```

[Senate Report 111-101]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 219
111th Congress
                                 SENATE
                                                                 Report
 1st Session                                                    111-101

======================================================================

            WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 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

                December 3, 2009.--Ordered to be printed

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas              GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana          JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri           LINDSEY GRAHAM, South Carolina
JON TESTER, Montana                  ROBERT F. BENNETT, Utah
ROLAND W. BURRIS, Illinois
PAUL G. KIRK, Jr., Massachusetts

                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
                   Lawrence B. Novey, Senior Counsel
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government 
    Management, the Federal Workforce, and the District of Columbia
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
        Amanda Wood, Minority Director for Governmental Affairs
    Jennifer A. Hemingway, Minority Staff Director, Subcommittee on 
  Oversight of Government Management, the Federal Workforce, and the 
                          District of Columbia
                  Trina Driessnack Tyrer, Chief Clerk

                                                       Calendar No. 219
111th Congress
                                 SENATE
                                                                 Report
 1st Session                                                    111-101

======================================================================

 
            WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009

                                _______
                                

                December 3, 2009.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 372]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the 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, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background.......................................................2
III.  Legislative History............................................38
 IV. Section-by-Section Analysis.....................................39
  V. Estimated Cost of Legislation...................................48
 VI. Evaluation of Regulatory Impact.................................51
VII. Changes in Existing Law.........................................51

                         I. Purpose and Summary

    The Whistleblower Protection Enhancement Act (WPA) is 
designed to strengthen the rights of and protections for 
federal whistleblowers and to help root out waste, fraud, and 
abuse in federal programs. Whistleblowers have long played a 
critical role in keeping our government honest and efficient, 
and the events of September 11, 2001 made even clearer the fact 
that our citizens' safety depends upon our ensuring that those 
with knowledge of problems at our nation's airports, borders, 
law enforcement agencies, and nuclear facilities are able to 
reveal those problems without fear of retaliation or 
harassment. Unfortunately, federal employees seeking to blow 
the whistle on wrongdoing have seen their protections diminish 
in recent years, largely as a result of a series of decisions 
of the U.S. Court of Appeals for the Federal Circuit, which has 
exclusive jurisdiction over many WPA cases. The Federal Circuit 
has narrowly defined who qualifies as a whistleblower and what 
types of disclosures qualify those whistleblowers for 
protection. Just as problematically, the lack of remedies for 
most whistleblowers in the intelligence community leaves 
unprotected those who disclose wrongdoing that could undermine 
our national security.
    S. 372 would address these problems by restoring the 
original congressional intent of the WPA and strengthening it 
and the Intelligence Community Whistleblower Protection Act 
(ICWPA).\1\ It would, among other things: clarify the broad 
meaning of ``any'' disclosure of waste, fraud, and abuse that, 
under the WPA, a covered employee may make with impunity; 
expand the availability of a protected channel to make 
disclosures of classified information to appropriate committees 
of Congress; codify an anti-gag provision to allow employees to 
come forward with disclosures of illegality; allow certain 
whistleblowers to bring their cases in federal district court 
(this provision being subject to a five-year sunset); allow 
whistleblowers to appeal decisions on their cases to any 
federal court of appeals (this provision also being subject to 
a five-year sunset); provide whistleblowers protected under the 
ICWPA with a forum to challenge retaliation, with the right to 
appeal decisions to a federal court of appeals; and provide 
whistleblowers under both the ICWPA and the WPA with a forum 
for challenging retaliatory security clearance determinations.
---------------------------------------------------------------------------
    \1\Whistleblower Protection Act of 1989, Public Law No. 101-12, 103 
Stat. 16 (1989); Intelligence Community Whistleblower Protection Act of 
1998, enacted as title VII of the Intelligence Authorization Act for FY 
1999, Public Law No. 105-272, 112 Stat. 2396 (1998).
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                             II. Background

    The Civil Service Reform Act of 1978 (CSRA) established 
statutory protections for federal employees to encourage 
disclosure of government illegality, waste, fraud, and abuse. 
As explained in the accompanying Senate Report:

          Often, the whistleblower's reward for dedication to 
        the highest moral principles is harassment and abuse. 
        Whistleblowers frequently encounter severe damage to 
        their careers and substantial economic loss. Protecting 
        employees who disclose government illegality, waste, 
        and corruption is a major step toward a more effective 
        civil service. In the vast federal bureaucracy it is 
        not difficult to conceal wrongdoing provided that no 
        one summons the courage to disclose the truth. Whenever 
        misdeeds take place in a federal agency, there are 
        employees who know that it has occurred, and who are 
        outraged by it. What is needed is a means to assure 
        them that they will not suffer if they help uncover and 
        correct administrative abuses. What is needed is a 
        means to protect the Pentagon employee who discloses 
        billions of dollars in cost overruns, the GSA employee 
        who discloses widespread fraud, and the nuclear 
        engineer who questions the safety of certain nuclear 
        plants. These conscientious civil servants deserve 
        statutory protection rather than bureaucratic 
        harassment and intimidation.\2\
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    \2\S. Rep. No. 95-969, at 8 (1978).

    The CSRA established the Office of Special Counsel (OSC) to 
investigate and prosecute allegations of prohibited personnel 
practices or other violations of the merit system and 
established the Merit Systems Protection Board (the MSPB or the 
Board) to adjudicate such cases. However, in 1984, the MSPB 
reported that the Act had no effect on the number of 
whistleblowers and that federal employees continued to fear 
reprisal.\3\ This Committee subsequently reported that 
employees felt that the OSC engaged in apathetic and sometimes 
detrimental practices toward employees seeking its assistance. 
The Committee also found that restrictive decisions by the MSPB 
and federal courts hindered the ability of whistleblowers to 
win redress.\4\
---------------------------------------------------------------------------
    \3\See Merit Systems Protection Board, Blowing the Whistle in the 
Federal Government: A Comparative Analysis of 1980 and 1983 Survey 
Findings (October 1984).
    \4\S. Rep. No. 100-413, at 6-16 (1988).
---------------------------------------------------------------------------
    In response, Congress in 1989 unanimously passed the WPA, 
which forbids retaliation against federal employees who 
disclose what they reasonably believe to be evidence of illegal 
or other seriously improper government activity. The WPA makes 
it a prohibited personnel practice to take an adverse personnel 
action against a covered employee because that employee makes a 
protected disclosure. An employee who claims to have suffered 
retaliation for having made a protected disclosure may seek a 
remedy from the MSPB, may ask the OSC investigate the situation 
and advocate for the employee, or may file a grievance under a 
negotiated grievance procedure contained in a collective 
bargaining agreement. The stated congressional intent of the 
WPA was to strengthen and improve protection for the rights of 
federal employees, to prevent reprisals, and to help eliminate 
wrongdoing within the government by (1) mandating that 
employees should not suffer adverse consequences as a result of 
prohibited personnel practices; and (2) establishing that, 
while disciplining those who commit prohibited personnel 
practices may be used as a means to help accomplish that goal, 
the protection of individuals who are the subject of prohibited 
personnel practices remains the paramount consideration.\5\
---------------------------------------------------------------------------
    \5\Id. at 9, 23.
---------------------------------------------------------------------------
    Congress substantially amended the WPA in 1994, as part of 
legislation to reauthorize the OSC and the MSPB. The amendments 
were designed, in part, to address a series of actions by the 
OSC and decisions by the MSPB and the Federal Circuit that 
Congress deemed inconsistent with its intent in the 1989 Act. 
Now, fifteen years after the last major revision of the WPA, it 
is again necessary for Congress to reform and strengthen 
several aspects of the whistleblower protection statutes in 
order to achieve the original intent and purpose of the laws.

Clarification of what constitutes a protected disclosure under the WPA

    Both the House and Senate committee reports accompanying 
the 1994 amendments criticized decisions of the MSPB and the 
Federal Circuit limiting the types of disclosures covered by 
the WPA. Specifically, this Committee explained that the 1994 
amendments were intended to reaffirm the Committee's long-held 
view that the WPA's plain language covers any disclosure:

          The Committee . . . reaffirms the plain language of 
        the Whistleblower Protection Act, which covers, by its 
        terms, ``any disclosure,'' of violations of law, gross 
        mismanagement, a gross waste of funds, an abuse of 
        authority, or a substantial and specific danger to 
        public health or safety. The Committee stands by that 
        language, as it explained in its 1988 report on the 
        Whistleblower Protection Act. That report states: ``The 
        Committee intends that disclosures be encouraged. The 
        OSC, the Board and the courts should not erect barriers 
        to disclosures which will limit the necessary flow of 
        information from employees who have knowledge of 
        government wrongdoing. For example, it is inappropriate 
        for disclosures to be protected only if they are made 
        for certain purposes or to certain employees or only if 
        the employee is the first to raise the issue.''\6\
---------------------------------------------------------------------------
    \6\S. Rep. No. 103-358 (1994), at 10 (quoting S. Rep. No. 100-413 
(1988) at 13).

    The House Committee on the Post Office and the Civil 
---------------------------------------------------------------------------
Service similarly stated:

          Perhaps the most troubling precedents involve the 
        [MSPB's] inability to understand that ``any'' means 
        ``any.'' The WPA protects ``any'' disclosure evidencing 
        a reasonable belief of specified misconduct, a 
        cornerstone to which the MSPB remains blind. The only 
        restrictions are for classified information or material 
        the release of which is specifically prohibited by 
        statute. Employees must disclose that type of 
        information through confidential channels to maintain 
        protection; otherwise there are no exceptions.\7\
---------------------------------------------------------------------------
    \7\H. Rep. No. 103-769, at 18 (1994).

    Despite the clear legislative history and the plain, 
intended language of the 1994 amendments, the Federal Circuit 
and the MSPB have continued to undermine the WPA's intended 
meaning by imposing limitations on the kinds of disclosures by 
whistleblowers that are protected under the WPA. For example, 
in Horton v. Department of the Navy,\8\ the court ruled that 
disclosures to co-workers or to the wrongdoer are not 
protected, because the disclosures are not made to persons in a 
position to redress wrongdoing. In Willis v. Department of 
Agriculture,\9\ the court stated in dictum that a disclosure 
made as part of an employee's normal job duties is not 
protected. And in Meuwissen v. Department of Interior,\10\ the 
court held that disclosures of information already known are 
not protected.\11\
---------------------------------------------------------------------------
    \8\66 F.3d 279, 283 (Fed. Cir. 1995).
    \9\141 F.3d 1139, 1144 (Fed. Cir. 1998).
    \10\234 F.3d 9, 13-14 (Fed. Cir. 2000).
    \11\See, e.g., Johnson v. Department of Health and Human Services, 
87 M.S.P.R. 204, 210 (2000) (limiting Willis to its factual context and 
rejecting claim that Willis stood for the broad proposition that had 
been rejected by both the MSPB and the Federal Circuit); accord Askew 
v. Department of the Army, 88 M.S.P.R. 674, 679-80 (2001) (cautioning 
that Willis ought not be read too broadly and rejecting the proposition 
that Willis held that ``disclosure of information in the course of an 
employee's performance of her normal duties cannot be protected 
whistleblowing''); Sood v. Department of Veteran Affairs, 88 M.S.P.R. 
214, 220 (2001); Czarkowski v. Department of the Navy, 87 M.S.P.R. 107 
(2000).
---------------------------------------------------------------------------
    S. 372 accordingly amends the WPA to clarify that a 
whistleblower is not deprived of protection because the 
disclosure was made during the normal course of the employee's 
duties; was made to a person, including a supervisor, who 
participated in the wrongdoing; revealed information that had 
been previously disclosed; was not made in writing; or was made 
while the employee was off duty. The bill also makes clear that 
disclosures may not be declared unprotected simply because of 
the employee's motive for making the disclosure, or because of 
the amount of time that has passed since the events described 
in the disclosure. By clarifying the broad scope of protected 
disclosures, S. 372 effectively restores Congress's original 
intent to the WPA.
    The evident difficulty in settling on a precise scope of 
protection appears to have arisen, at least in part, from 
concern that management of the federal workforce may be unduly 
burdened if employees can successfully claim whistleblower 
status in ordinary employment disputes.\12\ Taking this concern 
seriously, the Committee has concluded that the strong national 
interest in protecting good faith whistleblowing requires broad 
protection of whistleblower disclosures, recognizing that the 
responsible agencies and courts can take other steps to deter 
and weed out frivolous whistleblower claims. Under decisions of 
the Federal Circuit and the MSPB, for example, a whistleblower 
case cannot proceed unless an employee has first made non-
frivolous allegations satisfying the elements for a prima facie 
case that the employee has suffered unlawful retaliation for 
having made a protected disclosure. Unless the employee can do 
this, there will be no hearing and the agency will have under 
no burden to present an affirmative defense.\13\ Moreover, the 
MSPB's procedural rules may be available to curtail frivolous 
litigation under certain circumstances, including in cases 
under the WPA. These rules generally authorize an 
administrative judge at the MSPB to impose sanctions necessary 
to meet the interests of justice and to issue protective orders 
in cases of harassment of a witness, including harassment of a 
party to a case.\14\ S. 372 does not affect these decisions or 
regulations.
---------------------------------------------------------------------------
    \12\See, e.g., Herman v. Department of Justice, 193 F.3d 1375, 1381 
(Fed. Cir. 1999); Frederick v. Department of Justice, 73 F.3d 349, 353 
(Fed. Cir. 1996).
    \13\See, e.g., Yunus v. Department of Veterans Affairs, 242 F.3d 
1367 (Fed. Cir. 2001); Rusin v. Department of Treasury, 92 M.S.P.R. 
1298 (2002).
    \14\See 5 C.F.R. Sec. Sec. 1201.43 & 1201.55(d).
---------------------------------------------------------------------------
    In addition, to make a prima facie whistleblower case, the 
employee must show that he or she reasonably believed that the 
disclosed information evidenced a violation of law or other 
items enumerated in 5 U.S.C. Sec. 2302(b)(8). As detailed 
further below, the Federal Circuit has held that this 
reasonable-belief test is an objective one: whether a 
disinterested observer with knowledge of the facts known to and 
readily ascertainable by the employee reasonably could conclude 
that the conduct evidences a violation of law, gross 
mismanagement, or other matters identified in 5 U.S.C. 
Sec. 2302 (b)(8).\15\ The Committee believes it is prudent to 
codify that objective test in the whistleblower statute, and 
has done so in S. 372. Thus, in screening out frivolous claims, 
the focus for the MSPB and the courts would properly shift to 
whether the employee's belief was objectively reasonable, 
rather than whether the employee's disclosure of information 
meets the statutory definition of ``disclosure.'' In the 
Committee's view, any potential mischief that might otherwise 
arise from expanding the scope of what kinds of ``disclosure'' 
are protected will be countered by the application of this 
objective reasonable-belief test. And in cases not so filtered, 
the agency may still be able to prevail on its defense if it 
can demonstrate that it would have taken the same personnel 
action against the employee even absent the disclosure.
---------------------------------------------------------------------------
    \15\Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); accord 
Rusin v. Department of the Treasury, 92 M.S.P.R. 298 (2002).
---------------------------------------------------------------------------
    Moreover, to further address the expressed concern that the 
WPA might impose an undue burden on agency management if 
employees could claim whistleblower protections in cases of 
ordinary workplace disputes, S. 372 requires the Government 
Accountability Office (GAO) to evaluate the implementation of 
the Act, including any trends in the number of cases filed and 
the disposition of those cases and any patterns of abuse. S. 
372 also requires the MSPB to report yearly on the number of 
cases filed, the number of petitions for review filed, and the 
disposition of cases alleging violations of the WPA. The 
Committee believes that these provisions will enable Congress 
to examine closely how this bill is implemented and to 
intervene, if necessary, if an unintended consequence of the 
legislation should become evident.
    The Committee does believe that there should be two narrow, 
reasonable limitations on the scope of protected disclosures, 
and it has included those limitations in S. 372. The first 
emerged during the hearing on this bill's predecessor, S. 1358, 
during the 108th Congress. The Senior Executives Association 
testified that they believed that an unrestricted scope of 
protected disclosure could be construed to include lawful 
policy decisions of a supervisor or manager, and recommended 
that the bill be clarified to deny protection relating to 
policy disagreements.\16\ Put another way, disclosures must be 
specific and factual, not general, philosophical, or policy 
disagreements. S. 372 incorporates that limitation by excluding 
communications concerning policy decisions that lawfully 
exercise discretionary authority. This exclusion reflects 
congressional intent at the inception of statutory 
whistleblower protection.\17\ At the same time, the Committee 
recognizes the need to curb a disturbing trend to hold that the 
WPA does not cover disclosures of tangible misconduct arguably 
flowing from a policy decision. As a result, S. 372 provides 
balance by codifying that an employee is still protected for 
disclosing evidence of illegality, gross waste, gross 
mismanagement, abuse of authority or a substantial and specific 
danger to public health or safety, regardless of whether the 
information arguably relates to a policy decision, whether 
properly or improperly implemented. This language is consistent 
with Federal Circuit precedent.\18\
---------------------------------------------------------------------------
    \16\S. 1358--The Federal Employee Protection of Disclosures Act: 
Amendments to the Whistleblower Protection Act: Hearing on S. 1358 
before the Committee on Governmental Affairs, S. Hrg. 108-414, at 163 
(2003).
    \17\See S. Rep. No. 969, 95th Cong., 2d Sess. 8 (1978), reprinted 
in 1978 U.S.C.C.A.N. 2723, 2730 (the Committee intends that only 
disclosures of public health or safety dangers which are both 
substantial and specific are to be protected. Thus, for example, 
general criticisms by an employee of the Environmental Protection 
Agency that the agency is not doing enough to protect the environment 
would not be protected under this subsection.).
    \18\Gilbert v. Dept. of Commerce, 194 F.3d 1332 (Fed. Cir. 1999).
---------------------------------------------------------------------------
    Second, to address concerns that minor, accidental 
violations of law committed in good faith would become the 
basis for protected disclosures and legal claims, S. 372 
excludes disclosures of ``an alleged violation that is minor, 
inadvertent, and occurs during conscientious carrying out of 
official duties.'' The agency would need to prove the employee 
disclosed alleged wrongdoing that is minor or insignificant and 
that was done inadvertently or accidentally in the course of 
the alleged violator's duties. As an illustrative example, 
suppose an agency regulation requires employees to turn off 
their office lights at night, someone forgets to do so 
occasionally, and an employee reports that violation. That is 
the type of disclosure of a minor, accidental violation that 
the Committee does not intend should be the basis for a WPA 
claim. Of course, this provision has no effect on whether, in 
taking a personnel action affecting an employee, the agency 
may, or may not, consider that the employee made such a 
disclosure of a minor and inadvertent violation; the only 
effect of the provision is that the protections and procedures 
of the WPA may not be invoked in this situation. The language 
of this provision derives from case law finding that 
disclosures of trivial or de minimis violations are not 
protected under the WPA\19\ and is not intended to expand the 
current scope of that exception.
---------------------------------------------------------------------------
    \19\See Drake v. Agency for International Development, 543 F.3d 
1377, 1381 (Fed. Cir. 2008).
---------------------------------------------------------------------------
    The intentionally broad scope of protected disclosures 
should be clear. With respect to ``any violation of any law, 
rule, or regulation,'' the Committee emphasizes that ``any'' 
means ``any,'' except where an agency proves that one of these 
two narrow exceptions applies. With respect to a disclosure of 
``gross mismanagement'' or a ``gross waste'' of funds, more 
than de minimis wrongdoing must be alleged. The Board used an 
appropriate definition of ``gross mismanagement'' in Swanson v. 
General Services Administration.\20\ In Swanson, the Board held 
that ``[g]ross mismanagement means more than de minimis 
wrongdoing or negligence; it means a management action or 
inaction that creates a substantial risk of significant adverse 
impact on the agency's ability to accomplish its mission.''
---------------------------------------------------------------------------
    \20\110 M.S.P.R. 278, 284-85 (2008), citing Shriver v. Department 
of Veterans Affairs, 89 M.S.P.R. 239 (2001).
---------------------------------------------------------------------------

Reasonable belief--Irrefragable proof

    As noted above, a prima facie whistleblower case entails a 
showing that the employee reasonably believes that the 
disclosed information evidences a violation of law, rule, or 
regulation, or gross mismanagement, a gross waste of funds, an 
abuse of authority, or a substantial and specific danger to 
public health and safety. The test for reasonable belief, as 
developed in case law and prospectively codified in S. 372, is 
an objective one. However, in a very troubling decision ten 
years ago, the Federal Circuit imposed on the whistleblower the 
burden of ``irrefragable proof.'' Under this court-imposed 
standard, in order to prove that the whistleblower's belief in 
the disclosed wrongdoing was reasonable, the whistleblower also 
had to present irrefragable proof that the wrongdoing actually 
occurred, in order to rebut what the court considered to be the 
standard presumption that the government acts in good 
faith.\21\ The MSPB and the Federal Circuit have, in subsequent 
decisions, disavowed this requirement of ``irrefragable 
proof,'' and S. 372 would codify the removal of the 
``irrefragable proof'' requirement from whistleblower 
jurisprudence.
---------------------------------------------------------------------------
    \21\Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
---------------------------------------------------------------------------
    In Lachance v. White, the Office of Personnel Management 
(OPM) sought review of an order by the Board that found that 
White made protected disclosures resulting in a downgrade in 
position. OPM argued that White's belief that he disclosed 
gross mismanagement (an allegedly wasteful Air Force education 
program) was inadequate to support a violation of the WPA 
without an independent review by the MSPB of the reasonableness 
of White's belief.
    The Federal Circuit agreed, and stated that the MSPB must 
have an objective test to determine whether it was reasonable 
to believe that the disclosures revealed misbehavior by the Air 
Force covered by 5 U.S.C. Sec. 2302(b)(8). The court said that 
the test is: ``Could a disinterested observer with knowledge of 
the essential facts known to and readily ascertainable by the 
employee reasonably conclude that the actions of the government 
evidence gross mismanagement?''\22\ However, the court then 
added that the review of whether White reasonably believed he 
disclosed wrongdoing must begin with the ``presumption that 
public officers perform their duties correctly, fairly, in good 
faith, and in accordance with the law and governing 
regulations. . . . And this presumption stands unless there is 
`irrefragable proof' to the contrary.''\23\ In other words, in 
the court's view, the disinterested observer weighing whether 
the employee disclosed wrongdoing would start with the 
presumption that the government acted properly unless there is 
presented irrefragable proof to the contrary. ``Irrefragable'' 
means impossible to refute.\24\ Read literally, therefore, the 
holding required employees to establish that they reasonably 
believed they disclosed wrongdoing by offering indisputable 
proof that the public official or officials acted in bad faith 
or violated the law. Such an evidentiary burden was contrary to 
logic and clear congressional intent.
---------------------------------------------------------------------------
    \22\Id.
    \23\Id. (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 
(Fed. Cir. 1993)).
    \24\Merriam-Webster's Collegiate Dictionary (10th ed. 1999). The 
peculiar word has some currency in other jurisprudence entrusted to the 
Federal Circuit, government contracting for example, though the concept 
there is usually ``almost irrefragable,'' or ``well nigh 
irrefragable''--rendered in familiar terms as ``clear and convincing.'' 
See, e.g., Galen Medical Associates, Inc. v. United States, 369 F.3d 
1324, 1330 (Fed. Cir. 2004).
