[Congressional Record: December 10, 2010 (Senate)]
[Page S8809-S8824]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr10de10-44]
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009
Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the
Senate proceed to Calendar No. 219, S. 372.
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (S. 372) to amend chapter 23 of title 5, United
States Code, to clarify the disclosures of information
protected from prohibited personnel practices, require a
statement in nondisclosure policies, forms, and agreements
that such policies, forms, and agreements conform with
certain disclosure protections, provide certain authority for
the Special Counsel, and for other purposes.
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on Homeland Security and
Governmental Affairs, with an amendment to strike all after the
enacting clause and insert in lieu thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Whistleblower Protection
Enhancement Act of 2009''.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.
(a) In General.--Section 2302(b)(8) of title 5, United
States Code, is amended--
(1) in subparagraph (A)(i)--
(A) by striking ``a violation'' and inserting ``any
violation''; and
(B) by adding ``except for an alleged violation that is a
minor, inadvertent violation, and occurs during the
conscientious carrying out of official duties,'' after
``regulation,''; and
(2) in subparagraph (B)(i)--
(A) by striking ``a violation'' and inserting ``any
violation (other than a violation of this section)''; and
(B) by adding ``except for an alleged violation that is a
minor, inadvertent violation, and occurs during the
conscientious carrying out of official duties,'' after
regulation,''.
(b) Prohibited Personnel Practices Under Section
2302(b)(9).--
(1) Technical and conforming amendments.--Title 5, United
States Code, is amended in subsections (a)(3), (b)(4)(A), and
(b)(4)(B)(i) of section 1214, in subsections (a), (e)(1), and
(i) of section 1221, and in subsection (a)(2)(C)(i) of
section 2302, by inserting ``or section 2302(b)(9)(A)(i),
(B)(i), (C), or (D)'' after ``section 2302(b)(8)'' or
``(b)(8)'' each place it appears.
(2) Other references.--(A) Title 5, United States Code, is
amended in subsection (b)(4)(B)(i) of section 1214 and in
subsection (e)(1) of section 1221, by inserting ``or
protected activity'' after ``disclosure'' each place it
appears.
(B) Section 2302(b)(9) of title 5, United States Code, is
amended--
(i) by striking subparagraph (A)and inserting the
following:
``(A) the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation--
``(i) with regard to remedying a violation of paragraph
(8); or
``(ii) with regard to remedying a violation of any other
law, rule, or regulation;''; and
(ii) in subparagraph (B), by inserting ``(i) or (ii)''
after ``subparagraph (A)''.
(C) Section 2302 of title 5, United States Code, is amended
by adding at the end the following:
``(f) A disclosure shall not be excluded from subsection
(b)(8) because--
``(1) the disclosure was made during the normal course of
the duties of the employee;
``(2) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
or applicant reasonably believed to be covered by subsection
(b)(8)(A)(ii);
``(3) the disclosure revealed information that had been
previously disclosed;
``(4) of the employee or applicant's motive for making the
disclosure;
``(5) the disclosure was not made in writing;
``(6) the disclosure was made while the employee was off
duty; or
``(7) of the amount of time which has passed since the
occurrence of the events described in the disclosure.''.
SEC. 102. DEFINITIONAL AMENDMENTS.
(a) Disclosures.--Section 2302(a)(2) of title 5, United
States Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee or applicant
providing the disclosure reasonably believes that the
disclosure evidences--
``(i) any violation of any law, rule, or regulation, except
for an alleged violation that is a minor, inadvertent
violation, and occurs during the conscientious carrying out
of official duties; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.''.
(b) Clear and Convincing Evidence.--Sections
1214(b)(4)(B)(ii) and 1221(e)(2) of title 5, United States
Code, are amended by adding at the end the following: ``For
purposes of the preceding sentence, `clear and convincing
evidence' means the degree of proof that produces in the mind
of the trier of fact a firm belief as to the allegations
sought to be established.''.
SEC. 103. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended
by amending the matter following paragraph (12) to read as
follows:
``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses
information
[[Page S8810]]
to Congress. For purposes of paragraph (8), any presumption
relating to the performance of a duty by an employee who has
authority to take or direct others to take, recommend, or
approve any personnel action may be rebutted by substantial
evidence. For purposes of paragraph (8), a determination as
to whether an employee or applicant reasonably believes that
such employee or applicant has disclosed information that
evidences any violation of law, rule, regulation, gross
mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or
safety shall be made by determining whether a disinterested
observer with knowledge of the essential facts known to and
readily ascertainable by the employee could reasonably
conclude that the actions of the Government evidence such
violations, mismanagement, waste, abuse, or danger.''.
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL
PRACTICES.
(a) Personnel Action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(1) in clause (x), by striking ``and'' after the semicolon;
and
(2) by redesignating clause (xi) as clause (xii) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and''.
(b) Prohibited Personnel Practice.--
(1) In general.--Section 2302(b) of title 5, United States
Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
``; or''; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by Executive Order No. 12958; section
7211 of title 5, United States Code (governing disclosures to
Congress); section 1034 of title 10, United States Code
(governing disclosure to Congress by members of the
military); section 2302(b)(8) of title 5, United States Code
(governing disclosures of illegality, waste, fraud, abuse, or
public health or safety threats); the Intelligence Identities
Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing
disclosures that could expose confidential Government
agents); and the statutes which protect against disclosures
that could compromise national security, including sections
641, 793, 794, 798, and 952 of title 18, United States Code,
and section 4(b) of the Subversive Activities Control Act of
1950 (50 U.S.C. 783(b)). The definitions, requirements,
obligations, rights, sanctions, and liabilities created by
such Executive order and such statutory provisions are
incorporated into this agreement and are controlling.' ''.
(2) Nondisclosure policy, form, or agreement in effect
before the date of enactment.--A nondisclosure policy, form,
or agreement that was in effect before the date of enactment
of this Act, but that does not contain the statement required
under section 2302(b)(13) of title 5, United States Code, (as
added by this Act) for implementation or enforcement--
(A) may be enforced with regard to a current employee if
the agency gives such employee notice of the statement; and
(B) may continue to be enforced after the effective date of
this Act with regard to a former employee if the agency posts
notice of the statement on the agency website for the 1-year
period following that effective date.
(c) Retaliatory Investigations.--
(1) Agency investigation.--Section 1214 of title 5, United
States Code, is amended by adding at the end the following:
``(h) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.''.
(2) Damages.--Section 1221(g) of title 5, United States
Code, is amended by adding at the end the following:
``(4) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.''.
SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.
Section 2302(a)(2)(C) of title 5, United States Code, is
amended by striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance Office; and
``(II) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action; or''.
SEC. 106. DISCIPLINARY ACTION.
Section 1215(a)(3) of title 5, United States Code, is
amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case brought under paragraph (1) in which the
Board finds that an employee has committed a prohibited
personnel practice under section 2302(b)(8), or
2302(b)(9)(A)(i), (B)(i), (C), or (D), the Board shall impose
disciplinary action if the Board finds that the activity
protected under section 2302(b)(8), or 2302(b)(9)(A)(i),
(B)(i), (C), or (D) was a significant motivating factor, even
if other factors also motivated the decision, for the
employee's decision to take, fail to take, or threaten to
take or fail to take a personnel action, unless that employee
demonstrates, by preponderance of evidence, that the employee
would have taken, failed to take, or threatened to take or
fail to take the same personnel action, in the absence of
such protected activity.''.
SEC. 107. REMEDIES.
(a) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party is employed or
has applied for employment''.
(b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of
title 5, United States Code, are amended by striking all
after ``travel expenses,'' and inserting ``any other
reasonable and foreseeable consequential damages, and
compensatory damages (including interest, reasonable expert
witness fees, and costs).'' each place it appears.
SEC. 108. JUDICIAL REVIEW.
(a) In General.--Section 7703(b) of title 5, United States
Code, is amended by striking the matter preceding paragraph
(2) and inserting the following:
``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2) of this subsection, a petition to review a
final order or final decision of the Board shall be filed in
the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review shall be filed within 60 days after the Board issues
notice of the final order or decision of the Board.
``(B) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2009,
a petition to review a final order or final decision of the
Board that raises no challenge to the Board's disposition of
allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section
2302(b)(8), or 2302(b)(9)(A)(i), (B)(i), (C), or (D) shall be
filed in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as
provided under paragraph (2).''.
(b) Review Obtained by Office of Personnel Management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the Board issues notice of the final order or decision
of the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit if the
Director determines, in the discretion of the Director, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals.
``(2) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2009,
this paragraph shall apply to any review obtained by the
Director of the Office of Personnel Management that raises no
challenge to the Board's disposition of allegations of a
prohibited personnel practice described in section 2302(b)
other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B)(i), (C), or (D). The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the Board issues notice of the final order or decision
of the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction as provided under
subsection (b)(2) if the Director determines, in the
discretion of the Director, that the Board erred in
interpreting a civil service law, rule, or regulation
affecting personnel management and that the Board's decision
will have a substantial impact on a civil service law, rule,
regulation, or policy directive. If the Director did not
intervene in a matter before the Board, the Director may not
petition for review of a Board decision under this section
unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.
In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the
right to appear in the proceeding before the court of
appeals.''.
[[Page S8811]]
SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE
TRANSPORTATION SECURITY ADMINISTRATION.
(a) In General.--Chapter 23 of title 5, United States Code,
is amended--
(1) by redesignating sections 2304 and 2305 as sections
2305 and 2306, respectively; and
(2) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of
law, any individual holding or applying for a position within
the Transportation Security Administration shall be covered
by--
``(1) the provisions of section 2302(b)(1), (8), and (9);
``(2) any provision of law implementing section 2302(b)
(1), (8), or (9) by providing any right or remedy available
to an employee or applicant for employment in the civil
service; and
``(3) any rule or regulation prescribed under any provision
of law referred to in paragraph (1) or (2).
``(b) Rule of Construction.--Nothing in this section shall
be construed to affect any rights, apart from those described
in subsection (a), to which an individual described in
subsection (a) might otherwise be entitled under law.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 23 of title 5, United States Code, is
amended by striking the items relating to sections 2304 and
2305, respectively, and by inserting the following:
``2304. Prohibited personnel practices affecting the Transportation
Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.
(c) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this section.
SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH,
ANALYSIS, OR TECHNICAL INFORMATION.
(a) Definitions.--In this subsection--
(1) the term ``agency'' has the meaning given under section
2302(a)(2)(C) of title 5, United States Code;
(2) the term ``applicant'' means an applicant for a covered
position;
(3) the term ``censorship related to research, analysis, or
technical information'' means any effort to distort,
misrepresent, or suppress research, analysis, or technical
information;
(4) the term ``covered position'' has the meaning given
under section 2302(a)(2)(B) of title 5, United States Code;
(5) the term ``employee'' means an employee in a covered
position in an agency; and
(6) the term ``disclosure'' has the meaning given under
section 2302(a)(2)(D) of title 5, United States Code.
(b) Protected Disclosure.--
(1) In general.--Any disclosure of information by an
employee or applicant for employment that the employee or
applicant reasonably believes is evidence of censorship
related to research, analysis, or technical information shall
come within the protections of section 2302(b)(8)(A) of title
5, United States Code, if--
(A) the employee or applicant reasonably believes that the
censorship related to research, analysis, or technical
information is or will cause--
(i) any violation of any law, rule, or regulation, except
for an alleged violation that is a minor, inadvertent
violation, and occurs during the conscientious carrying out
of official duties; or
(ii) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety;
(B) the disclosure and information satisfy the conditions
stated in the matter following clause (ii) of section
2302(b)(8)(A) of title 5, United States Code; and
(C) shall come within the protections of section
2302(b)(8)(B) of title 5, United States Code, if--
(i) the conditions under subparagraph (A) of this paragraph
are satisfied; and
(ii) the disclosure is made to an individual referred to in
the matter preceding clause (i) of section 2302(b)(8)(B) of
title 5, United States Code, for the receipt of disclosures.
(2) Application.--Subsection (a) shall apply to any
disclosure of information by an employee or applicant without
restriction to time, place, form, motive, context, forum, or
prior disclosure made to any person by an employee or
applicant, including a disclosure made in the ordinary course
of an employee's duties.
(3) Rule of construction.--Nothing in this section shall be
construed to imply any limitation on the protections of
employees and applicants afforded by any other provision of
law, including protections with respect to any disclosure of
information believed to be evidence of censorship related to
research, analysis, or technical information.
SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL
INFRASTRUCTURE INFORMATION.
Section 214(c) of the Homeland Security Act of 2002 (6
U.S.C. 133(c)) is amended by adding at the end the following:
``For purposes of this section a permissible use of
independently obtained information includes the disclosure of
such information under section 2302(b)(8) of title 5, United
States Code.''.
SEC. 112. ADVISING EMPLOYEES OF RIGHTS.
Section 2302(c) of title 5, United States Code, is amended
by inserting ``, including how to make a lawful disclosure of
information that is specifically required by law or Executive
order to be kept secret in the interest of national defense
or the conduct of foreign affairs to the Special Counsel, the
Inspector General of an agency, Congress, or other agency
employee designated to receive such disclosures'' after
``chapter 12 of this title''.
SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.
Section 1212 of title 5, United States Code, is amended by
adding at the end the following:
``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to any civil action brought in connection with
section 2302(b) (8) or (9), or as otherwise authorized by
law. In any such action, the Special Counsel is authorized to
present the views of the Special Counsel with respect to
compliance with section 2302(b) (8) or (9) and the impact
court decisions would have on the enforcement of such
provisions of law.
``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such
action for the purposes described under subsection (a).''.
SEC. 114. SCOPE OF DUE PROCESS.
(a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(b) Individual Action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.
(a) In General.--
(1) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These restrictions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
Executive Order No. 12958; section 7211 of title 5, United
States Code (governing disclosures to Congress); section 1034
of title 10, United States Code (governing disclosure to
Congress by members of the military); section 2302(b)(8) of
title 5, United States Code (governing disclosures of
illegality, waste, fraud, abuse, or public health or safety
threats); the Intelligence Identities Protection Act of 1982
(50 U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes
which protect against disclosure that may compromise the
national security, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.''.
(2) Enforceability.--
(A) In general.--Any nondisclosure policy, form, or
agreement described under paragraph (1) that does not contain
the statement required under paragraph (1) may not be
implemented or enforced to the extent such policy, form, or
agreement is inconsistent with that statement.
