protections of section 2302(b)(8)(B) of title 5, United States Code, if—

(I)

the conditions under clause (i) of this subparagraph are satisfied; and

(II)

the disclosure is made to an individual referred to in the matter preceding clause (i) of section 2302(b)(8)(B) of title 5, United States Code, for the receipt of disclosures.

(B)

Application

Paragraph (1) shall apply to any disclosure of information by an employee or applicant without restriction to time, place, form, motive, context, forum, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties.

(C)

Rule of construction

Nothing in this section shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any disclosure of information believed to be evidence of censorship related to research, analysis, or technical information.

(m)

Clarification of whistleblower rights for critical infrastructure information

Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C. 133(c)) is amended by adding at the end the following: For purposes of this section a permissible use of independently obtained information includes the disclosure of such information under section 2302(b)(8) of title 5, United States Code..

(n)

Advising employees of rights

Section 2302(c) of title 5, United States Code, is amended by inserting , including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures after chapter 12 of this title.

(o)

Special Counsel amicus curiae appearance

Section 1212 of title 5, United States Code, is amended by adding at the end the following:

(h)
(1)

The Special Counsel is authorized to appear as amicus curiae in any action brought in a court of the United States related to any civil action brought in connection with section 2302(b) (8) or (9), or subchapter III of chapter 73, or as otherwise authorized by law. In any such action, the Special Counsel is authorized to present the views of the Special Counsel with respect to compliance with section 2302(b) (8) or (9) or subchapter III of chapter 73 and the impact court decisions would have on the enforcement of such provisions of law.

(2)

A court of the United States shall grant the application of the Special Counsel to appear in any such action for the purposes described in subsection (a).

.

(p)

Scope of due process

(1)

Special counsel

Section 1214(b)(4)(B)(ii) of title 5, United States Code, is amended by inserting , after a finding that a protected disclosure was a contributing factor, after ordered if.

(2)

Individual action

Section 1221(e)(2) of title 5, United States Code, is amended by inserting , after a finding that a protected disclosure was a contributing factor, after ordered if.

(q)

Nondisclosure policies, forms, and agreements

(1)

In general

(A)

Requirement

Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: These restrictions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5, United States Code (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are controlling..

(B)

Enforceability

Any nondisclosure policy, form, or agreement described under subparagraph (A) that does not contain the statement required under subparagraph (A) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.

(2)

Persons other than government employees

Notwithstanding paragraph (1), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such form or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure forms shall also make it clear that such forms do not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.

(r)

Reporting requirements

(1)

Government Accountability Office

(A)

In general

(i)

Report

Not later than 40 months after the date of enactment of this Act, the Comptroller General shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives on the implementation of this Act.

(ii)

Contents

The report under this paragraph shall include—

(I)

an analysis of any changes in the number of cases filed with the United States Merit Systems Protection Board alleging violations of section 2302(b)(8) or (9) of title 5, United States Code, since the effective date of the Act;

(II)

the outcome of the cases described under clause (i), including whether or not the United States Merit Systems Protection Board, the Federal Circuit Court of Appeals, or any other court determined the allegations to be frivolous or malicious; and

(III)

any other matter as determined by the Comptroller General.

(B)

Study on revocation of security clearances

(i)

Study

The Comptroller General shall conduct a study of security clearance revocations of Federal employees at a select sample of executive branch agencies. The study shall consist of an examination of the number of security clearances revoked, the process employed by each agency in revoking a clearance, the pay and employment status of agency employees during the revocation process, how often such revocations result in termination of employment or reassignment, how often such revocations are based on an improper disclosure of information, and such other factors the Comptroller General deems appropriate.

(ii)

Report

Not later than 18 months after the date of enactment of this Act, the Comptroller General shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report on the results of the study required under this subparagraph.

(2)

Merit Systems Protection Board

(A)

In general

Each report submitted annually by the Merit Systems Protection Board under section 1116 of title 31, United States Code, shall, with respect to the period covered by such report, include as an addendum the following:

(i)

Information relating to the outcome of cases decided during the applicable year of the report in which violations of section 2302(b)(8) or (9) of title 5, United States Code, were alleged.

