[Congressional Record: February 3, 2009 (Senate)]
[Page S1434-S1438]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. Akaka (for himself, Ms. Collins, Mr. Grassley, Mr. Levin,
Mr. Lieberman, Mr. Voinovich, Mr. Leahy, Mr. Kennedy, Mr.
Carper, Mr. Pryor, and Ms. Mikulski):
S. 372. A bill to amend chapter 23 of title 5, United States Code, to
clarify the disclosures of information protected from prohibited
personnel practices, require a statement in nondisclosure policies,
forms, and agreements that such policies, forms, and agreements conform
with certain disclosure protections, provide certain authority for the
Special Counsel, and for other purposes; to the Committee on Homeland
Security and Governmental Affairs.
Mr. AKAKA. Mr. President, today I rise to reintroduce the
Whistleblower Protection Enhancement Act. I am pleased that Senators
Collins, Grassley, Levin, Lieberman, Voinovich, Leahy, Kennedy, Carper,
Pryor, and Mikulski have joined as cosponsors of this bill.
I have been a long-time proponent of strengthening the rights and
protections of federal whistleblowers. Last year, my bill, the Federal
Employee Protection of Disclosures Act, S. 274, passed the Senate by
unanimous consent in December 2007. A similar House bill, the
Whistleblower Protection Enhancement Act, also passed in March 2008.
Unfortunately, we were not able to reconcile the two bills and enact
whistleblower protections before the 110th Congress adjourned.
The need for strengthened whistleblower protections is clear. In this
time of economic crisis, we cannot wait to act on measures to make sure
the government uses tax dollars efficiently and effectively. Indeed,
President Obama emphasized the need for improved accountability in his
inaugural address, stating:
Those of us who manage the public's dollars will be held to
account--to spend wisely, reform bad habits, and do our
business in the light of day--because only then can we
restore the vital trust between a people and their
government.
This legislation will help us hold those who manage the public's
dollars accountable by strengthening protections for Federal workers
who shed light on Government waste, fraud, and abuse. Our bill also
will contribute to public health and safety, civil rights and civil
liberties, national security, and other valuable interests. Federal
employees often are in the best position to observe and disclose
Federal Government wrongdoing that can affect every aspect of our
economy and our lives, and fewer employees will have the courage to
disclose wrongdoing without meaningful whistleblower protections.
[[Page S1435]]
The Whistleblower Protection Act, WPA, was intended to shield Federal
whistleblowers from retaliation, but the Federal Circuit and the Merit
Systems Protection Board repeatedly have issued decisions that
misconstrue the WPA and scale back its protections. Federal
whistleblowers have prevailed on the merits of their claims before the
Federal Circuit Court of Appeals, which has sole jurisdiction over
federal employee whistleblower appeals, only three times in hundreds of
cases since 1994. That is why further action is necessary.
I will highlight a few of the important provisions in this bill. Our
bill would eliminate a number of restrictions that the Federal Circuit
has read into the law regarding when disclosures are covered by the
WPA. In light of the Federal Circuit's restrictive reading of the WPA,
it would establish a pilot program to allow whistleblower appeals to be
filed in the appropriate regional Federal Court of Appeals for five
years, and would require a Government Accountability Office review of
that change 40 months after enactment. This bill would bar agencies
from enforcing a nondisclosure policy, revoking an employee's security
clearance, or investigating an employee in retaliation for a protected
disclosure.
This bill also includes a few improvements in whistleblower
protection that were not in S. 274. It would expand the coverage of the
Whistleblower Protection Act to include employees of the Transportation
Security Administration. Additionally, it would make clear that
disclosures of censorship of scientific information that could lead to
gross government waist or mismanagement, a substantial and specific
danger to public health or safety, or a violation of law are protected.
Congress has a duty to provide strong protections for Federal
whistleblowers. Only when Federal employees are confident that they
will not face retaliation will they feel comfortable coming forward to
disclose information that can be used to improve government operations,
our national security, and the health of our citizens.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 372
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION
BY FEDERAL EMPLOYEES.
(a) Short Title.--This Act may be cited as the
``Whistleblower Protection Enhancement Act of 2009''.