---------------------------------------------------------------------------
    Fortunately, the MSPB recognized the misstep on remand. In 
2003, on remand from the Federal Circuit, the MSPB ruled that:

          The WPA clearly does not place a burden on an 
        appellant to submit ``irrefragable proof'' to rebut a 
        presumption that federal officials act in good faith 
        and in accordance with law. There is no suggestion in 
        the legislative history of the WPA that Congress 
        intended such a burden be placed on an appellant. When 
        Congress amended the WPA in 1994, it did nothing to 
        indicate that the objective test, which had been 
        articulated by the Board by that time, was inconsistent 
        with the statute. The dictionary definition of 
        ``irrefragable'' suggests that a putative whistleblower 
        would literally have to show that the agency actually 
        engaged in gross mismanagement, even though the WPA 
        states that he need only have a reasonable belief as to 
        that matter. The Federal Circuit itself has not imposed 
        an ``irrefragable proof'' burden on appellants in cases 
        decided after White . . . and has, in fact, stated that 
        the ``proper test'' is the objective, ``disinterested 
        observer'' standard.\25\
---------------------------------------------------------------------------
    \25\White v. Dept. Air Force, 95 M.S.P.R. 1, 7-8 (2003).

    On December 15, 2004, the Federal Circuit, ruling on this 
case on appeal from the MSPB, rejected the government's 
argument and that disclosures are not protected without a 
showing of irrefragable proof that agency officials acted 
improperly, and endorsed an objective test for reviewing the 
whistleblower's belief that governmental wrongdoing 
occurred.\26\
---------------------------------------------------------------------------
    \26\White v. Dept. Air Force, 391 F. 3d 1377, 1381 (Fed. Cir. 
2004).
---------------------------------------------------------------------------
    To definitely disavow the ``irrefragable proof'' 
requirement and to ensure that it is not revived in future case 
decisions, S. 372 codifies the objective reasonable-belief test 
in Lachance for all whistleblower disclosures. The bill also 
provides that any presumption that a public official (i.e., the 
official whose misconduct the whistleblower is disclosing) 
acted in good faith may be rebutted by ``substantial evidence'' 
rather than ``irrefragable proof.'' The Supreme Court has 
defined substantial evidence as ``such relevant evidence as a 
reasonable mind might accept as adequate to support a 
conclusion.''\27\ It consists of ``more than a mere scintilla 
of evidence but may be somewhat less than a 
preponderance.''\28\ By establishing a substantial evidence 
test, the Committee intends to provide a standard that will not 
be a higher burden than the preponderance of the evidence 
standard that employees must meet to prove their case on the 
merits. This standard is consistent with the legislative 
history of the Act. Indeed, a cornerstone of 5 U.S.C. 
Sec. 2302(b)(8) since its initial passage in 1978 has been that 
an employee need not ultimately prove any misconduct to qualify 
for whistleblower protection. All that is necessary is for the 
employee to have a reasonable belief that the information 
disclosed is evidence of misconduct listed in section 
2302(b)(8).\29\ The Committee emphasizes that there should be 
no additional burdens imposed on the employee beyond those 
provided by the statute, and that the statutory definition must 
be applied consistently to each protected speech category in 
section 2302(b)(8).\30\
---------------------------------------------------------------------------
    \27\Richardson v. Perales, 402 U.S. 389, 401 (1971).
    \28\Hays v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990) (quoting 
Laws v. Celebrezze, 368 F. 2d 640, 642 (4th Cir. 1966)).
    \29\Ramos v. FAA, 4 M.S.P.R. 388 (1980).
    \30\Despite adopting an appropriate test for reasonable belief, the 
Court in White v. Department of Air Force used a formulation of gross 
mismanagement that could cause confusion. The Court held that ``for a 
lawful agency policy to constitute `gross mismanagement,' an employee 
must disclose such serious errors by the agency that a conclusion the 
agency erred is not debatable among reasonable people.'' 391 F.3d. at 
1382. The requirement that the disclosure must lead to ``a conclusion 
the agency erred [that] is not debatable among reasonable people'' 
could be read to require proof that the alleged misconduct actually 
occurred. Disclosures of gross mismanagement, as all other forms of 
disclosures, must be evaluated from the perspective of the reasonable 
belief of the employee disclosing the information. The appropriate 
standard for determining whether alleged conduct constitutes ``gross 
mismanagement'' is discussed above. See the beginning of this section, 
entitled ``Reasonable Belief--Irrefragable Proof,'' supra.
---------------------------------------------------------------------------
    The Committee notes that the two narrow exceptions to the 
definition of protected disclosures must be applied within the 
framework of the objective reasonableness test. In other words, 
if an employee has a reasonable belief that the information 
disclosed evidences misconduct listed in section 2302(b)(8), 
rather than conduct excepted from that definition, the 
disclosure is protected. The agency, for example, may not 
prevail by demonstrating that the actual misconduct meets the 
minor, inadvertent exception; what matters is the objective 
reasonableness of the employee's belief with regard to his or 
her disclosure.

All-circuit review

    When the Civil Service Reform Act of 1978 was enacted, it 
gave employees an option of where to appeal final orders of the 
MSPB. The 1978 Act allowed them to file a petition in the Court 
of Claims, the U.S. court of appeals for the circuit where the 
petitioner resided, or the U.S. Court of Appeals for the D.C. 
Circuit.\31\ In 1982, when Congress created the Federal 
Circuit, it gave that court exclusive jurisdiction over 
petitions for review of the MSPB's orders other than those 
involving certain claims of discrimination.\32\
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    \31\Public Law No. 95-454, 92 Stat. 1143, Sec. 205 (1978) (adding 5 
U.S.C. Sec. 7703).
    \32\Public Law No. 97-164, 96 Stat. 49, Sec. 144 (1982); see also 5 
U.S.C. Sec. Sec. 7702, 7703(b)(2).
---------------------------------------------------------------------------
    At the hearing on S. 1358 during the 108th Congress, 
attorney Stephen Kohn, Chairman of the National Whistleblower 
Center, testified that:

          Restricting appeals to one judicial circuit 
        undermines the basic principle of appellate review 
        applicable to all other whistleblower laws. That 
        principle is based on an informed peer review process 
        which holds all circuit judges accountable. . . . [As 
        appeals courts disagree with each other,] courts either 
        reconsider prior decisions and/or the case is heard by 
        the Supreme Court, which resolves the dispute.
          By segregating federal employee whistleblowers into 
        one judicial circuit, the WPA avoids this peer review 
        process and no ``split in the circuits'' can ever 
        occur. In the Federal Circuit no other judges 
        critically review the decisions of the Court, no split 
        in the circuits' can ever occur, and thus federal 
        employees are denied the most important single 
        procedure which holds appeals court judges reviewable 
        and accountable. A split in the circuits' is the 
        primary method in which the U.S. Supreme Court reviews 
        wrongly decided appeals court decisions.\33\
---------------------------------------------------------------------------
    \33\S. 1358 Hearing supra note 16, (statement of Stephen Kohn, 
Chairman, Board of Directors, National Whistleblower Center) at 136.

The Committee believes that this argument raises valid points 
about the current arrangement for judicial review.
    Furthermore, unlike federal employee whistleblower cases, a 
number of federal statutes already allow cases involving rights 
and protections of federal employees, or involving 
whistleblowers, to be appealed to Courts of Appeals across the 
country. In cases involving allegations of discrimination, 
cases decided by the MSPB may be brought in the United States 
District Courts. State or local government employees affected 
by the MSPB's Hatch Act decisions also may obtain review in the 
U.S. district courts.\34\ Appeal from decisions of the district 
courts in these cases may then be brought in the appropriate 
court of appeals for the appropriate Circuit. Additionally, 
decisions of the Federal Labor Relations Authority (FLRA) may 
be appealed to court of appeals for the circuit where the 
petitioner resides, transacts business, or to the D.C. 
Circuit.\35\
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    \34\5 U.S.C. Sec. 1508.
    \35\5 U.S.C. Sec. 7123(a).
---------------------------------------------------------------------------
    Moreover, a multi-circuit appellate review process is 
available under existing law for many other types of 
whistleblower claims. Under the False Claims Act, as amended in 
1986, whistleblowers who disclose fraud in government contracts 
can file a case in district court and appeal to the appropriate 
federal court of appeals.\36\ Congress passed the Resolution 
Trust Corporation Completion Act in 1993, which provided 
employees of banking related agencies the right to go to 
district court and have regular avenues of appeal.\37\ In 1991, 
Congress passed the Federal Deposit Insurance Corporation 
Improvement Act which provides district court review with 
regular avenues of appeal for whistleblowers in federal credit 
unions.\38\ Whistleblower laws passed as part of the Energy 
Reorganization Act, as amended in 1992,\39\ and the Clean Air 
Act, as amended in 1977,\40\ allow whistleblowers to obtain 
review of orders issued in the Department of Labor 
administrative process in the appropriate federal court of 
appeals. The Wendell H. Ford Aviation Investment and Reform Act 
for the 21st Century (AIR 21),\41\ passed in 2000, allows 
whistleblowers to obtain review of their cases alleging 
retaliation for reporting air safety violations in the 
appropriate federal court of appeals. The Sarbanes-Oxley Act of 
2002 allows whistleblowers from all publicly-traded 
corporations access to the courts and jury trials if the 
whistleblower makes a claim of retaliation for making a 
disclosure and if the Department of Labor does not reach a 
decision on a whistleblower claim in 180 days, with appeal to 
the appropriate federal court of appeals.\42\ The American 
Recovery and Reinvestment Act of 2009 provides jury trials for 
whistleblower claims by all state and local government or 
contractor employees receiving funding from the stimulus.\43\
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    \36\31 U.S.C. Sec. 3730(h).
    \37\12 U.S.C. Sec. 1441a(q).
    \38\12 U.S.C. Sec. 1790b(b).
    \39\42 U.S.C. Sec. 5851(c).
    \40\42 U.S.C. Sec. 7622(c).
    \41\49 U.S.C. Sec. 42121(b)(4).
    \42\18 U.S.C. Sec. 1514A.
    \43\Public Law No. 111-5, Sec. 1552, 123 Stat. 115 (2009).
---------------------------------------------------------------------------
    Subject to a five-year sunset, S. 372 would conform the 
system for judicial review of federal whistleblower cases to 
that established for private sector whistleblower cases and 
certain other federal employee appeal systems by suspending the 
Federal Circuit's exclusive jurisdiction over whistleblower 
appeals. The five-year period will allow Congress to evaluate 
whether decisions of other appellate courts in whistleblower 
cases are consistent with the Federal Circuit's interpretation 
of WPA protections, guide congressional efforts to clarify the 
law if necessary, and determine if this structural reform 
should be made permanent.

Office of Special Counsel--Amicus Curiae Authority

    The OSC, initially established in 1979 as the investigative 
and prosecutorial arm of the MSPB, became an independent agency 
within the Executive Branch, separate from the MSPB, with 
passage of the WPA in 1989. The Special Counsel does not serve 
at the President's pleasure, but is appointed by and ``may be 
removed by the President only for inefficiency, neglect of 
duty, or malfeasance in office.''\44\ The primary mission of 
the OSC is to protect federal employees and applicants from 
prohibited employment practices, with a particular focus on 
protecting whistleblowers from retaliation. The OSC 
accomplishes this mission by investigating complaints filed by 
federal employees and applicants that allege that federal 
officials have committed prohibited personnel practices.
---------------------------------------------------------------------------
    \44\5 U.S.C. Sec. 1211(b).
---------------------------------------------------------------------------
    When such a claim is filed by a federal employee, the OSC 
investigates the allegation to determine whether there are 
reasonable grounds to believe that a prohibited personnel 
practice has occurred. If the Special Counsel determines there 
are reasonable grounds to believe that a prohibited personnel 
practice has occurred, the Special Counsel sends the head of 
the employing agency a report outlining the OSC's findings and 
asking the agency to remedy the action. In the majority of 
cases in which the Special Counsel believes that a prohibited 
personnel practice has occurred, agencies voluntarily take 
corrective action.\45\ If an agency does not do so, the OSC is 
authorized to file a petition for corrective action with the 
MSPB.\46\ At proceedings before the MSPB, the OSC is 
represented by its own attorneys while the employing agency is 
represented by the agency's counsel.
---------------------------------------------------------------------------
    \45\U.S. Office of Special Counsel, Annual Report for Fiscal Year 
2003, at 7.
    \46\5 U.S.C. Sec. 1214(b)(2)(C).
---------------------------------------------------------------------------
    If the OSC does not send the whistleblower's allegations to 
an agency head, it returns the information and any accompanying 
documents to the whistleblower explaining why the Special 
Counsel did not refer the information. In such a situation, the 
whistleblower may file a request for corrective action with the 
MSPB. This procedure is commonly known as an individual right 
of action (IRA). In IRAs, the OSC may not intervene unless it 
has the consent of the whistleblower.
    After the MSPB renders a decision on a whistleblower claim, 
the OSC's ability to effectively enforce and defend 
whistleblower laws in the context of that claim is limited. For 
example, the OSC does not have authority to ask the MSPB to 
reconsider its decision or to seek review of an MSPB decision 
by the Federal Circuit. In contrast, OPM, which typically is 
not a party to the case, can request that the MSPB reconsider 
its rulings. Even when a party with authority to petition for 
review of an MSPB decision does so, the OSC historically has 
been denied the right to participate in those proceedings.
    Furthermore, if a case is appealed to the Federal Circuit, 
the Department of Justice (DOJ) recognizes the OSC's right to 
appear as an intervener only in those few cases where the OSC 
was a party before the Board and the case reaches the court of 
appeals on another party's petition for review. These cases 
usually involve agency officials' efforts to reverse Board 
decisions that have granted a petition by the OSC to impose 
discipline for retaliating against a whistleblower. Because the 
OSC lacks independent litigating authority, it must be 
represented by the Justice Department, rather than its own 
attorneys, in such cases. DOJ's representation of the OSC in 
such cases creates a conflict of interest and could be a 
significant impediment to the effective enforcement of the WPA.
    As a result of the current structure, the OSC is blocked 
from participating in the forum in which the law is largely 
shaped: the U.S. Court of Appeals for the Federal Circuit (and, 
if this legislation is enacted, the other circuits). This 
limitation undermines both the OSC's ability to protect 
whistleblowers and the integrity of the whistleblower law. The 
Committee believes that the OSC should play a role in 
whistleblower cases before the court of appeals. Therefore, S. 
372 provides the Special Counsel with authority to file its own 
amicus curiae (or, ``friend of the court'') briefs with the 
federal courts, represented by its own lawyers, not by DOJ, 
thereby presenting the OSC's views on the law in whistleblower 
cases or other matters designated in the bill.
    This authority is similar to that granted to the Chief 
Counsel for Advocacy of the Small Business Administration 
(SBA). Under section 612 of the Regulatory Flexibility Act 
(RFA),\47\ the Chief Counsel for Advocacy has the authority to 
appear as amicus curiae in any court action to review a 
government rule. Specifically, the Chief Counsel is authorized 
to present views with respect to compliance with the RFA, the 
adequacy of a rulemaking record pertaining to small entities, 
and the effect of rules on small entities. Federal courts are 
bound to grant the amicus curiae application of the Chief 
Counsel, which allows the Chief Counsel to help shape the law 
affecting small businesses.\48\
---------------------------------------------------------------------------
    \47\Public Law No. 96-354, 94 Stat. 1164 (1980).
    \48\5 U.S.C. Sec. 612(c).
---------------------------------------------------------------------------
    The Committee believes that granting this authority to the 
OSC is necessary to ensure the OSC's effectiveness and to 
protect whistleblowers from judicial interpretations that 
unduly narrow the WPA's protections, as has occurred in the 
past.

Burden of proof in OSC disciplinary actions

    Current law authorizes the OSC to pursue disciplinary 
action against managers who retaliate against whistleblowers. 
More specifically, the Special Counsel must present a written 
complaint to the MSPB if the Special Counsel determines that 
disciplinary action should be taken against a supervisor for 
having committed a prohibited personnel practice or other 
misconduct within the OSC's purview. The Board then may issue 
an order taking disciplinary action against the employee.\49\
---------------------------------------------------------------------------
    \49\5 U.S.C. Sec. 1215.
---------------------------------------------------------------------------
    However, under MSPB case law, the OSC bears the burden of 
demonstrating that protected activity was the ``but-for cause'' 
of an adverse personnel action against a whistleblower--in 
other words, if the whistleblowing activity had not occurred, 
then that manager would not have taken the adverse personnel 
action.\50\ This can be a heavy burden to meet. In 1989, 
Congress lowered the burden of proof for whistleblowers to win 
corrective action against retaliation. The 1989 Act eliminated 
the relevance of employer motives, eased the standard to 
establish a prima facie case (showing that the protected speech 
was a contributing factor in the action), and raised the burden 
for agencies, which must now provide independent justification 
for the personnel action at issue by clear and convincing 
evidence.\51\ However, the 1989 statutory language only 
established burdens for defending against retaliation. It 
failed to address disciplinary actions. As a result, the Board 
has on many occasions ruled that whistleblower reprisal had 
been proven for purposes of providing relief to the employees, 
but rejected the OSC's claim for disciplinary action against 
the managers in the same case.\52\
---------------------------------------------------------------------------
    \50\Special Counsel v. Santella, 65 M.S.P.R. 452 (1994).
    \51\5 U.S.C. Sec. Sec. 1214 and 1221. See also 135 Cong. Rec. 4509, 
4517, 5033 (1989).
    \52\Letter from Elaine Kaplan, Special Counsel, Office of Special 
Counsel, to Senator Carl Levin (Sept. 11, 2002) (arguing that the MSPB 
case law relating to the OSC's disciplinary authority should be 
overturned, Ms. Kaplan wrote ``change is necessary in order to ensure 
that the burden of proof in these [disciplinary] cases is not so 
onerous as to make it virtually impossible to secure disciplinary 
action against retaliators.'').
---------------------------------------------------------------------------
    The bill addresses the burden of proof problem in OSC 
disciplinary action cases by employing the same burden of proof 
the Supreme Court set forth in Mt. Healthy v. Doyle,\53\ in 
which a public school teacher claimed he was unlawfully 
terminated from his employment for exercising his First 
Amendment freedom of speech. Under this test, the OSC would 
have to show that protected whistleblowing was a ``significant 
motivating factor'' in the decision to take or threaten to take 
a personnel action, even if other factors were considered in 
the decision. If the OSC makes such a showing, the MSPB would 
order appropriate discipline unless the official shows, by a 
preponderance of the evidence, that he or she would have taken 
or threatened to take the same personnel action even if there 
had been no protected whistleblower disclosure.
---------------------------------------------------------------------------
    \53\Mt. Healthy City School District Board of Education v. Doyle, 
429 U.S. 274 (1977).
---------------------------------------------------------------------------

OSC attorney fees

    The OSC has authority to pursue disciplinary actions 
against managers who retaliate against whistleblowers. 
Currently, if the OSC loses such a case, it must pay the legal 
fees of those against whom it initiated the action. Because the 
OSC's budget is small and the amounts involved could 
significantly deplete its resources, requiring the OSC to pay 
attorney fees could have an impact on the OSC's ability to 
enforce the WPA and defend the merit system by protecting 
whistleblowers.
    Illustrative of the problem and the importance of S. 372's 
solution is Santella v. Special Counsel.\54\ In a 2-1 decision, 
the MSPB held that the OSC could be held liable to pay attorney 
fees, even in cases where its decision to prosecute was a 
reasonable one, if the accused agency officials were ultimately 
found ``substantially innocent'' of the charges brought against 
them. The Board majority further ruled that two supervisors in 
the Internal Revenue Service (IRS) were ``substantially 
innocent'' of retaliation, notwithstanding an earlier finding 
by an MSPB administrative law judge that their subordinates' 
whistleblowing was a contributing factor in four personnel 
actions the supervisors took against them.
---------------------------------------------------------------------------
    \54\86 M.S.P.R. 48 (May 9, 2000).
---------------------------------------------------------------------------
    The OSC argued that, because its decision to prosecute the 
supervisors was a reasonable one and based upon then-existing 
law, an award of fees would not be in the interests of justice. 
In fact, the OSC contended, sanctioning an award of fees under 
these circumstances would be counter to the public interest and 
contrary to congressional intent that the OSC vigorously 
enforce the Whistleblower Protection Act by seeking to 
discipline supervisors who violate the Act. The OSC also 
argued, in the alternative, that if the supervisors were 
entitled to be reimbursed for their attorney fees, then their 
employing agency, the IRS, should be found liable.
    The Board majority rejected the OSC's arguments. It held 
that the OSC, and not the IRS, should be liable for any award 
of fees. It further found that--because the supervisors had 
ultimately prevailed in the case under the Board's more 
stringent burden of proof--they were ``substantially innocent'' 
of the charges, and reimbursement of their fees would be in the 
interests of justice.\55\
---------------------------------------------------------------------------
    \55\Id. at 64-65.
---------------------------------------------------------------------------
    Vice Chair Slavet dissented. She observed that the OSC had 
presented ``direct evidence of retaliatory animus on the part 
of one of the [supervisors] and circumstantial evidence of 
retaliation supporting all the charges.'' Further, she noted 
that the OSC had proven its charges to the satisfaction of the 
ALJ under the law as it existed when the action was commenced, 
but lost when the test was revised and made harder to meet in 
the course of the litigation. Under these circumstances, then-
Vice Chair Slavet observed that the OSC's pursuit of the case 
was reasonable and an award of fees was not in the interests of 
justice.\56\
---------------------------------------------------------------------------
    \56\Id. at 69-76.
---------------------------------------------------------------------------
    The Committee believes that the OSC's disciplinary action 
authority is a powerful weapon to deter whistleblowing 
retaliation. Should the Santella case remain valid law, the OSC 
would be subject to heavy financial penalties unless it can 
predict to a certainty that it will prevail (and even predict 
the unpredictable: changes in the law that might affect the 
OSC's original assessment of a case's merit) before bringing a 
disciplinary action. Because the OSC is a small agency with a 
limited budget, this burden would hinder the OSC's use of 
disciplinary action as an enforcement mechanism and threaten 
the OSC's ability to implement and enforce the WPA. To correct 
this problem, S. 372 would require the employing agency, rather 
than the OSC, to reimburse the manager's attorney fees.

Anti-gag provisions

    In 1988, Senator Grassley sponsored an amendment to the 
Treasury, Postal and General Government Appropriations bill, 
which was and continues to be referred to as the ``anti-gag'' 
provision.\57\ This provision has been included in 
appropriations legislation every year since then. The annual 
anti-gag provision states that no appropriated funds may be 
used to implement or enforce agency non-disclosure policies or 
agreements unless there is a specific, express statement 
informing employees that the disclosure restrictions do not 
override their right to disclose waste, fraud, and abuse under 
the WPA, to communicate with Congress under the Lloyd-La 
Follette Act,\58\ and to make appropriate disclosures under 
other particular laws specified in the statement.
---------------------------------------------------------------------------
    \57\Public Law No. 105-277, 112 Stat. 2681-526 (1998), the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act, 1999, 
Sec. 636.
    \58\The Lloyd-La Follette Act was passed as Section 6 of the Postal 
Service Appropriations Act of 1912, Public Law No. 336, 37 Stat. 539, 
555 (1912). Federal employees' right to petition and provide 
information to Congress under this Act is codified at section 5 U.S.C. 
Sec. 7211.
---------------------------------------------------------------------------
    S. 372 would institutionalize the anti-gag provision by 
codifying it and making it enforceable. Specifically, the bill 
would require every nondisclosure policy, form, or agreement of 
the Government to contain specific language set forth in the 
legislation informing employees of their rights. A 
nondisclosure policy, form, or agreement may not be implemented 
or enforced in a manner that is inconsistent with the required 
statement of rights or the underlying statutory protections. 