(B) Nondisclosure policy, form, or agreement in effect
before the date of enactment.--A nondisclosure policy, form,
or agreement that was in effect before the date of enactment
of this Act, but that does not contain the statement required
under paragraph (1)--
(i) may be enforced with regard to a current employee if
the agency gives such employee notice of the statement; and
(ii) may continue to be enforced after the effective date
of this Act with regard to a former employee if the agency
posts notice of the statement on the agency website for the
1-year period following that effective date.
(b) Persons Other Than Government Employees.--
Notwithstanding subsection (a), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the United
States Government, may contain provisions appropriate to the
particular activity for which such document is to be used.
Such policy, form, or agreement shall, at a minimum, require
that the person will not disclose any classified information
received in the course of such activity unless specifically
authorized to do so by the United States Government. Such
nondisclosure policy, form, or agreement shall also make it
clear that such forms do not bar disclosures to Congress or
to an authorized official of an executive agency or the
Department of Justice that are essential to reporting a
substantial violation of law.
SEC. 116. REPORTING REQUIREMENTS.
(a) Government Accountability Office.--
(1) Report.--Not later than 40 months after the date of
enactment of this Act, the Comptroller General shall submit a
report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives on the
implementation of this Act.
(2) Contents.--The report under this paragraph shall
include--
(A) an analysis of any changes in the number of cases filed
with the United States Merit Systems Protection Board
alleging violations of section 2302(b)(8) or (9) of title 5,
United States Code, since the effective date of this Act;
(B) the outcome of the cases described under subparagraph
(A), including whether or not the United States Merit Systems
Protection Board, the Federal Circuit Court of Appeals, or
any other court determined the allegations to be frivolous or
malicious;
(C) an analysis of the outcome of cases described under
subparagraph (A) that were decided by a United States
District Court and the
[[Page S8812]]
impact the process has on the Merit Systems Protection Board
and the Federal court system; and
(D) any other matter as determined by the Comptroller
General.
(b) Study on Revocation of Security Clearances.--
(1) Study.--The Council of the Inspectors General on
Integrity and Efficiency, including the Inspectors General of
the Department of Justice, the Office of the Director of
National Intelligence, and the Office of Personnel
Management, shall conduct a study of security clearance
revocations of Federal employees at a select sample of
executive branch agencies and the appeals process in place at
those agencies and at the Intelligence Community
Whistleblower Protection Board. The study shall consist of an
examination of the number of security clearances revoked, the
process employed by each agency in revoking a clearance, the
pay and employment status of agency employees during the
revocation process, how often such revocations result in
termination of employment or reassignment, how often such
revocations are based on an improper disclosure of
information, how often security clearances are reinstated
following an appeal, how often security clearances remain
revoked following a finding of retaliation for making a
disclosure, and such other factors the Inspectors General
determine appropriate.
(2) Report.--Not later than 18 months after the date of
enactment of this Act, the Inspectors General shall submit to
the Committee on Homeland Security and Governmental Affairs
of the Senate and the Committee on Oversight and Government
Reform of the House of Representatives a report on the
results of the study required under this paragraph.
(c) Merit Systems Protection Board.--
(1) In general.--Each report submitted annually by the
Merit Systems Protection Board under section 1116 of title
31, United States Code, shall, with respect to the period
covered by such report, include as an addendum the following:
(A) Information relating to the outcome of cases decided
during the applicable year of the report in which violations
of section 2302(b)(8) or (9) of title 5, United States Code,
were alleged.
(B) The number of such cases filed in the regional and
field offices, the number of petitions for review filed in
such cases, and the outcomes of such cases.
(2) First report.--The first report described under
paragraph (1) submitted after the date of enactment of this
Act shall include an addendum required under that
subparagraph that covers the period beginning on January 1,
2009 through the end of the fiscal year 2009.
SEC. 117. ALTERNATIVE REVIEW.
(a) In General.--Section 1221 of title 5, United States
Code, is amended by adding at the end the following:
``(k)(1) In this subsection, the term `appropriate United
States district court', as used with respect to an alleged
prohibited personnel practice, means the United States
district court for the judicial district in which--
``(A) the prohibited personnel practice is alleged to have
been committed;
``(B) the employment records relevant to such practice are
maintained and administered; or
``(C) the employee, former employee, or applicant for
employment allegedly affected by such practice resides.
``(2)(A) An employee, former employee, or applicant for
employment in any case to which paragraph (3) or (4) applies
may file an action at law or equity for de novo review in the
appropriate United States district court in accordance with
this subsection.
``(B) Upon initiation of any action under subparagraph (A),
the Board shall stay any other claims of such employee,
former employee, or applicant pending before the Board at
that time which arise out of the same set of operative facts.
Such claims shall be stayed pending completion of the action
filed under subparagraph (A) before the appropriate United
States district court and any associated appellate review.
``(3) This paragraph applies in any case that--
``(A) an employee, former employee, or applicant for
employment--
``(i) seeks corrective action from the Merit Systems
Protection Board under section 1221(a) based on an alleged
prohibited personnel practice described in section 2302(b)(8)
for which the associated personnel action is an action
covered under section 7512 or 7542; or
``(ii) files an appeal under section 7701(a)(1) alleging as
an affirmative defense the commission of a prohibited
personnel practice described in section 2302(b)(8) or
(9)(A)(i), (B)(i), (C), or (D) for which the associated
personnel action is an action covered under section 7512 or
7542;
``(B) no final order or decision is issued by the Board
within 270 days after the date on which a request for that
corrective action or appeal has been duly submitted; and
``(C) such employee, former employee, or applicant provides
written notice to the Board of filing an action under this
subsection before the filing of that action.
``(4) This paragraph applies in any case in which--
``(A) an employee, former employee, or applicant for
employment --
``(i) seeks corrective action from the Merit Systems
Protection Board under section 1221(a) based on an alleged
prohibited personnel practice described in section 2302(b)
(8) or (9) (A)(i), (B)(i), (C), or (D) for which the
associated personnel action is an action covered under
section 7512 or 7542; or
``(ii) files an appeal under section 7701(a)(1) alleging as
an affirmative defense the commission of a prohibited
personnel practice described in section 2302(b) (8) or (9)
(A)(i), (B)(i), (C), or (D) for which the associated
personnel action is an action covered under section 7512 or
7542;
``(B)(i) within 30 days after the date on which the request
for corrective action or appeal was duly submitted, such
employee, former employee, or applicant for employment files
a motion requesting a certification consistent with
subparagraph (C) to the Board, any administrative law judge
appointed by the Board under section 3105 of this title and
assigned to the case, or any employee of the Board designated
by the Board and assigned to the case; and
``(ii) such employee has not previously filed a motion
under clause (i) related to that request for corrective
action; and
``(C) the Board, any administrative law judge appointed by
the Board under section 3105 of this title and assigned to
the case, or any employee of the Board designated by the
Board and assigned to the case certifies that--
``(i) the Board is not likely to dispose of the case within
270 days after the date on which a request for that
corrective action has been duly submitted;
``(ii) the case--
``(I) consists of multiple claims;
``(II) requires complex or extensive discovery;
``(III) arises out of the same set of operative facts as
any civil action against the Government filed by the
employee, former employee, or applicant pending in a Federal
court; or
``(IV) involves a novel question of law; or
``(iii) under standards applicable to the review of motions
to dismiss under rule 12(b)(6) of the Federal Rules of Civil
Procedure, including rule 12(d), the request for corrective
action (including any allegations made with the motion under
subparagraph (B)) would not be subject to dismissal.
``(5) The Board shall grant or deny any motion requesting a
certification described under paragraph (4)(ii) within 90
days after the submission of such motion and, in any event,
not later than 15 days before issuing a decision on the
merits of a request for corrective action.
``(6) Any decision of the Board, any administrative law
judge appointed by the Board under section 3105 of this title
and assigned to the case, or any employee of the Board
designated by the Board and assigned to the case to grant or
deny a certification under this paragraph shall be reviewed
only on appeal of a final order or decision of the Board
under section 7703, if--
``(A) the reviewing court determines that the decision by
the Board on the merits of the alleged prohibited personnel
described in section 2302(b)(8) or (9) (A)(i), (B)(i), (C),
or (D) failed to meet the standards of section 7703(c); and
``(B) the decision to deny the certification shall be
overturned by the reviewing court if such decision is found
to be arbitrary, capricious, or an abuse of discretion; and
``(C) shall not be considered evidence of any determination
by the Board, any administrative law judge appointed by the
Board under section 3105 of this title, or any employee of
the Board designated by the Board on the merits of the
underlying allegations during the course of any action at law
or equity for de novo review in the appropriate United States
district court in accordance with this subsection.
``(7) In any action filed under this subsection--
``(A) the district court shall have jurisdiction without
regard to the amount in controversy;
``(B) at the request of either party, such action shall be
tried by the court with a jury;
``(C) the court--
``(i) subject to clause (iii), shall apply the standards
set forth in subsection (e); and
``(ii) may award any relief which the court considers
appropriate under subsection (g), except--
``(I) relief for compensatory damages may not exceed
$300,000; and
``(II) relief may not include punitive damages; and
``(iii) notwithstanding section (e)(2), may not order
relief if the agency demonstrates by a preponderance of the
evidence that the agency would have taken the same personnel
action in the absence of such disclosure; and
``(D) the Special Counsel may not represent the employee,
former employee, or applicant for employment.
``(8) An appeal from a final decision of a district court
in an action under this subsection shall be taken to the
Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction.
``(9) This subsection applies with respect to any appeal,
petition, or other request for corrective action duly
submitted to the Board, whether under section 1214(b)(2), the
preceding provisions of this section, section 7513(d),
section 7701, or any otherwise applicable provisions of law,
rule, or regulation.''.
(b) Sunset.--
(1) In general.--Except as provided under paragraph (2),
the amendments made by this section shall cease to have
effect 5 years after the effective date of this Act.
(2) Pending claims.--The amendments made by this section
shall continue to apply with respect to any claim pending
before the Board on the last day of the 5-year period
described under paragraph (1).
SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY JUDGMENT.
(a) In General.--Section 1204(b) of title 5, United States
Code, is amended--
(1) by redesignating paragraph (3) as paragraph (4);
(2) by inserting after paragraph (2) the following:
``(3) With respect to a request for corrective action based
on an alleged prohibited personnel practice described in
section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) for
which the associated personnel action is an action covered
under section 7512 or 7542, the Board, any administrative law
judge appointed by the Board under
[[Page S8813]]
section 3105 of this title, or any employee of the Board
designated by the Board may, with respect to any party, grant
a motion for summary judgment when the Board or the
administrative law judge determines that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.''.
(b) Sunset.--
(1) In general.--Except as provided under paragraph (2),
the amendments made by this section shall cease to have
effect 5 years after the effective date of this Act.
(2) Pending claims.--The amendments made by this section
shall continue to apply with respect to any claim pending
before the Board on the last day of the 5-year period
described under paragraph (1).
SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION.
(a) Prohibited Personnel Practices.--Section 2302(b)(8) of
title 5, United States Code, is amended--
(1) in subparagraph (A), by striking ``or'' after the
semicolon;
(2) in subparagraph (B), by adding ``or'' after the
semicolon; and
(3) by adding at the end the following:
``(C) any communication that complies with subsection
(a)(1), (d), or (h) of section 8H of the Inspector General
Act of 1978 (5 U.S.C. App);''.
(b) Inspector General Act of 1978.--Section 8H of the
Inspector General Act of 1978 (5 U.S.C. App) is amended--
(1) in subsection (a)(1), by adding at the end the
following:
``(D) An employee of any agency, as that term is defined
under section 2302(a)(2)(C) of title 5, United States Code,
who intends to report to Congress a complaint or information
with respect to an urgent concern may report the complaint or
information to the Inspector General, or designee, of the
agency of which that employee is employed;''; and
(2) in subsection (h), by striking paragraph (2), and
inserting the following:
``(2) The term `intelligence committees' means the
Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of
the Senate, except that with respect to disclosures made by
employees described in subsection (a)(1)(D), the term
`intelligence committees' means the committees of appropriate
jurisdiction.''.
SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN.
(a) In General.--Section 3(d) of the Inspector General Act
of 1978 (5 U.S.C. App.) is amended--
(1) in paragraph (1), by striking ``and'' after the
semicolon;
(2) in paragraph (2), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(3) designate a Whistleblower Protection Ombudsman who
shall advocate for the interests of agency employees or
applicants who make protected disclosures of information,
educate agency personnel about prohibitions on retaliation
for protected disclosures, and advise agency employees,
applicants, or former employees who have made or are
contemplating making a protected disclosure.''.
(b) Central Intelligence Agency.--Section 17(e) of the
Central Intelligence Agency Act of 1949 (50 U.S.C. 403q(e))
is amended by adding at the end the following:
``(9) The Inspector General shall designate a Whistleblower
Protection Ombudsman who shall advocate for the interests of
agency employees or applicants who make protected disclosures
of information, educate agency personnel about prohibitions
on retaliation for protected disclosures, and advise agency
employees, applicants, or former employees who have made or
are contemplating making a protected disclosure.''.
(c) Application to Intelligence Community.--Notwithstanding
section 8K of the Inspector General Act of 1978 (5 U.S.C.
App.) or any other provision of law, the amendment made by
subsection (a) shall apply to each Office of Inspector
General of an element of the intelligence community (as
defined in section 3(4) of the National Security Act of 1947
(50 U.S.C. 401a(4))).
TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS
SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY
WHISTLEBLOWERS.
(a) In General.--Title I of the National Security Act of
1947 (50 U.S.C. 402 et seq.) is amended by adding at the end
the following:
``SEC. 120. INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION
BOARD.
``(a) Establishment.--There is established within the
Office of the Director of National Intelligence the
Intelligence Community Whistleblower Protection Board (in
this section referred to as the `Board') .
``(b) Membership.--(1) The Board shall consist of--
``(A) a Chairperson who shall be appointed by the
President, by and with the advice and consent of the Senate
(in this section referred to as the `Chairperson');
``(B) 2 members who shall be designated by the President--
``(i) from individuals serving as an inspectors general of
any agency or department of the United States who have been
appointed by the President, by and with the advice and
consent of the Senate; and
``(ii) after consultation with members of the Council of
Inspectors General on Integrity and Efficiency; and
``(C) 2 members who shall be appointed by the President, by
and with the advice and consent of the Senate, after
consultation with the Attorney General, the Director of
National Intelligence, and the Secretary of Defense.
