I 
111TH CONGRESS 
1ST SESSION H. R. 1507 
To amend chapter 23 of title 5, United States Code, relating to disclosures 
of information protected from prohibited personnel practices, and for 
other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
MARCH 12, 2009 
Mr. VAN HOLLEN (for himself, Mr. WAXMAN, Mr. TOWNS, Mr. BRALEY of 
Iowa, and Mr. PLATTS) introduced the following bill; which was referred 
to the Committee on Oversight and Government Reform, and in addition 
to the Committee on Homeland Security, for a period to be subsequently 
determined by the Speaker, in each case for consideration of such provi-
sions as fall within the jurisdiction of the committee concerned 
A BILL 
To amend chapter 23 of title 5, United States Code, relating 
to disclosures of information protected from prohibited 
personnel practices, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Whistleblower Protection Enhancement Act of 2009’’. 
(b) TABLE OF CONTENTS.—The table of contents of 
this Act is as follows: 
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Sec. 1. Short title; table of contents. 
Sec. 2. Clarification of disclosures covered. 
Sec. 3. Definitional amendments. 
Sec. 4. Rebuttable presumption. 
Sec. 5. Nondisclosure policies, forms, and agreements; security clearances; and 
retaliatory investigations. 
Sec. 6. Exclusion of agencies by the president. 
Sec. 7. Disciplinary action. 
Sec. 8. Government Accountability Office study on revocation of security clear-
ances. 
Sec. 9. Alternative recourse. 
Sec. 10. National security whistleblower rights. 
Sec. 11. Enhancement of contractor employee whistleblower protections. 
Sec. 12. Prohibited personnel practices affecting the Transportation Security 
Administration. 
Sec. 13. Disclosure of censorship related to Federal research or technical infor-
mation. 
Sec. 14. Security clearances. 
Sec. 15. Scope of due process. 
Sec. 16. Clarification of whistleblower rights for critical infrastructure informa-
tion. 
Sec. 17. Advising employees of rights. 
Sec. 18. Special counsel amicus curiae appearance. 
Sec. 19. Attorney fees. 
Sec. 20. Effective date. 
SEC. 2. CLARIFICATION OF DISCLOSURES COVERED. 
(a) IN GENERAL.—Section 2302(b)(8) of title 5, 
United States Code, is amended— 
(1) in subparagraph (A)— 
(A) by striking ‘‘which the employee or ap-
plicant reasonably believes evidences’’ and in-
serting ‘‘, without restriction as to time, place, 
form, motive, context, forum, or prior disclosure 
made to any person by an employee or appli-
cant, including a disclosure made in the ordi-
nary course of an employee’s duties, that the 
employee or applicant reasonably believes is evi-
dence of’’; and 
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(B) in clause (i), by striking ‘‘a violation’’ 
and inserting ‘‘any violation’’; and 
(2) in subparagraph (B)— 
(A) by striking ‘‘which the employee or ap-
plicant reasonably believes evidences’’ and in-
serting ‘‘, without restriction as to time, place, 
form, motive, context, forum, or prior disclosure 
made to any person by an employee or appli-
cant, including a disclosure made in the ordi-
nary course of an employee’s duties, of informa-
tion that the employee or applicant reasonably 
believes is evidence of’’; and 
(B) in clause (i), by striking ‘‘a violation’’ 
and inserting ‘‘any violation (other than a viola-
tion of this section)’’. 
(b) PROHIBITED PERSONNEL PRACTICES UNDER 
SECTION 2302(b)(9).—Title 5, United States Code, is 
amended in subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) 
of section 1214 and in subsections (a) and (e)(1) of sec-
tion 1221 by inserting ‘‘or 2302(b)(9)(B)–(D)’’ after ‘‘sec-
tion 2302(b)(8)’’ each place it appears. 
SEC. 3. DEFINITIONAL AMENDMENTS. 