The bill also specifically makes it a prohibited personnel 
practice for any manager to implement or enforce a 
nondisclosure policy, form, or agreement that does not contain 
the specific statement mandated in the bill, or to implement or 
enforce a nondisclosure policy, form, or agreement in 
retaliation for whistleblowing. Making it a prohibited 
personnel practice means that the anti-gag requirement is 
enforceable by the OSC and the MSPB, and that an employee may 
seek protection against a personnel action taken in violation 
of the anti-gag requirement.
    S. 372 provides that a nondisclosure policy, form, or 
agreement in effect before the date of enactment may be 
enforced with regard to a current employee if the agency gives 
the employee notice of the statement of rights, and may be 
enforced with regard to a former employee if the agency posts 
notice on the agency website for one year following the date of 
enactment of the Act.\59\ The Committee concludes these 
provisions strike the appropriate balance between allowing 
existing nondisclosure agreements to remain in force while also 
ensuring that employees are aware of their rights under the 
law.
---------------------------------------------------------------------------
    \59\Such agreements may be enforced during the notice period 
provided the agency posts notice by the effective date of the Act.
---------------------------------------------------------------------------

Ex post facto exemption of agencies from whistleblower protection 
        obligations

    The WPA provides that certain employees and agencies are 
exempt from the Act. Employees excluded from the Act include 
those in positions exempted from the competitive service 
because of their confidential, policy-determining, policy-
making, or policy advocating character and those employees 
excluded by the President if necessary and warranted by 
conditions of good administration.\60\
---------------------------------------------------------------------------
    \60\5 U.S.C. Sec. 2302(a)(2)(B).
---------------------------------------------------------------------------
    Certain agencies are also excluded from the Act. They 
include GAO, the Federal Bureau of Investigation (FBI), the 
Central Intelligence Agency, the National Security Agency, the 
Defense Intelligence Agency, the National Geospatial-
Intelligence Agency, and other agencies determined by the 
President to have the principal function of conducting foreign 
intelligence or counterintelligence activities.\61\ S. 372 
would add two intelligence community entities that clearly have 
the principal function of conducting intelligence activities to 
the list of statutorily excluded intelligence agencies that are 
covered under the Intelligence Community Whistleblower 
Protection Act\62\ rather than the WPA: the Office of the 
Director of National Intelligence (ODNI) and the National 
Reconnaissance Office. ODNI was created in 2004 by the 
Intelligence Reform and Terrorism Prevention Act of 2004\63\ 
and did not exist the last time the WPA was amended.
---------------------------------------------------------------------------
    \61\5 U.S.C. Sec. 2302(a)(2)(C).
    \62\The ICWPA was enacted as title VII of the Intelligence 
Authorization Act for FY 1999, Public Law No. 105-272, 112 Stat. 2396 
(1998). It provides intelligence community employees excluded from the 
WPA a protected path to disclose classified information to Congress.
    \63\Public Law No. 108-458, 118 Stat. 3638 (2004).
---------------------------------------------------------------------------
    In 1994, Congress amended the WPA to block agencies from 
depriving an employee of protection under the WPA by 
designating the employee's particular position as a 
confidential policy-making position after retaliating against 
the employee for having blown the whistle. To accomplish this, 
Congress restricted the jurisdictional loophole to positions 
designated as exceptions ``prior to the personnel action.''\64\ 
Unfortunately, a similar practice has occurred again, in a 
context with far broader consequences. An agency argued that 
the President had implicitly exempted the agency from the WPA 
by delegating certain intelligence functions to the agency over 
a year after an employee at the agency had filed a 
whistleblower protection complaint, and after the Board had 
overturned an Administrative Judge's decision to order a 
hearing.\65\
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    \64\Public Law No. 103-424 (1994), 108 Stat. 4361, An act to 
reauthorize the Office of Special Counsel and for other purposes, 
amending 5 U.S.C. Sec. 2302(a)(2)(C).
    \65\See Czarkowski v. Merit Systems Protection Board, 390 F.3d 
1347, 1350-51 (Fed. Cir. 2004) (rejecting the argument for implicit 
exemption from the WPA). The agency sought to invoke the exemption 
after the Board had rejected its previous defense on a different basis 
and ordered a hearing. See Czarkowski v. Dept. of the Navy, 87 M.S.P.R. 
107 (2000).
---------------------------------------------------------------------------
    S. 372 would close the loophole for entire agencies in the 
same manner as Congress did for individual positions in 1994, 
by specifying that an employee of an agency loses whistleblower 
rights only if the agency is excluded under the Act prior to 
the occurrence of any personnel action against a whistleblower. 
The Committee believes that it is important for employees to 
know their rights and protections under the WPA, including if 
they have no rights, before they make any whistleblowing 
disclosure in reliance on the protections of the WPA. By 
eliminating the potential for post-disclosure exclusion from 
the WPA, this provision encourages employees to disclose waste, 
fraud, abuse, and illegal activity, and will aid them in 
determining the appropriate way to do so.

Whistleblower protection for Transportation Security Administration 
        employees

    As noted above,\66\ the WPA generally provides 
whistleblowers the opportunity to file a request for corrective 
action known as an individual right of action, or IRA, before 
the Board. However, in Schott v. Department of Homeland 
Security, the MSPB ruled that it had no jurisdiction over 
whistleblower cases brought by employees of the Transportation 
Security Administration (TSA). The Board reasoned that the 
Aviation and Transportation Security Act (ATSA), which created 
TSA and gave the TSA Administrator authority to establish a 
personnel system outside of title 5 of the United States Code, 
provides the Administrator with ``final authority'' over TSA 
personnel actions.\67\ The Board held that the Administrator's 
``exclusive personnel authority'' encompasses an exclusion from 
the whistleblower protections found in title 5 and is not 
subject to Board review.
---------------------------------------------------------------------------
    \66\See the section entitled ``Office of Special Counsel--Amicas 
Curiae Authority,'' supra.
    \67\97 M.S.P.R. 35 (2004).
---------------------------------------------------------------------------
    In May 2002, TSA and the OSC entered into a memorandum of 
understanding that provided the OSC the authority to 
investigate whistleblower retaliation complaints and recommend 
to TSA that it take corrective and/or disciplinary action.\68\ 
In February 2008, TSA and the Board announced an agreement to 
provide TSA employees with a limited right to bring WPA claims 
before the Board;\69\ and in July 2008, TSA and the Board 
announced that they had implemented that agreement.\70\ Under 
the agreement, TSA employees are permitted to file an appeal 
with the Board after the OSC has reviewed and closed a matter 
involving a whistleblower complaint. Whistleblowers may not 
appeal Board orders, and Board hearings for whistleblowers are 
closed to the public absent good cause for opening them. Also, 
the OSC does not have authority to represent TSA employees 
before the MSPB. The agreement is subject to cancellation by 
either the Board or TSA at any time with 60 days' notice.
---------------------------------------------------------------------------
    \68\See Memorandum of Understanding Between OSC and TSA Regarding 
Whistleblower Protections for TSA Security Screeners (May 28, 2002), 
available at http://www.osc.gov/documents/tsa/tsa_mou.pdf.
    \69\See Memorandum of Agreement between Transportation Security 
Administration and Merit Systems Protection Board (February 26, 2008); 
TSA Press Release, ``TSA Announces Agreement on Enhanced Whistleblower 
Protection for Security Officers'' (February 27, 2008), available at 
http://www.tsa.gov/press/releases/2008/0227.shtm.
    \70\See Interagency Agreement and Statement of Work between the 
Transportation Security Administration and the Merit Systems Protection 
Board, Interagency Agreement Number MSPB-08-IAG-001 (July 28, 2008).
---------------------------------------------------------------------------
    The Committee concludes that there is no basis for 
excluding TSA employees from the full protections of the WPA. 
Employees of all other components of the Department of Homeland 
Security are protected by the WPA, and encouraging the 
disclosure of illegal activity, waste, and mismanagement helps 
to further the mission of the Department, as with all other 
agencies subject to the WPA. As Rajesh De, Deputy Assistant 
Attorney General, Office of Legal Counsel, at the Department of 
Justice testified on behalf of the Administration at the June 
2009 hearing on S. 372:

          We are pleased to see that this bill provides full 
        whistleblower protection to Transportation Security 
        Administration screeners, also known as Transportation 
        Security Officers. Transportation Security Officers 
        stand literally at the front lines of our nation's 
        homeland security system. They deserve the same 
        whistleblower protections afforded to all other 
        employees of the Department of Homeland Security.\71\
---------------------------------------------------------------------------
    \71\Statement of Rajesh De, S. 372--The Whistleblower Protection 
Enhancement Act of 2009 before the Subcommittee on Oversight of 
Government Management, the Federal Workforce, and the District of 
Columbia, Committee on Homeland Security and Governmental Affairs (June 
11, 2009).

Therefore, consistent with the Administration's view that TSA 
employees should be protected by the WPA, the Committee 
determined that S. 372 should extend full WPA protections to 
TSA employees. S. 372 also would make the provisions 
prohibiting certain personnel practices under 5 U.S.C. 
Sec. 2302(b)(1) applicable to TSA employees. Section 2302(b)(1) 
classifies certain unlawful actions as prohibited personnel 
practices, including discrimination against an employee or 
applicant on the basis of race, color, religion, sex, or 
national origin, age, as prohibited by the Civil Rights Act of 
1964; on the basis of age as prohibited by the Age 
Discrimination in Employment Act of 1967; on the basis of sex 
under the Fair Labor Standards Act of 1938 (which, as amended, 
includes the Equal Pay Act); on the basis of handicapping 
condition under the Rehabilitation Act of 1973; and on the 
basis of marital status or political affiliation as prohibited 
by any law, rule, or regulation.

Penalties for retaliatory investigations

    In the legislative history to the 1994 amendments, House 
Civil Service Subcommittee Chairman Frank McCloskey highlighted 
that retaliatory investigation of whistleblowers is a form of 
harassment and discrimination, and can have a chilling effect 
on protected disclosures, thereby undermining the merit 
system.\72\ In 1997, the Board held, in Russell v. Department 
of Justice, that the WPA protects employees from retaliatory 
investigations under certain circumstances.\73\ Specifically, 
in this case where an employee asserted a WPA violation as a 
defense against a proposed personnel action, the Board held 
that ``[w]hen . . . an investigation is so closely related to 
the personnel action that it could have been a pretext for 
gathering evidence to retaliate, and the agency does not show 
by clear and convincing evidence that the evidence would have 
been gathered absent the protected disclosure, then the 
appellant [whistleblower] will prevail on his affirmative 
defense of retaliation for whistleblowing.''
---------------------------------------------------------------------------
    \72\140 Cong. Rec. 29,353 (1994) and H.R. Rep. No. 103-769, at 15.
    \73\76 M.S.P.R. 317, 323-24 (1997).
---------------------------------------------------------------------------
    As noted above, the WPA makes it a prohibited personnel 
practice to take an adverse personnel action against a covered 
employee because that employee makes a protected disclosure. 
However, agency investigations of employees are not explicitly 
covered under the statutory definition of a ``personnel 
action.'' Instead, such investigations can come within that 
definition only when they result in a significant change in job 
duties, responsibilities, or working conditions or meet certain 
other criteria.\74\ Therefore, even if a whistleblower can 
demonstrate that an investigation was undertaken in retaliation 
for a protected disclosure, the whistleblower has no remedy 
under the WPA unless the whistleblower can also show that the 
investigation amounts to a significant change in job duties, 
responsibilities, or working conditions.
---------------------------------------------------------------------------
    \74\5 U.S.C. Sec. 2302(a)(2). Certain other types of actions, such 
as disciplinary action, transfers, and decisions affecting pay also 
would be considered personnel actions.
---------------------------------------------------------------------------
    S. 372, as introduced, and its predecessors, would have 
explicitly and specifically recognized retaliatory 
investigations as a prohibited personnel practice. However, the 
Administration expressed concerns with that provision. 
Specifically, the Administration wanted to ensure that 
legitimate agency inquiries--including criminal investigations, 
routine background investigations for initial employment, 
investigations for determining eligibility for a security 
clearance, Inspector General investigations, and management 
inquiries of potential wrongdoing in the workplace--are not 
chilled by fear of challenge and litigation.\75\
---------------------------------------------------------------------------
    \75\S. 1358 Hearing supra note 16 at 60.
---------------------------------------------------------------------------
    To address this concern, while still increasing 
whistleblowers' protection from retaliatory investigations, the 
Committee agreed in the substitute amendment to S. 372 to alter 
S. 372's original provision on retaliatory investigations. As 
amended, the provision leaves Russell as the governing law for 
prohibited personnel practices, but provides that any 
corrective action awarded to whistleblowers may include fees, 
costs, and damages incurred due to an agency investigation of 
the employee that was commenced, expanded, or extended in 
retaliation for protected whistleblowing. This provision would 
not change the existing standard for showing that a retaliatory 
investigation or other supervisory activity rises to the level 
of a prohibited personnel practice forbidden under the WPA, 
but, once an employee is able to prove a claim under the WPA, 
the provision of S. 372 would create an additional avenue for 
financial relief if the employee can further demonstrate that 
an investigation was undertaken in retaliation for the 
protected disclosure.

Clarification of whistleblower rights for critical infrastructure 
        information

    The Homeland Security Act (HSA) encouraged non-federal 
owners and operators of critical infrastructure to submit 
critical infrastructure information voluntarily to the 
Department of Homeland Security (DHS) so that the Department 
could assess and address potential security threats.\76\ To 
encourage submission of this information, the HSA stipulates 
that voluntarily submitted critical infrastructure information 
is to be treated as exempt under the Freedom of Information 
Act.\77\ The HSA, however, makes clear that it is not to be 
construed to limit or otherwise affect the ability of a State, 
local, or Federal government entity or third party to 
independently obtain critical infrastructure information.
---------------------------------------------------------------------------
    \76\Public Law No. 107-296, Sec. 214, 116 Stat. 2135 (2002).
    \77\See 5 U.S.C. Sec. 552.
---------------------------------------------------------------------------
    At the same time, the Act criminalizes the unauthorized 
disclosure of this type of information, leading to confusion as 
to whether the HSA limits a whistleblower's disclosure of 
independently obtained critical infrastructure information. 
According to then-Special Counsel Elaine Kaplan:

          [T]he statutory language is very ambiguous in several 
        respects. The rights preserved under section 214(c) 
        extend to government entities, agencies, authorities 
        and ``third parties.'' It is unclear whether employees 
        of the United States would be considered ``third 
        parties.'' Elsewhere in section 214, the statute uses 
        the phrase ``officer or employee of the United States'' 
        when it refers to disclosures by federal employees. 
        See, section 214(a)(1)(D).
          Similarly, the phrase to ``use'' the information ``in 
        any manner permitted by law,'' does not clearly 
        encompass ``disclosures'' of information. Elsewhere, in 
        section 214(a)(1)(D), the statute states that an 
        officer or employee of the United States, shall not 
        ``us[e] or disclos[e]'' voluntarily provided critical 
        infrastructure information. The use of the disjunctive 
        ``use or disclose'' (emphasis added) in section 
        214(a)(1)(D) suggests that the word ``use'' alone in 
        section 214(c) may not encompass the act of 
        ``disclosing.'' In short, it is unclear whether 
        Congress intended to authorize ``disclosures of 
        information'' that are protected by the WPA when it 
        authorized the ``use of information in any manner 
        permitted by law'' in section 214(c).
          These ambiguities become especially troublesome in 
        the context of the tendency of the judiciary to 
        narrowly construe the scope of protection afforded 
        under the WPA.\78\
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    \78\Letter from Elaine Kaplan, Special Counsel, Office of Special 
Counsel, to Sen. Charles Grassley (March 10, 2003).

    When DHS issued proposed regulations implementing section 
214 of the HSA, it received comments expressing concern that 
whistleblowers could be treated unfairly and be subject to 
termination, fines, and imprisonment if they disclosed critical 
infrastructure information. This would discourage the accurate 
reporting of information vital to the public. In response, in 
its interim regulations published in February 2004, DHS 
specifically referenced the WPA to ensure full protections for 
whistleblowers.\79\ However, as stated in DHS's final 
regulations, published in September 2006, the ``refer[ence] to 
the Whistleblower Protection Act [ ] has been omitted because . 
. . [it] merely restates the law of the land.''\80\
---------------------------------------------------------------------------
    \79\See 69 Fed. Reg. 8074.
    \80\See 71 Fed. Reg. 52262, and 6 CFR Sec. 29.8(f).
---------------------------------------------------------------------------
    The regulations clearly intend to ensure that disclosures 
of independently obtained critical infrastructure information 
are not exempt from the WPA. S. 372 would codify that 
regulatory intent and make clear that disclosures of this type 
are free from criminal penalties and are fully covered by the 
whistleblower provisions in 5 U.S.C. Sec. 2302(b)(8).

Right to a full hearing

    Board case law has created a disturbing trend of denying 
the employees' right to a due process hearing and a public 
record to resolve their WPA claims. The prevailing practice at 
the Board now is to deny employees the opportunity to present 
whistleblower claims if the agency first prevails in its 
affirmative defense of proving, by clear and convincing 
evidence, that the agency would have taken the same personnel 
action for lawful reasons independent of retaliation against 
the employee for protected whistleblowing.\81\
---------------------------------------------------------------------------
    \81\See, e.g., Rusin v. Dept. of Treasury, 92 M.S.P.R. 298 (2002).
---------------------------------------------------------------------------
    Taking away whistleblowers' opportunity to present their 
cases undermines key purposes of the WPA. The order in which 
parties get to present their cases may influence the fact-
finders' perception of the merits and, therefore, potentially 
the outcome, and the Board is imposing a process that is the 
inverse of what most adjudicators use, where claimants are 
typically permitted to present their affirmative case before 
the defense gets its turn to put on evidence. Thus, employees 
may be disadvantaged under the MSPB practice by not being 
permitted the opportunity to affirmatively and fully present 
the evidence for their claims. Moreover, if employees cannot 
present their cases, they may also lose a key opportunity to 
develop a record for appeal, which is an important check on 
agency decisionmaking. Finally, denying whistleblowers a 
hearing deprives them of a forum in which to air grievances, 
which may be legitimate and important even where the disputed 
personnel action does not violate the WPA.
    Furthermore, the current procedure allowing the agency to 
present its evidence first precludes the Board from exercising 
some of its most significant merit system oversight duties. 
These include creating a public record of both parties' 
positions on alleged governmental misconduct that could 
threaten or harm citizens. Similarly, it precludes the Board 
from a significant merit system oversight function that 
Congress emphasized when it passed the 1994 amendments to the 
Act. As explained in the Joint Explanatory statement of the 
House-Senate conferees who negotiated the 1989 WPA amendments, 
``[w]histleblowing should never be a factor that contributes in 
any way to an adverse personnel action.''\82\ The Board's merit 
system oversight duty is so significant that under the 1994 
amendments to the Act, the Board must refer managers for OSC 
disciplinary investigation whenever there is a finding that 
reprisal for a protected disclosure was a contributing factor 
in a decision to take a personnel action, even if the agency 
ultimately prevails on its affirmative defense of independent 
justification.\83\ The current procedure relieves the Board of 
these oversight responsibilities, as long as the agency has an 
acceptable overall affirmative defense.
---------------------------------------------------------------------------
    \82\Reprinted in 135 Cong. Rec. 5033 (1989).
    \83\140 Cong. Rec. H11422 (daily ed. Oct 7, 1994) (statement of 
Rep. McCloskey).
---------------------------------------------------------------------------
    S. 372 resolves this problem by requiring that, before the 
agency may present its defense, the employee must have had an 
opportunity to present his or her evidence first and must have 
succeeded in presenting a prima facie case that the protected 
activity was a contributing factor in the personnel action. If 
the employee fails to do that, then the case is dismissed; if 
the employee succeeds, then the agency gets its turn to present 
its defense.

Disclosures of scientific censorship

    The Committee has heard concerns that federal employees may 
be discouraged from, or retaliated against for, disclosing 
evidence of unlawful or otherwise improper censorship related 
to research, analysis, and other technical information related 
to scientific research. Although disclosures of such censorship 
may be protected as a disclosure of a legal violation or of an 
abuse of authority under the WPA, uncertainty on this specific 
issue may cause confusion and inhibit disclosure. It is 
essential that Congress and the public receive accurate data 
and findings from federal researchers and analysts to inform 
lawmaking and other public policy decisions.
    In order to encourage the reporting of improper censorship, 
S. 372 would specifically protect employees who disclose 
information that the employees reasonably believe is evidence 
of scientific or technical censorship that may cause gross 
government waste or mismanagement, or a substantial and 
specific danger to public health or safety, or that violates 
the law. This definition of protected disclosures is nearly 
identical to the general definition of protected disclosures 
that do not relate to censorship.  This is intended to make 
unmistakably clear that employees are protected for disclosing 
scientific censorship in the same manner as they are protected 
for making any other disclosure.

Reporting requirements

    In order to assist Congress in evaluating the effects of 
this legislation, S. 372 would require three reports. S. 372 
would require GAO to evaluate the implementation of the Act. In 
light of concerns that have been raised in the past that 
clarifying the broad scope of protected disclosures would lead 
to frivolous claims, the bill requires GAO specifically to 
report on outcomes of cases, including a review of the number 
of cases where the MSPB or a federal court has determined any 
allegations to be frivolous or malicious. Additionally, S. 372 
would require the Council of Inspectors General on Integrity 
and Efficiency to conduct a study on security clearance 
revocations and the appeals processes available. Finally, it 
will require the MSPB to report annually on the number of cases 
filed, the number of petitions for review filed, and the 
disposition of cases alleging violations of 5 U.S.C. 
Sec. Sec. 2302(b)(8) or (9). The Committee believes that these 
provisions will enable Congress to examine closely how this 
bill is implemented and to evaluate whether provisions subject 
to the five-year sunset should be extended and to consider 
additional steps if needed in the interim.

Alternative review

    The duration of the MSPB process often leaves 
whistleblowers, many of whom have been terminated from federal 
employment, without resolution of their claims for far too 
long. To address this problem, the bill as reported establishes 
an alternative review procedure for certain whistleblower 
retaliation cases. Subject to a five-year sunset, the bill 
would allow claims involving major personnel actions to go to 
federal district court if at least one of the following 
conditions is met: the MSPB does not issue a final order or 
decision within 270 days after the request for corrective 
action was submitted; or if the MSPB certifies, upon motion 
from the employee, that the Board is not likely to dispose of 
the case within 270 days or that the case consists of multiple 
claims, requires complex or extensive discovery, arises out of 
the same set of facts as a civil action pending in a federal 
court, involves a novel question of law, or states a claim upon 
which relief can be granted. With respect to the last 
condition, the MSPB may examine any evidence or pleadings 
before it at the time of the certification request, but all 
parties must be given a reasonable opportunity to present all 
the material that is pertinent to the motion. If evidence is 
examined in the certification decision, the Board shall grant 
the certification only if it concludes, viewing the evidence in 
the light most favorable to the employee, that the employee has 
raised a genuine issue of material fact with respect to his or 
her claim. The MSPB must rule on the motion for certification 
within 90 days and may not rule on the merits of the underlying 
request for corrective action within 15 days of its 
certification decision. If the MSPB determines that any of the 
specified conditions apply, then the case may be moved to 
federal district court.
    An MSPB decision that denies certification to remove a 
whistleblower case to district court may be considered on 
appeal only with the appeal of the Board's final decision on 
the merits of the whistleblower claim and may be overturned 
only if the Board's decision on the merits of the claim is 
overturned. If a court of appeals overturns a decision denying 
certification, the employee may file his or her claim in 
federal district court without further proceedings by the MSPB.