``(D)(i) A member of the Board who serves as the inspector
general of an agency or department shall recuse themselves
from any matter brought to the Board by a former employee,
employee, or applicant of the agency or department for which
that member serves as inspector general.
``(2) The President shall designate 2 alternate members of
the Board from individuals serving as an inspector general of
an agency or department of the United States. If a member of
the Board recuses themselves from a matter pending before the
Board, an alternate shall serve in place of that member for
that matter.
``(3) The members of the Board shall be individuals of
sound and independent judgment who shall collectively possess
substantial experience in national security and personnel
matters.
``(4)(A) The Chairperson shall be compensated at a rate
equal to the daily equivalent of the annual rate of basic pay
prescribed for level III of the Executive Schedule under
section 5314 of title 5, United States Code, plus 3 percent
for each day (including travel time) during which the
Chairperson is engaged in the performance of the duties of
the Board.
``(B) The members designated under paragraph (1)(B) and
alternate members designated under paragraph (2) shall serve
without compensation in addition to that received for their
services as inspectors general.
``(C) The members appointed under paragraph (1)(C) shall--
``(i) perform their duties for a period not to exceed 130
days during any period of 365 consecutive days; and
``(ii) shall be compensated at the rate of pay for the
Chairperson specified in paragraph (A).
``(D)(i) The members of the Board shall serve 4-year terms
at the pleasure of the President, except that of the members
first appointed or designated--
``(I) the Chairperson shall have a term of 6 years;
``(II) 2 members shall have a term of 5 years; and
``(III) 2 members shall have a term of 4 years.
``(ii) A member designated under paragraph (1)(B) shall be
ineligible to serve on the Board if that member ceases to
serve as an inspector general for an agency or department of
the United States.
``(iii) A member of the Board may serve on the Board after
the expiration of the term of that member until a successor
for that member has taken office as a member of the Board.
``(iv) An individual appointed to fill a vacancy occurring,
other than by the expiration of a term of office, shall be
appointed only for the unexpired term of the member that
individual succeeds.
``(5) Three members shall constitute a quorum of the Board.
``(c) Resources and Authority.--(1) The Office of the
Director of National Intelligence shall provide the Board
with appropriate and adequate office space, together with
such equipment, office supplies, and communications
facilities and services as may be necessary for the operation
of the Board, and shall provide necessary maintenance
services for the Board and the equipment and facilities
located therein.
``(2)(A) For each fiscal year, the Chairperson shall
transmit a budget estimate and request to the Director of
National Intelligence. The budget request shall specify the
aggregate amount of funds requested for such fiscal year for
the operations of the Board.
``(B) In transmitting a proposed budget to the President
for approval, the Director of National Intelligence shall
include--
``(i) the amount requested by the Chairperson; and
``(ii) any comments of the Chairperson with respect to the
amount requested.
``(3) Subject to applicable law and the policies of the
Director of National Intelligence, the Chairperson, for the
purposes of enabling the Board to fulfill its statutorily
assigned functions, is authorized to select, appoint, and
employ such officers and employees as may be necessary for
carrying out the functions, powers, and duties of the Office.
``(4) In consultation with the Attorney General, the
Director of National Intelligence, and the Secretary of
Defense, the Board may promulgate rules, regulations, and
guidance and issue orders to fulfill its functions. The
Director of National Intelligence, Secretary of Defense, and
Attorney General shall jointly approve any rules,
regulations, or guidance issued under section 121(c)(1)(B).
``(5) The number of individuals employed by or on detail to
the Board shall not be counted against any limitation on the
number of personnel, positions, or full-time equivalents in
the Office of the Director of National Intelligence.
``SEC. 121. INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS.
``(a) Definitions.--In this section:
``(1) The term `agency' means an Executive department or
independent establishment, as defined under sections 101 and
104 of title 5, United States Code, that contains an
intelligence community element.
``(2) The term `intelligence community element' means--
``(A) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance Office; and
``(B) any executive agency or unit thereof determined by
the President under section 2302(a)(2)(C)(ii) of title 5,
United States Code, to have as its principal function the
conduct of foreign intelligence or counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action.
``(3) The term `personnel action'--
``(A) means any action taken against an employee of an
intelligence community element
[[Page S8814]]
that would be considered a personnel action, as defined in
section 2302(a)(2)(A) of title 5, United States Code, if
taken against an employee subject to such section 2302; and
``(B) shall not include the denial, suspension, or
revocation of a security clearance or denying access to
classified or sensitive information or a suspension with pay
pending an investigation.
``(4) The term `prohibited personnel practice' means any
action prohibited by subsection (b) of this section.
``(b) Prohibited Personnel Practices.--(1) No person who
has authority to take, direct others to take, recommend, or
approve any personnel action, shall, with respect to such
authority--
``(A) take or fail to take, or threaten to take or fail to
take, a personnel action with respect to any intelligence
community element employee or applicant for employment
because of--
``(i) any disclosure of information to an official of an
agency by an employee or applicant which the employee or
applicant reasonably believes evidences--
``(I) any violation of law, rule, or regulation except for
an alleged violation that is a minor, inadvertent violation,
and occurs during the conscientious carrying out of official
duties; or
``(II) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety,
if such disclosure is not specifically prohibited by law and
if such information is not specifically required by Executive
order to be kept secret in the interest of national defense
or the conduct of foreign affairs;
``(ii) any disclosure to the inspector general of an agency
or another employee designated by the head of the agency to
receive such disclosures, of information which the employee
or applicant reasonably believes evidences--
``(I) any violation of law, rule, or regulation, except for
an alleged violation that is a minor, inadvertent violation,
and occurs during the conscientious carrying out of official
duties; or
``(II) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety; or
``(iii) any communication that complies with subsection
(a)(1), (d), or (h) of section 8H of the Inspector General
Act of 1978 (5 U.S.C. App.) or that complies with
subparagraphs (A), (D), or (H) of section 17(d)(5) of the
Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); or
``(B) take or fail to take, or threaten to take or fail to
take, any personnel action against any intelligence community
element employee or applicant for employment because of--
``(i) the exercise of any appeal, complaint, or grievance
right granted by subsection (c);
``(ii) testifying for or otherwise lawfully assisting any
individual in the exercise of any right referred to in clause
(i); or
``(iii) cooperating with or disclosing information to the
inspector general of an agency in connection with an audit,
inspection, or investigation conducted by the inspector
general, in accordance with applicable provisions of law,
if the actions described under clauses (i), (ii), and (iii)
do not result in the employee or applicant unlawfully
disclosing information specifically required by Executive
order to be kept secret in the interest of national defense
or the conduct of foreign affairs or any other information
the disclosure of which is specifically prohibited by law.
``(2) A disclosure shall not be excluded from paragraph (1)
because--
``(A) the disclosure was made during the normal course of
the duties of the employee;
``(B) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
or applicant reasonably believed to be covered by paragraph
(1)(A)(ii);
``(C) the disclosure revealed information that had been
previously disclosed;
``(D) of the employee or applicant's motive for making the
disclosure;
``(E) the disclosure was not made in writing;
``(F) the disclosure was made while the employee was off
duty; or
``(G) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(3) Nothing in this subsection shall be construed to
authorize the withholding of information from the Congress or
the taking of any personnel action against an employee who
discloses information to the Congress.
``(c) Remedial Procedure.--(1)(A) An employee, applicant,
or former employee of an intelligence community element who
believes that such employee, applicant, or former employee
has been subjected to a prohibited personnel practice may
petition for an appeal of the personnel action to the agency
head or the designee of the agency head within 60 days after
discovery of the alleged adverse personnel action.
``(B) The appeal shall be conducted within the agency
according to rules of procedure issued by the Intelligence
Community Whistleblower Protection Board under section
120(c)(4). Those rules shall be based on those pertaining to
prohibited personnel practices defined under section
2302(b)(8) of title 5, United States Code, and provide--
``(i) for an independent and impartial fact-finder;
``(ii) for notice and the opportunity to be heard,
including the opportunity to present relevant evidence,
including witness testimony;
``(iii) that the employee, applicant, or former employee
may be represented by counsel;
``(iv) that the employee, applicant, or former employee has
a right to a decision based on the record developed during
the appeal;
``(v) that, unless agreed to by the employee and the agency
concerned, not more than 180 days shall pass from the filing
of the appeal to the report of the impartial fact-finder to
the agency head or the designee of the agency head;
``(vi) for the use of information specifically required by
Executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs in a manner
consistent with the interests of national security, including
ex parte submissions where the agency determines that the
interests of national security so warrant; and
``(vii) that the employee, applicant, or former employee
shall have no right to compel the production of information
specifically required by Executive order to be kept secret in
the interest of national defense or the conduct of foreign
affairs, except evidence necessary to establish that the
employee made the disclosure or communication such employee
alleges was protected by subsection (b)(1)(A).
``(C) If the Board certifies that agency procedures in
effect on the date of enactment of this section, including
procedures promulgated under section 2303 of title 5, United
States Code, before that date, adequately provide guaranties
required under subparagraph (B)(i) through (vi), the appeal
may be conducted according to those procedures.
``(2) On the basis of the record developed during the
appeal, the impartial fact-finder shall prepare a report to
the agency head or the designee of the agency head setting
forth findings, conclusions, and, if applicable, recommended
corrective action. After reviewing the record and the
impartial fact-finder's report, the agency head or the
designee of the agency head shall determine whether the
employee, former employee, or applicant has been subjected to
a prohibited personnel practice, and shall either issue an
order denying relief or shall implement corrective action to
return the employee, former employee, or applicant, as nearly
as practicable and reasonable, to the position such employee,
former employee, or applicant would have held had the
prohibited personnel practice not occurred. Such corrective
action shall include reasonable attorney's fees and any other
reasonable costs incurred, and may include back pay and
related benefits, travel expenses, and compensatory damages
not to exceed $300,000. Unless the employee, former employee,
or applicant consents, no more than 60 days shall pass from
the submission of the report by the impartial fact-finder to
the agency head and the final decision by the agency head or
the designee of the agency head.
``(3) In determining whether the employee, former employee,
or applicant has been subjected to a prohibited personnel
practice, the agency head or the designee of the agency head
shall find that a prohibited personnel practice occurred if a
disclosure described in subsection (b) was a contributing
factor in the personnel action which was taken against the
individual, unless the agency demonstrates by clear and
convincing evidence that it would have taken the same
personnel action in the absence of such disclosure.
``(4)(A) Any employee, former employee, or applicant
adversely affected or aggrieved by a final order or decision
of the agency head or the designee of the agency head under
paragraph (1) may appeal that decision to the Intelligence
Community Whistleblower Protection Board within 60 days after
the issuance of such order. Such appeal shall be conducted
under rules of procedure issued by the Board under section
120(c)(4).
``(B) The Board's review shall be on the agency record. The
Board may not hear witnesses or admit additional evidence.
Any portions of the record that were submitted ex parte
during the agency proceedings shall not be disclosed to the
employee, former employee, or applicant during proceedings
before the Board.
``(C) If the Board concludes that further fact-finding is
necessary or finds that the agency improperly denied the
employee, former employee, or applicant the opportunity to
present evidence that, if admitted, would have a substantial
likelihood of altering the outcome, the Board shall--
``(i) remand the matter to the agency from which it
originated for additional proceedings in accordance with the
rules of procedure issued by the Board; or
``(ii) refer the matter to another agency for additional
proceedings in accordance with the rules of procedure issued
by the Board.
``(D) The Board shall make a de novo determination, based
on the entire record, of whether the employee, former
employee, or applicant suffered a prohibited personnel
practice. In considering the record, the Board may weigh the
evidence, judge the credibility of witnesses, and determine
controverted questions of fact; in doing so, the Board may
consider the prior fact-finder's opportunity to see and hear
the witnesses.
``(E) On the basis of the agency record, the Board shall
determine whether the employee, former employee, or applicant
has been subjected to a prohibited personnel practice, and
shall either issue an order denying relief or shall order the
agency head to take specific corrective action to return the
employee, former employee, or applicant, as nearly as
practicable and reasonable, to the position such employee,
former employee, or applicant would have held had the
prohibited personnel practice not occurred. Such corrective
action shall include reasonable attorney's fees and any other
reasonable costs incurred, and may include back pay and
related benefits, travel expenses, and compensatory damages
not to exceed $300,000. The Board may recommend, but may not
order, reinstatement or hiring of a former employee or
applicant. The agency head shall take the actions so ordered,
unless the President determines that doing so would endanger
national security. Unless the employee, former employee, or
applicant consents, no more than 180 days shall pass from the
filing of the appeal with the Board to the final decision by
the Board. Any period of time during which the Board lacks a
sufficient number
[[Page S8815]]
of members to undertake a review shall be excluded from the
180-day period.
``(F) In determining whether the employee, former employee,
or applicant has been subjected to a prohibited personnel
practice, the agency head or the designee of the agency head
shall find that a prohibited personnel practice occurred if a
disclosure described in subsection (b) of this section was a
contributing factor in the personnel action which was taken
against the individual, unless the agency demonstrates by
clear and convincing evidence that it would have taken the
same personnel action in the absence of such disclosure.
``(5)(A)(i) During the 5-year period beginning on the
effective date of the Whistleblower Protection Enhancement
Act of 2009, an employee, former employee, applicant, or an
agency may file a petition to review a final order of the
Board in the United States Court of Appeals for the Federal
Circuit or the United States court of appeals for a circuit
in which the reprisal is alleged in the order to have
occurred. Notwithstanding any other provision of law, any
petition for review shall be filed within 60 days after the
date of issuance of the final order of the Board.
``(ii) After the 5-year period described under clause (i),
a petition to review a final order described under that
clause shall be filed in the United States Court of Appeals
for the Federal Circuit.
``(B) The court of appeals shall review the record and hold
unlawful and set aside any agency action, findings, or
conclusions found to be--
``(i) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
``(ii) obtained without procedures required by law, rule,
or regulation having been followed; or
``(iii) unsupported by substantial evidence.
``(C) Any portions of the record that were submitted ex
parte during the agency proceedings shall be submitted ex
parte to the Board and any reviewing court.