(a) DISCLOSURE.—Section 2302(a)(2) of title 5, 
United States Code, is amended— 
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(1) in subparagraph (B)(ii), by striking ‘‘and’’ 
at the end; 
(2) in subparagraph (C)(iii), by striking the pe-
riod at the end and inserting ‘‘; and’’; and 
(3) by adding at the end the following: 
‘‘(D) ‘disclosure’ means a formal or infor-
mal communication, but does not include a 
communication concerning policy decisions that 
lawfully exercise discretionary authority unless 
the employee or applicant providing the disclo-
sure reasonably believes that the disclosure evi-
dences— 
‘‘(i) any violation of any law, rule, or 
regulation; or 
‘‘(ii) gross mismanagement, a gross 
waste of funds, an abuse of authority, or 
a substantial and specific danger to public 
health or safety.’’. 
(b) CLEAR AND CONVINCING EVIDENCE.—Sections 
1214(b)(4)(B)(ii) and 1221(e)(2) of title 5, United States 
Code, are amended by adding at the end the following: 
‘‘For purposes of the preceding sentence, ‘clear and con-
vincing evidence’ means evidence indicating that the mat-
ter to be proved is highly probable or reasonably certain.’’. 
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SEC. 4. REBUTTABLE PRESUMPTION. 
Section 2302(b) of title 5, United States Code, is 
amended by adding at the end the following: ‘‘For pur-
poses of paragraph (8), any presumption relating to the 
performance of a duty by an employee who has authority 
to take, direct others to take, recommend, or approve any 
personnel action may be rebutted by substantial evidence. 
For purposes of paragraph (8), a determination as to 
whether an employee or applicant reasonably believes that 
such employee or applicant has disclosed information that 
evidences any violation of law, rule, regulation, gross mis-
management, a gross waste of funds, an abuse of author-
ity, or a substantial and specific danger to public health 
or safety shall be made by determining whether a disin-
terested observer with knowledge of the essential facts 
known to or readily ascertainable by the employee or appli-
cant could reasonably conclude that the actions of the 
Government evidence such violations, mismanagement, 
waste, abuse, or danger.’’. 
SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREE-
MENTS; SECURITY CLEARANCES; AND RETAL-
IATORY INVESTIGATIONS. 
(a) PERSONNEL ACTION.—Section 2302(a)(2)(A) of 
title 5, United States Code, is amended— 
(1) in clause (x), by striking ‘‘and’’ at the end; 
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(2) by redesignating clause (xi) as clause (xiv); 
and 
(3) by inserting after clause (x) the following: 
‘‘(xi) the implementation or enforce-
ment of any nondisclosure policy, form, or 
agreement; 
‘‘(xii) a suspension, revocation, or 
other determination relating to a security 
clearance or any other access determina-
tion by a covered agency; 
‘‘(xiii) an investigation, other than 
any ministerial or nondiscretionary fact- 
finding activities necessary for the agency 
to perform its mission, of an employee or 
applicant for employment because of any 
activity protected under this section; and’’. 
(b) PROHIBITED PERSONNEL PRACTICE.—Section 
2302(b) of title 5, United States Code, is amended— 
(1) in paragraph (11), by striking ‘‘or’’ at the 
end; 
(2) by redesignating paragraph (12) as para-
graph (14); and 
(3) by inserting after paragraph (11) the fol-
lowing: 
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‘‘(12) 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 su-
persede, conflict with, or otherwise alter the em-
ployee obligations, rights, or liabilities created by 
Executive Order No. 12958; section 7211 of title 5, 
United States Code (governing disclosures to Con-
gress); section 1034 of title 10, United States Code 
(governing disclosures 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); title VI of the National Security Act of 
1947 (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 Subver-
sive Activities Control Act of 1950 (50 U.S.C. 
783(b)). The definitions, requirements, obligations, 
rights, sanctions, and liabilities created by such Ex-
ecutive order and such statutory provisions are in-
corporated into this agreement and are controlling.’. 
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‘‘(13) conduct, or cause to be conducted, an in-
vestigation, other than any ministerial or nondis-
cretionary fact-finding activities necessary for the 
agency to perform its mission, of an employee or ap-
plicant for employment because of any activity pro-
tected under this section; or’’. 
