Whistleblower Protection Enhancement Act of 2010

Bill: 111-s-372
Sponsor: Sen. Akaka, Daniel K. [D-HI]
Introduced: 2009-02-03 in the Senate
Policy area: Government Operations and Politics
Subjects: Administrative remedies
Central Intelligence Agency (CIA)
Civil actions and liability
Congressional oversight
Director of National Intelligence
Due process and equal protection
Employment discrimination and employee rights
Evidence and witnesses
Executive agency funding and structure
Government employee pay, benefits, personnel management
Government information and archives
Government studies and investigations
Intelligence activities, surveillance, classified information
Judicial review and appeals
Legal fees and court costs
Merit Systems Protection Board
Office of Special Counsel

Summary:
action_date: 2009-02-03
text: 
Whistleblower Protection Enhancement Act of 2009 - Amends federal personnel law relating to whistleblower protections to: (1) expand the concept of protected disclosure to include lawful disclosures without restriction to time, place, form, motive, context, forum, or prior disclosure, including a disclosure made in the ordinary course of an employee's duties; (2) define evidentiary standards applicable to whistleblower disclosures; (3) include as a prohibited personnel practice against whistleblowers the implementation of enforcement of any nondisclosure policy, form, or agreement, a suspension or revocation of a security clearance, and an investigation of a whistleblower; (4) permit whistleblowers to file appeals in any federal court of appeals of competent jurisdiction; (5) authorize the Director of the Office of Personnel Management (OPM) to obtain review of a final order of the Merit Systems Protection Board (MSPB) interpreting whistleblower protections under specified circumstances; (6) grant authority to the MSPB to determine whether whistleblower security clearances were properly suspended or revoked; (7) make whistleblower protections applicable to employees of the Transportation Security Administration (TSA) and individuals who disclose censorship by federal agencies of research, analysis, or technical information; and (8) require the Comptroller General to report to Congress on the implementation of this Act and on the revocation of whistleblower security clearances.
 
 
 

action_date: 2009-12-03
text: 
Whistleblower Protection Enhancement Act of 2009 - 
Title I: Protection of Certain Disclosures of Information by Federal Employees
 - (Sec. 101) Amends federal personnel law relating to whistleblower protections to provide that such protections shall apply to a disclosure of any violation of law, except for an alleged violation that is a minor, inadvertent violation that occurs during the conscientious carrying out of official duties.
 
Provides that a disclosure shall not be excluded from whistleblower protections because: (1) the disclosure was made during the normal course of the employee's duties; (2) the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant reasonably believed to evidence gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety; (3) the disclosure revealed information that had been previously disclosed; (4) of the employee or applicant's motive for making the disclosure; (5) the disclosure was not made in writing; (6) the disclosure was made while the employee was off duty; or (7) of the amount of time which has passed since the occurrence of the events described in the disclosure.
 
(Sec. 102) Defines "disclosure" as a formal or informal communication or transmission, excluding a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant making the disclosure reasonably believes that it evidences: (1) any violation of any law, rule, or regulation, except for an alleged violation that is a minor, inadvertent violation that occurs during the conscientious carrying out of official duties; or (2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 103) Provides that any presumption regarding a public officer's performance of a duty may be rebutted by substantial evidence.
 
Establishes a "disinterested observer" standard for evaluating the validity of disclosures that evidence violations of law, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 104) Includes as a prohibited personnel practice the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement that its provisions are consistent with requirements that preserve the right of federal employees to make disclosures of illegality, waste, fraud, abuse, or public health or safety threats. Allows a non-disclosure policy, form, or agreement in effect before the enactment of this Act to be enforced after notice of such statement is provided to a specific employee or on the agency website.
 
Allows any action ordered to correct a prohibited personnel practice to include fees, costs, or damages reasonably incurred due to an agency investigation of the employee that was commenced, expanded, or extended in retaliation for the disclosure of protected activity that formed the basis of the corrective action.
 
(Sec. 105) Adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989 (WPA). Provides that a whistleblower at an agency cannot be deprived of WPA coverage unless the President removes the agency from coverage prior to a challenged personnel action taken against the whistleblower.
 
(Sec. 106) Revises the standard of proof in disciplinary proceedings against an agency employee who takes an adverse personnel action against a whistleblower to require the Office of Special Counsel to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
 
(Sec. 107) Authorizes: (1) the Merit Systems Protection Board (MSPB), in disciplinary actions, to require payment of reasonable attorney fees by the agency where the prevailing party is employed or has applied for employment if specified conditions apply; and (2) compensatory damages (including interest, reasonable expert witness fees, and costs) if the MSPB orders corrective action.
 
(Sec. 108) Requires that, during the five-year period beginning on the effective date of this Act, a petition to review a final order or decision of the MSPB that raises no challenge to the MSPB's disposition of allegations of a prohibited personnel practice shall be filed in any court of appeals of competent jurisdiction (rather than exclusively in the Federal Circuit). 
 