``(D) At the time the Board issues an order, the
Chairperson shall notify the chairpersons and ranking members
of--
``(i) the Committee on Homeland Security and Government
Affairs of the Senate;
``(ii) the Select Committee on Intelligence of the Senate;
``(iii) the Committee on Oversight and Government Reform of
the House of Representatives; and
``(iv) the Permanent Select Committee on Intelligence of
the House of Representatives.
``(d) Except as expressly provided in this section, there
shall be no judicial review of agency actions under this
section.
``(e) This section shall not apply to terminations executed
under--
``(1) section 1609 of title 10, United States Code;
``(2) the authority of the Director of National
Intelligence under section 102A(m) of this Act, if--
``(A) the Director personally summarily terminates the
individual; and
``(B) the Director--
``(i) determines the termination to be in the interest of
the United States;
``(ii) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
``(iii) notifies the congressional oversight committees of
such termination within 5 days after the termination;
``(3) the authority of the Director of the Central
Intelligence Agency under section 104A(e) of this Act, if--
``(A) the Director personally summarily terminates the
individual; and
``(B) the Director--
``(i) determines the termination to be in the interest of
the United States;
``(ii) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
``(iii) notifies the congressional oversight committees of
such termination within 5 days after the termination; or
``(4) section 7532 of title 5, United States Code, if--
``(A) the agency head personally summarily terminates the
individual; and
``(B) the agency head--
``(i) determines the termination to be in the interest of
the United States,
``(ii) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
``(iii) notifies the congressional oversight committees of
such termination within 5 days after the termination.
``(f) If an employee, former employee, or applicant seeks
to challenge both a prohibited personnel practice under this
section and an adverse security clearance or access
determination under section 3001(j) of the Intelligence
Reform and Terrorism Prevention Act of 2004 (50 U.S.C.
435b(j)), the employee shall bring both claims under the
procedure set forth in 3001(j) of that Act for challenging an
adverse security clearance or access determination. If the
Board awards compensatory damages for such claim or claims,
the total amount of compensatory damages ordered shall not
exceed $300,000.''.
(b) Repeal of Section 2303.--
(1) In general.--Title 5, United States Code is amended--
(A) by striking section 2303; and
(B) by striking the item relating to section 2303 in the
table of sections for chapter 23 of that title.
(2) Effective date.--This paragraph shall take effect on
the date on which rules are issued as required under section
121(c)(1)(B) of the National Security Act of 1947 (as added
by this Act).
(c) Technical and Conforming Amendment.--The table of
contents for the National Security Act of 1947 (50 U.S.C. 401
note) is amended by inserting after the item relating to
section 119B the following:
``Sec. 120. Intelligence Community Whistleblower Protection Board.
``Sec. 121. Intelligence community whistleblower protections.''.
SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS
DETERMINATIONS.
(a) In General.--Section 3001(b) of the Intelligence Reform
and Terrorism Prevention Act of 2004 (50 U.S.C. 435b(b)) is
amended--
(1) in the matter preceding paragraph (1), by striking
``Not'' and inserting ``Except as otherwise provided, not'';
(2) in paragraph (5), by striking ``and'' after the
semicolon;
(3) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(4) by inserting after paragraph (6) the following:
``(7) not later than 30 days after the date of enactment of
the Whistleblower Protection Enhancement Act of 2009--
``(A) developing policies and procedures that permit, to
the extent practicable, individuals who challenge in good
faith a determination to suspend or revoke a security
clearance or access to classified information to retain their
government employment status while such challenge is pending;
and
``(B) developing and implementing uniform and consistent
policies and procedures to ensure proper protections during
the process for denying, suspending, or revoking a security
clearance or access to classified information, including the
provision of a right to appeal such a denial, suspension, or
revocation, except that there shall be no appeal of an
agency's suspension of a security clearance or access
determination for purposes of conducting an investigation, if
that suspension lasts no longer than 1 year, including such
policies and procedures for appeals based on those pertaining
to prohibited personnel practices defined under section
2302(b)(8) of title 5, United States Code, and that provide--
``(i) for an independent and impartial fact-finder;
``(ii) for notice and the opportunity to be heard,
including the opportunity to present relevant evidence,
including witness testimony;
``(iii) that the employee, applicant, or former employee
may be represented by counsel;
``(iv) that the employee, applicant, or former employee has
a right to a decision based on the record developed during
the appeal;
``(v) that, unless agreed to by the employee and the agency
concerned, no more than 180 days shall pass from the filing
of the appeal to the report of the impartial fact finder to
the agency head or the designee of the agency head;
``(vi) for the use of information specifically required by
Executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs in a manner
consistent with the interests of national security, including
ex parte submissions if the agency determines that the
interests of national security so warrant; and
``(vii) that the employee, applicant, or former employee
shall have no right to compel the production of information
specifically required by Executive order to be kept secret in
the interest of national defense or the conduct of foreign
affairs, except evidence necessary to establish that the
employee made the disclosure or communication such employee
alleges was protected by subparagraphs (A), (B), and (C) of
subsection (j)(1).''.
(b) Retaliatory Revocation of Security Clearances and
Access Determinations.--Section 3001 of the Intelligence
Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b)
is amended by adding at the end the following:
``(j) Retaliatory Revocation of Security Clearances and
Access Determinations.--
``(1) In general.--Agency personnel with authority over
personnel security clearance or access determinations shall
not take or fail to take, or threaten to take or fail to
take, any action with respect to any employee or applicant's
security clearance or access determination because of--
``(A) any disclosure of information to an official of an
Executive agency by an employee or applicant which the
employee or applicant reasonably believes evidences--
``(i) a violation of any law, rule, or regulation, except
for an alleged violation that is a minor, inadvertent
violation, and occurs during the conscientious carrying out
of official duties; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety,
if such disclosure is not specifically prohibited by law and
if such disclosure does not reveal information specifically
authorized under criteria established by statute, Executive
Order, Presidential directive, or Presidential memorandum to
be kept secret in the interest of national defense or the
conduct of foreign affairs;
``(B) any disclosure to the Inspector General of an agency
or another employee designated by the head of the agency to
receive such disclosures, of information which the employee
or applicant reasonably believes evidences--
``(i) a violation of any law, rule, or regulation, except
for an alleged violation that is a minor, inadvertent
violation, and occurs during the conscientious carrying out
of official duties; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety;
[[Page S8816]]
``(C) any communication that complies with subsection
(a)(1), (d), or (h) of section 8H of the Inspector General
Act of 1978 (5 U.S.C. App.) or that complies with subsection
(d)(5)(A), (D), or (H) of section 17 of the Central
Intelligence Agency Act of 1949 (50 U.S.C. 403q);
``(D) the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation;
``(E) testifying for or otherwise lawfully assisting any
individual in the exercise of any right referred to in
subparagraph (D); or
``(F) cooperating with or disclosing information to the
inspector general of an agency, in accordance with applicable
provisions of law in connection with an audit, inspection, or
investigation conducted by the inspector general,
if the actions described under subparagraphs (D) through (F)
do not result in the employee or applicant unlawfully
disclosing information specifically authorized under criteria
established by Executive Order, statute, Presidential
Directive, or Presidential memorandum to be kept secret in
the interest of national defense or the conduct of foreign
affairs.
Nothing in this paragraph shall be construed to authorize the
withholding of information from the Congress or the taking of
any personnel action against an employee who discloses
information to the Congress.
``(2) Disclosures.--A disclosure shall not be excluded from
paragraph (1) because--
``(A) the disclosure was made during the normal course of
the duties of the employee;
``(B) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
or applicant reasonably believed to be covered by paragraph
(1)(A)(ii);
``(C) the disclosure revealed information that had been
previously disclosed;
``(D) of the employee or applicant's motive for making the
disclosure;
``(E) the disclosure was not made in writing;
``(F) the disclosure was made while the employee was off
duty; or
``(G) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(3) Agency adjudication.--
``(A) Appeal.--An employee, former employee, or applicant
for employment who believes that he or she has been subjected
to a reprisal prohibited by paragraph (1) of this subsection
may, within 60 days after the issuance of notice of such
decision, appeal that decision within the agency of that
employee, former employee, or applicant through proceedings
authorized by paragraph (8) of subsection (b), except that
there shall be no appeal of an agency's suspension of a
security clearance or access determination for purposes of
conducting an investigation, if that suspension lasts no
longer than 1 year.
``(B) Corrective action.--If, in the course of proceedings
authorized under subparagraph (A), it is determined that the
adverse security clearance or access determination violated
paragraph (1) of this subsection, the agency shall take
specific corrective action to return the employee, former
employee, or applicant, as nearly as practicable and
reasonable, to the position such employee, former employee,
or applicant would have held had the violation not occurred.
Such corrective action shall include reasonable attorney's
fees and any other reasonable costs incurred, and may include
back pay and related benefits, travel expenses, and
compensatory damages not to exceed $300,000.
``(C) Contributing factor.--In determining whether the
adverse security clearance or access determination violated
paragraph (1) of this subsection, the agency shall find that
paragraph (1) of this subsection was violated if a disclosure
described in paragraph (1) was a contributing factor in the
adverse security clearance or access determination taken
against the individual, unless the agency demonstrates by a
preponderance of the evidence that it would have taken the
same action in the absence of such disclosure, giving the
utmost deference to the agency's assessment of the particular
threat to the national security interests of the United
States in the instant matter.
``(4) Review by the intelligence community whistleblower
protection board.--
``(A) Appeal.--Within 60 days after receiving notice of an
adverse final agency determination under a proceeding under
paragraph (3), an employee, former employee, or applicant for
employment may appeal that determination to the Intelligence
Community Whistleblower Protection Board.
``(B) Policies and procedures.--The Board, in consultation
with the Attorney General, Director of National Intelligence,
and the Secretary of Defense, shall develop and implement
policies and procedures for adjudicating the appeals
authorized by subparagraph (A). The Director of National
Intelligence and Secretary of Defense shall jointly approve
any rules, regulations, or guidance issued by the Board
concerning the procedures for the use or handling of
classified information.
``(C) Review.--The Board's review shall be on the complete
agency record, which shall be made available to the Board.
The Board may not hear witnesses or admit additional
evidence. Any portions of the record that were submitted ex
parte during the agency proceedings shall be submitted ex
parte to the Board.
``(D) Further fact-finding or improper denial.--If the
Board concludes that further fact-finding is necessary or
finds that the agency improperly denied the employee or
former employee the opportunity to present evidence that, if
admitted, would have a substantial likelihood of altering the
outcome, the Board shall--
``(i) remand the matter to the agency from which it
originated for additional proceedings in accordance with the
rules of procedure issued by the Board; or
``(ii) refer the case to an intelligence community agency
for additional proceedings in accordance with the rules of
procedure issued by the Board.
``(E) De novo determination.--The Board shall make a de
novo determination, based on the entire record, of whether
the employee, former employee, or applicant received an
adverse security clearance or access determination in
violation of paragraph (1). In considering the record, the
Board may weigh the evidence, judge the credibility of
witnesses, and determine controverted questions of fact. In
doing so, the Board may consider the prior fact-finder's
opportunity to see and hear the witnesses.
``(F) Adverse security clearance or access determination.--
If the Board finds that the adverse security clearance or
access determination violated paragraph (1), it shall then
separately determine whether reinstating the security
clearance or access determination is clearly consistent with
the interests of national security, with any doubt resolved
in favor of national security, under Executive Order 12968
(including any adjudicative guidelines promulgated under such
orders) or any subsequent Executive order, regulation, or
policy concerning access to classified information.
``(G) Remedies.--
``(i) Corrective action.--If the Board finds that the
adverse security clearance or access determination violated
paragraph (1), it shall order the agency head to take
specific corrective action to return the employee, former
employee, or applicant, as nearly as practicable and
reasonable, to the position such employee, former employee,
or applicant would have held had the violation not occurred.
Such corrective action shall include reasonable attorney's
fees and any other reasonable costs incurred, and may include
back pay and related benefits, travel expenses, and
compensatory damages not to exceed $300,000. The Board may
recommend, but may not order, reinstatement or hiring of a
former employee or applicant, and any relief shall not
include the reinstating of any security clearance or access
determination. The agency head shall take the actions so
ordered, unless the President determines that doing so would
endanger national security.
``(ii) Recommended action.--If the Board finds that
reinstating the employee, former employee, or applicant's
security clearance or access determination is clearly
consistent with the interests of national security, it shall
recommend such action to the head of the entity selected
under subsection (b) and the head of the affected agency.
``(H) Congressional notification.--
``(i) Orders.--At the time the Board issues an order, the
Chairperson of the Board shall notify the chairpersons and
ranking members of--
``(I) the Committee on Homeland Security and Government
Affairs of the Senate;
``(II) the Select Committee on Intelligence of the Senate;
``(III) the Committee on Oversight and Government Reform of
the House of Representatives; and
``(IV) the Permanent Select Committee on Intelligence of
the House of Representatives.
``(ii) Recommendations.--If the agency head and the head of
the entity selected under subsection (b) do not follow the
Board's recommendation to reinstate a clearance, the head of
the entity selected under subsection (b) shall notify the
chairpersons and ranking members of the committees described
in subclauses (I) through (IV) of clause (i).
``(5) Judicial review.--Nothing in this section should be
construed to permit or require judicial review of agency or
Board actions under this section.
``(6) Nonapplicability to certain terminations.--This
section shall not apply to adverse security clearance or
access determinations if the affected employee is
concurrently terminated under--
``(A) section 1609 of title 10, United States Code;
``(B) the authority of the Director of National
Intelligence under section 102A(m) of the National Security
Act of 1947 (50 U.S.C. 403-1(m)), if--
``(i) the Director personally summarily terminates the
individual; and
``(ii) the Director--
``(I) determines the termination to be in the interest of
the United States;
``(II) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security, and
``(III) notifies the congressional oversight committees of
such termination within 5 days after the termination;
``(C) the authority of the Director of the Central
Intelligence Agency under section 104A(e) of the National
Security Act of 1947 (50 U.S.C. 403-4a(e)), if--
``(i) the Director personally summarily terminates the
individual; and
``(ii) the Director--
``(I) determines the termination to be in the interest of
the United States;
``(II) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
``(III) notifies the congressional oversight committees of
such termination within 5 days after the termination; or
``(D) section 7532 of title 5, United States Code, if--
``(i) the agency head personally summarily terminates the
individual; and
``(ii) the agency head--
``(I) determines the termination to be in the interest of
the United States;
``(II) determines that the procedures prescribed in other
provisions of law that authorize
[[Page S8817]]
the termination of the employment of such employee cannot be
invoked in a manner consistent with the national security;
and
``(III) notifies the congressional oversight committees of
such termination within 5 days after the termination.''.
SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE COMMUNITY
WHISTLEBLOWER PROTECTION ACT.
(a) In General.--Section 8H of the Inspector General Act of
1978 (5 U.S.C. App.) is amended--
(1) in subsection (b)--
(A) by inserting ``(1)'' after ``(b)''; and
(B) by adding at the end the following:
``(2) If the head of an establishment determines that a
complaint or information transmitted under paragraph (1)
would create a conflict of interest for the head of the
establishment, the head of the establishment shall return the
complaint or information to the Inspector General with that
determination and the Inspector General shall make the
transmission to the Chair of the Intelligence Community
Whistleblower Protection Board. In such a case, the
requirements of this section for the head of the
establishment apply to the recipient of the Inspector
General's transmission. The Chair shall consult with the
other members of the Intelligence Community Whistleblower
Protection Board regarding all transmissions under this
paragraph.'';
(2) by designating subsection (h) as subsection (i); and
(3) by inserting after subsection (g), the following:
``(h) An individual who has submitted a complaint or
information to an inspector general under this section may
notify any member of Congress or congressional staff member
of the fact that such individual has made a submission to
that particular inspector general, and of the date on which
such submission was made.''.
(b) Central Intelligence Agency.--Section 17(d)(5) of the
Central Intelligence Agency Act of 1949 (50 U.S.C. 403q) is
amended--
(1) in subparagraph (B)--
(A) by inserting ``(i)'' after ``(B)''; and
(B) by adding at the end the following:
``(ii) If the Director determines that a complaint or
information transmitted under paragraph (1) would create a
conflict of interest for the Director, the Director shall
return the complaint or information to the Inspector General
with that determination and the Inspector General shall make
the transmission to the Chair of the Intelligence Community
Whistleblower Protection Board. In such a case--
``(I) the requirements of this subsection for the Director
apply to the recipient of the Inspector General's submission;
and
``(II) the Chairperson shall consult with the other members
of the Intelligence Community Whistleblower Protection Board
regarding all submissions under this section.''; and
(2) by adding at the end the following:
``(H) An individual who has submitted a complaint or
information to the Inspector General under this section may
notify any member of Congress or congressional staff member
of the fact that such individual has made a submission to the
Inspector General, and of the date on which such submission
was made.''.
TITLE III--EFFECTIVE DATE
SEC. 301. EFFECTIVE DATE.
This Act shall take effect 30 days after the date of
enactment of this Act.
Retaliatory Investigation Provisions
Mr. GRASSLEY. Mr. President, the Whistleblower Protection Enhancement
Act, S. 372, will strengthen and modernize protections for Federal
whistleblowers. May I ask the Senator from Hawaii to clarify the intent
of the provision providing relief for the consequences of retaliatory
investigations? Am I correct that this provision does not in any way
reduce or eliminate current protections against retaliatory
investigations?
Mr. AKAKA. The Senator from Iowa is correct. Remedies in S. 372
provide relief for the consequences of preliminary retaliatory
investigations when an employee prevails in litigation against a
prohibited personnel practice. This provision does not in any way
reduce or eliminate jurisdiction to challenge a retaliatory
investigation before a formal personnel action occurs.
In legislative history for 1994 amendments to the Whistleblower
Protection Act, Representative McCloskey stated that alleged harassment
can be a threatened personnel action if it ``is discriminatory, or
could have a chilling effect on merit system duties and
responsibilities.'' Congress specifically included retaliatory
investigations initiated because of protected activity among the
illustrations for ``threatened personnel actions,'' because they can be
``preludes or preconditions to'' the entire list of formal personnel
actions in section 2302(a)(2) of title 5. Jurisdiction to challenge
retaliatory investigations as threatened personnel actions has been
upheld repeatedly. The Office of Special Counsel also has used this
authority to avoid the need for prolonged, costly litigation while
employees are off the job from subsequent termination.
Mr. LEAHY. Mr. President, today, the Senate will finally pass the
bipartisan Whistleblower Protection Enhancement Act of 2010, S. 372. I
thank Senator Akaka and Senator Collins for their dedication to this
legislation and for working with me and Senator Grassley on key changes
to make the bill even stronger in its protection of whistleblowers. I
have worked for years to protect whistleblowers from retaliation,
whether by government or corporate employers, and this bill is an
important step forward in that ongoing process.
Whistleblowers are instrumental in alerting the public and Congress
to wrongdoing in Federal agencies. In many cases, their willingness to
step forward has resulted in important governmental reform, and has
even saved lives. Congress must encourage Federal employees with
reasonable beliefs about government misconduct to report such fraud or
abuse by offering meaningful protection to those who blow the whistle,
rather than leaving them vulnerable to reprisals.
Unfortunately, whistleblower laws have been weakened by many court
decisions that have ignored congressional intent and eroded employee
protections. The Whistleblower Protection Enhancement Act will help
restore and expand the protections for Federal employees envisioned by
the original Whistleblower Protection Act of 1989.
Key provisions of the Whistleblower Protection Enhancement Act will
offer additional methods to appeal whistleblower cases and provide
additional protections to intelligence community employees and officers
of the Transportation Security Administration. It will also correct the
Federal circuit court's repeated misinterpretations of the
whistleblower law and suspend that court's sole jurisdiction over
Federal employee whistleblower cases for 5 years.
Whistleblowers have proven to be important catalysts for much needed
government change over the years. From corporate fraud to governmental
misconduct to media integrity, whistleblowers have played an integral
role in galvanizing reform. In these difficult financial times, we must
be especially vigilant to ensure that public resources are not lost to
waste, fraud, and abuse. Restoring credibility to our whistleblower
laws is an important part of that work. Before Congress adjourns, I
hope the House of Representatives will quickly consider this
legislation, and send it to the President to be signed into law.
Mrs. GILLIBRAND. I ask consent the committee-reported substitute
amendment be considered, the Akaka amendment at the desk be agreed to
and the committee-reported substitute amendment, as amended, be agreed
to, and the bill as amended be read a third time and passed, the
motions to reconsider be laid upon the table with no intervening action
or debate, and any statements be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 4760, in the nature of a substitute, was agreed
to.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
The committee amendment in the nature of a substitute, as amended,
was agreed to.
The bill (S. 372), as amended, was ordered to be engrossed for a
third reading, was read the third time, and passed, as follows:
S. 372
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Whistleblower Protection
Enhancement Act of 2010''.
TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES
SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.
(a) In General.--Section 2302(b)(8) of title 5, United
States Code, is amended--
(1) in subparagraph (A)(i)--
(A) by striking ``a violation'' and inserting ``any
violation''; and
(B) by adding ``except for an alleged violation that is a
minor, inadvertent violation, and occurs during the
conscientious carrying out of official duties,'' after
``regulation,''; and
(2) in subparagraph (B)(i)--
(A) by striking ``a violation'' and inserting ``any
violation (other than a violation of this section)''; and
(B) by adding ``except for an alleged violation that is a
minor, inadvertent violation,
[[Page S8818]]
and occurs during the conscientious carrying out of official
duties,'' after regulation,''.
(b) Prohibited Personnel Practices Under Section
2302(b)(9).--
(1) Technical and conforming amendments.--Title 5, United
States Code, is amended in subsections (a)(3), (b)(4)(A), and
(b)(4)(B)(i) of section 1214, in subsections (a), (e)(1), and
(i) of section 1221, and in subsection (a)(2)(C)(i) of
section 2302, by inserting ``or section 2302(b)(9) (A)(i),
(B), (C), or (D)'' after ``section 2302(b)(8)'' or ``(b)(8)''
each place it appears.
(2) Other references.--(A) Title 5, United States Code, is
amended in subsection (b)(4)(B)(i) of section 1214 and in
subsection (e)(1) of section 1221, by inserting ``or
protected activity'' after ``disclosure'' each place it
appears.
(B) Section 2302(b)(9) of title 5, United States Code, is
amended--
(i) by striking subparagraph (A)and inserting the
following:
``(A) the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation--
``(i) with regard to remedying a violation of paragraph
(8); or
``(ii) with regard to remedying a violation of any other
law, rule, or regulation;''; and
(ii) in subparagraph (B), by inserting ``(i) or (ii)''
after ``subparagraph (A)''.
(C) Section 2302 of title 5, United States Code, is amended
by adding at the end the following:
``(f)(1) A disclosure shall not be excluded from subsection
(b)(8) because--
``(A) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
or applicant reasonably believed to be covered by subsection
(b)(8)(A)(ii);
``(B) the disclosure revealed information that had been
previously disclosed;
``(C) of the employee's or applicant's motive for making
the disclosure;
``(D) the disclosure was not made in writing;
``(E) the disclosure was made while the employee was off
duty; or
``(F) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(2) If a disclosure is made during the normal course of
duties of an employee, the disclosure shall not be excluded
from subsection (b)(8) if any employee who has authority to
take, direct others to take, recommend, or approve any
personnel action with respect to the employee making the
disclosure, took, failed to take, or threatened to take or
fail to take a personnel action with respect to that employee
in reprisal for the disclosure.''.
SEC. 102. DEFINITIONAL AMENDMENTS.
Section 2302(a)(2) of title 5, United States Code, is
amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee or applicant
providing the disclosure reasonably believes that the
disclosure evidences--
``(i) any violation of any law, rule, or regulation, except
for an alleged violation that is a minor, inadvertent
violation, and occurs during the conscientious carrying out
of official duties; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.''.
SEC. 103. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended
by amending the matter following paragraph (12) to read as
follows:
``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses
information to Congress. For purposes of paragraph (8), any
presumption relating to the performance of a duty by an
employee whose conduct is the subject of a disclosure as
defined under subsection (a)(2)(D) may be rebutted by
substantial evidence. For purposes of paragraph (8), a
determination as to whether an employee or applicant
reasonably believes that such employee or applicant has
disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety shall be made by
determining whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by
the employee could reasonably conclude that the actions of
the Government evidence such violations, mismanagement,
waste, abuse, or danger.''.
SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL
PRACTICES.
(a) Personnel Action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(1) in clause (x), by striking ``and'' after the semicolon;
and
(2) by redesignating clause (xi) as clause (xii) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and''.
(b) Prohibited Personnel Practice.--
(1) In general.--Section 2302(b) of title 5, United States
Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
``; or''; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by Executive Order 13526 (75 Fed. Reg.
707; relating to classified national security information),
or any successor thereto; Executive Order 12968 (60 Fed. Reg.
40245; relating to access to classified information), or any
successor thereto; section 7211 of title 5, United States
Code (governing disclosures to Congress); section 1034 of
title 10, United States Code (governing disclosure to
Congress by members of the military); section 2302(b)(8) of
title 5, United States Code (governing disclosures of
illegality, waste, fraud, abuse, or public health or safety
threats); the Intelligence Identities Protection Act of 1982
(50 U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes
which protect against disclosures that could compromise
national security, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)).
The definitions, requirements, obligations, rights,
sanctions, and liabilities created by such Executive order
and such statutory provisions are incorporated into this
agreement and are controlling.' ''.
(2) Nondisclosure policy, form, or agreement in effect
before the date of enactment.--A nondisclosure policy, form,
or agreement that was in effect before the date of enactment
of this Act, but that does not contain the statement required
under section 2302(b)(13) of title 5, United States Code, (as
added by this Act) for implementation or enforcement--
(A) may be enforced with regard to a current employee if
the agency gives such employee notice of the statement; and
(B) may continue to be enforced after the effective date of
this Act with regard to a former employee if the agency posts
notice of the statement on the agency website for the 1-year
period following that effective date.
(c) Retaliatory Investigations.--
(1) Agency investigation.--Section 1214 of title 5, United
States Code, is amended by adding at the end the following:
``(h) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.''.
(2) Damages.--Section 1221(g) of title 5, United States
Code, is amended by adding at the end the following:
``(4) Any corrective action ordered under this section to
correct a prohibited personnel practice may include fees,
costs, or damages reasonably incurred due to an agency
investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the
disclosure or protected activity that formed the basis of the
corrective action.''.
SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.
Section 2302(a)(2)(C) of title 5, United States Code, is
amended by striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National
Security Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance Office; and
``(II) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, provided that the determination be made prior to
a personnel action; or''.
SEC. 106. DISCIPLINARY ACTION.
Section 1215(a)(3) of title 5, United States Code, is
amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case brought under paragraph (1) in which the
Board finds that an employee has committed a prohibited
personnel practice under section 2302(b)(8), or 2302(b)(9)
(A)(i), (B), (C), or (D), the Board may impose disciplinary
action if the Board finds that the activity protected under
section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D)
was a significant motivating factor, even if other factors
also motivated the decision, for the employee's decision to
take, fail to take,
[[Page S8819]]
or threaten to take or fail to take a personnel action,
unless that employee demonstrates, by preponderance of
evidence, that the employee would have taken, failed to take,
or threatened to take or fail to take the same personnel
action, in the absence of such protected activity.''.
SEC. 107. REMEDIES.
(a) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party was employed or
had applied for employment at the time of the events giving
rise to the case''.
(b) Damages.--Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of
title 5, United States Code, are amended by striking all
after ``travel expenses,'' and inserting ``any other
reasonable and foreseeable consequential damages, and
compensatory damages (including interest, reasonable expert
witness fees, and costs).'' each place it appears.
SEC. 108. JUDICIAL REVIEW.
(a) In General.--Section 7703(b) of title 5, United States
Code, is amended by striking the matter preceding paragraph
(2) and inserting the following:
``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2) of this subsection, a petition to review a
final order or final decision of the Board shall be filed in
the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review shall be filed within 60 days after the Board issues
notice of the final order or decision of the Board.
``(B) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2010,
a petition to review a final order or final decision of the
Board that raises no challenge to the Board's disposition of
allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section
2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) shall be
filed in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as
provided under paragraph (2).''.