(b) Clarification of Disclosures Covered.--
(1) In general.--Section 2302(b)(8) of title 5, United
States Code, is amended--
(A) in subparagraph (A)--
(i) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, forum, or
prior disclosure made to any person by an employee or
applicant, including a disclosure made in the ordinary course
of an employee's duties, that the employee or applicant
reasonably believes is evidence of'';
(ii) in clause (i), by striking ``a violation'' and
inserting ``any violation''; and
(iii) by striking ``or'' at the end;
(B) in subparagraph (B)--
(i) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, forum, or
prior disclosure made to any person by an employee or
applicant, including a disclosure made in the ordinary course
of an employee's duties, of information that the employee or
applicant reasonably believes is evidence of'';
(ii) in clause (i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''; and
(iii) in clause (ii), by adding ``or'' at the end; and
(C) by adding at the end the following:
``(C) any disclosure that--
``(i) is made by an employee or applicant of information
required by law or Executive order to be kept secret in the
interest of national defense or the conduct of foreign
affairs that the employee or applicant reasonably believes is
direct and specific evidence of--
``(I) any violation of any law, rule, or regulation;
``(II) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety; or
``(III) a false statement to Congress on an issue of
material fact; and
``(ii) is made to--
``(I) a member of a committee of Congress having a primary
responsibility for oversight of a department, agency, or
element of the Federal Government to which the disclosed
information relates and who is authorized to receive
information of the type disclosed;
``(II) any other Member of Congress who is authorized to
receive information of the type disclosed; or
``(III) an employee of Congress who has the appropriate
security clearance and is authorized to receive information
of the type disclosed.''.
(2) Prohibited personnel practices under section
2302(b)(9).--
(A) Technical and conforming amendments.--Title 5, United
States Code, is amended in subsections (a)(3), (b)(4)(A), and
(b)(4)(B)(i) of section 1214, in subsections (a), (e)(1) and
(i) of section 1221, and in subsection (a)(2)(C)(i) of 2302
by inserting ``or 2302(b)(9) (B) through (D)'' after
``section 2302(b)(8)'' or ``(b)(8)'' each place it appears.
(B) Other references.--Title 5, United States Code, is
amended in subsection (b)(4)(B)(i) of section 1214 and in
subsection (e)(1) of section 1221 by inserting ``or protected
activity'' after ``disclosure'' each place it appears.
(c) Definitional Amendments.--
(1) Disclosures.--Section 2302(a)(2) of title 5, United
States Code, is amended--
(A) in subparagraph (B)(ii), by striking ``and'' at the
end;
(B) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(C) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee or applicant
providing the disclosure reasonably believes that the
disclosure evidences--
``(i) any violation of any law, rule, or regulation; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.''.
(2) Clear and convincing evidence.--Sections
1214(b)(4)(B)(ii) and 1221(e)(2) of title 5, United States
Code, are amended by adding at the end the following: ``For
purposes of the preceding sentence, `clear and convincing
evidence' means evidence indicating that the matter to be
proved is highly probable or reasonably certain.''.
(d) Rebuttable Presumption.--Section 2302(b) of title 5,
United States Code, is amended by amending the matter
following paragraph (12) to read as follows:
``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses
information to Congress. For purposes of paragraph (8), any
presumption relating to the performance of a duty by an
employee who has authority to take, direct others to take,
recommend, or approve any personnel action may be rebutted by
substantial evidence. For purposes of paragraph (8), a
determination as to whether an employee or applicant
reasonably believes that they have disclosed information that
evidences any violation of law, rule, regulation, gross
mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or
safety shall be made by determining whether a disinterested
observer with knowledge of the essential facts known to and
readily ascertainable by the employee could reasonably
conclude that the actions of the Government evidence such
violations, mismanagement, waste, abuse, or danger.''.
(e) Personnel Actions and Prohibited Personnel Practices.--
(1) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (x), by striking ``and'' after the semicolon;
and
(B) by redesignating clause (xi) as clause (xiv) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement;
``(xii) a suspension, revocation, or other determination
relating to a security clearance or any other access
determination by a covered agency;
``(xiii) an investigation, other than any ministerial or
nondiscretionary fact finding activities necessary for the
agency to perform its mission, of an employee or applicant
for employment because of any activity protected under this
section; and''
(2) Prohibited personnel practice.--Section 2302(b) of
title 5, United States Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
a semicolon; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by Executive Order No. 12958; section
7211 of title 5, United States Code (governing disclosures to
Congress); section 1034 of title 10, United States Code
(governing disclosure to
[[Page S1436]]
Congress by members of the military); section 2302(b)(8) of
title 5, United States Code (governing disclosures of
illegality, waste, fraud, abuse, or public health or safety
threats); the Intelligence Identities Protection Act of 1982
(50 U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes
which protect against disclosures that could compromise
national security, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)).