(ii)

The number of such cases filed in the regional and field offices, the number of petitions for review filed in such cases, and the outcomes of such cases.

(B)

First report

The first report described under subparagraph (A) submitted after the date of enactment of this Act shall include an addendum required under that subparagraph that covers the period beginning on January 1, 2009 through the end of the fiscal year 2009.

(s)

Effective date

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

1.

Short title

This Act may be cited as the Whistleblower Protection Enhancement Act of 2009.

I

Protection of certain disclosures of information by Federal employees

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.

.

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..

103.

Rebuttable presumption

Section 2302(b) of title 5, United States Code, is amended by amending the matter following paragraph (12) to read as follows:

This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), any presumption relating to the performance of a duty by an employee who has authority to take or direct others to take, recommend, or approve any personnel action may be rebutted by substantial evidence. For purposes of paragraph (8), a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.

.

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.

.

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

.

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.

.

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.

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.

.

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:

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.

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.

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..

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.

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).

.

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.

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.

116.

Reporting requirements

(a)

Government Accountability Office

(1)

Report

Not later than 40 months after the date of enactment of this Act, the Comptroller General shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives on the implementation of this Act.

(2)

Contents

The report under this paragraph shall include—

(A)

an analysis of any changes in the number of cases filed with the United States Merit Systems Protection Board alleging violations of section 2302(b)(8) or (9) of title 5, United States Code, since the effective date of this Act;

(B)

the outcome of the cases described under subparagraph (A), including whether or not the United States Merit Systems Protection Board, the Federal Circuit Court of Appeals, or any other court determined the allegations to be frivolous or malicious;

(C)

an analysis of the outcome of cases described under subparagraph (A) that were decided by a United States District Court and the impact the process has on the Merit Systems Protection Board and the Federal court system; and

(D)

any other matter as determined by the Comptroller General.

(b)

Study on revocation of security clearances

(1)

Study

The Council of the Inspectors General on Integrity and Efficiency, including the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, and the Office of Personnel Management, shall conduct a study of security clearance revocations of Federal employees at a select sample of executive branch agencies and the appeals process in place at those agencies and at the Intelligence Community Whistleblower Protection Board. The study shall consist of an examination of the number of security clearances revoked, the process employed by each agency in revoking a clearance, the pay and employment status of agency employees during the revocation process, how often such revocations result in termination of employment or reassignment, how often such revocations are based on an improper disclosure of information, how often security clearances are reinstated following an appeal, how often security clearances remain revoked following a finding of retaliation for making a disclosure, and such other factors the Inspectors General determine appropriate.

(2)

Report

Not later than 18 months after the date of enactment of this Act, the Inspectors General shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report on the results of the study required under this paragraph.

(c)

Merit Systems Protection Board

(1)

In general

Each report submitted annually by the Merit Systems Protection Board under section 1116 of title 31, United States Code, shall, with respect to the period covered by such report, include as an addendum the following:

(A)

Information relating to the outcome of cases decided during the applicable year of the report in which violations of section 2302(b)(8) or (9) of title 5, United States Code, were alleged.

(B)

The number of such cases filed in the regional and field offices, the number of petitions for review filed in such cases, and the outcomes of such cases.

(2)

First report

The first report described under paragraph (1) submitted after the date of enactment of this Act shall include an addendum required under that subparagraph that covers the period beginning on January 1, 2009 through the end of the fiscal year 2009.

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).

118.

Merit Systems Protection Board summary judgment

(a)

In general

Section 1204(b) of title 5, United States Code, is amended—

(1)

by redesignating paragraph (3) as paragraph (4);

(2)

by inserting after paragraph (2) the following:

(3)

With respect to a request for corrective action based on an alleged prohibited personnel practice described in section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) for which the associated personnel action is an action covered under section 7512 or 7542, the Board, any administrative law judge appointed by the Board under section 3105 of this title, or any employee of the Board designated by the Board may, with respect to any party, grant a motion for summary judgment when the Board or the administrative law judge determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

.