(b) Review Obtained by Office of Personnel Management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the Board issues notice of the final order or decision
of the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit if the
Director determines, in the discretion of the Director, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals. The granting of the petition for
judicial review shall be at the discretion of the Court of
Appeals.
``(2) During the 5-year period beginning on the effective
date of the Whistleblower Protection Enhancement Act of 2010,
this paragraph shall apply to any review obtained by the
Director of the Office of Personnel Management that raises no
challenge to the Board's disposition of allegations of a
prohibited personnel practice described in section 2302(b)
other than practices described in section 2302(b)(8), or
2302(b)(9) (A)(i), (B), (C), or (D). The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the Board issues notice of the final order or decision
of the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction as provided under
subsection (b)(2) if the Director determines, in the
discretion of the Director, that the Board erred in
interpreting a civil service law, rule, or regulation
affecting personnel management and that the Board's decision
will have a substantial impact on a civil service law, rule,
regulation, or policy directive. If the Director did not
intervene in a matter before the Board, the Director may not
petition for review of a Board decision under this section
unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.
In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the
right to appear in the proceeding before the court of
appeals. The granting of the petition for judicial review
shall be at the discretion of the court of appeals.''.
SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE
TRANSPORTATION SECURITY ADMINISTRATION.
(a) In General.--Chapter 23 of title 5, United States Code,
is amended--
(1) by redesignating sections 2304 and 2305 as sections
2305 and 2306, respectively; and
(2) by inserting after section 2303 the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of
law, any individual holding or applying for a position within
the Transportation Security Administration shall be covered
by--
``(1) the provisions of section 2302(b) (1), (8), and (9);
``(2) any provision of law implementing section 2302(b)
(1), (8), or (9) by providing any right or remedy available
to an employee or applicant for employment in the civil
service; and
``(3) any rule or regulation prescribed under any provision
of law referred to in paragraph (1) or (2).
``(b) Rule of Construction.--Nothing in this section shall
be construed to affect any rights, apart from those described
in subsection (a), to which an individual described in
subsection (a) might otherwise be entitled under law.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 23 of title 5, United States Code, is
amended by striking the items relating to sections 2304 and
2305, respectively, and by inserting the following:
``2304. Prohibited personnel practices affecting the Transportation
Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.
(c) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this section.
SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH,
ANALYSIS, OR TECHNICAL INFORMATION.
(a) Definitions.--In this subsection--
(1) the term ``agency'' has the meaning given under section
2302(a)(2)(C) of title 5, United States Code;
(2) the term ``applicant'' means an applicant for a covered
position;
(3) the term ``censorship related to research, analysis, or
technical information'' means any effort to distort,
misrepresent, or suppress research, analysis, or technical
information;
(4) the term ``covered position'' has the meaning given
under section 2302(a)(2)(B) of title 5, United States Code;
(5) the term ``employee'' means an employee in a covered
position in an agency; and
(6) the term ``disclosure'' has the meaning given under
section 2302(a)(2)(D) of title 5, United States Code.
(b) Protected Disclosure.--
(1) In general.--Any disclosure of information by an
employee or applicant for employment that the employee or
applicant reasonably believes is evidence of censorship
related to research, analysis, or technical information--
(A) shall come within the protections of section
2302(b)(8)(A) of title 5, United States Code, if--
(i) the employee or applicant reasonably believes that the
censorship related to research, analysis, or technical
information is or will cause--
(I) any violation of law, rule, or regulation, except for
an alleged violation that is a minor, inadvertent violation,
and occurs during the conscientious carrying out of official
duties; or
(II) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; and
(ii) such disclosure is not specifically prohibited by law
or such information is not specifically required by Executive
order to be kept classified in the interest of national
defense or the conduct of foreign affairs; and
(B) shall come within the protections of section
2302(b)(8)(B) of title 5, United States Code, if--
(i) the employee or applicant reasonably believes that the
censorship related to research, analysis, or technical
information is or will cause--
(I) any violation of law, rule, or regulation, except for
an alleged violation that is a minor, inadvertent violation,
and occurs during the conscientious carrying out of official
duties; or
(II) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety; and
(ii) the disclosure is made to the Special Counsel, or to
the Inspector General of an agency or another person
designated by the head of the agency to receive such
disclosures, consistent with the protection of sources and
methods.
(2) Disclosures not excluded.--A disclosure shall not be
excluded from paragraph (1) for any reason described under
section 2302(f)(1) or (2) of title 5, United States Code.
(3) Rule of construction.--Nothing in this section shall be
construed to imply any limitation on the protections of
employees and applicants afforded by any other provision of
law, including protections with respect to any disclosure of
information believed to be evidence of censorship related to
research, analysis, or technical information.
SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL
INFRASTRUCTURE INFORMATION.
Section 214(c) of the Homeland Security Act of 2002 (6
U.S.C. 133(c)) is amended by adding at the end the following:
``For purposes of this section a permissible use of
[[Page S8820]]
independently obtained information includes the disclosure of
such information under section 2302(b)(8) of title 5, United
States Code.''.
SEC. 112. ADVISING EMPLOYEES OF RIGHTS.
Section 2302(c) of title 5, United States Code, is amended
by inserting ``, including how to make a lawful disclosure of
information that is specifically required by law or Executive
order to be kept classified in the interest of national
defense or the conduct of foreign affairs to the Special
Counsel, the Inspector General of an agency, Congress, or
other agency employee designated to receive such
disclosures'' after ``chapter 12 of this title''.
SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.
Section 1212 of title 5, United States Code, is amended by
adding at the end the following:
``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to any civil action brought in connection with
section 2302(b) (8) or (9), or as otherwise authorized by
law. In any such action, the Special Counsel is authorized to
present the views of the Special Counsel with respect to
compliance with section 2302(b) (8) or (9) and the impact
court decisions would have on the enforcement of such
provisions of law.
``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such
action for the purposes described under subsection (a).''.
SEC. 114. SCOPE OF DUE PROCESS.
(a) Special Counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(b) Individual Action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.
(a) In General.--
(1) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These restrictions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
Executive Order 13526 (75 Fed. Reg. 707; relating to
classified national security information), or any successor
thereto; Executive Order 12968 (60 Fed. Reg. 40245; relating
to access to classified information), or any successor
thereto; section 7211 of title 5, United States Code
(governing disclosures to Congress); section 1034 of title
10, United States Code (governing disclosure to Congress by
members of the military); section 2302(b)(8) of title 5,
United States Code (governing disclosures of illegality,
waste, fraud, abuse, or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50 U.S.C. 421
et seq.) (governing disclosures that could expose
confidential Government agents); and the statutes which
protect against disclosure that may compromise the national
security, including sections 641, 793, 794, 798, and 952 of
title 18, United States Code, and section 4(b) of the
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.''.
(2) Enforceability.--
(A) In general.--Any nondisclosure policy, form, or
agreement described under paragraph (1) that does not contain
the statement required under paragraph (1) may not be
implemented or enforced to the extent such policy, form, or
agreement is inconsistent with that statement.
(B) Nondisclosure policy, form, or agreement in effect
before the date of enactment.--A nondisclosure policy, form,
or agreement that was in effect before the date of enactment
of this Act, but that does not contain the statement required
under paragraph (1)--
(i) may be enforced with regard to a current employee if
the agency gives such employee notice of the statement; and
(ii) may continue to be enforced after the effective date
of this Act with regard to a former employee if the agency
posts notice of the statement on the agency website for the
1-year period following that effective date.
(b) Persons Other Than Government Employees.--
Notwithstanding subsection (a), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the United
States Government, may contain provisions appropriate to the
particular activity for which such document is to be used.
Such policy, form, or agreement shall, at a minimum, require
that the person will not disclose any classified information
received in the course of such activity unless specifically
authorized to do so by the United States Government. Such
nondisclosure policy, form, or agreement shall also make it
clear that such forms do not bar disclosures to Congress or
to an authorized official of an executive agency or the
Department of Justice that are essential to reporting a
substantial violation of law, consistent with the protection
of sources and methods.
SEC. 116. REPORTING REQUIREMENTS.
(a) Government Accountability Office.--
(1) Report.--Not later than 40 months after the date of
enactment of this Act, the Comptroller General shall submit a
report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives on the
implementation of this title.
(2) Contents.--The report under this paragraph shall
include--
(A) an analysis of any changes in the number of cases filed
with the United States Merit Systems Protection Board
alleging violations of section 2302(b) (8) or (9) of title 5,
United States Code, since the effective date of this Act;
(B) the outcome of the cases described under subparagraph
(A), including whether or not the United States Merit Systems
Protection Board, the Federal Circuit Court of Appeals, or
any other court determined the allegations to be frivolous or
malicious;
(C) an analysis of the outcome of cases described under
subparagraph (A) that were decided by a United States
District Court and the impact the process has on the Merit
Systems Protection Board and the Federal court system; and
(D) any other matter as determined by the Comptroller
General.
(b) Merit Systems Protection Board.--
(1) In general.--Each report submitted annually by the
Merit Systems Protection Board under section 1116 of title
31, United States Code, shall, with respect to the period
covered by such report, include as an addendum the following:
(A) Information relating to the outcome of cases decided
during the applicable year of the report in which violations
of section 2302(b) (8) or (9) (A)(i), (B)(i), (C), or (D) of
title 5, United States Code, were alleged.
(B) The number of such cases filed in the regional and
field offices, the number of petitions for review filed in
such cases, and the outcomes of such cases.
(2) First report.--The first report described under
paragraph (1) submitted after the date of enactment of this
Act shall include an addendum required under that
subparagraph that covers the period beginning on January 1,
2009 through the end of the fiscal year 2009.
SEC. 117. ALTERNATIVE REVIEW.
(a) In General.--Section 1221 of title 5, United States
Code, is amended by adding at the end the following:
``(k)(1) In this subsection, the term `appropriate United
States district court', as used with respect to an alleged
prohibited personnel practice, means the United States
district court for the judicial district in which--
``(A) the prohibited personnel practice is alleged to have
been committed; or
``(B) the employee, former employee, or applicant for
employment allegedly affected by such practice resides.
``(2)(A) An employee, former employee, or applicant for
employment in any case to which paragraph (3) or (4) applies
may file an action at law or equity for de novo review in the
appropriate United States district court in accordance with
this subsection.
``(B) Upon initiation of any action under subparagraph (A),
the Board shall stay any other claims of such employee,
former employee, or applicant pending before the Board at
that time which arise out of the same set of operative facts.
Such claims shall be stayed pending completion of the action
filed under subparagraph (A) before the appropriate United
States district court and any associated appellate review.
``(3) This paragraph applies in any case in which--
``(A) an employee, former employee, or applicant for
employment--
``(i) seeks corrective action from the Merit Systems
Protection Board under section 1221(a) based on an alleged
prohibited personnel practice described in section 2302(b)
(8) or (9) (A)(i), (B), (C), or (D) for which the associated
personnel action is an action covered under section 7512 or
7542; or
``(ii) files an appeal under section 7701(a) alleging as an
affirmative defense the commission of a prohibited personnel
practice described in section 2302(b) (8) or (9) (A)(i), (B),
(C), or (D) for which the associated personnel action is an
action covered under section 7512 or 7542;
``(B) no final order or decision is issued by the Board
within 270 days after the date on which a request for that
corrective action or appeal has been duly submitted, unless
the Board determines that the employee, former employee, or
applicant for employment engaged in conduct intended to delay
the issuance of a final order or decision by the Board; and
``(C) such employee, former employee, or applicant provides
written notice to the Board of filing an action under this
subsection before the filing of that action.
``(4) This paragraph applies in any case in which--
``(A) an employee, former employee, or applicant for
employment --
``(i) seeks corrective action from the Merit Systems
Protection Board under section 1221(a) based on an alleged
prohibited personnel practice described in section 2302(b)
(8) or (9) (A)(i), (B), (C), or (D) for which the associated
personnel action is an action covered under section 7512 or
7542; or
``(ii) files an appeal under section 7701(a)(1) alleging as
an affirmative defense the commission of a prohibited
personnel practice
[[Page S8821]]
described in section 2302(b) (8) or (9) (A)(i), (B), (C), or
(D) for which the associated personnel action is an action
covered under section 7512 or 7542;
``(B)(i) within 30 days after the date on which the request
for corrective action or appeal was duly submitted, such
employee, former employee, or applicant for employment files
a motion requesting a certification consistent with
subparagraph (C) to the Board, any administrative law judge
appointed by the Board under section 3105 of this title and
assigned to the case, or any employee of the Board designated
by the Board and assigned to the case; and
``(ii) such employee has not previously filed a motion
under clause (i) related to that request for corrective
action; and
``(C) the Board, any administrative law judge appointed by
the Board under section 3105 of this title and assigned to
the case, or any employee of the Board designated by the
Board and assigned to the case certifies that--
``(i) under standard applicable to the review of motions to
dismiss under rule 12(b)(6) of the Federal Rules of Civil
Procedure, including rule 12(d), the request for corrective
action (including any allegations made with the motion under
subparagraph (B)) would not be subject to dismissal; and
``(ii)(I) the Board is not likely to dispose of the case
within 270 days after the date on which a request for that
corrective action has been duly submitted; or
``(II) the case--
``(aa) consists of multiple claims;
``(bb) requires complex or extensive discovery;
``(cc) arises out of the same set of operative facts as any
civil action against the Government filed by the employee,
former employee, or applicant pending in a Federal court; or
``(dd) involves a novel question of law.
``(5) The Board shall grant or deny any motion requesting a
certification described under paragraph (4)(ii) within 90
days after the submission of such motion and the Board may
not issue a decision on the merits of a request for
corrective action within 15 days after granting or denying a
motion requesting certification.
``(6)(A) Any decision of the Board, any administrative law
judge appointed by the Board under section 3105 of this title
and assigned to the case, or any employee of the Board
designated by the Board and assigned to the case to grant or
deny a certification described under paragraph (4)(ii) shall
be reviewed on appeal of a final order or decision of the
Board under section 7703 only if--
``(i) a motion requesting a certification was denied; and
``(ii) the reviewing court vacates the decision of the
Board on the merits of the claim under the standards set
forth in section 7703(c).
``(B) The decision to deny the certification shall be
overturned by the reviewing court, and an order granting
certification shall be issued by the reviewing court, if such
decision is found to be arbitrary, capricious, or an abuse of
discretion.