SEC. 6. EXCLUSION OF AGENCIES BY THE PRESIDENT. 
Section 2302(a)(2)(C) of title 5, United States Code, 
is amended by striking clause (ii) and inserting the fol-
lowing: 
‘‘(i)(I) the Federal Bureau of Inves-
tigation; or 
‘‘(II) an element of the intelligence 
community (as defined in section 3(4) of 
the National Security Act of 1947 (50 
U.S.C. 401a(4))); or’’. 
SEC. 7. DISCIPLINARY ACTION. 
Section 1215(a)(3) of title 5, United States Code, is 
amended to read as follows: 
‘‘(3)(A) A final order of the Board may impose— 
‘‘(i) disciplinary action consisting of removal, 
reduction in grade, debarment from Federal employ-
ment for a period not to exceed 5 years, suspension, 
or reprimand; 
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‘‘(ii) an assessment of a civil penalty not to ex-
ceed $1,000; or 
‘‘(iii) any combination of disciplinary actions 
described under clause (i) and an assessment de-
scribed under clause (ii). 
‘‘(B) In any case in which the Board finds that an 
employee has committed a prohibited personnel practice 
under paragraph (8) or (9) of section 2302(b), the Board 
shall impose disciplinary action if the Board finds that the 
activity protected under such paragraph (8) or (9) 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 preponder-
ance 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. 8. GOVERNMENT ACCOUNTABILITY OFFICE STUDY ON 
REVOCATION OF SECURITY CLEARANCES. 
(a) STUDY.—The Comptroller General shall conduct 
a study of security clearance revocations of Federal em-
ployees at a select sample of executive branch agencies. 
The study shall consist of an examination of the number 
of security clearances revoked, the process employed by 
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each agency in revoking a clearance, the pay and employ-
ment status of agency employees during the revocation 
process, how often such revocations result in termination 
of employment or reassignment, how often such revoca-
tions are based on an improper disclosure of information, 
and such other factors the Comptroller General deems ap-
propriate. 
(b) REPORT.—Not later than 18 months after the 
date of enactment of this Act, the Comptroller General 
shall submit to the Committee on Homeland Security and 
Governmental Affairs of the Senate and the Committee 
on Oversight and Government Reform of the House of 
Representatives a report on the results of the study re-
quired under this section. 
SEC. 9. ALTERNATIVE RECOURSE. 
(a) IN GENERAL.—Section 1221 of title 5, United 
States Code, is amended by adding at the end the fol-
lowing: 
‘‘(k)(1) If, in the case of an employee, former em-
ployee, or applicant for employment who seeks corrective 
action (or on behalf of whom corrective action is sought) 
from the Merit Systems Protection Board based on an al-
leged prohibited personnel practice described in section 
2302(b)(8) or 2302(b)(9)(B)–(D), no final order or deci-
sion is issued by the Board within 180 days after the date 
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on which a request for such corrective action has been duly 
submitted (or, in the event that a final order or decision 
is issued by the Board, whether within that 180-day period 
or thereafter, then, within 90 days after such final order 
or decision is issued, and so long as such employee, former 
employee, or applicant has not filed a petition for judicial 
review of such order or decision under subsection (h))— 
‘‘(A) such employee, former employee, or appli-
cant may, after providing written notice to the 
Board, bring an action at law or equity for de novo 
review in the appropriate United States district 
court, which shall have jurisdiction over such action 
without regard to the amount in controversy, and 
which action shall, at the request of either party to 
such action, be tried by the court with a jury; and 
‘‘(B) in any such action, the court— 
‘‘(i) shall apply the standards set forth in 
subsection (e); and 
‘‘(ii) may award any relief which the court 
considers appropriate, including any relief de-
scribed in subsection (g). 
An appeal from a final decision of a district court 
in an action under this paragraph may, at the elec-
tion of the appellant, be taken to the Court of Ap-
peals for the Federal Circuit (which shall have juris-
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diction of such appeal), in lieu of the United States 
court of appeals for the circuit embracing the dis-
trict in which the action was brought. 