(b)

Sunset

(1)

In general

Except as provided under paragraph (2), the amendments made by this section shall cease to have effect 5 years after the effective date of this Act.

(2)

Pending claims

The amendments made by this section shall continue to apply with respect to any claim pending before the Board on the last day of the 5-year period described under paragraph (1).

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.

.

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))).

II

Intelligence community whistleblower protections

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:

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.

121.

Intelligence community whistleblower protections

(a)

Definitions

In this section:

(1)

The term agency means an Executive department or independent establishment, as defined under sections 101 and 104 of title 5, United States Code, that contains an intelligence community element.

(2)

The term intelligence community element means—

(A)

the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

(B)

any executive agency or unit thereof determined by the President under section 2302(a)(2)(C)(ii) of title 5, United States Code, to have as its principal function the conduct of foreign intelligence or counterintelligence activities, if the determination (as that determination relates to a personnel action) is made before that personnel action.

(3)

The term personnel action

(A)

means any action taken against an employee of an intelligence community element that would be considered a personnel action, as defined in section 2302(a)(2)(A) of title 5, United States Code, if taken against an employee subject to such section 2302; and

(B)

shall not include the denial, suspension, or revocation of a security clearance or denying access to classified or sensitive information or a suspension with pay pending an investigation.

(4)

The term prohibited personnel practice means any action prohibited by subsection (b) of this section.

(b)

prohibited personnel practices

(1)

No person who has authority to take, direct others to take, recommend, or approve any personnel action, shall, with respect to such authority—

(A)

take or fail to take, or threaten to take or fail to take, a personnel action with respect to any intelligence community element employee or applicant for employment because of—

(i)

any disclosure of information to an official of an agency by an employee or applicant which the employee or applicant reasonably believes evidences—

(I)

any violation of law, rule, or regulation except for an alleged violation that is a minor, inadvertent violation, and occurs during the conscientious carrying out of official duties; or

(II)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;
(ii)

any disclosure to the inspector general of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—

(I)

any violation of law, rule, or regulation, except for an alleged violation that is a minor, inadvertent violation, and occurs during the conscientious carrying out of official duties; or

(II)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or

(iii)

any communication that complies with subsection (a)(1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.) or that complies with subparagraphs (A), (D), or (H) of section 17(d)(5) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); or

(B)

take or fail to take, or threaten to take or fail to take, any personnel action against any intelligence community element employee or applicant for employment because of—

(i)

the exercise of any appeal, complaint, or grievance right granted by subsection (c);

(ii)

testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in clause (i); or

(iii)

cooperating with or disclosing information to the inspector general of an agency in connection with an audit, inspection, or investigation conducted by the inspector general, in accordance with applicable provisions of law,

if the actions described under clauses (i), (ii), and (iii) do not result in the employee or applicant unlawfully disclosing information specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs or any other information the disclosure of which is specifically prohibited by law.
(2)

A disclosure shall not be excluded from paragraph (1) because—

(A)

the disclosure was made during the normal course of the duties of the employee;

(B)

the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant reasonably believed to be covered by paragraph (1)(A)(ii);

(C)

the disclosure revealed information that had been previously disclosed;

(D)

of the employee or applicant’s motive for making the disclosure;

(E)

the disclosure was not made in writing;

(F)

the disclosure was made while the employee was off duty; or

(G)

of the amount of time which has passed since the occurrence of the events described in the disclosure.

(3)

Nothing in this subsection shall be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.

(c)

Remedial Procedure

(1)
(A)

An employee, applicant, or former employee of an intelligence community element who believes that such employee, applicant, or former employee has been subjected to a prohibited personnel practice may petition for an appeal of the personnel action to the agency head or the designee of the agency head within 60 days after discovery of the alleged adverse personnel action.