``(C) The reviewing court's decision shall not be
considered evidence of any determination by the Board, any
administrative law judge appointed by the Board under section
3105 of this title, or any employee of the Board designated
by the Board on the merits of the underlying allegations
during the course of any action at law or equity for de novo
review in the appropriate United States district court in
accordance with this subsection.
``(7) In any action filed under this subsection--
``(A) the district court shall have jurisdiction without
regard to the amount in controversy;
``(B) at the request of either party, such action shall be
tried by the court with a jury;
``(C) the court--
``(i) subject to clause (iii), shall apply the standards
set forth in subsection (e); and
``(ii) may award any relief which the court considers
appropriate under subsection (g), except--
``(I) relief for compensatory damages may not exceed
$300,000; and
``(II) relief may not include punitive damages; and
``(iii) notwithstanding subsection (e)(2), may not order
relief if the agency demonstrates by a preponderance of the
evidence that the agency would have taken the same personnel
action in the absence of such disclosure; and
``(D) the Special Counsel may not represent the employee,
former employee, or applicant for employment.
``(8) An appeal from a final decision of a district court
in an action under this subsection shall be taken to the
Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction.
``(9) This subsection applies with respect to any appeal,
petition, or other request for corrective action duly
submitted to the Board, whether under section 1214(b)(2), the
preceding provisions of this section, section 7513(d),
section 7701, or any otherwise applicable provisions of law,
rule, or regulation.''.
(b) Sunset.--
(1) In general.--Except as provided under paragraph (2),
the amendments made by this section shall cease to have
effect 5 years after the effective date of this Act.
(2) Pending claims.--The amendments made by this section
shall continue to apply with respect to any claim pending
before the Board on the last day of the 5-year period
described under paragraph (1).
SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY JUDGMENT.
(a) In General.--Section 1204(b) of title 5, United States
Code, is amended--
(1) by redesignating paragraph (3) as paragraph (4);
(2) by inserting after paragraph (2) the following:
``(3) With respect to a request for corrective action based
on an alleged prohibited personnel practice described in
section 2302(b) (8) or (9) (A)(i), (B), (C), or (D) for which
the associated personnel action is an action covered under
section 7512 or 7542, the Board, any administrative law judge
appointed by the Board under section 3105 of this title, or
any employee of the Board designated by the Board may, with
respect to any party, grant a motion for summary judgment
when the Board or the administrative law judge determines
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.''.
(b) Sunset.--
(1) In general.--Except as provided under paragraph (2),
the amendments made by this section shall cease to have
effect 5 years after the effective date of this Act.
(2) Pending claims.--The amendments made by this section
shall continue to apply with respect to any claim pending
before the Board on the last day of the 5-year period
described under paragraph (1).
SEC. 119. DISCLOSURES OF CLASSIFIED INFORMATION.
(a) Prohibited Personnel Practices.--Section 2302(b)(8) of
title 5, United States Code, is amended--
(1) in subparagraph (A), by striking ``or'' after the
semicolon;
(2) in subparagraph (B), by adding ``or'' after the
semicolon; and
(3) by adding at the end the following:
``(C) any communication that complies with subsection
(a)(1), (d), or (h) of section 8H of the Inspector General
Act of 1978 (5 U.S.C. App);''.
(b) Inspector General Act of 1978.--Section 8H of the
Inspector General Act of 1978 (5 U.S.C. App) is amended--
(1) in subsection (a)(1), by adding at the end the
following:
``(D) An employee of any agency, as that term is defined
under section 2302(a)(2)(C) of title 5, United States Code,
who intends to report to Congress a complaint or information
with respect to an urgent concern may report the complaint or
information to the Inspector General (or designee) of the
agency of which that employee is employed.'';
(2) in subsection (c), by striking ``intelligence
committees'' and inserting ``appropriate committees'';
(3) in subsection (d)--
(A) in paragraph (1), by striking ``either or both of the
intelligence committees'' and inserting ``any of the
appropriate committees''; and
(B) in paragraphs (2) and (3), by striking ``intelligence
committees'' each place that term appears and inserting
``appropriate committees'';
(4) in subsection (h)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking ``intelligence''; and
(ii) in subparagraph (B), by inserting ``or an activity
involving classified information'' after ``an intelligence
activity''; and
(B) by striking paragraph (2), and inserting the following:
``(2) The term `appropriate committees' means the Permanent
Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of
the Senate, except that with respect to disclosures made by
employees described in subsection (a)(1)(D), the term
`appropriate committees' means the committees of appropriate
jurisdiction.''.
SEC. 120. WHISTLEBLOWER PROTECTION OMBUDSMAN.
(a) In General.--Section 3 of the Inspector General Act of
1978 (5 U.S.C. App.) is amended by striking subsection (d)
and inserting the following:
``(d)(1) Each Inspector General shall, in accordance with
applicable laws and regulations governing the civil service--
``(A) appoint an Assistant Inspector General for Auditing
who shall have the responsibility for supervising the
performance of auditing activities relating to programs and
operations of the establishment;
``(B) appoint an Assistant Inspector General for
Investigations who shall have the responsibility for
supervising the performance of investigative activities
relating to such programs and operations; and
``(C) designate a Whistleblower Protection Ombudsman who
shall educate agency employees--
``(i) about prohibitions on retaliation for protected
disclosures; and
``(ii) who have made or are contemplating making a
protected disclosure about the rights and remedies against
retaliation for protected disclosures.
``(2) The Whistleblower Protection Ombudsman shall not act
as a legal representative, agent, or advocate of the employee
or former employee.
``(3) For the purposes of this section, the requirement of
the designation of a Whistleblower Protection Ombudsman under
paragraph (1)(C) shall not apply to--
[[Page S8822]]
``(A) any agency that is an element of the intelligence
community (as defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4))); or
``(B) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counter intelligence
activities.''.
(b) Technical and Conforming Amendment.--Section 8D(j) of
the Inspector General Act of 1978 (5 U.S.C. App.) is
amended--
(1) by striking ``section 3(d)(1)'' and inserting ``section
3(d)(1)(A)''; and
(2) by striking ``section 3(d)(2)'' and inserting ``section
3(d)(1)(B)''.
(c) Sunset.--
(1) In general.--The amendments made by this section shall
cease to have effect on the date that is 5 years after the
date of enactment of this Act.
(2) Return to prior authority.--Upon the date described in
paragraph (1), section 3(d) and section 8D(j) of the
Inspector General Act of 1978 (5 U.S.C. App.) shall read as
such sections read on the day before the date of enactment of
this Act.
TITLE II--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS
SEC. 201. PROTECTION OF INTELLIGENCE COMMUNITY
WHISTLEBLOWERS.
(a) In General.--Chapter 23 of title 5, United States Code,
is amended by inserting after section 2303 the following:
``Sec. 2303A. Prohibited personnel practices in the
intelligence community
``(a) Definitions.--In this section--
``(1) the term `agency' means an executive department or
independent establishment, as defined under sections 101 and
104, that contains an intelligence community element, except
the Federal Bureau of Investigation;
``(2) the term `intelligence community element'--
``(A) means--
``(i) the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-Intelligence
Agency, the National Security Agency, the Office of the
Director of National Intelligence, and the National
Reconnaissance Office; and
``(ii) any executive agency or unit thereof determined by
the President under section 2302(a)(2)(C)(ii) of title 5,
United States Code, to have as its principal function the
conduct of foreign intelligence or counterintelligence
activities; and
``(B) does not include the Federal Bureau of Investigation;
and
``(3) the term `personnel action' means any action
described in clauses (i) through (x) of section 2302(a)(2)(A)
with respect to an employee in a position in an intelligence
community element (other than a position of a confidential,
policy-determining, policymaking, or policy-advocating
character).
``(b) In General.--Any employee of an agency who has
authority to take, direct others to take, recommend, or
approve any personnel action, shall not, with respect to such
authority, take or fail to take a personnel action with
respect to any employee of an intelligence community element
as a reprisal for a disclosure of information by the employee
to the Director of National Intelligence (or an employee
designated by the Director of National Intelligence for such
purpose), or to the head of the employing agency (or an
employee designated by the head of that agency for such
purpose), which the employee reasonably believes evidences--
``(1) a violation of any law, rule, or regulation, except
for an alleged violation that--
``(A) is a minor, inadvertent violation; and
``(B) occurs during the conscientious carrying out of
official duties; or
``(2) mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety.
``(c) Enforcement.--The President shall provide for the
enforcement of this section in a manner consistent with
applicable provisions of sections 1214 and 1221.
``(d) Existing Rights Preserved.--Nothing in this section
shall be construed to--
``(1) preempt or preclude any employee, or applicant for
employment, at the Federal Bureau of Investigation from
exercising rights currently provided under any other law,
rule, or regulation, including section 2303;
``(2) repeal section 2303; or
``(3) provide the President or Director of National
Intelligence the authority to revise regulations related to
section 2303, codified in part 27 of the Code of Federal
Regulations.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 23 of title 5, United States Code, is
amended by inserting after the item relating to section 2303
the following:
``2303A. Prohibited personnel practices in the intelligence
community.''.
SEC. 202. REVIEW OF SECURITY CLEARANCE OR ACCESS
DETERMINATIONS.
(a) In General.--Section 3001(b) of the Intelligence Reform
and Terrorism Prevention Act of 2004 (50 U.S.C. 435b(b)) is
amended--
(1) in the matter preceding paragraph (1), by striking
``Not'' and inserting ``Except as otherwise provided, not'';
(2) in paragraph (5), by striking ``and'' after the
semicolon;
(3) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(4) by inserting after paragraph (6) the following:
``(7) not later than 180 days after the date of enactment
of the Whistleblower Protection Enhancement Act of 2010--
``(A) developing policies and procedures that permit, to
the extent practicable, individuals who challenge in good
faith a determination to suspend or revoke a security
clearance or access to classified information to retain their
government employment status while such challenge is pending;
and
``(B) developing and implementing uniform and consistent
policies and procedures to ensure proper protections during
the process for denying, suspending, or revoking a security
clearance or access to classified information, including the
provision of a right to appeal such a denial, suspension, or
revocation, except that there shall be no appeal of an
agency's suspension of a security clearance or access
determination for purposes of conducting an investigation, if
that suspension lasts no longer than 1 year or the head of
the agency certifies that a longer suspension is needed
before a final decision on denial or revocation to prevent
imminent harm to the national security.
``Any limitation period applicable to an agency appeal
under paragraph (7) shall be tolled until the head of the
agency (or in the case of any component of the Department of
Defense, the Secretary of Defense) determines, with the
concurrence of the Director of National Intelligence, that
the policies and procedures described in paragraph (7) have
been established for the agency or the Director of National
Intelligence promulgates the policies and procedures under
paragraph (7). The policies and procedures for appeals
developed under paragraph (7) shall be comparable to the
policies and procedures pertaining to prohibited personnel
practices defined under section 2302(b)(8) of title 5, United
States Code, and provide--
``(A) for an independent and impartial fact-finder;
``(B) for notice and the opportunity to be heard, including
the opportunity to present relevant evidence, including
witness testimony;
``(C) that the employee or former employee may be
represented by counsel;
``(D) that the employee or former employee has a right to a
decision based on the record developed during the appeal;
``(E) that not more than 180 days shall pass from the
filing of the appeal to the report of the impartial fact-
finder to the agency head or the designee of the agency head,
unless--
``(i) the employee and the agency concerned agree to an
extension; or
``(ii) the impartial fact-finder determines in writing that
a greater period of time is required in the interest of
fairness or national security;
``(F) for the use of information specifically required by
Executive order to be kept classified in the interest of
national defense or the conduct of foreign affairs in a
manner consistent with the interests of national security,
including ex parte submissions if the agency determines that
the interests of national security so warrant; and
``(G) that the employee or former employee shall have no
right to compel the production of information specifically
required by Executive order to be kept classified in the
interest of national defense or the conduct of foreign
affairs, except evidence necessary to establish that the
employee made the disclosure or communication such employee
alleges was protected by subparagraphs (A), (B), and (C) of
subsection (j)(1).''.
(b) Retaliatory Revocation of Security Clearances and
Access Determinations.--Section 3001 of the Intelligence
Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b)
is amended by adding at the end the following:
``(j) Retaliatory Revocation of Security Clearances and
Access Determinations.--
``(1) In general.--Agency personnel with authority over
personnel security clearance or access determinations shall
not take or fail to take, or threaten to take or fail to
take, any action with respect to any employee's security
clearance or access determination because of--
``(A) any disclosure of information to the Director of
National Intelligence (or an employee designated by the
Director of National Intelligence for such purpose) or the
head of the employing agency (or employee designated by the
head of that agency for such purpose) by an employee that the
employee reasonably believes evidences--
``(i) a violation of any law, rule, or regulation, except
for an alleged violation that is a minor, inadvertent
violation, and occurs during the conscientious carrying out
of official duties; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety;
``(B) any disclosure to the Inspector General of an agency
or another employee designated by the head of the agency to
receive such disclosures, of information which the employee
reasonably believes evidences--
``(i) a violation of any law, rule, or regulation, except
for an alleged violation that is a minor, inadvertent
violation, and occurs during the conscientious carrying out
of official duties; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety;
``(C) any communication that complies with--
``(i) subsection (a)(1), (d), or (h) of section 8H of the
Inspector General Act of 1978 (5 U.S.C. App.);
[[Page S8823]]
``(ii) subsection (d)(5)(A), (D), or (G) of section 17 of
the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q);
or
``(iii) subsection (k)(5)(A), (D), or (G), of section 103H
of the National Security Act of 1947 (50 U.S.C. 403-3h);
``(D) the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation;
``(E) testifying for or otherwise lawfully assisting any
individual in the exercise of any right referred to in
subparagraph (D); or
``(F) cooperating with or disclosing information to the
Inspector General of an agency, in accordance with applicable
provisions of law in connection with an audit, inspection, or
investigation conducted by the Inspector General,
if the actions described under subparagraphs (D) through (F)
do not result in the employee or applicant unlawfully
disclosing information specifically required by Executive
order to be kept classified in the interest of national
defense or the conduct of foreign affairs.
``(2) Rule of construction.--Consistent with the protection
of sources and methods, nothing in paragraph (1) shall be
construed to authorize the withholding of information from
the Congress or the taking of any personnel action against an
employee who discloses information to the Congress.