‘‘(2) For purposes of this subsection, the term ‘appro-
priate United States district court’, as used with respect 
to an alleged prohibited personnel practice, means the 
United States district court for the district in which the 
prohibited personnel practice is alleged to have been com-
mitted, the judicial district in which the employment 
records relevant to such practice are maintained and ad-
ministered, or the judicial district in which resides the em-
ployee, former employee, or applicant for employment al-
legedly affected by such practice. 
‘‘(3) This subsection applies with respect to any ap-
peal, petition, or other request for corrective action duly 
submitted to the Board, whether pursuant to section 
1214(b)(2), the preceding provisions of this section, sec-
tion 7513(d), or any otherwise applicable provisions of 
law, rule, or regulation.’’. 
(b) REVIEW OF MSB DECISIONS.—Section 7703(b) 
of such title 5 is amended— 
(1) in the first sentence of paragraph (1), by 
striking ‘‘the United States Court of Appeals for the 
Federal Circuit’’ and inserting ‘‘the appropriate 
United States court of appeals’’; and 
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(2) by adding at the end the following: 
‘‘(3) For purposes of this section, the term ‘appro-
priate United States court of appeals’ means the United 
States Court of Appeals for the Federal Circuit, except 
that in the case of a prohibited personnel practice de-
scribed in section 2302(b)(8) or 2302(b)(9)(B)–(D) (other 
than a case that, disregarding this paragraph, would oth-
erwise be subject to paragraph (2)), such term means the 
United States Court of Appeals for the Federal Circuit 
and any United States court of appeals having jurisdiction 
over appeals from any United States district court which, 
under section 1221(k)(2), would be an appropriate United 
States district court for purposes of such prohibited per-
sonnel practice.’’. 
(c) CHOICE OF FORUM.—Section 7703(d) of such 
title 5 is amended by inserting after ‘‘policy directive.’’ the 
following: ‘‘The petition shall be moved to an appropriate 
United States Court of Appeals other than the Federal 
Circuit at the request of the Director or of the employee.’’. 
(d) COMPENSATORY DAMAGES.—Sections 1214(g)(2) 
and 1221(g)(1)(A)(ii) of such title 5 are amended by strik-
ing all after ‘‘travel expenses,’’ and inserting ‘‘any other 
reasonable and foreseeable consequential damages, and 
compensatory damages (including attorney’s fees, interest, 
reasonable expert witness fees, and costs).’’. 
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(e) CONFORMING AMENDMENTS.— 
(1) Section 1221(h) of such title 5 is amended 
by adding at the end the following: 
‘‘(3) Judicial review under this subsection shall 
not be available with respect to any decision or order 
as to which the employee, former employee, or appli-
cant has filed a petition for judicial review under 
subsection (k).’’. 
(2) Section 7703(c) of such title 5 is amended 
by striking ‘‘the United States Court of Appeals for 
the Federal Circuit’’ and inserting ‘‘the appropriate 
United States Court of Appeals’’ and by striking 
‘‘court.’’ and inserting ‘‘court, and in the case of a 
prohibited personnel practice described in section 
2302(b)(8) or 2302(b)(9)(B)–(D) brought under any 
provision of law, rule, or regulation described in sec-
tion 1221(k)(3), the employee or applicant shall 
have the right to de novo review in accordance with 
section 1221(k).’’. 
SEC. 10. NATIONAL SECURITY WHISTLEBLOWER RIGHTS. 
(a) IN GENERAL.—Chapter 23 of title 5, United 
States Code, is amended by inserting after section 2303 
the following: 
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‘‘SEC. 
2303a. 
NATIONAL 
SECURITY 
WHISTLEBLOWER 
RIGHTS. 
‘‘(a) PROHIBITION OF REPRISALS.— 
‘‘(1) IN GENERAL.—In addition to any rights 
provided under section 2303 of this title, section 
17(d)(5) of the Central Intelligence Agency Act of 
1949 (50 U.S.C. 403q(d)(5)), section 8H of the In-
spector General Act of 1978 (5 U.S.C. App.), or any 
other provision of law, an employee or former em-
ployee of a covered agency may not be discharged, 
demoted, or otherwise discriminated against (includ-
ing by denying, suspending, or revoking a security 
clearance, or by otherwise restricting access to clas-
sified or sensitive information) as a reprisal for mak-
ing a disclosure described in paragraph (2). 