    The Committee wishes to emphasize that this provision does 
not replace the MSPB as the primary forum for adjudicating 
whistleblower lawsuits under the WPA. First, the alternative 
recourse provision is limited to major personnel actions under 
5 U.S.C. Sec. Sec. 7512 and 7542. Second, alternative review is 
limited to cases that take more than 270 days to resolve, or 
are certified for district court because they are likely to 
take more than 270 days or they involve complex or multiple 
claims, novel questions of law, or state a claim upon which 
relief can be granted. These limitations will ensure that only 
the more significant and complex cases will be brought in 
district court.
    According to Thomas Devine, Legal Director of the 
Government Accountability Project, certain decisions by the 
MSPB and the Federal Circuit Court of Appeals that narrowly 
interpret the WPA have undermined employees' confidence in the 
Board process.\84\ In recent years, both the MSPB and the 
Federal Circuit Court of Appeals have repeatedly applied the 
WPA in a manner inconsistent with congressional intent. 
Employees, therefore, may feel greater confidence that they 
will be protected if provided alternate recourse in a federal 
district court and with a jury of their peers than in the Board 
process. Furthermore, the alternative process may provide a 
check against any future narrowing of the WPA by the Board and 
the Federal Circuit.\85\
---------------------------------------------------------------------------
    \84\See Statement of Thomas Devine, Legal Director, Government 
Accountability Project, S. 372 Hearing supra note 71.
    \85\Id.
---------------------------------------------------------------------------
    Additionally, district courts may be better equipped than 
the Board to handle certain complex cases. The Board uses less 
formal procedures, discovery, and rules of evidence than 
federal courts, adapted for the fact that most employees 
appearing before the Board are not represented by counsel.\86\ 
For most employees, the less expensive, less formal Board 
process will be preferable, but district courts may be better 
suited for certain novel and complex cases.\87\ Mr. Devine 
testified at the hearing on S. 372 that ``the Board is not 
structured or funded for complex, high stakes conflicts that 
can require lengthy proceedings.''\88\ For these reasons, 
district court certification is available for WPA cases 
involving a ``major personnel action'' under 5 U.S.C. 
Sec. Sec. 7512 or 7542 and multiple claims, complex or 
extensive discovery, or a novel legal question.
---------------------------------------------------------------------------
    \86\See Statement of Robert Vaughn, Professor of Law and A. Allen 
King Scholar, Washington College of Law at American University, S. 372 
Hearing supra note 71, at 12-13.
    \87\See id. at 12-17 (arguing that relatively few whistleblowers 
would remove their cases to district court if provided the opportunity, 
but that complex and contentious cases are more likely to need an 
alternative forum).
    \88\Id.
---------------------------------------------------------------------------
    The Committee anticipates, however, that most employees 
with the option of filing their case in district court will 
choose to remain in the administrative system through the MSPB 
because it is the lower cost, less burdensome alternative.\89\ 
Trends under other statutes offering district court access as a 
supplement to an administrative remedy are instructive. 
According to Professor Robert Vaughn, only approximately ten 
percent of discrimination claims brought by federal employees 
to the Equal Employment Opportunity Commission are pursued in 
district court.\90\ Similarly, only a small minority of 
whistleblower claims filed under the Sarbanes-Oxley Act of 
2002, which protects whistleblowers who report illegal 
corporate activity, are pursued in district court rather than 
the administrative process at the Department of Labor, although 
most Sarbanes-Oxley whistleblowers are eligible to remove their 
cases to district court.\91\
---------------------------------------------------------------------------
    \89\See id.; see also Devine Statement, S. 372 Hearing supra note 
71.
    \90\Vaughn Statement, S. 372 Hearing supra note 71, at 14.
    \91\See id. at 11, 16 (nearly all Sarbanes-Oxley litigants were 
eligible to go to district court, but most stuck with the 
administrative process); see also is Richard E. Moberly, Unfulfilled 
Expectations: Why Sarbanes Oxley Whistleblowers Seldom Win, 49 William 
and Mary Law Review 65 (2007) & table J of Basic Data for Unfulfilled 
Expectations article, available at http://law.unl.edu/c/
document_library/get_file?folderId=3600&name=DLFE-1326.pdf. Professor 
Moberly's data shows that 54 employees withdrew from the administrative 
process with an intention of filing a district court claim and 82 
employees withdrew from the administrative process with no stated 
reason. Assuming that 100 percent of those employees filed a district 
court claim, less than 28 percent of the 491 Sarbanes-Oxley litigants 
filed district court claims.
---------------------------------------------------------------------------
    As discussed in the section above regarding all circuit 
review, numerous whistleblower statutes provide access to 
district court to litigate whistleblower claims. As a few 
examples, discussed above, whistleblowers may file cases in 
district court under the False Claims Act, the Resolution Trust 
Corporation Completion Act, the Federal Deposit Insurance 
Corporation Improvement Act, and the Sarbanes-Oxley Act in 
district court.
    The Committee believes it is appropriate to limit the 
alternative review provisions in certain respects to address 
concerns raised at the hearing on S. 372. At the hearing, 
William Bransford, on behalf of the Senior Executive 
Association, expressed concern that allowing jury trials in 
federal district courts could contribute to a perception among 
federal managers that disciplining a problem employee is 
unacceptably risky. In particular, he stated that a 
``sensational jury trial resulting in a finding against the 
manager with a substantial award of damages w[ould] create 
significant pause for managers.'' He recommended that a limit 
on compensatory damages would mitigate this concern if a 
district court access provision were adopted.\92\ Likewise, 
Rajesh De from the Department of Justice testified on behalf of 
the Administration that if a district court access provision 
were included in S. 372, ``we would suggest that Congress 
consider adopting damages caps analogous to the Title VII 
context to ensure that incentives are properly aligned and to 
alleviate concerns about runaway juries.''\93\
---------------------------------------------------------------------------
    \92\Statement of William L. Bransford, General Counsel, Senior 
Executives Association, S. 372 Hearing supra note 71.
    \93\De Statement, S. 372 Hearing supra note 71.
---------------------------------------------------------------------------
    To address the concern that fear of litigation could chill 
needed discipline of problem employees, and to ensure that 
there is no financial incentive to bring less significant WPA 
cases in district court, the alterative recourse provision 
limits compensatory damages to $300,000, which is the limit on 
compensatory damages for Title VII discrimination claims, and 
it does not allow for punitive damages. Likewise, limiting the 
alternative recourse provisions to major personnel actions is 
intended to address managers' concerns with the potential 
burden of federal court litigation and with being able to 
effectively discipline employees when needed.
    Additionally, Mr. De raised the concern at the hearing on 
S. 372 that juries may not be as familiar with the clear and 
convincing evidence standard used under the WPA, but may be 
more familiar with the preponderance of the evidence standard. 
He recommended, on behalf of the Administration, that a 
preponderance of the evidence standard with a burden-shifting 
framework similar to the Title VII context might be more 
appropriate for district court trials.\94\ The Committee 
concludes that this is an appropriate limit, which may help to 
address the concern that allowing jury trials might discourage 
some supervisors from making appropriate personnel decisions. 
Accordingly, for district court WPA cases only, relief may not 
be ordered if the agency demonstrates by a preponderance of the 
evidence, rather than by clear and convincing evidence, that 
the agency would have taken the same personnel action in the 
absence of a protected disclosure.
---------------------------------------------------------------------------
    \94\Id.
---------------------------------------------------------------------------
    The alternative review provisions included in the 
substitute amendment adopted by the Committee are subject to a 
five-year sunset, in order to allow Congress to evaluate the 
impact of this provision on federal whistleblower protections, 
the MSPB, and the federal district courts.

MSPB summary judgment authority

    Currently, the Board does not have the authority to grant 
summary judgment in a whistleblower case, even when there is no 
genuine issue as to any material fact and the moving party 
would be entitled to prevail as a matter of law. In its 2006 
reauthorization request, the Board requested authority to grant 
motions for summary judgment in order to help it speed case 
processing.\95\ To assist the Board with prompt adjudication of 
WPA claims, the Committee included in the substitute amendment 
to S. 372 a provision authorizing the MSPB to consider and 
grant summary judgment motions in WPA cases that involve major 
personnel actions, subject to a five-year sunset. In 
considering a motion for summary judgment, the MPSB may examine 
evidence and pleadings before it and shall determine, viewing 
the evidence in the light most favorable to the non-moving 
party, whether any genuine issue of material fact exists. This 
five-year period will allow Congress to evaluate the impact of 
this provision on the cases heard by the MSPB and any impact on 
the WPA protections for federal whistleblowers.
---------------------------------------------------------------------------
    \95\See Justifications for Legislative Proposals submitted by the 
MSPB to accompany the Merit Systems Protection Board Reauthorization 
Act of 2006, available upon request to the Committee.
---------------------------------------------------------------------------

Classified disclosures to Congress for employees under the WPA

    In order to clarify a procedure under the WPA by which 
federal employees may disclose to Congress classified 
information that evidences waste, fraud, and abuse, S. 372 
amends 5 U.S.C. Sec. 2302(b)(8) to allow all federal employees 
to take advantage of the procedures that have already been set 
forth for disclosing classified information to Congress in the 
Intelligence Community Whistleblower Protection Act.
    As introduced, S. 372 would have explicitly provided full 
WPA protection to federal whistleblowers who disclose 
classified information to Congress in certain circumstances. A 
whistleblower would have been covered under the WPA if he or 
she was retaliated against for disclosing classified 
information to a member of Congress who is authorized to 
receive the information disclosed or congressional staff who 
holds the appropriate security clearance and is authorized to 
receive the information disclosed. In order for such a 
disclosure to be protected, the employee would have been 
required to have a reasonable belief that the disclosure is 
direct and specific evidence of wrongdoing.
    The Executive Branch and Congress long have taken somewhat 
different positions regarding their respective roles with 
respect to the control and disclosure of classified 
information. The debate prior to enactment of the ICWPA 
provides useful context. In 1998, Congress considered a bill 
(S. 1668), which contained very similar provisions to S. 372 as 
introduced, although that bill would have applied only to the 
intelligence community. The Executive Branch opposed the bill, 
arguing that ``S. 1668 would deprive the President of his 
authority to decide, based on the national interest, how, when 
and under what circumstances particular classified information 
should be disclosed to Congress [which would be] an 
impermissible encroachment on the President's ability to carry 
out core executive functions.''\96\ In its report, the Senate 
Select Committee on Intelligence described its consideration of 
Constitutional and other ramifications of the legislation. That 
Committee concluded that the regulation of national security 
information, while implicitly in the command authority of the 
President, is equally in the national security and foreign 
affairs authorities vested in Congress by the Constitution. The 
Intelligence Committee, furthermore, was convinced that the 
provision was constitutional because it did not prevent the 
President from accomplishing his constitutionally assigned 
functions, and it was justified by an overriding need to 
promote the objectives within the constitutional authority of 
Congress.\97\
---------------------------------------------------------------------------
    \96\See Whistleblower Protections for Classified Disclosures, 22 
Op. O.L.C. 92 (1998) (statement of Randolph D. Moss, Deputy Assistant 
Attorney General, Office of Legal Counsel, before the House Permanent 
Select Committee on Intelligence).
    \97\S. Rep. No. 105-165 (1998).
---------------------------------------------------------------------------
    Nonetheless, in order to address the Administration's 
concerns, the House and Senate agreed to modify the Senate 
proposal and enacted the ICWPA, which provides a secure process 
by which a whistleblower in the intelligence community may 
disclose wrongdoing to Congress.\98\ Specifically, the ICWPA 
requires an employee to first inform the inspector general for 
his or her agency, who determines if the employee's complaint 
is credible. If the inspector general determines the complaint 
is credible, he or she must transmit the information to the 
House and Senate Intelligence Committees. The employee may also 
transmit the information to those committees if the inspector 
general does not determine the complaint to be credible, but 
the employee must first notify the inspector general that he or 
she will take such action. Thereafter, the agency has the 
ability to provide the employee with appropriate instructions 
regarding how to transmit classified information to the 
Congress and an opportunity to review the disclosure of this 
information. However, as the House and Senate agreed in the 
conference report for the ICWPA, the ICWPA ``establishes an 
additional process to accommodate the disclosure of classified 
information of interest to Congress.'' The conference report 
similarly emphasized that the new provision ``is not the 
exclusive process by which an Intelligence Community employee 
may make a report to Congress.''\99\
---------------------------------------------------------------------------
    \98\Intelligence Authorization Act for FY 1999, Public Law No. 105-
272, 112 Stat. 2396, title VII (1998) (``Intelligence Community 
Whistleblower Protection Act of 1998'').
    \99\H.R. Rep. No. 105-780 (1998) (emphasis added).
---------------------------------------------------------------------------
    The current Administration likewise objected to S. 372's 
provisions explicitly protecting classified disclosures to 
Congress. Mr. De, on behalf of the Administration, testified at 
the hearing on S. 372:

          Of course, Congress has significant and legitimate 
        oversight interests in learning about, and remedying, 
        waste, fraud and abuse in the intelligence community, 
        and we recognize that Congress has long held a 
        different view of the relevant constitutional issues. 
        However, as Presidents dating back to President 
        Washington have maintained, the Executive Branch must 
        be able to exercise control over national security 
        information where necessary.\100\
---------------------------------------------------------------------------
    \100\See De Statement, S. 372 Hearing supra note 71, at 11.

    The Committee believes that the original provision of 
S.372, as introduced, is consistent with Congress's 
constitutional role; however, to accommodate the concerns 
expressed by the Administration, the Committee agreed to alter 
this provision. The substitute amendment to S. 372 adopted by 
the Committee strikes the original provision described above 
and adds provisions that would provide federal employees 
covered under the WPA with protection under the WPA if they 
disclose classified information to Congress using the 
procedures that now apply under the ICWPA only to employees at 
certain intelligence agencies. This provision in S. 372, as 
amended, is intended to ensure that employees who witness 
waste, fraud, and abuse are not inhibited from disclosing it 
appropriately, and thereby seeking to end it, simply because it 
involves classified information, and to ensure that Congress 
receives the information necessary to fulfill its oversight 
responsibilities, while protecting all federal employees from 
retaliation for disclosing wrongdoing to Congress. In addition, 
this provision seeks to ensure the proper handling of 
classified documents and information in the process of 
reporting wrongdoing, consistent with the requirements under 
the ICWPA, and will extend WPA protection to employees who come 
forward under this process with information about prohibited 
practices and waste, fraud, and abuse in the federal 
government.
    The Committee emphasizes that this new process is but one 
way for federal employees to disclose classified information to 
Congress. 5 U.S.C. Sec. 2302(b) currently states that it is not 
to be construed to authorize the withholding of information 
from Congress or the taking of any personnel action against an 
employee who discloses information to the Congress. The new 
process does not in any way limit the right to communicate with 
Congress under the Lloyd-La Follette Act\101\ (which codifies 
federal employees' right to petition or provide information to 
Congress) or any other provision of law.
---------------------------------------------------------------------------
    \101\Public Law No. 336, 37 Stat. 539, 555 (1912); 5 U.S.C. 
Sec. 7211.
---------------------------------------------------------------------------

Whistleblower Protection Ombudsman

    To ensure that employees are aware of their rights under 
the WPA and avenues of redress, the Committee agreed to include 
a provision in the substitute amendment to S. 372 adopted by 
the Committee that requires each agency inspector general to 
designate a Whistleblower Protection Ombudsman within the 
Office of the Inspector General. This Ombudsman would advocate 
for agency employees, educate agency personnel about prohibited 
personnel practices on retaliation for protected disclosures, 
and advise agency employees on how to make a protected 
disclosure and help those who have made a protected disclosure. 
This applies to all inspectors general, whether the employees 
are covered by the WPA or ICWPA.
    The addition of a Whistleblower Protection Ombudsman at 
each agency would provide the agency and the employees with an 
intermediary to ensure that supervisors and leaders within the 
agency, as well as employees, are aware of prohibited 
retaliatory actions and employee rights under the WPA. In this 
intermediary role, the ombudsman could also help provide 
recommendations for resolving problems between an individual 
and the employer before any prohibited personnel practices are 
taken in violation of the WPA.

Establishment of Intelligence Community Whistleblower Protection Board

    As discussed above, numerous elements of the intelligence 
community are excluded from the WPA, under 5 U.S.C. 
Sec. 2302(a)(2)(C)(ii) because the intelligence community 
handles highly classified programs and information that must be 
closely guarded from public disclosure. These whistleblowers 
are provided a secure channel under the ICWPA by which to 
disclose sensitive information, first to the appropriate 
inspector general and then to the Intelligence Committees of 
Congress. However, the ICWPA does not offer redress if the 
employee suffers retaliation because of the disclosure.\102\
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    \102\Some agencies have internal agency procedures to protect 
whistleblowers, which generally are not required by law. The Federal 
Bureau of Investigation does have whistleblower protections under 5 
U.S.C. Sec. 2303. Although S. 372 creates a consolidated process for 
all employees in the intelligence community who allege retaliation for 
protected whistleblower disclosures to seek redress under the ICWPA, 
the committee does not intend that this legislation would interfere in 
any way with the ability of Congress and various committees of Congress 
to exercise oversight of the treatment of Executive branch 
whistleblowers.
---------------------------------------------------------------------------
    As Mr. De testified on behalf of the Administration at the 
hearing on S. 372, establishing a scheme to provide redress 
would be desirable:

          Yet it is essential that we root out waste, fraud and 
        abuse in the intelligence community just as elsewhere, 
        and that intelligence community employees have safe 
        channels to report such wrongdoing. Such whistleblowers 
        expose flaws in programs that are essential for 
        protecting our national security. We believe it is 
        necessary to craft a scheme carefully in order to 
        protect national security information while ensuring 
        that intelligence community whistleblowers are 
        protected in reality, not only in name. Properly 
        structured, a remedial scheme should actually reduce 
        harmful leaks by ensuring that whistleblowers are 
        protected only when they make disclosures to designated 
        Executive Branch officials or through proper channels 
        to Congress.''\103\
---------------------------------------------------------------------------
    \103\De Statement, S. 372 Hearing supra note 71, at 6-7.

    Specifically, in order to reconcile the competing interests 
of providing more robust protections for whistleblowers in the 
intelligence community and ensuring that classified information 
vital to national security remains protected, Mr. De, on behalf 
of the Administration, recommended that a central element of 
such a remedial process would be the creation of an 
Intelligence Community Whistleblower Protection Board. 
---------------------------------------------------------------------------
According to Mr. De:

          This Board could be composed of senior 
        presidentially-appointed officials from key agencies 
        within and outside of the intelligence community, 
        including inspectors general, to provide a safe and 
        effective means for intelligence community employees to 
        obtain redress if they suffer retaliation for 
        disclosing waste, fraud, or abuse.\104\
---------------------------------------------------------------------------
    \104\Id. at 7.

    The Committee concluded that providing additional 
protections for intelligence community employees to expose 
waste, fraud, abuse, and illegal activities, would help protect 
this country's interests and strengthen its national security. 
Providing an effective avenue for intelligence community 
employees to obtain redress outside of their employing agencies 
if they suffer retaliation for disclosing agency waste, fraud 
or abuse would encourage intelligence community whistleblowers 
to come forward. Protecting disclosures made according to a 
specified, protected channel additionally would likely better 
protect national security information, as Mr. De testified, by 
removing the incentive to leak information publicly.
    Accordingly, the substitute amendment to S. 372 that was 
agreed to by the Committee adds a second title to S. 372, 
establishing the Intelligence Community Whistleblower 
Protection Board (ICWPB) to hear appeals of intelligence 
community whistleblower cases.\105\ The ICWPB would act in many 
respects as the MSPB does for whistleblowers outside the 
intelligence community, and would be located within the Office 
of the Director for National Intelligence to ensure that it has 
the expertise and resources needed to appropriately protect 
highly sensitive information that may be involved in 
intelligence-community whistleblower cases. The ICWPB would 
consist of a Chairperson appointed by the President and four 
other members, all of whom would be confirmed by the Senate. 
Two of the four members would be designated by the President 
from individuals serving as an Inspector General of any agency. 
The designation of these members is intended to ensure that 
there is strong representation of members who have a firm 
understanding of the importance of and mechanisms for oversight 
and accountability. The President would appoint the other two 
members, in consultation with the Secretary of Defense, 
Director of National Intelligence, and the Attorney General. 
The designation of these members is intended to ensure that the 
Board contains members with a firm understanding of the 
importance of and mechanisms for protecting national security 
information. The members would serve four-year terms, except 
for the initial terms, which vary from four to six years so 
that future terms will be staggered.
---------------------------------------------------------------------------
    \105\The intelligence community elements under the jurisdiction of 
the ICWPB are the same elements that are excluded from the WPA and 
under the ICWPA, discussed above. These do not include (unless 
designated by the President) all of the elements of the intelligence 
community as it typically is defined in law, which is having the same 
meaning as set forth in section 3(4) of the National Security Act of 
1947 (50 U.S.C. Sec. 401a(4)). The agencies excluded from the WPAs 
protections and within the scope of the ICWPA always have been narrower 
than the intelligence community as defined by the National Security 
Act. Although there may be some value to a consistent definition in 
law, the Committee has determined that consistency is not a sufficient 
basis to exclude additional entities from the more robust protections 
of the WPA. The Committee does note that the President has the 
authority to exclude other elements of the intelligence community.
---------------------------------------------------------------------------
    The Chairman of the ICWPB would be paid at level III of the 
executive schedule on a pro rata basis for time spent on Board 
activities. The members appointed in consultation with the 
Secretary of Defense, Director of National Intelligence, and 
the Attorney General would be compensated at the same rate for 
time spent on ICWPB activities, up to 130 days per year. The 
inspectors general appointed to the ICWPB would not receive 
additional compensation.
    S. 372 provides the ICWPB with the authority, in 
consultation with the Attorney General, the Director of 
National Intelligence, and the Secretary of Defense, to 
promulgate rules, regulations and guidance and issue orders to 
fulfill its functions.

Prohibited personnel practices against employees under the ICWPA

    Under the substitute amendment agreed to by the Committee, 
S. 372 would make it a ``prohibited personnel practice'' for a 
supervisor to take or fail to take, or threaten to take or fail 
to take, a personnel action, as defined under the WPA, against 
an employee under the ICWPA. Additionally, like the WPA, S. 372 
would make it a prohibited personnel practice for a supervisor 
to take or fail to take, or threaten to take or fail to take, 
any personnel action against any employee because he or she--
(1) exercises an appeal, complaint or grievance right; (2) 
testifies for or otherwise assists any individual in the 
exercise of their whistleblower rights; or (3) cooperates with, 
or discloses information to, an agency Inspector General. 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 would be subject 
to challenge under separate government-wide provisions on 
security clearances, discussed below. If an ICWPA employee 
seeks to challenge both a security clearance determination and 
other alleged retaliation, the employee would bring both claims 
jointly under the security clearance process.
    These provisions afford employees under the ICWPA 
protections against most of the same forms of retaliatory 
personnel actions that are forbidden under the WPA. The 
exception is that it cannot be considered unlawful retaliation 
to withdraw an employee's security clearance, to deny an 
employee's access to classified or sensitive information, or to 
suspend an employee with pay pending the conclusion of an 
investigation. This exception recognizes that intelligence 
entities may need to take quick action to protect national 
security while an investigation of an employee is pending.