The definitions, requirements, obligations, rights,
sanctions, and liabilities created by such Executive order
and such statutory provisions are incorporated into this
agreement and are controlling'; or
``(14) conduct, or cause to be conducted, an investigation,
other than any ministerial or nondiscretionary fact finding
activities necessary for the agency to perform its mission,
of an employee or applicant for employment because of any
activity protected under this section.''.
(f) Exclusion of Agencies by the President.--Section
2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National
Security Agency; and
``(II) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action; or''.
(g) Disciplinary Action.--Section 1215(a)(3) of title 5,
United States Code, is amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case in which the Board finds that an employee
has committed a prohibited personnel practice under paragraph
(8) or (9) of section 2302(b), the Board shall impose
disciplinary action if the Board finds that the activity
protected under paragraph (8) or (9) of section 2302(b) was a
significant motivating factor, even if other factors also
motivated the decision, for the employee's decision to take,
fail to take, or threaten to take or fail to take a personnel
action, unless that employee demonstrates, by preponderance
of evidence, that the employee would have taken, failed to
take, or threatened to take or fail to take the same
personnel action, in the absence of such protected
activity.''.
(h) Remedies.--
(1) Attorney fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party is employed or
has applied for employment''.
(2) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of
title 5, United States Code, are amended by striking all
after ``travel expenses,'' and inserting ``any other
reasonable and foreseeable consequential damages, and
compensatory damages (including attorney's fees, interest,
reasonable expert witness fees, and costs).'' each place it
appears.
(i) Judicial Review.--
(1) In general.--Section 7703(b)(1) of title 5, United
States Code, is amended to read as follows:
``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2), a petition to review a final order or final
decision of the Board shall be filed in the United States
Court of Appeals for the Federal Circuit. Notwithstanding any
other provision of law, any petition for review must be filed
within 60 days after the date the petitioner received notice
of the final order or decision of the Board.
``(B) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2009,
a petition to review a final order or final decision of the
Board in a case alleging a violation of paragraph (8) or (9)
of section 2302(b) shall be filed in the United States Court
of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction as provided under subsection
(b)(2).''.
(2) Review obtained by office of personnel management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in his discretion, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals. The granting of the petition for
judicial review shall be at the discretion of the Court of
Appeals.
``(2) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2009,
this paragraph shall apply to any review relating to
paragraph (8) or (9) of section 2302(b) obtained by the
Director of the Office of Personnel Management. The Director
of the Office of Personnel Management may obtain review of
any final order or decision of the Board by filing, within 60
days after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as
provided under subsection (b)(2) if the Director determines,
in his discretion, that the Board erred in interpreting
paragraph (8) or (9) of section 2302(b). If the Director did
not intervene in a matter before the Board, the Director may
not petition for review of a Board decision under this
section unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.
In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the
right to appear in the proceeding before the court of
appeals. The granting of the petition for judicial review
shall be at the discretion of the Court of Appeals.''.
(j) Merit System Protection Board Review of Security
Clearances.--
(1) In general.--Chapter 77 of title 5, United States Code,
is amended by inserting after section 7702 the following:
``Sec. 7702a. Actions relating to security clearances
``(a) In any appeal relating to the suspension, revocation,
or other determination relating to a security clearance or
access determination, the Merit Systems Protection Board or
any reviewing court--
``(1) shall determine whether paragraph (8) or (9) of
section 2302(b) was violated;
``(2) may not order the President or the designee of the
President to restore a security clearance or otherwise
reverse a determination of clearance status or reverse an
access determination; and
``(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
``(b)(1) If, in any final judgment, the Board or court
declares that any suspension, revocation, or other
determination with regard to a security clearance or access
determination was made in violation of paragraph (8) or (9)
of section 2302(b), the affected agency shall conduct a
review of that suspension, revocation, access determination,
or other determination, giving great weight to the Board or
court judgment.
``(2) Not later than 30 days after any Board or court
judgment declaring that a security clearance suspension,
revocation, access determination, or other determination was
made in violation of paragraph (8) or (9) of section 2302(b),
the affected agency shall issue an unclassified report to the
congressional committees of jurisdiction (with a classified
annex if necessary), detailing the circumstances of the
agency's security clearance suspension, revocation, other
determination, or access determination. A report under this
paragraph shall include any proposed agency action with
regard to the security clearance or access determination.