(B)

The appeal shall be conducted within the agency according to rules of procedure issued by the Intelligence Community Whistleblower Protection Board under section 120(c)(4). Those rules shall be based on those pertaining to prohibited personnel practices defined under section 2302(b)(8) of title 5, United States Code, and provide—

(i)

for an independent and impartial fact-finder;

(ii)

for notice and the opportunity to be heard, including the opportunity to present relevant evidence, including witness testimony;

(iii)

that the employee, applicant, or former employee may be represented by counsel;

(iv)

that the employee, applicant, or former employee has a right to a decision based on the record developed during the appeal;

(v)

that, unless agreed to by the employee and the agency concerned, not more than 180 days shall pass from the filing of the appeal to the report of the impartial fact-finder to the agency head or the designee of the agency head;

(vi)

for the use of information specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs in a manner consistent with the interests of national security, including ex parte submissions where the agency determines that the interests of national security so warrant; and

(vii)

that the employee, applicant, or former employee shall have no right to compel the production of information specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs, except evidence necessary to establish that the employee made the disclosure or communication such employee alleges was protected by subsection (b)(1)(A).

(C)

If the Board certifies that agency procedures in effect on the date of enactment of this section, including procedures promulgated under section 2303 of title 5, United States Code, before that date, adequately provide guaranties required under subparagraph (B)(i) through (vi), the appeal may be conducted according to those procedures.

(2)

On the basis of the record developed during the appeal, the impartial fact-finder shall prepare a report to the agency head or the designee of the agency head setting forth findings, conclusions, and, if applicable, recommended corrective action. After reviewing the record and the impartial fact-finder’s report, the agency head or the designee of the agency head shall determine whether the employee, former employee, or applicant has been subjected to a prohibited personnel practice, and shall either issue an order denying relief or shall implement corrective action to return the employee, former employee, or applicant, as nearly as practicable and reasonable, to the position such employee, former employee, or applicant would have held had the prohibited personnel practice not occurred. Such corrective action shall include reasonable attorney's fees and any other reasonable costs incurred, and may include back pay and related benefits, travel expenses, and compensatory damages not to exceed $300,000. Unless the employee, former employee, or applicant consents, no more than 60 days shall pass from the submission of the report by the impartial fact-finder to the agency head and the final decision by the agency head or the designee of the agency head.

(3)

In determining whether the employee, former employee, or applicant has been subjected to a prohibited personnel practice, the agency head or the designee of the agency head shall find that a prohibited personnel practice occurred if a disclosure described in subsection (b) was a contributing factor in the personnel action which was taken against the individual, unless the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.

(4)
(A)

Any employee, former employee, or applicant adversely affected or aggrieved by a final order or decision of the agency head or the designee of the agency head under paragraph (1) may appeal that decision to the Intelligence Community Whistleblower Protection Board within 60 days after the issuance of such order. Such appeal shall be conducted under rules of procedure issued by the Board under section 120(c)(4).

(B)

The Board’s review shall be on the agency record. The Board may not hear witnesses or admit additional evidence. Any portions of the record that were submitted ex parte during the agency proceedings shall not be disclosed to the employee, former employee, or applicant during proceedings before the Board.

(C)

If the Board concludes that further fact-finding is necessary or finds that the agency improperly denied the employee, former employee, or applicant the opportunity to present evidence that, if admitted, would have a substantial likelihood of altering the outcome, the Board shall—

(i)

remand the matter to the agency from which it originated for additional proceedings in accordance with the rules of procedure issued by the Board; or

(ii)

refer the matter to another agency for additional proceedings in accordance with the rules of procedure issued by the Board.

(D)

The Board shall make a de novo determination, based on the entire record, of whether the employee, former employee, or applicant suffered a prohibited personnel practice. In considering the record, the Board may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact; in doing so, the Board may consider the prior fact-finder’s opportunity to see and hear the witnesses.