Protected disclosures by employees under the ICWPA

    As under the WPA, protected disclosures under S. 372 would 
include information the employee reasonably believes evidences 
a violation of law, rule, or regulation, or gross 
mismanagement, a gross waste of funds, an abuse of authority, 
or a substantial and specific danger to public health and 
safety. However, employees could seek protection through the 
ICWPB appeals process only if they made their disclosures to 
certain officials in certain ways, due to the sensitive 
information involved and limits on which officials have 
security clearances and access to certain information. Any 
disclosure to an agency official would be protected if 
disclosure is not specifically prohibited by law or executive 
order. The Committee intends to treat information that would 
reveal classified information the same as classified 
information. This restriction does not apply to disclosure to 
Inspectors General or agency officials designated to receive 
such disclosures, because these officials have procedures in 
place for handling classified disclosures of wrongdoing. 
Additionally, disclosures to Congress that comply with the 
ICWPA procedures, described above, or with the process for 
disclosing information under the Central Intelligence Agency 
Act\106\ are protected within this appeals process.
---------------------------------------------------------------------------
    \106\Public Law No. 81-110, 63 Stat. 208 (1949). The relevant 
procedures are codified at 50 U.S.C. Sec. 403q.
---------------------------------------------------------------------------
    The provisions governing protected disclosures by employees 
under the ICWPA include the same clarifications that S. 372 
would add to the WPA regarding the nature and circumstances of 
disclosures that are protected under the WPA. As described 
above, employees' disclosures are protected under S. 372 if the 
disclosure was made during the normal course of the employee's 
duties; made to a person, including a supervisor, who 
participated in the wrongdoing; revealed information that had 
been previously disclosed; was not made in writing; or was made 
while the employee was off duty; without regard to the 
employee's motive for making the disclosure or the amount of 
time that has passed since the events described in the 
disclosure.

Remedial procedures for employees under the ICWPA

            A. Appeals to the agency head or designee
    For employees, applicants, or former employees under the 
ICWPA who allege a prohibited personnel practice, as described 
above, S. 372 would provide a process for review. First, an 
affected individual would file an appeal with the head of his 
or her employing agency or the agency head's designee. An 
individual who is not satisfied with the agency head's or 
designee's decision, could appeal that decision to the ICWPB. 
Finally, the individual could file a petition for review of the 
ICWPB's decision in a federal court of appeal.
    Regarding the first level of review, S. 372 would provide 
employees, applicants, or former employees of an intelligence 
community element with the right to appeal a prohibited 
personnel practice to the head of his or her employing agency, 
or the agency head's designee. S. 372 provides flexibility for 
agencies within larger Departments, such as the National 
Security Agency, the Defense Intelligence Agency, the National 
Geospatial-Intelligence Agency, and the National Reconnaissance 
Office within the Department of Defense, to determine how best 
to allocate responsibility for this function. Such intra-agency 
appeals would be conducted according to rules of procedures 
issued by the ICWPB, unless the ICWPB determines that agency 
procedures in effect on the date of enactment of S. 372, 
including existing rules for employees of the Federal Bureau of 
Investigation promulgated under 5 U.S.C. Sec. 2303, adequately 
provide certain procedural guarantees.
    With respect to these procedural guarantees, S. 372 would 
require that agency rules of procedure be based on those 
pertaining to prohibited personnel practices under 5 U.S.C. 
Sec. 2302(b)(8) and provide: (1) An independent and impartial 
fact-finder; (2) notice and the opportunity to be heard and 
present evidence, including witness testimony; (3) that the 
individual may be represented by counsel; (4) that the 
individual has a right to a decision based on the record 
developed during the appeal; (5) that the impartial fact-finder 
shall provide the agency head, or designee, a report within 180 
days of the appeal, unless agreed to by the employee and the 
agency; (6) for the use of classified information in a manner 
consistent with the interests of national security, including 
ex parte submissions where the agency determines they are 
warranted; and (7) that the individual shall have no right to 
compel the production of classified information, except 
evidence needed to establish that the employee made the 
disclosure or communication at issue. The fact-finder is 
required to prepare a written report with findings, 
conclusions, and if applicable, recommended corrective action 
that should be taken by the agency. The agency would issue an 
order implementing corrective action or denying relief within 
60 days of the fact-finder issuing the report, unless the 
employee consents to additional time. These procedures are 
intended to ensure that agencies establish robust processes to 
allow full, fair, and prompt adjudication of ICWPA 
whistleblower claims, while appropriately protecting classified 
information.
    As under the WPA, if an employee demonstrates that a 
protected disclosure or the exercise of other protected 
whistleblower rights was a contributing factor in a personnel 
action, the agency can prevail if it demonstrates by clear and 
convincing evidence that it would have taken the same personnel 
action in the absence of the protected disclosure. Prevailing 
employees subjected to a prohibited personnel practice would be 
entitled to corrective action including damages, attorney's 
fees, and costs, but compensatory damages would be capped at 
$300,000, as under the WPA alternative review process.
            B. Appeals to the ICWPB and Courts of Appeal
    Employees may appeal the agency's order to the ICWPB within 
60 days. The ICWPB's review is de novo based on the agency 
record, and the Board will not admit any additional evidence, 
although it can remand to the agency for further fact-finding, 
if needed. S. 372 requires the ICWPB to issue a final decision 
no later than 180 days after the appeal is filed unless the 
employee consents to a longer period of time. If the ICWPB 
determines that an employee has been subjected to a prohibited 
personnel practice, it shall order the agency head to take 
corrective action, of the same types and with the same limits 
as apply to the agency appeal process. The ICWPB may also 
recommend, but cannot order, the reinstatement or hiring of a 
former employee or applicant. S. 372 requires that the agency 
head take the actions ordered by the ICWPB, unless the 
President determines that doing so would endanger national 
security. These procedures are intended to ensure independent 
and prompt review of agency determinations. Moreover, to 
facilitate congressional oversight of the ICWPB and the 
implementation of S. 372, Congress would be notified of ICWPB 
orders.
    As under the WPA, employees may file a petition for review 
of a final ICWPB order with the Court of Appeals for the 
Federal Circuit or the Federal Court of Appeals for a circuit 
in which the retaliation is alleged to have occurred. In order 
to maintain consistency with the WPA, the right to appeal to a 
circuit court other than the Federal Circuit is subject to a 
five-year sunset.

Review of security clearance or access determinations

    Whistleblowers covered by the WPA, as well as those who 
fall under the ICWPA, have sometimes found themselves 
inadequately protected when they allege government waste, 
fraud, and abuse that poses a risk to national security. That 
is because some such whistleblowers suffer retaliation not in 
the form of direct termination of their jobs, but instead 
through means against which neither the WPA nor the ICWPA 
currently provides any protection: the revocation of their 
security clearance.\107\ The effective result of the removal of 
an employee's security clearance or the denial of access to 
classified information typically is employment termination. 
However, in 2000 the Federal Circuit held that the MSPB lacks 
jurisdiction over an employee's claim that his security 
clearance was revoked in retaliation for whistleblowing.\108\ 
It held that the MSPB may neither review a security clearance 
determination nor require the grant or reinstatement of a 
clearance, and that the denial or revocation of a clearance is 
not a personnel action.
---------------------------------------------------------------------------
    \107\See, e.g., Mark Hertsgaard, Nuclear Insecurity, Vanity Fair, 
Nov. 2003, at 175.
    \108\Hesse v. State, 217 F.3d 1372 (Fed. Cir. 2000).
---------------------------------------------------------------------------
    As a result of this decision, if an employee's security 
clearance or access to classified information is suspended or 
revoked in retaliation for making protected disclosures--even 
if the employee is terminated from his or her federal 
government job because of the suspended or revoked clearance--
the MSPB may not review the suspension or revocation. This is 
so, even though a supervisor may have recommended revocation of 
the employee's security clearance in retaliation for the 
whistleblowing, and with the intent that the employee lose his 
or her job as a result. At the hearing during the 107th 
Congress on S. 995, one of the predecessor bills to S. 372, 
Senator Levin asked then-Special Counsel Elaine Kaplan about 
``a situation where a federal employee can blow the whistle on 
waste, fraud or abuse, and then, in retaliation for so doing, 
have his or her security clearance withdrawn and then be fired 
because he or she no longer has a security clearance.'' Ms. 
Kaplan responded:

          It is sort of Kafkaesque. If you are complaining 
        about being fired, and then one can go back and say, 
        ``Well, you are fired because you do not have your 
        security clearance and we cannot look at why you do not 
        have your security clearance,'' it can be a basis for 
        camouflaging retaliation.\109\
---------------------------------------------------------------------------
    \109\S. 995--Whistleblower Protection Act Amendments: Hearing on S. 
995 before the Subcommittee on International Security, Proliferation, 
and Federal Services of the Committee on Governmental Affairs, S. Hrg. 
107-160 (2001) (testimony of Hon. Elaine Kaplan, Special Counsel, 
Office of Special Counsel).

    In light of the heightened need to ensure that federal 
employees can come forward with information vital to preserving 
our national security, the Committee supports extending the 
protections for whistleblowers to include those who are 
retaliated against through the loss of their security 
clearances or access to classified information. The 
Administration likewise supports strengthening these 
---------------------------------------------------------------------------
protections. At the hearing on S. 372, Mr. De testified:

          We are aware that Congress has heard testimony in the 
        past from individuals who have claimed that their 
        security clearances were revoked due to whistleblowing 
        activities. This administration has zero tolerance for 
        such actions. Although current law provides some 
        procedural protections, the administration believes 
        that an employee who is denied a security clearance 
        should be able to seek recourse outside of her 
        agency.\110\
---------------------------------------------------------------------------
    \110\De Statement, S. 372 Hearing supra note 71, at 7.

    As introduced, S. 372 would have provided for an MSPB 
review of security clearance revocations under the WPA. The 
Administration, however, objected to the MSPB conducting the 
review. During the hearing on S. 372, Mr. De, on behalf of the 
---------------------------------------------------------------------------
Administration, testified:

          The current bill would allow an employee who alleges 
        that his security clearance was revoked in retaliation 
        for whistleblowing to challenge that determination 
        before the MSPB. The bill provides that the MSPB, or 
        any reviewing court, may grant `declaratory relief and 
        any other appropriate relief' except for the 
        restoration of a security clearance. That limitation 
        quite properly recognizes this function to be the 
        prerogative of the Executive Branch.\111\
---------------------------------------------------------------------------
    \111\Id. at 8-9.

    The Administration recommended that the proposed ICWPB, 
rather than the MSPB, review security clearance revocations, 
because this Board already would be reviewing retaliation 
against IC employees in a forum that would provide robust, 
independent protections and also careful protection of national 
---------------------------------------------------------------------------
security information. As Mr. De testified:

          The [Administration's] proposed [Intelligence 
        Community Whistleblower Protection] Board, however, 
        could recommend full relief to the aggrieved employee, 
        including restoration of the clearance, and could 
        ensure that Congress would be notified if that 
        recommendation is not followed by the agency head. This 
        mechanism would ensure that no agency will remove a 
        security clearance as a way to retaliate against an 
        employee who speaks truths that the agency does not 
        want to hear. Further, we believe that such a Board 
        could ably review allegedly retaliatory security-
        clearance revocations from all agencies, including 
        agencies in the intelligence community, rather than 
        limiting review to Title 5 agencies, as S. 372 
        apparently would do.\112\
---------------------------------------------------------------------------
    \112\Id. at 8-9.

    The Committee concluded that the Administration's proposal 
would allow more comprehensive relief for whistleblowers, by 
expanding the review to include employees under the ICWPA in 
addition to those covered by the WPA. Accordingly, the 
substitute amendment adopted by the Committee gives review of 
security clearance revocations to the ICWPB rather than the 
MSPB.
    S. 372 would require that, to the extent practicable, 
agencies continue to employ individuals who challenge a 
security clearance suspension or revocation while the challenge 
is pending. It also would require the development and 
implementation of uniform and consistent policies and 
procedures for challenging a security clearance determination, 
although it would not authorize challenges to suspensions of 
one year or less for an investigation.\113\ The same procedural 
protections for appealing prohibited personnel practices under 
the ICWPB, discussed above in the section on remedial 
procedures for ICWPB agency-level appeals, would be 
incorporated into the ICWPB procedures for challenging security 
clearance revocations.
---------------------------------------------------------------------------
    \113\If an employee seeks to challenge both an alleged prohibited 
personnel practice and an adverse security clearance determination, the 
employee must bring both claims under the procedures for security 
clearance revocations.
---------------------------------------------------------------------------
    The Committee concluded that the process to review 
allegedly retaliatory security clearance and access 
determinations should be structured like the process for 
challenging prohibited personnel practices against employees 
covered under the ICWPA, both in the interest of consistency 
and because the balance between encouraging whistleblowing and 
protecting classified information is the same in both cases. 
Accordingly, the provisions for reviewing security clearance or 
access determinations define protected disclosures in the same 
way they are defined for challenging other types of retaliation 
under the ICWPB process. Likewise, as with the other redress 
provisions under the ICWPB, security clearance determinations 
made in retaliation for exercising a right of appeal, 
complaint, or grievance; assisting another in the exercise of a 
whistleblower right; or cooperating with an inspector general 
is prohibited.

Procedures for review of security clearance decisions

            A. Agency Adjudication
    S. 372 provides that an employee who believes that he or 
she has been subjected to retaliation in the form of revocation 
of his or her security clearance may file an appeal within the 
agency in the same manner as employees covered under the ICWPA, 
alleging a prohibited personnel practice based on a protected 
disclosure. Employees who prevail in their claims would be 
entitled to the same types of damages as apply to cases 
involving prohibited personnel practices under the ICWPA, with 
a $300,000 cap on compensatory damages.\114\
---------------------------------------------------------------------------
    \114\In addition to the separate caps of $300,000 for compensatory 
damages for prohibited personnel practices and for security clearance 
decisions, an employee who raises both claims may not be awarded more 
than $300,000 in total compensatory damages.
---------------------------------------------------------------------------
    The Committee, however, determined that it is appropriate 
to alter the burden of proof for security clearance retaliation 
claims. During the 108th Congress, in testimony before the 
Committee on S. 2682, one of the predecessor bills to S. 372, 
DOJ argued that the burden of proof in whistleblower cases is 
fundamentally incompatible with the standard for granting 
security clearances, which only permits granting access to 
classified information where clearly consistent with the 
interests of national security.\115\
---------------------------------------------------------------------------
    \115\S. 1358--The Federal Employee Protection of Disclosures Act: 
Amendments to the Whistleblower Protection Act: Hearing on S. 1358 
Before the Committee on Governmental Affairs, S. Hrg. 108-414, at 163 
(2003).
---------------------------------------------------------------------------
    S. 372's objective in this section is to prohibit 
retaliation from serving as a factor in decisions that should 
be grounded solely in national security considerations. That 
means it also is essential that S. 372 not disrupt or undermine 
the preexisting, imperative national security objectives of the 
security clearance process or impose any chilling effect upon 
officials making these sensitive determinations for legitimate 
reasons. The Committee's purpose is to deter retaliation 
against whistleblowers and to close the loophole that security 
clearance revocations have opened. However, the conventional 
burden of proof in whistleblower cases may not fairly integrate 
into the security clearance determination process, because a 
security clearance may be granted ``only where facts and 
circumstances indicate access to classified information is 
clearly consistent with the national security interests of the 
United States, and any doubt shall be resolved in favor of the 
national security.''\116\ In the especially sensitive area of 
security clearance and classified access determinations, 
requiring clear and convincing evidence to justify the denial 
or revocation when the employee has made a prima facie 
whistleblower case may not be appropriate.
---------------------------------------------------------------------------
    \116\See Executive Order 12968--Access to Classified Information 
(August 2, 1995).
---------------------------------------------------------------------------
    Therefore, the substitute amendment to S. 372 adopted by 
the Committee provides that if an employee shows that a 
protected disclosure was a contributing factor in a security 
clearance determination, the agency will prevail if it 
``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.''\117\ This unique 
deference to national security interests is one element in the 
factors to be considered when determining if the agency would 
have taken the same security clearance action. It does not 
apply when considering the existence and strength of the 
affirmative case made by the employee, including any proof of 
motive to retaliate on the part of the agency officials 
involved in the decision. Moreover, if either the agency or the 
Board finds retaliation, the unique deference to national 
security applied to security clearance decisions does not limit 
other corrective action, including damages.
---------------------------------------------------------------------------
    \117\New section 3001(j)(3)(C) of the Intelligence Reform and 
Terrorism Prevention Act of 2004 (50 U.S.C. Sec. 435b(j)(3)(C)), as 
added by section 202(b) of S. 372, as reported.
---------------------------------------------------------------------------
            B. Review by the ICWPB
    For cases alleging a retaliatory security clearance 
determination, S. 372 also allows for the appeal of a final 
agency decision to the ICWPB within 60 days. As with other 
ICWPB appeals, the Board's review is de novo based on the 
agency record, and it will not admit any additional evidence, 
although it can remand to the agency for further fact-finding 
if needed.
    If the ICWPB finds that the agency's determination was 
retaliatory, employees are entitled to the same types of 
damages as discussed above, and the Board may recommend 
reinstating the security clearance if doing so is ``clearly 
consistent with the interests of national security, with any 
doubt resolved in favor of national security.''\118\ The ICWPB 
may also recommend, but not order, reinstatement or hiring of a 
former employee or applicant. S. 372 requires the ICWPB to 
notify Congress of any orders it issues, and an agency must 
notify Congress if it does not follow the ICWPB's 
recommendation to reinstate a clearance.
---------------------------------------------------------------------------
    \118\New section 3001(j)(4)(F) of the Intelligence Reform and 
Terrorism Prevention Act of 2004 (50 U.S.C. Sec. 435b(j)(4)(F)), as 
added by section 202(b) of S. 372, as reported.
---------------------------------------------------------------------------
    Unlike in cases where prohibited personnel practices are 
alleged, S. 372 does not provide for judicial review of agency 
or ICWPB actions on appeals taken in connection with the 
revocation of an employee's security clearance or access to 
classified information. The Administration takes the position 
that providing a judicial remedy, even one that does not 
mandate restoration of the clearance, is inconsistent with the 
traditional deference afforded to the Executive Branch in this 
area.\119\
---------------------------------------------------------------------------
    \119\De Statement, S. 372 Hearing supra note 71, at 7.
---------------------------------------------------------------------------
    As with the broader issue of control of classified 
information, the Congress long has held a different view of the 
authorities of the Executive Branch and Congress with respect 
to security clearances. Executive Branch authority in this area 
is not exclusive and Congress properly plays a role. Moreover, 
the possibility of court review might increase whistleblowers' 
confidence in the independence and integrity of the protections 
against retaliation. The Committee emphasizes that the focus of 
any such court review would be whether an agency unlawfully 
retaliated against a whistleblower, not whether the national 
interest is served by granting or revoking a security 
clearance.
    Nevertheless, the Committee concludes that the ICWPB can 
provide adequate review of security clearance retaliation. 
Given the national security and institutional concerns the 
Administration raised, the Committee agreed, in the substitute 
amendment adopted by the Committee, to accommodate the 
Administration's request not to provide judicial review of 
security clearance determinations. However, S. 372 will require 
congressional notification of ICWPB orders and certain agency 
actions that will facilitate oversight of the security 
clearance redress process created by this legislation, which 
will provide a check against implementation inconsistent with 
congressional intent.

ICWPA revisions

    An employee covered under either the WPA or ICWPA who has 
submitted a complaint or information to an inspector general 
under the ICWPA procedures would be permitted to inform 
Congress that he or she made a submission to that particular 
inspector general, and of the date on which the submission was 
made. Additionally, S. 372 allows an inspector general to 
submit a complaint or information under the ICWPA or the 
Central Intelligence Agency Act of 1949 directly to the Chair 
of the ICWPB if the inspector general determines that 
submission to the agency head would create a conflict of 
interest.

                        III. Legislative History

    S. 372 was introduced by Senators Akaka, Collins, Grassley, 
Levin, Lieberman, Voinovich, Leahy, Kennedy, Carper, Pryor, and 
Mikulski on February 3, 2009, and was referred to the Committee 
on Homeland Security and Governmental Affairs. Senators Cardin 
and Burris have since joined as cosponsors. The bill was 
referred to the Subcommittee on Oversight of Government 
Management, the Federal Workforce, and the District of Columbia 
(OGM) on March 20, 2009.
    This legislation is the culmination of nearly 10 years of 
work by Senator Akaka, other sponsors, and the Committee. S. 
372 is similar to S. 274, introduced in the 110th Congress as 
the Federal Employee Protection of Disclosures Act on January 
11, 2007. The Committee reported S. 274 favorably on June 13, 
2007, and S. 274 passed the Senate on December 17, 2007. 
Additionally, S. 372 is similar to S. 494, introduced in the 
109th Congress on March 2, 2005, and favorably reported by the 
Committee on April 13, 2005. S. 494 passed the Senate as an 
amendment (S. Amdt. 4351) to the John Warner National Defense 
Authorization Act for Fiscal Year 2007, H.R. 5122, on June 22, 
2006.
    S. 494 was identical to S. 2628, introduced in the 108th 
Congress on July 8, 2004, and favorably reported by the 
Committee on July 21, 2004, both of which were similar to S. 
1358, introduced on June 26, 2003. These bills follow previous 
versions of the legislation: S. 3190, introduced on October 12, 
2000; S. 995, introduced on June 7, 2001; and S. 3070, 
introduced on October 8, 2002, and favorably reported by the 
Committee on November 19, 2002.
    The Committee and its subcommittees have held three 
hearings on S. 372 and predecessor bills. Most recently, S. 372 
was the subject of a hearing before the OGM Subcommittee on 
June 11, 2009. Witnesses included Mr. Rajesh De, Deputy 
Assistant Attorney General, Office of Legal Policy, at the U.S. 
Department of Justice; Mr. William L. Bransford, General 
Counsel of the Senior Executives Association; Ms. Danielle 
Brian, Executive Director of the Project on Government 
Oversight; Mr. Thomas Devine, Legal Director of the Government 
Accountability Project; and Professor Robert G. Vaughn, 
Professor of Law, Washington College of Law at American 
University.
    On November 12, 2003, the Committee held a hearing on S. 
1358. Witnesses included Senator Charles Grassley (R-IA); Mr. 
Peter Keisler, Assistant Attorney General, Civil Division, U.S. 
Department of Justice; Ms. Elaine Kaplan, attorney and former 
U.S. Special Counsel; Mr. Thomas Devine, Legal Director, 
Government Accountability Project; Mr. Stephen Kohn, Chairman, 
Board of Directors, National Whistleblower Center; and Mr. 
William Bransford, Partner, Shaw, Bransford, Veilleux & Roth, 
P.C., and General Counsel to the Senior Executives Association. 
The Committee also received written testimony from Ms. Susanne 
Marshall, then-Chairman of the MSPB. Additionally, on July 25, 
2001, the Subcommittee on International Security, 
Proliferation, and Federal Services held a hearing on S. 995.
    On July 28, 2009, OGM favorably polled out S. 372, and the 
Committee considered S. 372 on July 29, 2009. Senators Akaka, 
Collins, Lieberman, and Voinovich offered a substitute 
amendment, which was agreed to by voice vote. The amendment 
allows the claimant to move certain WPA cases to federal 
district court, creates a process for employees under the ICWPA 
to seek redress for whistleblower retaliation, and creates a 
process for all employees to seek redress for security 
clearance decisions made in retaliation for protected 
whistleblowing, among other provisions. The bill, as amended, 
was ordered reported favorably en bloc by voice vote. Members 
present were Senators Lieberman, Akaka, Carper, Pryor, 
McCaskill, Burris, Collins, Coburn, and Voinovich.