``(3) Disclosures.--
``(A) In general.--A disclosure shall not be excluded from
paragraph (1) because--
``(i) the disclosure was made to a person, including a
supervisor, who participated in an activity that the employee
reasonably believed to be covered by paragraph (1)(A)(ii);
``(ii) the disclosure revealed information that had been
previously disclosed;
``(iii) of the employee's motive for making the disclosure;
``(iv) the disclosure was not made in writing;
``(v) the disclosure was made while the employee was off
duty; or
``(vi) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
``(B) Reprisals.--If a disclosure is made during the normal
course of duties of an employee, the disclosure shall not be
excluded from paragraph (1) if any employee who has authority
to take, direct others to take, recommend, or approve any
personnel action with respect to the employee making the
disclosure, took, failed to take, or threatened to take or
fail to take a personnel action with respect to that employee
in reprisal for the disclosure.
``(4) Agency adjudication.--
``(A) Remedial procedure.--An employee or former employee
who believes that he or she has been subjected to a reprisal
prohibited by paragraph (1) of this subsection may, within 90
days after the issuance of notice of such decision, appeal
that decision within the agency of that employee or former
employee through proceedings authorized by paragraph (7) of
subsection (a), except that there shall be no appeal of an
agency's suspension of a security clearance or access
determination for purposes of conducting an investigation, if
that suspension lasts not longer than 1 year (or a longer
period in accordance with a certification made under
subsection (b)(7)).
``(B) Corrective action.--If, in the course of proceedings
authorized under subparagraph (A), it is determined that the
adverse security clearance or access determination violated
paragraph (1) of this subsection, the agency shall take
specific corrective action to return the employee or former
employee, as nearly as practicable and reasonable, to the
position such employee or former employee would have held had
the violation not occurred. Such corrective action shall
include reasonable attorney's fees and any other reasonable
costs incurred, and may include back pay and related
benefits, travel expenses, and compensatory damages not to
exceed $300,000.
``(C) Contributing factor.--In determining whether the
adverse security clearance or access determination violated
paragraph (1) of this subsection, the agency shall find that
paragraph (1) of this subsection was violated if a disclosure
described in paragraph (1) was a contributing factor in the
adverse security clearance or access determination taken
against the individual, unless the agency demonstrates by a
preponderance of the evidence that it would have taken the
same action in the absence of such disclosure, giving the
utmost deference to the agency's assessment of the particular
threat to the national security interests of the United
States in the instant matter.
``(5) Appellate review of security clearance access
determinations by director of national intelligence.--
``(A) Definition.--In this paragraph, the term `Board'
means the appellate review board established under section
204 of the Whistleblower Protection Enhancement Act of 2010.
``(B) Appeal.--Within 60 days after receiving notice of an
adverse final agency determination under a proceeding under
paragraph (4), an employee or former employee may appeal that
determination to the Board.
``(C) Policies and procedures.--The Board, in consultation
with the Attorney General, Director of National Intelligence,
and the Secretary of Defense, shall develop and implement
policies and procedures for adjudicating the appeals
authorized by subparagraph (B). The Director of National
Intelligence and Secretary of Defense shall jointly approve
any rules, regulations, or guidance issued by the Board
concerning the procedures for the use or handling of
classified information.
``(D) Review.--The Board's review shall be on the complete
agency record, which shall be made available to the Board.
The Board may not hear witnesses or admit additional
evidence. Any portions of the record that were submitted ex
parte during the agency proceedings shall be submitted ex
parte to the Board.
``(E) Further fact-finding or improper denial.--If the
Board concludes that further fact-finding is necessary or
finds that the agency improperly denied the employee or
former employee the opportunity to present evidence that, if
admitted, would have a substantial likelihood of altering the
outcome, the Board shall remand the matter to the agency from
which it originated for additional proceedings in accordance
with the rules of procedure issued by the Board.
``(F) De novo determination.--The Board shall make a de
novo determination, based on the entire record and under the
standards specified in paragraph (4), of whether the employee
or former employee received an adverse security clearance or
access determination in violation of paragraph (1). In
considering the record, the Board may weigh the evidence,
judge the credibility of witnesses, and determine
controverted questions of fact. In doing so, the Board may
consider the prior fact-finder's opportunity to see and hear
the witnesses.
``(G) Adverse security clearance or access determination.--
If the Board finds that the adverse security clearance or
access determination violated paragraph (1), it shall then
separately determine whether reinstating the security
clearance or access determination is clearly consistent with
the interests of national security, with any doubt resolved
in favor of national security, under Executive Order 12968
(60 Fed. Reg. 40245; relating to access to classified
information) or any successor thereto (including any
adjudicative guidelines promulgated under such orders) or any
subsequent Executive order, regulation, or policy concerning
access to classified information.
``(H) Remedies.--
``(i) Corrective action.--If the Board finds that the
adverse security clearance or access determination violated
paragraph (1), it shall order the agency head to take
specific corrective action to return the employee or former
employee, as nearly as practicable and reasonable, to the
position such employee or former employee would have held had
the violation not occurred. Such corrective action shall
include reasonable attorney's fees and any other reasonable
costs incurred, and may include back pay and related
benefits, travel expenses, and compensatory damages not to
exceed $300,000. The Board may recommend, but may not order,
reinstatement or hiring of a former employee. The Board may
order that the former employee be treated as though the
employee were transferring from the most recent position held
when seeking other positions within the executive branch. Any
corrective action shall not include the reinstating of any
security clearance or access determination. The agency head
shall take the actions so ordered within 90 days, unless the
Director of National Intelligence, the Secretary of Energy,
or the Secretary of Defense, in the case of any component of
the Department of Defense, determines that doing so would
endanger national security.
``(ii) Recommended action.--If the Board finds that
reinstating the employee or former employee's security
clearance or access determination is clearly consistent with
the interests of national security, it shall recommend such
action to the head of the entity selected under subsection
(b) and the head of the affected agency.
``(I) Congressional notification.--
``(i) Orders.--Consistent with the protection of sources
and methods, at the time the Board issues an order, the
Chairperson of the Board shall notify--
``(I) the Committee on Homeland Security and Government
Affairs of the Senate;
``(II) the Select Committee on Intelligence of the Senate;
``(III) the Committee on Oversight and Government Reform of
the House of Representatives;
``(IV) the Permanent Select Committee on Intelligence of
the House of Representatives; and
``(V) the committees of the Senate and the House of
Representatives that have jurisdiction over the employing
agency, including in the case of a final order or decision of
the Defense Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security Agency, or the
National Reconnaissance Office, the Committee on Armed
Services of the Senate and the Committee on Armed Services of
the House of Representatives.
``(ii) Recommendations.--If the agency head and the head of
the entity selected under subsection (b) do not follow the
Board's recommendation to reinstate a clearance, the head of
the entity selected under subsection (b) shall notify the
committees described in subclauses (I) through (V) of clause
(i).
``(6) Judicial review.--Nothing in this section shall be
construed to permit or require judicial review of any--
``(A) agency action under this section; or
``(B) action of the appellate review board established
under section 204 of the Whistleblower Protection Enhancement
Act of 2010.
[[Page S8824]]
``(7) Private cause of action.--Nothing in this section
shall be construed to permit, authorize, or require a private
cause of action to challenge the merits of a security
clearance determination.''.
(c) Access Determination Defined.--Section 3001(a) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50
U.S.C. 435b(a)) is amended by adding at the end the
following:
``(9) The term `access determination' means the process for
determining whether an employee--
``(A) is eligible for access to classified information in
accordance with Executive Order 12968 (60 Fed. Reg. 40245;
relating to access to classified information), or any
successor thereto, and Executive Order 10865 (25 Fed. Reg.
1583; relating to safeguarding classified information with
industry); and
``(B) possesses a need to know under that Order.''.
(d) Rule of Construction.--Nothing in section 3001 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50
U.S.C. 435b), as amended by this Act, shall be construed to
require the repeal or replacement of agency appeal procedures
implementing Executive Order 12968 (60 Fed. Reg. 40245;
relating to classified national security information), or any
successor thereto, and Executive Order 10865 (25 Fed. Reg.
1583; relating to safeguarding classified information with
industry), or any successor thereto, that meet the
requirements of section 3001(b)(7) of such Act, as so
amended.
SEC. 203. REVISIONS RELATING TO THE INTELLIGENCE COMMUNITY
WHISTLEBLOWER PROTECTION ACT.
(a) In General.--Section 8H of the Inspector General Act of
1978 (5 U.S.C. App.) is amended--
(1) in subsection (b)--
(A) by inserting ``(1)'' after ``(b)''; and
(B) by adding at the end the following:
``(2) If the head of an establishment determines that a
complaint or information transmitted under paragraph (1)
would create a conflict of interest for the head of the
establishment, the head of the establishment shall return the
complaint or information to the Inspector General with that
determination and the Inspector General shall make the
transmission to the Director of National Intelligence. In
such a case, the requirements of this section for the head of
the establishment apply to the recipient of the Inspector
General's transmission. The Director of National Intelligence
shall consult with the members of the appellate review board
established under section 204 of the Whistleblower Protection
Enhancement Review Act of 2010 regarding all transmissions
under this paragraph.'';
(2) by designating subsection (h) as subsection (i); and
(3) by inserting after subsection (g), the following:
``(h) An individual who has submitted a complaint or
information to an Inspector General under this section may
notify any member of Congress or congressional staff member
of the fact that such individual has made a submission to
that particular Inspector General, and of the date on which
such submission was made.''.
(b) Central Intelligence Agency.--Section 17(d)(5) of the
Central Intelligence Agency Act of 1949 (50 U.S.C. 403q) is
amended--
(1) in subparagraph (B)--
(A) by inserting ``(i)'' after ``(B)''; and
(B) by adding at the end the following:
``(ii) If the Director determines that a complaint or
information transmitted under paragraph (1) would create a
conflict of interest for the Director, the Director shall
return the complaint or information to the Inspector General
with that determination and the Inspector General shall make
the transmission to the Director of National Intelligence. In
such a case the requirements of this subsection for the
Director apply to the recipient of the Inspector General's
submission; and''; and
(2) by adding at the end the following:
``(H) An individual who has submitted a complaint or
information to the Inspector General under this section may
notify any member of Congress or congressional staff member
of the fact that such individual has made a submission to the
Inspector General, and of the date on which such submission
was made.''.
SEC. 204. REGULATIONS; REPORTING REQUIREMENTS;
NONAPPLICABILITY TO CERTAIN TERMINATIONS.
(a) Definitions.--In this section--
(1) the term ``congressional oversight committees'' means
the--
(A) the Committee on Homeland Security and Government
Affairs of the Senate;
(B) the Select Committee on Intelligence of the Senate;
(C) the Committee on Oversight and Government Reform of the
House of Representatives; and
(D) the Permanent Select Committee on Intelligence of the
House of Representatives; and
(2) the term ``intelligence community element''--
(A) means--
(i) the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-Intelligence
Agency, the National Security Agency, the Office of the
Director of National Intelligence, and the National
Reconnaissance Office; and
(ii) any executive agency or unit thereof determined by the
President under section 2302(a)(2)(C)(ii) of title 5, United
States Code, to have as its principal function the conduct of
foreign intelligence or counterintelligence activities; and
(B) does not include the Federal Bureau of Investigation.
(b) Regulations.--
(1) In general.--The Director of National Intelligence
shall prescribe regulations to ensure that a personnel action
shall not be taken against an employee of an intelligence
community element as a reprisal for any disclosure of
information described in section 2303A(b) of title 5, United
States Code, as added by this Act.
(2) Appellate review board.--Not later than 180 days after
the date of enactment of this Act, the Director of National
Intelligence, in consultation with the Secretary of Defense,
the Attorney General, and the heads of appropriate agencies,
shall establish an appellate review board that is broadly
representative of affected Departments and agencies and is
made up of individuals with expertise in merit systems
principles and national security issues--
(A) to hear whistleblower appeals related to security
clearance access determinations described in section 3001(j)
of the Intelligence Reform and Terrorism Prevention Act of
2004 (50 U.S.C. 435b), as added by this Act; and
(B) that shall include a subpanel that reflects the
composition of the intelligence committee, which shall be
composed of intelligence community elements and inspectors
general from intelligence community elements, for the purpose
of hearing cases that arise in elements of the intelligence
community.
(c) Report on the Status of Implementation of
Regulations.--Not later than 2 years after the date of
enactment of this Act, the Director of National Intelligence
shall submit a report on the status of the implementation of
the regulations promulgated under subsection (b) to the
congressional oversight committees.
(d) Nonapplicability to Certain Terminations.--Section
2303A of title 5, United States Code, as added by this Act,
and section 3001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (50 U.S.C. 435b), as amended by this
Act, shall not apply to adverse security clearance or access
determinations if the affected employee is concurrently
terminated under--
(1) section 1609 of title 10, United States Code;
(2) the authority of the Director of National Intelligence
under section 102A(m) of the National Security Act of 1947
(50 U.S.C. 403-1(m)), if--
(A) the Director personally summarily terminates the
individual; and
(B) the Director--
(i) determines the termination to be in the interest of the
United States;
(ii) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
(iii) not later than 5 days after such termination,
notifies the congressional oversight committees of the
termination;
(3) the authority of the Director of the Central
Intelligence Agency under section 104A(e) of the National
Security Act of 1947 (50 U.S.C. 403-4a(e)), if--
(A) the Director personally summarily terminates the
individual; and
(B) the Director--
(i) determines the termination to be in the interest of the
United States;
(ii) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
(iii) not later than 5 days after such termination,
notifies the congressional oversight committees of the
termination; or
(4) section 7532 of title 5, United States Code, if--
(A) the agency head personally terminates the individual;
and
(B) the agency head--
(i) determines the termination to be in the interest of the
United States;
(ii) determines that the procedures prescribed in other
provisions of law that authorize the termination of the
employment of such employee cannot be invoked in a manner
consistent with the national security; and
(iii) not later than 5 days after such termination,
notifies the congressional oversight committees of the
termination.
TITLE III--SAVINGS CLAUSE; EFFECTIVE DATE
SEC. 301. SAVINGS CLAUSE.
Nothing in this Act shall be construed to imply any
limitation on any protections afforded by any other provision
of law to employees and applicants.
SEC. 302. EFFECTIVE DATE.
This Act shall take effect 30 days after the date of
enactment of this Act.
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