(E)

On the basis of the agency record, the Board shall determine whether the employee, former employee, or applicant has been subjected to a prohibited personnel practice, and shall either issue an order denying relief or shall order the agency head to take specific corrective action to return the employee, former employee, or applicant, as nearly as practicable and reasonable, to the position such employee, former employee, or applicant would have held had the prohibited personnel practice not occurred. Such corrective action shall include reasonable attorney's fees and any other reasonable costs incurred, and may include back pay and related benefits, travel expenses, and compensatory damages not to exceed $300,000. The Board may recommend, but may not order, reinstatement or hiring of a former employee or applicant. The agency head shall take the actions so ordered, unless the President determines that doing so would endanger national security. Unless the employee, former employee, or applicant consents, no more than 180 days shall pass from the filing of the appeal with the Board to the final decision by the Board. Any period of time during which the Board lacks a sufficient number of members to undertake a review shall be excluded from the 180-day period.

(F)

In determining whether the employee, former employee, or applicant has been subjected to a prohibited personnel practice, the agency head or the designee of the agency head shall find that a prohibited personnel practice occurred if a disclosure described in subsection (b) of this section was a contributing factor in the personnel action which was taken against the individual, unless the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.

(5)
(A)
(i)

During the 5-year period beginning on the effective date of the Whistleblower Protection Enhancement Act of 2009, an employee, former employee, applicant, or an agency may file a petition to review a final order of the Board in the United States Court of Appeals for the Federal Circuit or the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the date of issuance of the final order of the Board.

(ii)

After the 5-year period described under clause (i), a petition to review a final order described under that clause shall be filed in the United States Court of Appeals for the Federal Circuit.

(B)

The court of appeals shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be—

(i)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(ii)

obtained without procedures required by law, rule, or regulation having been followed; or

(iii)

unsupported by substantial evidence.

(C)

Any portions of the record that were submitted ex parte during the agency proceedings shall be submitted ex parte to the Board and any reviewing court.

(D)

At the time the Board issues an order, the Chairperson shall notify the chairpersons and ranking members of—

(i)

the Committee on Homeland Security and Government Affairs of the Senate;

(ii)

the Select Committee on Intelligence of the Senate;

(iii)

the Committee on Oversight and Government Reform of the House of Representatives; and

(iv)

the Permanent Select Committee on Intelligence of the House of Representatives.

(d)

Except as expressly provided in this section, there shall be no judicial review of agency actions under this section.

(e)

This section shall not apply to terminations executed under—

(1)

section 1609 of title 10, United States Code;

(2)

the authority of the Director of National Intelligence under section 102A(m) of this Act, if—

(A)

the Director personally summarily terminates the individual; and

(B)

the Director—

(i)

determines the termination to be in the interest of the United States;

(ii)

determines that the procedures prescribed in other provisions of law that authorize the termination of the employment of such employee cannot be invoked in a manner consistent with the national security; and

(iii)

notifies the congressional oversight committees of such termination within 5 days after the termination;

(3)

the authority of the Director of the Central Intelligence Agency under section 104A(e) of this Act, if—

(A)

the Director personally summarily terminates the individual; and

(B)

the Director—

(i)

determines the termination to be in the interest of the United States;

(ii)

determines that the procedures prescribed in other provisions of law that authorize the termination of the employment of such employee cannot be invoked in a manner consistent with the national security; and

(iii)

notifies the congressional oversight committees of such termination within 5 days after the termination; or

(4)

section 7532 of title 5, United States Code, if—

(A)

the agency head personally summarily terminates the individual; and

(B)

the agency head—

(i)

determines the termination to be in the interest of the United States,

(ii)

determines that the procedures prescribed in other provisions of law that authorize the termination of the employment of such employee cannot be invoked in a manner consistent with the national security; and

(iii)

notifies the congressional oversight committees of such termination within 5 days after the termination.

(f)

If an employee, former employee, or applicant seeks to challenge both a prohibited personnel practice under this section and an adverse security clearance or access determination under section 3001(j) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b(j)), the employee shall bring both claims under the procedure set forth in 3001(j) of that Act for challenging an adverse security clearance or access determination. If the Board awards compensatory damages for such claim or claims, the total amount of compensatory damages ordered shall not exceed $300,000.