                    IV. Section-by-Section Analysis

    Section 1 titles the bill as the Whistleblower Protection 
Enhancement Act of 2009.

 TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL 
                               EMPLOYEES

Section 101

    Section 101(a) clarifies congressional intent that the law 
covers a whistleblowing disclosure of ``any'' violation, except 
a minor, inadvertent violation of law that occurs during the 
conscientious carrying out of official duties.
    Section 101(b) makes technical and conforming amendments 
and clarifies that a disclosure shall not be excluded from 
protection because it is made during the normal course of an 
employee's duties; was made to a person, including a 
supervisor, who participated in the wrongdoing; revealed 
information that had been previously disclosed; was not made in 
writing; was made while the employee was off duty; because of 
the employee or applicant's motive for making the disclosure; 
or because of the amount of time since the occurrence of the 
events described in the disclosure.

Section 102

    Section 102(a) clarifies the definition of ``disclosure'' 
to mean a formal or informal communication or transmission, but 
not to include a communication concerning legitimate policy 
decisions that lawfully exercise discretionary agency authority 
unless the employee reasonably believes the disclosure 
evidences illegal activity, gross mismanagement, a gross waste 
of funds, an abuse of authority or specific danger to public 
health or safety.
    Section 102(b) provides a definition of ``clear and 
convincing evidence''--that is, 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--for the purposes of 
determining whether corrective action is warranted.
    Section 103 provides that any presumption relating to a 
public officer's performance of a duty can be overcome with 
substantial evidence. It also codifies the objective test for 
reasonable belief as 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 violation, 
mismanagement, waste, abuse, or danger.''

Section 104

    Section 104(a) adds to the list of prohibited personnel 
practices that may not be taken against whistleblowers in 
retaliation for protected disclosures the enforcement of a 
nondisclosure policy, form or agreement.
    Section 104(b) bars agencies from implementing or enforcing 
against whistleblowers any nondisclosure policy, form or 
agreement that fails to contain specified language preserving 
the right of federal employees to disclose certain protected 
information. A non-disclosure policy, form, or agreement in 
effect before the date of enactment could be enforced after 
public notice of this specified language.
    Section 104(c) leaves Russell as the governing law for 
demonstrating that retaliatory investigations are prohibited 
personnel practices and additionally permits corrective action 
awarded to whistleblowers to include damages, fees, and costs 
incurred due to an agency investigation of the employee that 
was commenced, expanded, or extended in retaliation for 
engaging in protected whistleblowing.
    Section 105 adds the Office of the Director of National 
Intelligence and the National Reconnaissance Office to the list 
of intelligence community entities excluded from WPA coverage, 
and provides that a whistleblower at an agency cannot be 
deprived of coverage under the WPA unless the President removes 
the agency from WPA coverage prior to a challenged personnel 
action taken against the whistleblower.
    Section 106 modifies the proof in disciplinary actions by 
requiring the OSC to demonstrate that the whistleblower's 
protected disclosure was a ``significant motivating factor'' in 
the decision by the manager to take the adverse action, even if 
other factors also motivated the decision. Current law requires 
the OSC to demonstrate that an adverse personnel action would 
not have occurred ``but for'' the whistleblower's protected 
activity.
    Section 107 requires that, in disciplinary actions, any 
attorney fees would be reimbursed by the manager's employing 
agency rather than the OSC, and permits recovery of reasonable 
and foreseeable compensatory damages.

Section 108

    Section 108(a) creates a five-year pilot program that 
suspends the exclusive jurisdiction of the U.S. Court of 
Appeals for the Federal Circuit over whistleblower appeals and 
allows petitions for review to be filed either in the federal 
circuit or in any other federal circuit court of competent 
jurisdiction for a period of five years.
    Section 108(b): During this five-year period, the Office of 
Personnel Management's existing authority to file petitions of 
review of the MSPB orders interpreting civil service law would 
be expanded to permit the filing of WPA cases in the Court of 
Appeals for the Federal Circuit or any other competent court of 
appeals, rather than exclusively in the Federal Circuit.
    Section 109 establishes that employees of the 
Transportation Security Administration are covered by section 5 
U.S.C. 2302(b)(1), (8), and (9), which includes full WPA rights 
as well as protections against certain other prohibited 
personnel practices, including discrimination under the Civil 
Rights Act of 1964, the Age Discrimination in Employment Act, 
and the Rehabilitation Act of 1973.
    Section 110 clarifies that an employee is protected from 
reprisal for disclosing information which an employee 
reasonably believes is evidence of censorship related to 
research, analysis, or technical information if the employee 
reasonably believes the censorship is or will cause gross 
government waste or mismanagement, a substantial and specific 
danger to public health or safety, or any violation of law.
    Section 111 clarifies that section 214(c) of the Homeland 
Security Act (HSA) maintains existing WPA rights for 
independently obtained information that may also qualify as 
voluntarily submitted critical infrastructure information under 
the HSA.
    Section 112 requires agencies, as part of their education 
requirements under 5 U.S.C. Sec. 2302(c), to advise employees 
of their rights and protections and to educate employees on how 
to lawfully make a protected disclosure of classified 
information to the Special Counsel, the Inspector General, 
Congress, or other designated agency official authorized to 
receive classified information.
    Section 113 strengthens the OSC's ability to protect 
whistleblowers and the integrity of the WPA and the Hatch Act 
by authorizing the OSC to appear as amicus curiae in any civil 
action brought in connection with the WPA and the Hatch Act and 
present its views with respect to compliance with the law and 
the impact court decisions would have on the enforcement of 
such provisions of the law.
    Section 114 specifies that an agency may present its 
defense to a whistleblower case only after the whistleblower 
has first made a prima facie showing that protected activity 
was a contributing factor in the personnel action.

Section 115

    Section 115(a) requires all federal nondisclosure policies, 
forms, and agreements to contain specified language preserving 
the right of federal employees to disclose certain protected 
information. Nondisclosure policies, forms, and agreements 
without that statement may not be implemented or enforced in a 
manner inconsistent with the specified statement of rights. 
Nondisclosure policies, forms, and agreements in effect before 
the date of enactment may continue to be enforced with respect 
to current employees if the agency provides the employees 
notice of the statement, and may continue to be enforced 
against past employees if the agency posts notice of the 
statement on the agency website for one year.
    Section 115(b) provides that a nondisclosure policy, form, 
or agreement for a person who is not a federal employee, but 
who is connected with the conduct of intelligence or 
intelligence-related activity, shall contain appropriate 
provisions that require nondisclosure of classified information 
and make clear the forms do not bar disclosures to Congress or 
to an authorized official that are essential to reporting a 
substantial violation of law.

Section 116

    Section 116(a) requires the GAO to report on the 
implementation of this Act within 40 months, including an 
analysis of the number of cases filed with the MSPB under 5 
U.S.C. Sec. Sec. 2302 (b)(8) and (b)(9), their disposition, and 
any resulting trends.
    Section 116(b) requires the Council of Inspectors General 
on Integrity and Efficiency to report on security clearance 
revocations at a select sample of executive branch agencies and 
on the appeals process in place at those agencies and under the 
Intelligence Community Whistleblower Protection Board within 18 
months.
    Section 116(c) requires the MSPB to report on the number 
and outcome of cases filed under 5 U.S.C. Sec. Sec. 2302(b)(8) 
and (b)(9) on a yearly basis.
    Section 117 creates a five-year pilot program that permits 
an employee who has been subjected to a major personnel action 
to file for a de novo review in U.S. district court if the 
employee seeks corrective action or files an appeal with the 
MSPB under certain circumstances. More specifically, the 
employee may file in district court if no final order or 
decision is issued by the MSPB within 270 days after the 
request was submitted; or upon certification by the MSPB that 
the Board is not likely to dispose of the case within 270 days 
after the request was submitted or that the case consists of 
multiple claims, requires complex or extensive discovery, 
arises out of the same set of facts as a civil action pending 
in a federal court, involves a novel question of law, or states 
a claim upon which relief can be granted. Under this section, 
an employee may submit a motion for certification to the MSPB 
within 30 days of the original request for corrective action or 
appeal. The MSPB shall rule on the motion within 90 days, and 
not later than 15 days before issuing a final decision on the 
merits of the case, and shall stay any other claims while the 
district court case is pending. In district court, the agency 
may prevail if it demonstrates by a preponderance of the 
evidence (rather than by clear and convincing evidence, which 
is the standard used within the MSPB process) that the agency 
would have taken the same personnel action in the absence of a 
protected disclosure. In district court, the employee may not 
be represented by the Special Counsel. At the request of either 
party, the case shall be tried with a jury. The court may award 
damages, attorney's fees, and costs, but compensatory damages 
may not exceed $300,000 and punitive damages are not permitted. 
An appeal from a final decision of a district court can be 
taken to the Federal Circuit in the district in which the 
action was filed.

Section 118

    Section 118(a) authorizes the MSPB to consider and grant 
summary judgment motions in WPA cases involving major personnel 
actions 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 judgment as a 
matter of law.
    Section 118(b) provides that this authority is subject to a 
five-year sunset. The MSPB would maintain summary judgment 
authority for those claims pending but not yet resolved at the 
time of the sunset.
    Section 119 provides that employees protected under the WPA 
may make protected classified disclosures under the procedures 
set forth for disclosing classified information under the 
ICWPA. These protections do not in any way limit the right to 
communicate with Congress under the Lloyd-La Follette Act, 
codified in 5 U.S.C. Sec. 7211, or other provisions of law.
    Section 120 requires that agency inspectors general, 
including the Inspector General of the Central Intelligence 
Agency and each other inspector general within the intelligence 
community, designate a Whistleblower Protection Ombudsman 
within the Office of the Inspector General. The Ombudsman would 
advocate for the interests of agency employees who make 
disclosures of information, educate agency personnel about 
prohibited personnel practices on retaliation for protected 
disclosures, and advise agency employees who have made a 
protected disclosure or are contemplating making a disclosure.

       TITLE I--INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTIONS

    Section 201 establishes protections for certain 
intelligence community whistleblowers.
    Section 201(a) would amend Title I of the National Security 
Act of 1947 by adding two sections to the Act, Section 120 and 
Section 121:
    Section 120(a) of the National Security Act, as amended, 
establishes the Intelligence Community Whistleblower Protection 
Board (ICWPB).
    Section 120(b) of the National Security Act, as amended, 
establishes the membership of the ICWPB. The ICWPB would 
consist of a Chairperson; two members designated by the 
President from individuals serving as Presidentially-appointed, 
Senate-confirmed inspectors general of any agencies; and two 
members appointed by the President after consultation with the 
Attorney General, the Director of National Intelligence, and 
the Secretary of Defense. Two alternate Board members would 
also be designated by the President and would serve if a Board 
member recuses himself or herself from a matter. The 
Chairperson would be paid at the annual rate of basic pay 
payable for level III of the Executive Schedule under 5 U.S.C. 
Sec. 5324, and Board members would be paid at the same rate of 
pay on a pro rata basis for time spent on Board activities, 
except that inspectors general would not receive any additional 
pay. The Board members would serve four-year terms, except that 
the first Chairperson appointed by the President would serve 
six years, two of the original Board members would serve five 
years, and the other two original Board members would serve 
four years, in order to create staggered terms in the future.
    Section 120(c) of the National Security Act, as amended, 
establishes the resources and authority of the ICWPB. The 
Office of the Director of National Intelligence would provide 
the Board with adequate office space, equipment, supplies and 
communications facilities, and services necessary for the 
operation of the Board. The Chairperson would transmit a budget 
to the Director of National Intelligence specifying the 
aggregate amount of funds required for the fiscal year. The 
Director of National Intelligence would then transmit a 
proposed budget to the President for approval. The Chairperson 
would be authorized to select, appoint, and employ officers and 
employees of the Board as necessary. Section 120(c) provides 
the Board authority to promulgate rules, regulations, and 
guidance, and issue orders, although any Board rule, 
regulation, or guidance must be jointly approved by the 
Director of National Intelligence, Secretary of Defense, and 
Attorney General.
    Section 121(a) of the National Security Act, as amended, 
specifies that the intelligence community elements under the 
jurisdiction of the ICWPB will be the same as those 
intelligence entities excluded from the WPA by 5 U.S.C. 
Sec. 2302(a)(2)(C) and covered under the ICWPA, specifically, 
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, the 
National Reconnaissance Office, and, as determined by 
President, any Executive agency or unit thereof the principal 
function of which is the conduct of foreign intelligence or 
counterintelligence activities, if that determination is made 
before the challenged personnel action. Section 121(a) also 
defines ``personnel action'' as an action taken against an 
employee under the ICWPA that would be considered a personnel 
action as defined in 5 U.S.C. Sec. 2302(a)(2)(A), but would not 
include the denial, suspension, or revocation of a security 
clearance or the denial of access to classified information or 
a suspension with pay pending an investigation.
    Section 121(b) of the National Security Act, as amended, 
prohibits taking any personnel action against employees under 
this section because of a protected disclosure. Disclosures 
protected under this section are the same types of disclosure 
of wrongdoing as are protected under the WPA in 5 U.S.C. 
Sec. 2302(b)(8). Disclosures to agency officials are protected 
if not specifically prohibited by law or executive order. 
Disclosures that comply with section 8H of the Inspector 
General Act of 1978 (5 U.S.C. App.) or with section 17(d)(5) of 
the Central Intelligence Agency Act of 1949 (50 U.S.C. 
Sec. 403q(d)(5)), as well as disclosures of wrongdoing to 
inspectors general and designated agency officials, are also 
protected. A prohibited personnel practice would include taking 
action against someone because he or she--(1) exercises an 
appeal, complaint or grievance right; (2) testifies for or 
otherwise assists any individual in the exercise of their 
whistleblower rights; or (3) cooperates with, or discloses 
information to, an inspector general. Disclosures would not be 
excluded from protection under the intelligence community 
whistleblower protections under the same circumstances as 
disclosures are not excluded from WPA coverage, as set forth in 
Section 101(b). Section 121(b) does not authorize the 
withholding of information from Congress or the taking of any 
personnel action against an employee who discloses information 
to Congress.
    Section 121(c)(1) of the National Security Act, as amended, 
establishes a remedial procedure for employees under the ICWPA 
who believe they have been subjected to a prohibited personnel 
practice. Employees would have the right to appeal an alleged 
prohibited personnel practice to the agency head, and 
applicable rules of procedure, based on those pertaining to 
prohibited personnel practices under 5. U.S.C. Sec. 2302(b)(8), 
would provide: (1) for an independent and impartial fact-
finder; (2) for notice and the opportunity to be heard and 
present evidence, including witness testimony; (3) that the 
individual may be represented by counsel; (4) that the 
individual has a right to a decision based on the record 
developed during the appeal; (5) that the impartial fact-finder 
shall provide the agency head, or designee, a report within 180 
days, unless agreed to by the employee and the agency; (6) for 
the use of the classified information in a manner consistent 
with the interests of national security, including ex parte 
submissions; and (7) that the individual shall have no right to 
compel the production of classified information, except 
evidence to establish that the employee made the disclosure 
alleged to be protected.
    Section 121(c)(2) of the National Security Act, as amended, 
requires the impartial fact-finder to prepare a report with 
findings, conclusions, and if necessary, recommended corrective 
action. After reviewing the record and the fact-finder's 
report, the agency head would determine whether the individual 
has been subjected to a prohibited personnel practice and 
either issue an order denying relief or implement corrective 
action. This decision would be made within 60 days, unless the 
employee consents to additional time. Corrective action would 
include the employee's reasonable attorney's fees and costs, 
and may include back pay and related benefits, travel expenses, 
and compensatory damages no greater than $300,000.
    Section 121(c)(3) of the National Security Act, as amended, 
requires the agency head to find that a prohibited personnel 
practice occurred if a protected disclosure was a 
``contributing factor'' in the personnel action unless the 
agency can demonstrate by clear and convincing evidence that it 
would have taken the same action in the absence of the 
employee's protected disclosure.
    Section 121(c)(4) of the National Security Act, as amended, 
allows an employee to appeal an agency head's final order to 
the Intelligence Community Whistleblower Protection Board 
within 60 days. The ICWPB's review of the record would be de 
novo, and its determination would be based on the entire 
record. The appeal would be conducted under the rules of 
procedure issued by the ICWPB, described in Section 121(c)(1). 
The ICWPB could not admit additional evidence, but it would 
have authority to remand to the agency for further fact-finding 
if necessary or if the agency improperly denied the employee or 
applicant the ability to present evidence. Unless the employee 
consents, the Board would be required to issue a decision 
within 180 days. The Board shall order the agency to take 
corrective action if it determines that a prohibited personnel 
practice has occurred. Corrective action would include the 
employee's reasonable attorney's fees and costs, and might 
include back pay and related benefits, travel expenses, and 
compensatory damages no greater than $300,000. The Board could 
recommend, but not order, the reinstatement or hiring of a 
former employee or applicant. The Agency head would be required 
to take the actions ordered by the Board unless the President 
determines that doing so would endanger national security.
    Section 121(c)(5) of the National Security Act, as amended, 
allows for judicial review of a final order. For a five-year 
trial period, an employee would be permitted to file a petition 
for review in the Court of Appeals for the Federal Circuit or 
the court of appeals of a circuit in which the reprisal is 
alleged in the order to have occurred. After that period, 
appeals would be filed in the Court of Appeals for the Federal 
Circuit. Any portions of the record that were submitted ex 
parte during agency proceedings would be submitted ex parte to 
the ICWPB and any reviewing court. Section 121(d) limits 
judicial review to the express provisions of this section. This 
section also requires the ICWPB to notify Congress when it 
issues final orders.
    Section 121(d) of the National Security Act, as amended, 
limits judicial review to the express provisions of this 
section.
    Section 121(e) of the National Security Act, as amended, 
provides that the legislation affords no protections for 
certain terminations of employment: (1) Those under 10 U.S.C. 
Sec. 1609; and (2) those personally and summarily carried out 
by the Director of National Intelligence, the Director of the 
Central Intelligence Agency, or an agency head under 5 U.S.C. 
Sec. 7532, if the Director or agency head determines the 
termination to be in the interest of the United States, 
determines that the procedures prescribed in other provisions 
of law that authorize the termination of the employee's 
employment cannot be invoked in a manner consistent with 
national security, and notifies Congress.
    Section 121(f) of the National Security Act, as amended, 
requires employees challenging both a prohibited personnel 
practice under this section and an adverse security clearance 
determination to bring both claims under the procedures set 
forth for security clearances. The total amount of compensatory 
damages for such claims may not exceed $300,000.
    Section 201(b) strikes 5 U.S.C. Sec. 2303.
    Section 201(c) makes technical and conforming amendments.

Section 202

    Section 202(a) amends Section 3001(b) of the Intelligence 
Reform and Terrorism Prevention Act of 2004 by requiring the 
development of policies and procedures that permit, to the 
extent practicable, individuals covered under both the WPA and 
ICWPA who, in good faith, challenge a security clearance 
determination to remain employed while the challenge is 
pending; and the development and implementation of uniform and 
consistent policies and procedures to ensure protections to 
allow review of security clearance determinations alleged to be 
in retaliation for whistleblowing. Those procedures would be 
required to include the same guarantees as are described under 
the new Section 121(c)(1) of the National Security Act, as 
added by Section 201(a) of the bill.
    Section 202(b) prohibits revoking a security clearance in 
retaliation for a protected disclosure. Disclosures would not 
be excluded from protection under this section under the same 
circumstances as disclosures are not excluded from WPA 
coverage, as set forth in Section 101(b). Section 202(b) 
provides similar remedial procedures to employees who seek to 
appeal the revocation of their security clearance 
determinations as employees who are covered under the ICWPA and 
who seek to appeal alleged prohibited personnel practices, 
although it does not allow for an appeal of a suspension for 
purposes of conducting an investigation that lasts no longer 
than one year. An employee who believes his or her security 
clearance was revoked because of a protected disclosure would 
be permitted to file an appeal within the agency in the same 
manner as employees alleging a prohibited personnel practice 
based on a disclosure. If the agency determines that the 
adverse security clearance determination was retaliatory, it 
would be required to take corrective action. The same types of 
damages are available, and with the same limits, as for 
prohibited personnel practice agency appeals for intelligence 
employees. The standard of review, however, differs from other 
whistleblower retaliation claims. The agency would be required 
to find that a security clearance determination was retaliatory 
if a protected disclosure was a ``contributing factor'' in the 
determination, unless the agency can demonstrate by a 
preponderance of the evidence that it would have taken the same 
action in the absence of the 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.
    Section 202(b) also allows an employee to appeal an agency 
head's final order or decision to the ICWPB within 60 days. The 
Board, in consultation with the Attorney General, the Director 
of National Intelligence, and the Secretary of Defense, would 
develop and implement policies and procedures for such appeals. 
The ICWPB could not admit additional evidence, but it would 
have authority to remand to the agency for further fact-
finding, if necessary, or if the agency improperly denied the 
employee or applicant the ability to present evidence. The 
Board's review would be de novo, and its determination would be 
based on the entire record.
    Section 202(b) further requires the ICWPB to order 
corrective action, including damages, attorney's fees, and 
costs, with compensatory damages capped at $300,000, if the 
ICWPB determines that an adverse security clearance 
determination was retaliatory. The Agency head would be 
required to take the actions ordered by the Board unless the 
President determines that doing so would endanger national 
security. Section 202(b) also allows the Board to recommend, 
but not order, the reinstatement or hiring of a former employee 
or applicant, as well as to recommend the reinstatement of a 
security clearance if it determines that doing so is clearly 
consistent with the interests of national security. Section 
202(b) requires the Board to notify Congress of any orders it 
issues and requires the agency to notify Congress if an agency 
does not follow the Board's recommendation to reinstate a 
security clearance. Judicial review of agency or Board actions 
under this section is not permitted. Section 202(b) does not 
apply to adverse security clearance determinations if the 
employee was terminated under the circumstances described in 
Section 201(a) under the new Section 121(e) of the National 
Security Act.
    Section 203 allows the inspector general to submit a 
complaint or information submitted under the ICWPA or the 
Central Intelligence Agency Act of 1949 directly to the Chair 
of the ICWPB if the inspector general determines that 
submission to the agency head would create a conflict of 
interest. Section 203 also would allow an individual who has 
submitted a complaint or information to an inspector general to 
notify any member of Congress, or congressional staff members, 
of the submission made under the ICWPA or the Central 
Intelligence Agency Act of 1949.
    Section 301 states that the Act would take effect 30 days 
after the date of enactment.

                    V. Estimated Cost of Legislation

                                                 September 8, 2009.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 372, the 
Whistleblower Protection Enhancement Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 372--Whistleblower Protection Enhancement Act of 2009

    Summary: S. 372 would amend the Whistleblower Protection 
Act (WPA) to clarify current law and give new protections to 
federal employees including those who report abuse, fraud, and 
waste involving government activities. The legislation also 
would affect activities of the Merit Systems Protection Board 
(MSPB) and the Office of Special Counsel (OSC). Finally, it 
would establish an oversight board within the intelligence 
community to review whistleblower claims.
    CBO estimates that implementing S. 372 would cost $54 
million over the 2010-2014 period, assuming appropriation of 
the necessary amounts for awards to whistleblowers and 
additional staffing and reporting requirements. Enacting the 
bill would not affect direct spending or revenues.
    S. 372 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 372 is shown in the following table. The 
costs of this legislation fall within budget function 800 
(general government) and all other budget functions that 
include federal salaries and expenses.