‘‘(2) DISCLOSURES DESCRIBED.—A disclosure 
described in this paragraph is a disclosure of covered 
information that is made— 
‘‘(A) by an employee or former employee of 
a covered agency, without restriction as to time, 
place, form, motive, context, or prior disclosure 
made to any person by an employee or former 
employee, including a disclosure made in the 
course of an employee’s duties; and 
‘‘(B) to an authorized Member of Con-
gress, an authorized official of an Executive 
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agency, or the Inspector General of the covered 
agency of which such employee or former em-
ployee is or was employed. 
‘‘(b) INVESTIGATION OF COMPLAINTS.—An employee 
or former employee of a covered agency who believes that 
such employee or former employee has been subjected to 
a reprisal prohibited by subsection (a) may submit a com-
plaint to the Inspector General and the head of the cov-
ered agency. The Inspector General shall investigate the 
complaint and, unless the Inspector General determines 
that the complaint is frivolous, submit a report of the find-
ings of the investigation within 120 days to the employee 
or former employee (as the case may be) and to the head 
of the covered agency. 
‘‘(c) REMEDY.— 
‘‘(1) Within 180 days of the filing of a com-
plaint under subsection (b), the head of the covered 
agency shall, taking into consideration the report of 
the Inspector General under such subsection (if 
any), determine whether the employee or former em-
ployee has been subjected to a reprisal prohibited by 
subsection (a), and shall either issue an order deny-
ing relief or shall implement corrective action to re-
turn the employee or former employee, as nearly as 
possible, to the position such employee or former 
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employee would have held had the reprisal not oc-
curred, including providing back pay and related 
benefits, medical costs incurred, travel expenses, any 
other reasonable and foreseeable consequential dam-
ages, and compensatory damages (including attor-
ney’s fees, interest, reasonable expert witness fees, 
and costs). If the head of the covered agency issues 
an order denying relief, such head shall issue a re-
port to the employee or former employee detailing 
the reasons for the denial. 
‘‘(2)(A) If the head of a covered agency, in the 
process of implementing corrective action under 
paragraph (1), voids a directive or order denying, 
suspending, or revoking a security clearance or oth-
erwise restricting access to classified or sensitive in-
formation that constituted a reprisal, the head of 
such covered agency may re-initiate procedures to 
issue a directive or order denying, suspending, or re-
voking a security clearance or otherwise restricting 
access to classified or sensitive information only if 
those re-initiated procedures are based exclusively on 
national security concerns and are unrelated to the 
actions constituting the original reprisal. 
‘‘(B) In any case in which the head of a covered 
agency re-initiates procedures under subparagraph 
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(A), the head of the covered agency shall issue an 
unclassified report (that may include a classified 
annex, if necessary) to the Inspector General of such 
covered agency and to authorized Members of Con-
gress, detailing the circumstances of such covered 
agency’s re-initiated procedures and describing the 
manner in which those procedures are based exclu-
sively on national security concerns and are unre-
lated to the actions constituting the original reprisal. 
‘‘(3) If the head of a covered agency has not 
made a determination under paragraph (1) within 
180 days of the filing of a complaint under sub-
section (b) (or such head has issued an order deny-
ing relief, in whole or in part, whether within that 
180-day period or thereafter, then, within 90 days 
after such order is issued), the employee or former 
employee may bring an action at law or equity for 
de novo review to seek any corrective action referred 
to in paragraph (1) in the appropriate United States 
district court (as defined by section 1221(k)(2)), 
which shall have jurisdiction over such action with-
out regard to the amount in controversy. 