.

(b)

Repeal of section 2303

(1)

In general

Title 5, United States Code is amended—

(A)

by striking section 2303; and

(B)

by striking the item relating to section 2303 in the table of sections for chapter 23 of that title.

(2)

Effective date

This paragraph shall take effect on the date on which rules are issued as required under section 121(c)(1)(B) of the National Security Act of 1947 (as added by this Act).

(c)

Technical and conforming amendment

The table of contents for the National Security Act of 1947 (50 U.S.C. 401 note) is amended by inserting after the item relating to section 119B the following:

Sec. 120. Intelligence Community Whistleblower Protection Board.

Sec. 121. Intelligence community whistleblower protections.

.

202.

Review of security clearance or access determinations

(a)

In general

Section 3001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b(b)) is amended—

(1)

in the matter preceding paragraph (1), by striking Not and inserting Except as otherwise provided, not;

(2)

in paragraph (5), by striking and after the semicolon;

(3)

in paragraph (6), by striking the period at the end and inserting ; and; and

(4)

by inserting after paragraph (6) the following:

(7)

not later than 30 days after the date of enactment of the Whistleblower Protection Enhancement Act of 2009—

(A)

developing policies and procedures that permit, to the extent practicable, individuals who challenge in good faith a determination to suspend or revoke a security clearance or access to classified information to retain their government employment status while such challenge is pending; and

(B)

developing and implementing uniform and consistent policies and procedures to ensure proper protections during the process for denying, suspending, or revoking a security clearance or access to classified information, including the provision of a right to appeal such a denial, suspension, or revocation, except that there shall be no appeal of an agency’s suspension of a security clearance or access determination for purposes of conducting an investigation, if that suspension lasts no longer than 1 year, including such policies and procedures for appeals based on those pertaining to prohibited personnel practices defined under section 2302(b)(8) of title 5, United States Code, and that provide—

(i)

for an independent and impartial fact-finder;

(ii)

for notice and the opportunity to be heard, including the opportunity to present relevant evidence, including witness testimony;

(iii)

that the employee, applicant, or former employee may be represented by counsel;

(iv)

that the employee, applicant, or former employee has a right to a decision based on the record developed during the appeal;

(v)

that, unless agreed to by the employee and the agency concerned, no more than 180 days shall pass from the filing of the appeal to the report of the impartial fact finder to the agency head or the designee of the agency head;

(vi)

for the use of information specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs in a manner consistent with the interests of national security, including ex parte submissions if the agency determines that the interests of national security so warrant; and

(vii)

that the employee, applicant, or former employee shall have no right to compel the production of information specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs, except evidence necessary to establish that the employee made the disclosure or communication such employee alleges was protected by subparagraphs (A), (B), and (C) of subsection (j)(1).

.

(b)

Retaliatory revocation of security clearances and access determinations

Section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b) is amended by adding at the end the following:

(j)

Retaliatory revocation of security clearances and access determinations

(1)

In general

Agency personnel with authority over personnel security clearance or access determinations shall not take or fail to take, or threaten to take or fail to take, any action with respect to any employee or applicant’s security clearance or access determination because of—

(A)

any disclosure of information to an official of an Executive agency by an employee or applicant which the employee or applicant reasonably believes evidences—

(i)

a violation of any law, rule, or regulation, except for an alleged violation that is a minor, inadvertent violation, and occurs during the conscientious carrying out of official duties; or

(ii)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such disclosure does not reveal information specifically authorized under criteria established by statute, Executive Order, Presidential directive, or Presidential memorandum to be kept secret in the interest of national defense or the conduct of foreign affairs;
(B)

any disclosure to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—

(i)

a violation of any law, rule, or regulation, except for an alleged violation that is a minor, inadvertent violation, and occurs during the conscientious carrying out of official duties; or

(ii)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(C)

any communication that complies with subsection (a)(1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.) or that complies with subsection (d)(5)(A), (D), or (H) of section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q);