``(c) An allegation that a security clearance or access
determination was revoked or suspended in retaliation for a
protected disclosure shall receive expedited review by the
Office of Special Counsel, the Merit Systems Protection
Board, and any reviewing court.
``(d) For purposes of this section, corrective action may
not be ordered if the agency demonstrates by a preponderance
of the evidence that it would have taken the same personnel
action in the absence of such disclosure.''.
(2) Technical and conforming amendment.--The table of
sections for chapter 77 of title 5, United States Code, is
amended by inserting after the item relating to section 7702
the following:
``7702a. Actions relating to security clearances.''.
(k) Prohibited Personnel Practices Affecting the
Transportation Security Administration.--
(1) In general.--Chapter 23 of title 5, United States Code,
is amended--
(A) by redesignating sections 2304 and 2305 as sections
2305 and 2306, respectively; and
(B) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of
law, any individual holding or applying for a position within
the Transportation Security Administration shall be covered
by--
``(1) the provisions of section 2302(b)(1), (8), and (9);
``(2) any provision of law implementing section 2302(b)
(1), (8), or (9) by providing any
[[Page S1437]]
right or remedy available to an employee or applicant for
employment in the civil service; and
``(3) any rule or regulation prescribed under any provision
of law referred to in paragraph (1) or (2).
``(b) Rule of Construction.--Nothing in this section shall
be construed to affect any rights, apart from those described
in subsection (a), to which an individual described in
subsection (a) might otherwise be entitled under law.''.
(2) Technical and conforming amendment.--The table of
sections for chapter 23 of title 5, United States Code, is
amended by striking the items relating to sections 2304 and
2305, respectively, and by inserting the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration.
``Sec. 2305. Responsibility of the Government Accountability Office.
``Sec. 2306. Coordination with certain other provisions of law.''.
(3) Effective date.--The amendments made by this section
shall take effect on the date of enactment of this section.
(l) Disclosure of Censorship Related to Research, Analysis,
or Technical Information.--
(1) Definitions.--In this section--
(A) the term ``applicant'' means an applicant for a covered
position;
(B) the term ``censorship related to research, analysis, or
technical information'' means any effort to alter,
misrepresent, or suppress research, analysis, or technical
information;
(C) the term ``covered position'' has the meaning given
under section 2302(a)(2)(B) of title 5, United States Code;
(D) the term ``employee'' means an employee in a covered
position; and
(E) the term ``disclosure'' has the meaning given under
section 2302(a)(2)(D) of title 5, United States Code.
(2) Protected disclosure.--
(A) In general.--Any disclosure of information by an
employee or applicant for employment that the employee or
applicant reasonably believes is evidence of censorship
related to research, analysis, or technical information shall
come within the protections of section 2302(b)(8)(A) of title
5, United States Code, if--
(i) the employee or applicant reasonably believes that the
censorship related to research, analysis, or technical
information is or will cause--
(I) any violation of law, rule, or regulation; or
(II) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; and
(ii) the disclosure and information satisfy the conditions
stated in the matter following clause (ii) of section
2302(b)(8)(A) of title 5, United States Code; and
(iii) shall come within the protections of section
2302(b)(8)(B) of title 5, United States Code, if--
(I) the conditions under clause (i) of this subparagraph
are satisfied; and
(II) the disclosure is made to an individual referred to in
the matter preceding clause (i) of section 2302(b)(8)(B) of
title 5, United States Code, for the receipt of disclosures.
(B) Application.--Paragraph (1) shall apply to any
disclosure of information by an employee or applicant without
restriction to time, place, form, motive, context, forum, or
prior disclosure made to any person by an employee or
applicant, including a disclosure made in the ordinary course
of an employee's duties.
(C) Rule of construction.--Nothing in this section shall be
construed to imply any limitation on the protections of
employees and applicants afforded by any other provision of
law, including protections with respect to any disclosure of
information believed to be evidence of censorship related to
research, analysis, or technical information.
(m) Clarification of Whistleblower Rights for Critical
Infrastructure Information.--Section 214(c) of the Homeland
Security Act of 2002 (6 U.S.C. 133(c)) is amended by adding
at the end the following: ``For purposes of this section a
permissible use of independently obtained information
includes the disclosure of such information under section
2302(b)(8) of title 5, United States Code.''.