----------------------------------------------------------------------------------------------------------------
                                                               By fiscal year, in millions of dollars--
                                                     -----------------------------------------------------------
                                                                                                          2010-
                                                        2010      2011      2012      2013      2014      2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Whistleblower Awards:
    Estimated Authorization Level...................         5         5         5         5         5        25
    Estimated Outlays...............................         5         5         5         5         5        25
Intelligence Community Whistleblower Protection
 Board:
    Estimated Authorization Level...................         3         3         3         3         3        15
    Estimated Outlays...............................         3         3         3         3         3        15
MSPB and OSC:
    Estimated Authorization Level...................         2         2         2         2         2        10
    Estimated Outlays...............................         2         2         2         2         2        10
Other Provisions:
    Estimated Authorization Level...................         3         1         *         *         *         4
    Estimated Outlays...............................         3         1         *         *         *         4
    Total Changes:
        Estimated Authorization Level...............        13        11        10        10        10        54
        Estimated Outlays...........................        13        11        10        10        10       54
----------------------------------------------------------------------------------------------------------------
Notes: MSPB = Merit Systems Protection Board; OSC = Office of Special Counsel.
        * = less than $500,000.

    Basis of the estimate: For this estimate, CBO assumes that 
the bill will be enacted near the start of fiscal year 2010 and 
that spending will follow historical patterns for similar 
programs.
    Under current law, the OSC investigates complaints 
regarding reprisals against federal employees that inform 
authorities of fraud or other improprieties in the operation of 
federal programs (such individuals are known as 
whistleblowers). The OSC takes corrective action for valid 
complaints. If agencies fail to take corrective actions, the 
OSC or the employee can pursue a case through the MSPB for 
resolution. Whistleblower cases may also be reviewed by the 
U.S. Court of Appeals.

Whistleblower awards

    When implementing corrective actions to settle an 
employment dispute between the federal government and its 
employees regarding prohibited personnel practices, federal 
agencies are required to spend appropriated funds (some are 
paid by the Judgment Fund and reimbursed by each individual 
agency) to pay for an employee's attorney, back pay, and any 
associated travel and medical costs.
    S. 372 would expand protections for whistleblowers and 
extend protections to Transportation Security Administration 
passenger and baggage screeners and federal employees working 
on research, analysis, or technical information. This would 
include additional awards to employees who suffered from 
retaliation by their agency and compensatory damages of up to 
$300,000. In addition, the legislation would allow access to 
jury trials and would remove the exclusive jurisdiction of the 
U.S. Court of Appeals over whistleblower appeals.
    According to the MSPB and OSC, there are generally between 
400 and 500 whistleblower cases each year and around 2,000 
prohibited personnel practice complaints. CBO is unaware of any 
comprehensive information on the current costs of corrective 
actions related to those cases. Damage awards in each case 
depend on the particular circumstances of each case. Recent 
settlements amounts under the Whistleblower Protection Act have 
ranged from $20,000 to $300,000. In addition, the Government 
Accountability Office has reported that the Judgment Fund 
spends about $15 million annually on equal employment 
opportunity and whistleblower cases. While it is uncertain how 
often damages would be awarded in such cases, CBO expects that 
the added protections under the bill would increase costs for 
such awards by about $5 million each year.

Intelligence Community Whistleblower Protection Board

    Section 201 would establish the Intelligence Community 
Whistleblower Protection Board. The new board, which would have 
five members, would be responsible for issuing guidance on the 
procedures intelligence agencies should use when reviewing the 
claims of intelligence community employees who believe that 
they have experienced an adverse personnel action, such as 
termination of employment or denial of a promotion, or security 
clearance determination in retaliation for such employee 
revealing certain types of misconduct. Based on information 
from the Office of the Director of National Intelligence about 
the board's staff requirements and the costs of similar 
government boards, CBO estimates that implementing that this 
provision would cost $3 million annually.

MSBP and OSC

    CBO expects that the bill's changes to existing laws would 
increase the workload of the MSPB and the OSC. For fiscal year 
2009, the MSPB received an appropriation of $39 million, and 
the OSC received $17 million. Based on information from those 
agencies, we estimate that implementing this bill would cost 
about $2 million a year to hire additional professional and 
administrative staff.

Other provisions

    The bill would require a report by the Government 
Accountability Office on whistleblowers and the Council of 
Inspectors General on the security clearance revocations, as 
well as changes to training and nondisclosure policies 
governmentwide. Based on information from agencies and on the 
costs of similar existing requirements, CBO estimates that 
implementing those provisions would cost $4 million over the 
2010-2014 period.
    Intergovernmental and private-sector impact: S. 372 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no significant costs on state, 
local, or tribal governments.
    Estimate prepared by: Federal costs: Matthew Pickford and 
Jason Wheelock; Impact on state, local, and tribal governments: 
Elizabeth Cove Delisle; Impact on the private sector: Paige 
Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

                  VI. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill. CBO states that 
there are no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and no costs on 
state, local, or tribal governments. The legislation contains 
no other regulatory impact.

                      VII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic and existing law, in which no 
change is proposed, is shown in roman):

   TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES

         PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, 
                      AND EMPLOYEE RIGHT OF ACTION

              Subchapter I--Merit Systems Protection Board

SEC. 1204. POWERS AND FUNCTIONS OF THE MERIT SYSTEMS PROTECTION BOARD.

           *       *       *       *       *       *       *

    (b) * * *

           *       *       *       *       *       *       *

          (3) With respect to a request for corrective action 
        based on an alleged prohibited personnel practice 
        described in section 2302(b)(8) or (9)(A)(i), (B)(i), 
        (C), or (D) for which the associated personnel action 
        is an action covered under section 7512 or 7542, the 
        Board, any administrative law judge appointed by the 
        Board under section 3105 of this title, or any employee 
        of the Board designated by the Board may, with respect 
        to any party, grant a motion for summary judgment when 
        the Board or the administrative law judge determines 
        that there is no genuine issue as to any material fact 
        and that the moving party is entitled to a judgment as 
        a matter of law.
          [(3)] (4) Witnesses (whether appearing voluntarily or 
        under subpoena) shall be paid the same fee and mileage 
        allowances which are paid subpoenaed witnesses in the 
        courts of the United States.

           *       *       *       *       *       *       *

    (m)(1) Except as provided in paragraph (2) of this 
subsection, the Board, or an administrative law judge or other 
employee of the Board designated to hear a case arising under 
section 1215, may require payment by the [agency involved] 
agency where the prevailing party is employed or has applied 
for employment of reasonable attorney fees incurred by an 
employee or applicant for employment if the employee or 
applicant is the prevailing party and the Board, administrative 
law judge, or other employee (as the case may be) determines 
that payment by the agency is warranted in the interest of 
justice, including any case in which a prohibited personnel 
practice was engaged in by the agency or any case in which the 
agency's action was clearly without merit.

Subchapter II--Office of Special Counsel

           *       *       *       *       *       *       *

           *       *       *       *       *       *       *

    (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. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; CORRECTIVE 
                    ACTION.

    (a) * * *

           *       *       *       *       *       *       *

          (3) Except in a case in which an employee, former 
        employee, or applicant for employment has the right to 
        appeal directly to the Merit Systems Protection Board 
        under any law, rule, or regulation, any such employee, 
        former employee, or applicant shall seek corrective 
        action from the Special Counsel before seeking 
        corrective action from the Board. An employee, former 
        employee, or applicant for employment may seek 
        corrective action from the Board under section 1221, if 
        such employee, former employee, or applicant seeks 
        corrective action for a prohibited personnel practice 
        described in section 2302(b)(8) or section 
        2302(b)(9)(A)(i), (B)(i), (C), or (D) from the Special 
        Counsel and--
                  (A)(i) the Special Counsel notifies such 
                employee, former employee, or applicant that an 
                investigation concerning such employee, former 
                employee, or applicant has been terminated; and
                  (ii) no more than 60 days have elapsed since 
                notification was provided to such employee, 
                former employee, or applicant for employment 
                that such investigation was terminated; or
                  (B) 120 days after seeking corrective action 
                from the Special Counsel, such employee, former 
                employee, or applicant has not been notified by 
                the Special Counsel that the Special Counsel 
                shall seek corrective action on behalf of such 
                employee, former employee, or applicant.
    (b) * * *

           *       *       *       *       *       *       *

          (4)(A) The Board shall order such corrective action 
        as the Board considers appropriate, if the Board 
        determines that the Special Counsel has demonstrated 
        that a prohibited personnel practice, other than one 
        described in section 2302(b)(8) or section 
        2302(b)(9)(A)(i), (B)(i), (C), or (D), has occurred, 
        exists, or is to be taken.
          (B)(i) Subject to the provisions of clause (ii), in 
        any case involving an alleged prohibited personnel 
        practice as described under section 2302(b)(8) or 
        section 2302(b)(9)(A)(i), (B)(i), (C), or (D), the 
        Board shall order such corrective action as the Board 
        considers appropriate if the Special Counsel has 
        demonstrated that a disclosure or protected activity 
        described under section 2302(b)(8) or section 
        2302(b)(9)(A)(i), (B)(i), (C), or (D) was a 
        contributing factor in the personnel action which was 
        taken or is to be taken against the individual.
          (ii) Corrective action under clause (i) may not be 
        ordered if, after a finding that a protected disclosure 
        was a contributing factor, the agency demonstrates by 
        clear and convincing evidence that it would have taken 
        the same personnel action in the absence of such 
        disclosure. 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.

           *       *       *       *       *       *       *

    (g) If the Board orders corrective action under this 
section, such corrective action may include--
          (1) that the individual be placed, as nearly as 
        possible, in the position the individual would have 
        been in had the prohibited personnel practice not 
        occurred; and
          (2) reimbursement for attorney's fees, back pay and 
        related benefits, medical costs incurred, travel 
        expenses, [and any other reasonable and foreseeable 
        consequential damages] any other reasonable and 
        foreseeable consequential damages, and compensatory 
        damages (including interest, reasonable expert witness 
        fees, and costs).

           *       *       *       *       *       *       *

    (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.

SEC. 1215. DISCIPLINARY ACTION.

    (a) * * *

           *       *       *       *       *       *       *

          [(3) A final order of the Board may impose 
        disciplinary action consisting of removal, reduction in 
        grade, debarment from Federal employment for a period 
        not to exceed 5 years, suspension, reprimand, or an 
        assessment of a civil penalty not to exceed $1,000.]
          (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. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES

    (a) Subject to the provisions of subsection (b) of this 
section and subsection 1214(a)(3), an employee, former 
employee, or applicant for employment may, with respect to any 
personnel action taken, or proposed to be taken, against such 
employee, former employee, or applicant for employment, as a 
result of a prohibited personnel practice described in section 
2302(b)(8) or section 2302(b)(9)(A)(i), (B)(i), (C), or (D) 
seek corrective action from the Merit Systems Protection Board.

           *       *       *       *       *       *       *

    (e)(1) Subject to the provisions of paragraph (2), in any 
case involving an alleged prohibited personnel practice as 
described under section 2302(b)(8) or section 2302(b)(9)(A)(i), 
(B)(i), (C), or (D), the Board shall order such corrective 
action as the Board considers appropriate if the employee, 
former employee, or applicant for employment has demonstrated 
that a disclosure or protected activity described under section 
2302(b)(8) or section 2302(b)(9)(A)(i), (B)(i), (C), or (D) was 
a contributing factor in the personnel action which was taken 
or is to be taken against such employee, former employee, or 
applicant. The employee may demonstrate that the disclosure or 
protected activity was a contributing factor in the personnel 
action through circumstantial evidence, such as evidence that--
          (A) the official taking the personnel action knew of 
        the disclosure or protected activity; and
          (B) the personnel action occurred within a period of 
        time such that a reasonable person could conclude that 
        the disclosure or protected activity was a contributing 
        factor in the personnel action.
    (2) Corrective action under paragraph (1) may not be 
ordered if, after a finding that a protected disclosure was a 
contributing factor, the agency demonstrates by clear and 
convincing evidence that it would have taken the same personnel 
action in the absence of such disclosure. 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.

           *       *       *       *       *       *       *

    (g)(1)(A) If the Board orders corrective action under this 
section, such corrective action may include--
          (i) that the individual be placed, as nearly as 
        possible, in the position the individual would have 
        been in had the prohibited personnel practice not 
        occurred; and
          (ii) back pay and related benefits, medical costs 
        incurred, travel expenses, [and any other reasonable 
        and foreseeable consequential changes.] any other 
        reasonable and foreseeable consequential damages, and 
        compensatory damages (including interest, reasonable 
        expert witness fees, and costs).
    (B) Corrective action shall include attorney's fees and 
costs as provided for under paragraphs (2) and (3).

           *       *       *       *       *       *       *

          (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.

           *       *       *       *       *       *       *

                          (i) Subsections (a) through (h) shall 
                        apply in any proceeding brought under 
                        section 7513(d) if, or to the extent 
                        that, a prohibited personnel practice 
                        as defined in section 2302(b)(8) or 
                        section 2302(b)(9)(A)(i), (B)(i), (C), 
                        or (D) is alleged.

           *       *       *       *       *       *       *

    (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 or 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 correction 
        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.

                          PART III--EMPLOYEES

                     Subpart A--General Provisions

                  CHAPTER 23--MERIT SYSTEM PRINCIPLES

SEC. 2302. PROHIBITED PERSONNEL PRACTICES.

    (a)(1) For the purpose of this title, ``prohibited 
personnel practice'' means any action described in subsection 
(b).
    (2) For the purpose of this section--
          (A) ``personnel action'' means--

           *       *       *       *       *       *       *

                          (x) a decision to order psychiatric 
                        testing or examination; [and]
                          (xi) the implementation or 
                        enforcement of any nondisclosure 
                        policy, form, or agreement; and 
                          [(xi)] (xii) any other significant 
                        change in duties, responsibilities, or 
                        working conditions; with respect to an 
                        employee in, or applicant for, a 
                        covered position in an agency, and in 
                        the case of an alleged prohibited 
                        personnel practice described in 
                        subsection (b)(8), an employee or 
                        applicant for employment in a 
                        Government corporation as defined in 
                        section 9101 of title 31;
          (B) ``covered position'' means, with respect to any 
        personnel action, any position in the competitive 
        service, a career appointee position in the Senior 
        Executive Service, or a position in the excepted 
        service, but does not include any position which is, 
        prior to the personnel action--
          (i) excepted from the competitive service because of 
        its confidential, policy-determining, policy-making, or 
        policy-advocating character; or
          (ii) excluded from the coverage of this section by 
        the President based on a determination by the President 
        that it is necessary and warranted by conditions of 
        good administration; [and]
          (C) ``agency'' means an Executive agency and the 
        Government Printing Office, but does not include--
                  (i) a Government corporation, except in the 
                case of an alleged prohibited personnel 
                practice described under subsection (b)(8) or 
                section 2302(b)(9)(A)(i), (B)(i), (C), or (D);
                  [(ii) the Federal Bureau of Investigation, 
                the Central Intelligence Agency, the Defense 
                Intelligence Agency, the National Imagery and 
                Mapping Agency, the National Security Agency, 
                and, 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; 
                or]
                  (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
                  (iii) the General Accountability Office; and
          (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) Any employee who has authority to take, direct others 
to take, recommend, or approve any personnel action, shall not, 
with respect to such authority--

           *       *       *       *       *       *       *

          (8) take or fail to take, or threaten to take or fail 
        to take, a personnel action with respect to any 
        employee or applicant for employment because of--
                  (A) any disclosure of information by an 
                employee or applicant which the employee or 
                applicant reasonably believes evidences--
                          (i) [a violation] 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, 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; [or]
                  (B) any disclosure to the Special Counsel, or 
                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] any violation 
                        (other than a violation of this 
                        section) 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; or
                  (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);
          (9) take or fail to take, or threaten to take or fail 
        to take, any personnel action against any employee or 
        applicant for employment because of--
                  (A) [the exercise of any appeal, complaint, 
                or grievance right granted by any law, rule or 
                regulation] 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;
                  (B) testifying for or otherwise lawfully 
                assisting any individual in the exercise of any 
                right referred to in subparagraph (A)(i) or 
                (ii);
                  (C) cooperating with or disclosing 
                information to the Inspector General of an 
                agency, or the Special Counsel, in accordance 
                with applicable provisions of law; or
                  (D) for refusing to obey an order that would 
                require the individual to violate a law;

           *       *       *       *       *       *       *

          (11)(A) knowingly take, recommend, or approve any 
        personnel action if the taking of such action would 
        violate a veterans' preference requirement; or
          (B) knowingly fail to take, recommend, or approve any 
        personnel action if the failure to take such action 
        would violate a veterans' preference requirement; [or]
          (12) take or fail to take any other personnel action 
        if the taking of or failure to take such action 
        violates any law, rule, or regulation implementing, or 
        directly concerning, the merit system principles 
        contained in section 2301 of this title[.]; or
          (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.''
This subsection shall not be construed to authorize the 
withholding of information from Congress or the taking of any 
personnel action against an employee who discloses information 
to Congress. For purposes of paragraph (8), any presumption 
relating to the performance of a duty by an employee who has 
authority to take or direct others to take, recommend, or 
approve any personnel action may be rebutted by substantial 
evidence. For purposes of paragraph (8), a determination as to 
whether an employee or applicant reasonably believes that such 
employee or applicant has disclosed information that evidences 
any violation of law, rule, regulation, gross mismanagement, a 
gross waste of funds, an abuse of authority, or a substantial 
and specific danger to public health or safety shall be made by 
determining whether a disinterested observer with knowledge of 
the essential facts known to and readily ascertainable by the 
employee could reasonably conclude that the actions of the 
Government evidence such violations, mismanagement, waste, 
abuse, or danger.
    (c) The head of each agency shall be responsible for the 
prevention of prohibited personnel practices, for the 
compliance with and enforcement of applicable civil service 
laws, rules, and regulations, and other aspects of personnel 
management, and for ensuring (in consultation with the Office 
of Special Counsel) that agency employees are informed of the 
rights and remedies available to them under this chapter and 
chapter 12 of this title, 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. Any individual to whom the head of an agency 
delegates authority for personnel management, or for any aspect 
thereof, shall be similarly responsible within the limits of 
the delegation.

           *       *       *       *       *       *       *

    (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. 2303. PROHIBITED PERSONNEL PRACTICES IN THE FEDERAL BUREAU OF 
                    INVESTIGATION.

    [(a) Any employee of the Federal Bureau of Investigation 
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 the Bureau as a reprisal for a disclosure of 
information by the employee to the Attorney General (or an 
employee designated by the Attorney General for such purpose) 
which the employee or applicant reasonably believes evidences--
          [(1) a violation of any law, rule, or regulation, or
          [(2) mismanagement, a gross waste of funds, an abuse 
        of authority, or a substantial and specific danger to 
        public health or safety.
    For the purpose of this subsection, ``personnel action'' 
means any action described in clauses (i) through (x) of 
section 2302(a)(2)(A) of this title with respect to an employee 
in, or applicant for, a position in the Bureau (other than a 
position of a confidential, policy-determining, policymaking, 
or policy-advocating character).
    [(b) The Attorney General shall prescribe regulations to 
ensure that such a personnel action shall not be taken against 
an employee of the Bureau as a reprisal for any disclosure of 
information described in subsection (a) of this section.
    [(c) The President shall provide for the enforcement of 
this section in a manner consistent with applicable provisions 
of sections 1214 and 1221 of this title.]

SEC. 2304. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION 
                    SECURITY ADMINISTRATION.

    (a) In General.--Notwithstanding any other provisions 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.

SEC. [2304] 2305. RESPONSIBILITIES OF THE GOVERNMENT ACCOUNTABILITY 
                    OFFICE.

SEC. [2305] 2306. COORDINATION WITH CERTAIN OTHER PROVISIONS OF LAW.

           Subpart F--Labor Management and Employee Relations

                          CHAPTER 77--APPEALS

SEC. 7703. JUDICIAL REVIEW OF DECISIONS OF THE MERIT SYSTEMS PROTECTION 
                    BOARD.

    (a)(1) Any employee or applicant for employment adversely 
affected or aggrieved by a final order or decision of the Merit 
Systems Protection Board may obtain judicial review of the 
order or decision.

           *       *       *       *       *       *       *

    [(b)(1) Except as provided in 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 must be filed within 
60 days after the date the petitioner received notice of the 
final order or decision of the Board.]
    (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).

           *       *       *       *       *       *       *

    [(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 date the Director received 
notice of the final order or decision of the Board, a petition 
for judicial review in the United States Court of Appeals for 
the Federal Circuit if the Director determines, in his 
discretion, that the Board erred in interpreting a civil 
service law, rule, or regulation affecting personnel management 
and that the Board's decision will have a substantial impact on 
a civil service law, rule, regulation, or policy directive. If 
the Director did not intervene in a matter before the Board, 
the Director may not petition for review of a Board decision 
under this section unless the Director first petitions the 
Board for a reconsideration of its decision, and such petition 
is denied. In addition to the named respondent, the Board and 
all other parties to the proceedings before the Board shall 
have the right to appear in the proceeding before the Court of 
Appeals. The granting of the petition for judicial review shall 
be at the discretion of the Court of Appeals.]
    (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.

                     Inspector General Act of 1978

                           Public Law 95-452

                     (as codified at 5 U.S.C. App.)

SEC. 3. APPOINTMENT OF INSPECTOR GENERAL; SUPERVISION; REMOVAL; 
                    POLITICAL ACTIVITIES; APPOINTMENT OF ASSISTANT 
                    INSPECTOR GENERAL FOR AUDITING AND ASSISTANT 
                    INSPECTOR GENERAL FOR INVESTIGATIONS.

           *       *       *       *       *       *       *

    (d) Each Inspector General shall, in accordance with 
applicable laws and regulations governing the civil service--
          (1) 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; [and]
          (2) 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
          (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.

SEC. 8H. ADDITIONAL PROVISIONS WITH RESPECT TO INSPECTORS GENERAL OF 
                    THE INTELLIGENCE COMMUNITY.

    (a)(1)(A)

           *       *       *       *       *       *       *

    (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;

           *       *       *       *       *       *       *

    (b)(1) Not later than the end of the 14-calendar day period 
beginning on the date of receipt of an employee complaint or 
information under subsection (a), the Inspector General shall 
determine whether the complaint or information appears 
credible. Upon making such a determination, the Inspector 
General shall transmit to the head of the establishment notice 
of that determination, together with the complaint or 
information.
    (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 submissions under this section.

           *       *       *       *       *       *       *

    (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.
    [(h)](i) In this section--

           *       *       *       *       *       *       *

          [(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.]
          (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.

                   The Homeland Security Act of 2002

                           Public Law 107-296

                     (as codified at 6 U.S.C. 133)

SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE 
                    INFORMATION.

           *       *       *       *       *       *       *

    (c) Independently obtained information. Nothing in this 
section shall be construed to limit or otherwise affect the 
ability of a State, local, or Federal Government entity, 
agency, or authority, or any third party, under applicable law, 
to obtain critical infrastructure information in a manner not 
covered by subsection (a) of this section, including any 
information lawfully and properly disclosed generally or 
broadly to the public and to use such information in any manner 
permitted by law. 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.

                   The National Security Act of 1947

                           Public Law 81-110

                 (as codified at 50 U.S.C. 402 et seq.)

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 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 appointed 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 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 
                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) 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; 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) through (C).