(D)

the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;

(E)

testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (D); or

(F)

cooperating with or disclosing information to the inspector general of an agency, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the inspector general,

if the actions described under subparagraphs (D) through (F) do not result in the employee or applicant unlawfully disclosing information specifically authorized under criteria established by Executive Order, statute, Presidential Directive, or Presidential memorandum to be kept secret in the interest of national defense or the conduct of foreign affairs.Nothing in this paragraph shall be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.
(2)

Disclosures

A disclosure shall not be excluded from paragraph (1) because—

(A)

the disclosure was made during the normal course of the duties of the employee;

(B)

the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant reasonably believed to be covered by paragraph (1)(A)(ii);

(C)

the disclosure revealed information that had been previously disclosed;

(D)

of the employee or applicant’s motive for making the disclosure;

(E)

the disclosure was not made in writing;

(F)

the disclosure was made while the employee was off duty; or

(G)

of the amount of time which has passed since the occurrence of the events described in the disclosure.

(3)

Agency adjudication

(A)

Appeal

An employee, former employee, or applicant for employment who believes that he or she has been subjected to a reprisal prohibited by paragraph (1) of this subsection may, within 60 days after the issuance of notice of such decision, appeal that decision within the agency of that employee, former employee, or applicant through proceedings authorized by paragraph (8) of subsection (b), except that there shall be no appeal of an agency’s suspension of a security clearance or access determination for purposes of conducting an investigation, if that suspension lasts no longer than 1 year.

(B)

Corrective action

If, in the course of proceedings authorized under subparagraph (A), it is determined that the adverse security clearance or access determination violated paragraph (1) of this subsection, the agency shall take specific corrective action to return the employee, former employee, or applicant, as nearly as practicable and reasonable, to the position such employee, former employee, or applicant would have held had the violation not occurred. Such corrective action shall include reasonable attorney's fees and any other reasonable costs incurred, and may include back pay and related benefits, travel expenses, and compensatory damages not to exceed $300,000.

(C)

Contributing factor

In determining whether the adverse security clearance or access determination violated paragraph (1) of this subsection, the agency shall find that paragraph (1) of this subsection was violated if a disclosure described in paragraph (1) was a contributing factor in the adverse security clearance or access determination taken against the individual, unless the agency demonstrates by a preponderance of the evidence that it would have taken the same action in the absence of such disclosure, giving the utmost deference to the agency's assessment of the particular threat to the national security interests of the United States in the instant matter.

(4)

Review by the Intelligence Community Whistleblower Protection Board

(A)

Appeal

Within 60 days after receiving notice of an adverse final agency determination under a proceeding under paragraph (3), an employee, former employee, or applicant for employment may appeal that determination to the Intelligence Community Whistleblower Protection Board.

(B)

Policies and procedures

The Board, in consultation with the Attorney General, Director of National Intelligence, and the Secretary of Defense, shall develop and implement policies and procedures for adjudicating the appeals authorized by subparagraph (A). The Director of National Intelligence and Secretary of Defense shall jointly approve any rules, regulations, or guidance issued by the Board concerning the procedures for the use or handling of classified information.

(C)

Review

The Board’s review shall be on the complete agency record, which shall be made available to the Board. The Board may not hear witnesses or admit additional evidence. Any portions of the record that were submitted ex parte during the agency proceedings shall be submitted ex parte to the Board.

(D)

Further fact-finding or improper denial

If the Board concludes that further fact-finding is necessary or finds that the agency improperly denied the employee or former employee the opportunity to present evidence that, if admitted, would have a substantial likelihood of altering the outcome, the Board shall—

(i)

remand the matter to the agency from which it originated for additional proceedings in accordance with the rules of procedure issued by the Board; or

(ii)

refer the case to an intelligence community agency for additional proceedings in accordance with the rules of procedure issued by the Board.

(E)

De novo determination

The Board shall make a de novo determination, based on the entire record, of whether the employee, former employee, or applicant received an adverse security clearance or access determination in violation of paragraph (1). In considering the record, the Board may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact. In doing so, the Board may consider the prior fact-finder’s opportunity to see and hear the witnesses.