(n) Advising Employees of Rights.--Section 2302(c) of title
5, United States Code, is amended by inserting ``, including
how to make a lawful disclosure of information that is
specifically required by law or Executive order to be kept
secret in the interest of national defense or the conduct of
foreign affairs to the Special Counsel, the Inspector General
of an agency, Congress, or other agency employee designated
to receive such disclosures'' after ``chapter 12 of this
title''.
(o) Special Counsel Amicus Curiae Appearance.--Section 1212
of title 5, United States Code, is amended by adding at the
end the following:
``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to any civil action brought in connection with
section 2302(b) (8) or (9), or subchapter III of chapter 73,
or as otherwise authorized by law. In any such action, the
Special Counsel is authorized to present the views of the
Special Counsel with respect to compliance with section
2302(b) (8) or (9) or subchapter III of chapter 73 and the
impact court decisions would have on the enforcement of such
provisions of law.
``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such
action for the purposes described in subsection (a).''.
(p) Scope of Due Process.--
(1) Special counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(2) Individual action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(q) Nondisclosure Policies, Forms, and Agreements.--
(1) In general.--
(A) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These restrictions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
Executive Order No. 12958; section 7211 of title 5, United
States Code (governing disclosures to Congress); section 1034
of title 10, United States Code (governing disclosure to
Congress by members of the military); section 2302(b)(8) of
title 5, United States Code (governing disclosures of
illegality, waste, fraud, abuse or public health or safety
threats); the Intelligence Identities Protection Act of 1982
(50 U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes
which protect against disclosure that may compromise the
national security, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.''.
(B) Enforceability.--Any nondisclosure policy, form, or
agreement described under subparagraph (A) that does not
contain the statement required under subparagraph (A) may not
be implemented or enforced to the extent such policy, form,
or agreement is inconsistent with that statement.
(2) Persons other than government employees.--
Notwithstanding paragraph (1), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the United
States Government, may contain provisions appropriate to the
particular activity for which such document is to be used.
Such form or agreement shall, at a minimum, require that the
person will not disclose any classified information received
in the course of such activity unless specifically authorized
to do so by the United States Government. Such nondisclosure
forms shall also make it clear that such forms do not bar
disclosures to Congress or to an authorized official of an
executive agency or the Department of Justice that are
essential to reporting a substantial violation of law.
(r) Reporting Requirements.--
(1) Government accountability office.--
(A) In general.--
(i) Report.--Not later than 40 months after the date of
enactment of this Act, the Comptroller General shall submit a
report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives on the
implementation of this Act.
(ii) Contents.--The report under this paragraph shall
include--
(I) an analysis of any changes in the number of cases filed
with the United States Merit Systems Protection Board
alleging violations of section 2302(b)(8) or (9) of title 5,
United States Code, since the effective date of the Act;
(II) the outcome of the cases described under clause (i),
including whether or not the United States Merit Systems
Protection Board, the Federal Circuit Court of Appeals, or
any other court determined the allegations to be frivolous or
malicious; and
(III) any other matter as determined by the Comptroller
General.
(B) Study on revocation of security clearances.--
(i) Study.--The Comptroller General shall conduct a study
of security clearance revocations of Federal employees at a
select sample of executive branch agencies. The study shall
consist of an examination of the number of security
clearances revoked, the process employed by each agency in
revoking a clearance, the pay and employment status of agency
employees during the revocation process, how often such
revocations result in termination of employment or
reassignment, how often such revocations are based on an
improper disclosure of information, and such other factors
the Comptroller General deems appropriate.
(ii) Report.--Not later than 18 months after the date of
enactment of this Act, the Comptroller General shall submit
to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives a report on
the results of the study required under this subparagraph.
(2) Merit systems protection board.--
[[Page S1438]]
(A) In general.--Each report submitted annually by the
Merit Systems Protection Board under section 1116 of title
31, United States Code, shall, with respect to the period
covered by such report, include as an addendum the following:
(i) Information relating to the outcome of cases decided
during the applicable year of the report in which violations
of section 2302(b)(8) or (9) of title 5, United States Code,
were alleged.
(ii) The number of such cases filed in the regional and
field offices, the number of petitions for review filed in
such cases, and the outcomes of such cases.
(B) First report.--The first report described under
subparagraph (A) submitted after the date of enactment of
this Act shall include an addendum required under that
subparagraph that covers the period beginning on January 1,
2009 through the end of the fiscal year 2009.
(s) Effective Date.--This Act shall take effect 30 days
after the date of enactment of this Act.
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