    (C) If the Board certifies that agency procedures in effect 
on the date of enactment of this section, including procedures 
promulgated under section 2303 of title 5, United States Code, 
before that date, adequately provide guaranties required under 
subparagraph (B)(i) through (vi), the appeal may be conducted 
according to those procedures.
    (2) On the basis of the record developed during the appeal, 
the impartial fact-finder shall prepare a report to the agency 
head or the designee of the agency head setting forth findings, 
conclusions, and, if applicable, recommended corrective action. 
After reviewing the record and the impartial fact-finder's 
report, the agency head or the designee of the agency head 
shall determine whether the employee, former employee, or 
applicant has been subjected to a prohibited personnel 
practice, and shall either issue an order denying relief or 
shall implement corrective action to return the employee, 
former employee, or applicant, as nearly as practicable and 
reasonable, to the position such employee, former employee, or 
applicant would have held had the prohibited personnel practice 
not occurred. Such corrective action shall include reasonable 
attorney's fees and any other reasonable costs incurred, and 
may include back pay and related benefits, travel expenses, and 
compensatory damages not to exceed $300,000. Unless the 
employee, former employee, or applicant consents, no more than 
60 days shall pass from the submission of the report by the 
impartial fact-finder to the agency head and the final decision 
by the agency head or the designee of the agency head.
    (3) In determining whether the employee, former employee, 
or applicant has been subjected to a prohibited personnel 
practice, the agency head or the designee of the agency head 
shall find that a prohibited personnel practice occurred if a 
disclosure described in subsection (b) was a contributing 
factor in the personnel action which was taken against the 
individual, unless the agency demonstrates by clear and 
convincing evidence that it would have taken the same personnel 
action in the absence of such disclosure.
    (4)(A) Any employee, former employee, or applicant 
adversely affected or aggrieved by a final order or decision of 
the agency head or the designee of the agency head under 
paragraph (1) may appeal that decision to the Intelligence 
Community Whistleblower Protection Board within 60 days after 
the issuance of such order. Such appeal shall be conducted 
under rules of procedure issued by the Board under section 
120(c)(4).
    (B) The Board's review shall be on the agency record. The 
Board may not hear witnesses or admit additional evidence. Any 
portions of the record that were submitted ex parte during the 
agency proceedings shall not be disclosed to the employee, 
former employee, or applicant during proceedings before the 
Board.
    (C) If the Board concludes that further fact-finding is 
necessary or finds that the agency improperly denied the 
employee, former employee, or applicant the opportunity to 
present evidence that, if admitted, would have a substantial 
likelihood of altering the outcome, the Board shall--
          (i) remand the matter to the agency from which it 
        originated for additional proceedings in accordance 
        with the rules of procedure issued by the Board; or
          (ii) refer the matter to another agency for 
        additional proceedings in accordance with the rules of 
        procedure issued by the Board.
    (D) The Board shall make a de novo determination, based on 
the entire record, of whether the employee, former employee, or 
applicant suffered a prohibited personnel practice. In 
considering the record, the Board may weigh the evidence, judge 
the credibility of witnesses, and determine controverted 
questions of fact; in doing so, the Board may consider the 
prior fact-finder's opportunity to see and hear the witnesses.
    (E) On the basis of the agency record, the Board shall 
determine whether the employee, former employee, or applicant 
has been subjected to a prohibited personnel practice, and 
shall either issue an order denying relief or shall order the 
agency head to take specific corrective action to return the 
employee, former employee, or applicant, as nearly as 
practicable and reasonable, to the position such employee, 
former employee, or applicant would have held had the 
prohibited personnel practice not occurred. Such corrective 
action shall include reasonable attorney's fees and any other 
reasonable costs incurred, and may include back pay and related 
benefits, travel expenses, and compensatory damages not to 
exceed $300,000. The Board may recommend, but may not order, 
reinstatement or hiring of a former employee or applicant. The 
agency head shall take the actions so ordered, unless the 
President determines that doing so would endanger national 
security. Unless the employee, former employee, or applicant 
consents, no more than 180 days shall pass from the filing of 
the appeal with the Board to the final decision by the Board. 
Any period of time during which the Board lacks a sufficient 
number of members to undertake a review shall be excluded from 
the 180-day period.
    (F) In determining whether the employee, former employee, 
or applicant has been subjected to a prohibited personnel 
practice, the agency head or the designee of the agency head 
shall find that a prohibited personnel practice occurred if a 
disclosure described in subsection (b) of this section was a 
contributing factor in the personnel action which was taken 
against the individual, unless the agency demonstrates by clear 
and convincing evidence that it would have taken the same 
personnel action in the absence of such disclosure.
    (5)(A)(i) During the 5-year period beginning on the 
effective date of the Whistleblower Protection Enhancement Act 
of 2009, an employee, former employee, applicant, or an agency 
may file a petition to review a final order of the Board in the 
United States Court of Appeals for the Federal Circuit or the 
United States court of appeals for a circuit in which the 
reprisal is alleged in the order to have occurred. 
Notwithstanding any other provision of law, any petition for 
review shall be filed within 60 days after the date of issuance 
of the final order of the Board.
    (ii) After the 5-year period described under clause (i), a 
petition to review a final order described under that clause 
shall be filed in the United States Court of Appeals for the 
Federal Circuit.
    (B) The court of appeals shall review the record and hold 
unlawful and set aside any agency action, findings, or 
conclusions found to be--
          (i) arbitrary, capricious, an abuse of discretion, or 
        otherwise not in accordance with law;
          (ii) obtained without procedures required by law, 
        rule, or regulation having been followed; or
          (iii) unsupported by substantial evidence.
    (C) Any portions of the record that were submitted ex parte 
during the agency proceedings shall be submitted ex parte to 
the Board and any reviewing court.
    (D) At the time the Board issues an order, the Chairperson 
shall notify the chairpersons and ranking members of--
          (i) the Committee on Homeland Security and Government 
        Affairs of the Senate;
          (ii) the Select Committee on Intelligence of the 
        Senate;
          (iii) the Committee on Oversight and Government 
        Reform of the House of Representatives; and
          (iv) the Permanent Select Committee on Intelligence 
        of the House of Representatives.
    (d) Except as expressly provided in this section, there 
shall be no judicial review of agency actions under this 
section.
    (e) This section shall not apply to terminations executed 
under--
          (1) section 1609 of title 10, United States Code;
          (2) the authority of the Director of National 
        Intelligence under section 102A(m) of this Act, if--
                  (A) the Director personally summarily 
                terminates the individual; and
                  (B) the Director--
                          (i) determines the termination to be 
                        in the interest of the United States;
                          (ii) determines that the procedures 
                        prescribed in other provisions of law 
                        that authorize the termination of the 
                        employment of such employee cannot be 
                        invoked in a manner consistent with the 
                        national security; and
                          (iii) notifies the congressional 
                        oversight committees of such 
                        termination within 5 days after the 
                        termination;
          (3) the authority of the Director of the Central 
        Intelligence Agency under section 104A(e) of this Act, 
        if--
                  (A) the Director personally summarily 
                terminates the individual; and
                  (B) the Director--
                          (i) determines the termination to be 
                        in the interest of the United States;
                          (ii) determines that the procedures 
                        prescribed in other provisions of law 
                        that authorize the termination of the 
                        employment of such employee cannot be 
                        invoked in a manner consistent with the 
                        national security; and
                          (iii) notifies the congressional 
                        oversight committees of such 
                        termination within 5 days after the 
                        termination; or
          (4) section 7532 of title 5, United States Code, if--
                  (A) the agency head personally summarily 
                terminates the individual; and
                  (B) the agency head--
                          (i) determines the termination to be 
                        in the interest of the United States,
                          (ii) determines that the procedures 
                        prescribed in other provisions of law 
                        that authorize the termination of the 
                        employment of such employee cannot be 
                        invoked in a manner consistent with the 
                        national security; and
                          (iii) notifies the congressional 
                        oversight committees of such 
                        termination within 5 days after the 
                        termination.
    (f) If an employee, former employee, or applicant seeks to 
challenge both a prohibited personnel practice under this 
section and an adverse security clearance or access 
determination under section 3001(j) of the Intelligence Reform 
and Terrorism Prevention Act of 2004 (50 U.S.C. 435b(j)), the 
employee shall bring both claims under the procedure set forth 
in 3001(j) of that Act for challenging an adverse security 
clearance or access determination. If the Board awards 
compensatory damages for such claim or claims, the total amount 
of compensatory damages ordered shall not exceed $300,000.

              The Central Intelligence Agency Act of 1949

                           Public Law 81-110

                    (as codified at 50 U.S.C. 403q)

SEC. 17(E). INSPECTOR GENERAL FOR AGENCY.

           *       *       *       *       *       *       *

    (d) Semiannual reports; immediate reports of serious or 
flagrant problems; reports of functional problems; reports to 
Congress on urgent concerns.

           *       *       *       *       *       *       *

          (5)(A) An employee of the Agency, or of a contractor 
        to the Agency, who intends to report to Congress a 
        complaint or information with respect to an urgent 
        concern may report such complaint or information to the 
        Inspector General.
          (B)(i) Not later than the end of the 14-calendar day 
        period beginning on the date of receipt from an 
        employee of a complaint or information under 
        subparagraph (A), the Inspector General shall determine 
        whether the complaint or information appears credible. 
        Upon making such a determination, the Inspector General 
        shall transmit to the Director notice of that 
        determination, together with the complaint or 
        information.
          (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.

           *       *       *       *       *       *       *

          (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.

           *       *       *       *       *       *       *

    (e) Authorities of the Inspector General * * *.

           *       *       *       *       *       *       *

          (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.

           *       *       *       *       *       *       *

      The Intelligence Reform and Terrorism Prevention Act of 2004

                           Public Law 108-458

                    (as codified at 50 U.S.C. 435b)

SEC. 3001. SECURITY CLEARANCES.

           *       *       *       *       *       *       *

    (b) Selection of Entity.--[Not] Except as otherwise 
provided, not later than 90 days after December 17, 2004, the 
President shall select a single department, agency, or element 
of the executive branch to be responsible for--
          (1) directing day-to-day oversight of investigations 
        and adjudications for personnel security clearances, 
        including for highly sensitive programs, throughout the 
        United States Government;
          (2) developing and implementing uniform and 
        consistent policies and procedures to ensure the 
        effective, efficient, and timely completion of security 
        clearances and determinations for access to highly 
        sensitive programs, including the standardization of 
        security questionnaires, financial disclosure 
        requirements for security clearance applicants, and 
        polygraph policies and procedures;
          (3) serving as the final authority to designate an 
        authorized investigative agency or authorized 
        adjudicative agency;
          (4) ensuring reciprocal recognition of access to 
        classified information among the agencies of the United 
        States Government, including acting as the final 
        authority to arbitrate and resolve disputes involving 
        the reciprocity of security clearances and access to 
        highly sensitive programs pursuant to subsection (d) of 
        this section;
          (5) ensuring, to the maximum extent practicable, that 
        sufficient resources are available in each agency to 
        achieve clearance and investigative program goals; 
        [and]
          (6) reviewing and coordinating the development of 
        tools and techniques for enhancing the conduct of 
        investigations and granting of clearances[.]; and
          (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 pactices 
                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).

           *       *       *       *       *       *       *

    (j) Retaliatory Revocation of Security Clearances and 
Access Determinations.--
          (1) In general.--Agency personnel with authority over 
        personnel security clearance or access determinations 
        shall not take or fail to take, or threaten to take or 
        fail to take, any action with respect to any employee 
        or applicant's security clearance or access 
        determination because of--
                  (A) any disclosure of information to an 
                official of an Executive agency by an employee 
                or applicant which the employee or applicant 
                reasonably believes evidences--
                          (i) a violation of any law, rule, or 
                        regulation, except for an alleged 
                        violation that is a minor, inadvertent 
                        violation, and occurs during the 
                        conscientious carrying out of official 
                        duties; or
                          (ii) gross mismanagement, a gross 
                        waste of funds, an abuse of authority, 
                        or a substantial and specific danger to 
                        public health or safety, if such 
                        disclosure is not specifically 
                        prohibited by law and if such 
                        disclosure does not reveal information 
                        specifically authorized under criteria 
                        established by statute, Executive 
                        Order, Presidential directive, or 
                        Presidential memorandum to be kept 
                        secret in the interest of national 
                        defense or the conduct of foreign 
                        affairs;
                  (B) any disclosure to the Inspector General 
                of an agency or another employee designated by 
                the head of the agency to receive such 
                disclosures, of information which the employee 
                or applicant reasonably believes evidences--
                          (i) a violation of any law, rule, or 
                        regulation, except for an alleged 
                        violation that is a minor, inadvertent 
                        violation, and occurs during the 
                        conscientious carrying out of official 
                        duties; or
                          (ii) gross mismanagement, a gross 
                        waste of funds, an abuse of authority, 
                        or a substantial and specific danger to 
                        public health or safety;
                  (C) any communication that complies with 
                subsection (a)(1), (d), or (h) of section 8H of 
                the Inspector General Act of 1978 (5 U.S.C. 
                App.) or that complies with subsection 
                (d)(5)(A), (D), or (H) of section 17 of the 
                Central Intelligence Agency Act of 1949 (50 
                U.S.C. 403q);
                  (D) the exercise of any appeal, complaint, or 
                grievance right granted by any law, rule, or 
                regulation;
                  (E) testifying for or otherwise lawfully 
                assisting any individual in the exercise of any 
                right referred to in subparagraph (D); or
                  (F) cooperating with or disclosing 
                information to the inspector general of an 
                agency, in accordance with applicable 
                provisions of law in connection with an audit, 
                inspection, or investigation conducted by the 
                inspector general, if the actions described 
                under subparagraphs (D) through (F) do not 
                result in the employee or applicant unlawfully 
                disclosing information specifically authorized 
                under criteria established by Executive Order, 
                statute, Presidential Directive, or 
                Presidential memorandum to be kept secret in 
                the interest of national defense or the conduct 
                of foreign affairs. Nothing in this paragraph 
                shall be construed to authorize the withholding 
                of information from the Congress or the taking 
                of any personnel action against an employee who 
                discloses information to the Congress.
          (2) Disclosures.--A disclosure shall not be excluded 
        from paragraph (1) because--
                  (A) the disclosure was made during the normal 
                course of the duties of the employee;
                  (B) the disclosure was made to a person, 
                including a supervisor, who participated in an 
                activity that the employee or applicant 
                reasonably believed to be covered by paragraph 
                (1)(A)(ii);
                  (C) the disclosure revealed information that 
                had been previously disclosed;
                  (D) of the employee or applicant's motive for 
                making the disclosure;
                  (E) the disclosure was not made in writing;
                  (F) the disclosure was made while the 
                employee was off duty; or
                  (G) of the amount of time which has passed 
                since the occurrence of the events described in 
                the disclosure.
          (3) Agency adjudication.--
                  (A) Appeal.--An employee, former employee, or 
                applicant for employment who believes that he 
                or she has been subjected to a reprisal 
                prohibited by paragraph (1) of this subsection 
                may, within 60 days after the issuance of 
                notice of such decision, appeal that decision 
                within the agency of that employee, former 
                employee, or applicant through proceedings 
                authorized by paragraph (8) of subsection (b), 
                except that there shall be no appeal of an 
                agency's suspension of a security clearance or 
                access determination for purposes of conducting 
                an investigation, if that suspension lasts no 
                longer than 1 year.
                  (B) Corrective action.--If, in the course of 
                proceedings authorized under subparagraph (A), 
                it is determined that the adverse security 
                clearance or access determination violated 
                paragraph (1) of this subsection, the agency 
                shall take specific corrective action to return 
                the employee, former employee, or applicant, as 
                nearly as practicable and reasonable, to the 
                position such employee, former employee, or 
                applicant would have held had the violation not 
                occurred. Such corrective action shall include 
                reasonable attorney's fees and any other 
                reasonable costs incurred, and may include back 
                pay and related benefits, travel expenses, and 
                compensatory damages not to exceed $300,000.
                  (C) Contributing factor.--In determining 
                whether the adverse security clearance or 
                access determination violated paragraph (1) of 
                this subsection, the agency shall find that 
                paragraph (1) of this subsection was violated 
                if a disclosure described in paragraph (1) was 
                a contributing factor in the adverse security 
                clearance or access determination taken against 
                the individual, unless the agency demonstrates 
                by a preponderance of the evidence that it 
                would have taken the same action in the absence 
                of such disclosure, giving the utmost deference 
                to the agency's assessment of the particular 
                threat to the national security interests of 
                the United States in the instant matter.
          (4) Review by the intelligence community 
        whistleblower protection board.--
                  (A) Appeal.--Within 60 days after receiving 
                notice of an adverse final agency determination 
                under a proceeding under paragraph (3), an 
                employee, former employee, or applicant for 
                employment may appeal that determination to the 
                Intelligence Community Whistleblower Protection 
                Board.
                  (B) Policies and procedures.--The Board, in 
                consultation with the Attorney General, 
                Director of National Intelligence, and the 
                Secretary of Defense, shall develop and 
                implement policies and procedures for 
                adjudicating the appeals authorized by 
                subparagraph (A). The Director of National 
                Intelligence and Secretary of Defense shall 
                jointly approve any rules, regulations, or 
                guidance issued by the Board concerning the 
                procedures for the use or handling of 
                classified information.
                  (C) Review.--The Board's review shall be on 
                the complete agency record, which shall be made 
                available to the Board. The Board may not hear 
                witnesses or admit additional evidence. Any 
                portions of the record that were submitted ex 
                parte during the agency proceedings shall be 
                submitted ex parte to the Board.
                  (D) Further fact-finding or improper 
                denial.--If the Board concludes that further 
                fact-finding is necessary or finds that the 
                agency improperly denied the employee or former 
                employee the opportunity to present evidence 
                that, if admitted, would have a substantial 
                likelihood of altering the outcome, the Board 
                shall--
                          (i) remand the matter to the agency 
                        from which it originated for additional 
                        proceedings in accordance with the 
                        rules of procedure issued by the Board; 
                        or
                          (ii) refer the case to an 
                        intelligence community agency for 
                        additional proceedings in accordance 
                        with the rules of procedure issued by 
                        the Board.
                  (E) De novo determination.--The Board shall 
                make a de novo determination, based on the 
                entire record, of whether the employee, former 
                employee, or applicant received an adverse 
                security clearance or access determination in 
                violation of paragraph (1). In considering the 
                record, the Board may weigh the evidence, judge 
                the credibility of witnesses, and determine 
                controverted questions of fact. In doing so, 
                the Board may consider the prior fact-finder's 
                opportunity to see and hear the witnesses.
                  (F) Adverse security clearance or access 
                determination.--If the Board finds that the 
                adverse security clearance or access 
                determination violated paragraph (1), it shall 
                then separately determine whether reinstating 
                the security clearance or access determination 
                is clearly consistent with the interests of 
                national security, with any doubt resolved in 
                favor of national security, under Executive 
                Order 12968 (including any adjudicative 
                guidelines promulgated under such orders) or 
                any subsequent Executive order, regulation, or 
                policy concerning access to classified 
                information.
                  (G) Remedies.--
                          (i) Corrective action.--If the Board 
                        finds that the adverse security 
                        clearance or access determination 
                        violated paragraph (1), it shall order 
                        the agency head to take specific 
                        corrective action to return the 
                        employee, former employee, or 
                        applicant, as nearly as practicable and 
                        reasonable, to the position such 
                        employee, former employee, or applicant 
                        would have held had the violation not 
                        occurred. Such corrective action shall 
                        include reasonable attorney's fees and 
                        any other reasonable costs incurred, 
                        and may include back pay and related 
                        benefits, travel expenses, and 
                        compensatory damages not to exceed 
                        $300,000. The Board may recommend, but 
                        may not order, reinstatement or hiring 
                        of a former employee or applicant, and 
                        any relief shall not include the 
                        reinstating of any security clearance 
                        or access determination. The agency 
                        head shall take the actions so ordered, 
                        unless the President determines that 
                        doing so would endanger national 
                        security.
                          (ii) Recommended action.--If the 
                        Board finds that reinstating the 
                        employee, former employee, or 
                        applicant's security clearance or 
                        access determination is clearly 
                        consistent with the interests of 
                        national security, it shall recommend 
                        such action to the head of the entity 
                        selected under subsection (b) and the 
                        head of the affected agency.
                  (H) Congressional notification.--
                          (i) Orders.--At the time the Board 
                        issues an order, the Chairperson of the 
                        Board shall notify the chairpersons and 
                        ranking members of--
                                  (I) the Committee on Homeland 
                                Security and Government Affairs 
                                of the Senate;
                                  (II) the Select Committee on 
                                Intelligence of the Senate;
                                  (III) the Committee on 
                                Oversight and Government Reform 
                                of the House of 
                                Representatives; and
                                  (IV) the Permanent Select 
                                Committee on Intelligence of 
                                the House of Representatives.
                          (ii) Recommendations.--If the agency 
                        head and the head of the entity 
                        selected under subsection (b) do not 
                        follow the Board's recommendation to 
                        reinstate a clearance, the head of the 
                        entity selected under subsection (b) 
                        shall notify the chairpersons and 
                        ranking members of the committees 
                        described in subclauses (I) through 
                        (IV) of clause (i).
          (5) Judicial review.--Nothing in this section should 
        be construed to permit or require judicial review of 
        agency or Board actions under this section.
          (6) Nonapplicability to certain terminations.--This 
        section shall not apply to adverse security clearance 
        or access determinations if the affected employee is 
        concurrently terminated under--
                  (A) section 1609 of title 10, United States 
                Code;
                  (B) the authority of the Director of National 
                Intelligence under section 102A(m) of the 
                National Security Act of 1947 (50 U.S.C. 403-
                1(m)), if--
                          (i) the Director personally summarily 
                        terminates the individual; and
                          (ii) the Director--
                                  (I) determines the 
                                termination to be in the 
                                interest of the United States;
                                  (II) determines that the 
                                procedures prescribed in other 
                                provisions of law that 
                                authorize the termination of 
                                the employment of such employee 
                                cannot be invoked in a manner 
                                consistent with the national 
                                security, and
                                  (III) notifies the 
                                congressional oversight 
                                committees of such termination 
                                within 5 days after the 
                                termination;
                  (C) the authority of the Director of the 
                Central Intelligence Agency under section 
                104A(e) of the National Security Act of 1947 
                (50 U.S.C. 403-4a(e)), if--
                          (i) the Director personally summarily 
                        terminates the individual; and
                          (ii) the Director--
                                  (I) determines the 
                                termination to be in the 
                                interest of the United States;
                                  (II) determines that the 
                                procedures prescribed in other 
                                provisions of law that 
                                authorize the termination of 
                                the employment of such employee 
                                cannot be invoked in a manner 
                                consistent with the national 
                                security; and
                                  (III) notifies the 
                                congressional oversight 
                                committees of such termination 
                                within 5 days after the 
                                termination; or
                  (D) section 7532 of title 5, United States 
                Code, if--
                          (i) the agency head personally 
                        summarily terminates the individual; 
                        and
                          (ii) the agency head--
                                  (I) determines the 
                                termination to be in the 
                                interest of the United States;
                                  (II) determines that the 
                                procedures prescribed in other 
                                provisions of law that 
                                authorize the termination of 
                                the employment of such employee 
                                cannot be invoked in a manner 
                                consistent with the national 
                                security; and
                                  (III) notifies the 
                                congressional oversight 
                                committees of such termination 
                                within 5 days after the 
                                termination.

                                  
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```