(F)

Adverse security clearance or access determination

If the Board finds that the adverse security clearance or access determination violated paragraph (1), it shall then separately determine whether reinstating the security clearance or access determination is clearly consistent with the interests of national security, with any doubt resolved in favor of national security, under Executive Order 12968 (including any adjudicative guidelines promulgated under such orders) or any subsequent Executive order, regulation, or policy concerning access to classified information.

(G)

Remedies

(i)

Corrective action

If the Board finds that the adverse security clearance or access determination violated paragraph (1), it shall order the agency head to take specific corrective action to return the employee, former employee, or applicant, as nearly as practicable and reasonable, to the position such employee, former employee, or applicant would have held had the violation not occurred. Such corrective action shall include reasonable attorney's fees and any other reasonable costs incurred, and may include back pay and related benefits, travel expenses, and compensatory damages not to exceed $300,000. The Board may recommend, but may not order, reinstatement or hiring of a former employee or applicant, and any relief shall not include the reinstating of any security clearance or access determination. The agency head shall take the actions so ordered, unless the President determines that doing so would endanger national security.

(ii)

Recommended action

If the Board finds that reinstating the employee, former employee, or applicant’s security clearance or access determination is clearly consistent with the interests of national security, it shall recommend such action to the head of the entity selected under subsection (b) and the head of the affected agency.

(H)

Congressional Notification

(i)

Orders

At the time the Board issues an order, the Chairperson of the Board shall notify the chairpersons and ranking members of—

(I)

the Committee on Homeland Security and Government Affairs of the Senate;

(II)

the Select Committee on Intelligence of the Senate;

(III)

the Committee on Oversight and Government Reform of the House of Representatives; and

(IV)

the Permanent Select Committee on Intelligence of the House of Representatives.

(ii)

Recommendations

If the agency head and the head of the entity selected under subsection (b) do not follow the Board’s recommendation to reinstate a clearance, the head of the entity selected under subsection (b) shall notify the chairpersons and ranking members of the committees described in subclauses (I) through (IV) of clause (i).

(5)

Judicial review

Nothing in this section should be construed to permit or require judicial review of agency or Board actions under this section.

(6)

Nonapplicability to certain terminations

This section shall not apply to adverse security clearance or access determinations if the affected employee is concurrently terminated under—

(A)

section 1609 of title 10, United States Code;

(B)

the authority of the Director of National Intelligence under section 102A(m) of the National Security Act of 1947 (50 U.S.C. 403–1(m)), if—

(i)

the Director personally summarily terminates the individual; and

(ii)

the Director—

(I)

determines the termination to be in the interest of the United States;

(II)

determines that the procedures prescribed in other provisions of law that authorize the termination of the employment of such employee cannot be invoked in a manner consistent with the national security, and

(III)

notifies the congressional oversight committees of such termination within 5 days after the termination;

(C)

the authority of the Director of the Central Intelligence Agency under section 104A(e) of the National Security Act of 1947 (50 U.S.C. 403–4a(e)), if—

(i)

the Director personally summarily terminates the individual; and

(ii)

the Director—

(I)

determines the termination to be in the interest of the United States;

(II)

determines that the procedures prescribed in other provisions of law that authorize the termination of the employment of such employee cannot be invoked in a manner consistent with the national security; and

(III)

notifies the congressional oversight committees of such termination within 5 days after the termination; or

(D)

section 7532 of title 5, United States Code, if—

(i)

the agency head personally summarily terminates the individual; and

(ii)

the agency head—

(I)

determines the termination to be in the interest of the United States;

(II)

determines that the procedures prescribed in other provisions of law that authorize the termination of the employment of such employee cannot be invoked in a manner consistent with the national security; and

(III)

notifies the congressional oversight committees of such termination within 5 days after the termination.

.

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.

.

III

Effective date

301.

Effective date

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

December 3, 2009

Reported with an amendment