‘‘(4) An employee or former employee adversely 
affected or aggrieved by an order issued under para-
graph (1), or who seeks review of any corrective ac-
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tion determined under paragraph (1), may obtain ju-
dicial review of such order or determination in the 
United States Court of Appeals for the Federal Cir-
cuit or any United States court of appeals having ju-
risdiction over appeals from any United States dis-
trict court that, under section 1221(k)(2), would be 
an appropriate United States district court. No peti-
tion seeking such review may be filed more than 60 
days after issuance of the order or the determination 
to implement corrective action by the head of a cov-
ered agency. Review shall conform to chapter 7. 
‘‘(5)(A) If, in any action for damages or relief 
under paragraph (3) or (4), an Executive agency 
moves to withhold information from discovery based 
on a claim that disclosure would be inimical to na-
tional security by asserting the privilege commonly 
referred to as the ‘state secrets privilege’, and if the 
assertion of such privilege prevents the employee or 
former employee from establishing an element in 
support of the employee’s or former employee’s 
claim, the court shall resolve the disputed issue of 
fact or law in favor of the employee or former em-
ployee, provided that an Inspector General investiga-
tion under subsection (b) has resulted in substantial 
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‘‘(3)(A) A person alleging a reprisal under this sec-
tion shall affirmatively establish the occurrence of the re-
prisal if the person demonstrates that a disclosure de-
scribed in subsection (a) was a contributing factor in the 
reprisal. A disclosure may be demonstrated as a contrib-
uting factor for purposes of this paragraph by circumstan-
tial evidence, including evidence as follows: 
‘‘(i) Evidence that the official undertaking the 
reprisal knew of the disclosure. 
‘‘(ii) Evidence that the reprisal occurred within 
a period of time after the disclosure such that a rea-
sonable person could conclude that the disclosure 
was a contributing factor in the reprisal. 
‘‘(B) Except as provided in subparagraph (C), if a 
reprisal is affirmatively established under subparagraph 
(A), the Inspector General shall recommend in the report 
under paragraph (1) that corrective action be taken under 
subsection (c). 
‘‘(C) The Inspector General may not recommend cor-
rective action under subparagraph (B) with respect to a 
reprisal that is affirmatively established under subpara-
graph (A) if the contractor demonstrates by clear and con-
vincing evidence that the contractor would have taken the 
action constituting the reprisal in the absence of the dis-
closure. 
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SEC. 13. DISCLOSURE OF CENSORSHIP RELATED TO FED-
ERAL RESEARCH OR TECHNICAL INFORMA-
TION. 
(a) DEFINITIONS.—In this section— 
(1) the term ‘‘applicant’’ means an applicant 
for a covered position; 
(2) the term ‘‘censorship related to Federal re-
search or technical information’’ means any effort to 
alter, misrepresent, or suppress— 
(A) Federal research; or 
(B) technical information; 
(3) the term ‘‘covered position’’ has the mean-
ing given under section 2302(a)(2)(B) of title 5, 
United States Code; 
(4) the term ‘‘employee’’ means an employee in 
a covered position; and 
(5) the term ‘‘disclosure’’ has the meaning 
given under section 2302(a)(2)(D) of title 5, United 
States Code. 
(b) PROTECTED DISCLOSURE.— 
(1) IN GENERAL.—Any disclosure of informa-
tion by an employee or applicant for employment 
that the employee or applicant reasonably believes is 
evidence of censorship related to Federal research or 
technical information— 
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(A) shall come within the protections of 
section 2302(b)(8)(A) of title 5, United States 
Code, if— 
(i) the employee or applicant reason-
ably believes that the censorship related to 
Federal research or technical information 
is or will cause— 
(I) any violation of law, rule, or 
regulation; or 
(II) gross mismanagement, a 
gross waste of funds, an abuse of au-
thority, or a substantial and specific 
danger to public health or safety; and 
(ii) the disclosure and information 
satisfy the conditions stated in the matter 
following 
clause 
(ii) 
of 
section 
2302(b)(8)(A) of title 5, United States 
Code; and 
(B) shall come within the protections of 
section 2302(b)(8)(B) of title 5, United States 
Code, if— 
(i) the conditions under subparagraph 
(A)(i) are satisfied; and 
(ii) the disclosure is made to an indi-
vidual referred to in the matter preceding 
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