(Sec. 109) Extends whistleblower and other anti-discrimination protections to employees (and applicants for employment) of the Transportation Security Administration (TSA). 
 
(Sec. 110) Extends whistleblower protections to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information. 
 
(Sec. 111) Amends the Homeland Security Act of 2002 to provide that a permissible use of independently obtained infrastructure information includes the disclosure of such information for whistleblower purposes.
 
(Sec. 112) Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept secret in the interest of national defense or the conduct of foreign affairs.
 
(Sec. 113) Authorizes the Special Counsel to appear as amicus curiae in civil whistleblower actions.
 
(Sec. 114) Provides that corrective action relating to a prohibited personnel practice may not be ordered if, after a finding that a protected disclosure was a contributing factor in taking a personnel action, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.
 
(Sec. 115) Requires all government nondisclosure policies, forms, or agreements to contain a specific statement preserving the right of federal employees to disclose certain protected information. Prohibits implementing or enforcing nondisclosure policies, forms, and agreements without such statement. Permits nondisclosure policies, forms, and agreements in effect before the enactment of this Act to continue to be enforced with respect to: (1) current employees if the agency provides notice of the statement to such employees; and (2) former employees if the agency posts notice of the statement on its website for a one-year period.
 
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: (1) require nondisclosure of classified information; and (2) make it clear that the forms do not bar disclosures to Congress or an authorized official that are essential to reporting a substantial violation of law.
 
(Sec. 116) Requires the Comptroller General to report to specified congressional committees on the implementation of this Act, including an analysis of changes in the number of cases filed with the MSPB alleging violations, the outcome of such cases, and the impact the process has had on the MSPB and the federal court system.
 
Directs the Council of the Inspectors General on Integrity and Efficiency to study and report to Congress on: (1) security clearance revocations of federal employees at a select sample of executive branch agencies; and (2) the appeals process in place at those agencies and at the Intelligence Community Whistleblower Protection Board.
 
Requires the MSPB to include in its annual program performance reports information on the number and outcome of whistleblower cases filed.
 
(Sec. 117) Establishes a five-year program to allow current and former federal employees or applicants for employment to seek de novo review in a U.S. district court if such an individual is seeking corrective action or has filed an appeal with the MSPB with respect to a personnel action. 
 
(Sec. 118) Authorizes the MSPB, an administrative law judge appointed by the MSPB, or any designated MSPB employee to grant summary judgment motions in cases involving alleged prohibited personnel practices. Terminates this authority five years after the enactment of this Act. 
 
(Sec. 119) Amends the Inspector General Act of 1978 to allow a federal agency employee who intends to report a complaint or information with respect to an urgent concern to Congress to report such complaint or information to the Inspector General of his or her agency.
 
(Sec. 120) Amends the Inspector General Act of 1978 to require agency inspectors general (including the Inspector General of the Central Intelligence Agency [CIA] and each inspector general within the intelligence community) to designate a Whistleblower Protection Ombudsman to advocate for the interests of agency employees or applicants who make protected disclosures.
 

Title II: Intelligence Community Whistleblower Protections
 - (Sec. 201) Amends the National Security Act of 1947 to establish within the Office of the Director of National Intelligence the Intelligence Community Whistleblower Protection Board (Board). Sets forth the membership composition of the Board and its resources and authority.
 
Lists: (1) intelligence community elements under the Board's jurisdiction; and (2) prohibited personnel practices (analogous to protections for federal employees for certain disclosures of information under title I). Establishes protections and remedial procedures, including appeal rights, for employees, applicants, or former employees of an intelligence community element who believe that they have been subjected to a prohibited personnel practice, including providing for the appointment of an independent and impartial fact-finder to review personnel actions. 
 
Limits judicial review of agency actions under this title. 
 
Exempts certain terminations of employment of defense intelligence employees from the protections of this title, including terminations personally and summarily carried out by the Director of National Intelligence, the CIA Director, or agency heads acting in the interests of national security.
 
Requires employees challenging both a prohibited personnel practice under this title and an adverse security clearance or access determination under the Intelligence Reform and Terrorism Prevention Act of 2004 to bring both claims under the procedures for challenging an adverse security clearance or access determination.
 
(Sec. 202) Amends the Intelligence Reform and Terrorism Prevention Act of 2004 to require: (1) the development of policies and procedures that permit individuals who, in good faith, challenge a security clearance determination to remain employed while the challenge is pending; and (2) the development and implementation of uniform and consistent policies and procedures to ensure protections during the process for denying, suspending, or revoking a security clearance or access to classified information. 
 
Prohibits the revocation of a security clearance or access determination in retaliation for a protected whistleblower disclosure. 
 
Allows a defense intelligence employee to appeal an agency head's adverse final order or decision to the Board. Grants the Board authority to order corrective action if it determines that an adverse security clearance determination was retaliatory and to recommend the reinstatement of an employee and a security clearance.
 
Requires the Board to notify Congress of any orders it issues. Requires an agency to notify Congress if it does not follow the Board's recommendation to reinstate a security clearance.
 
Prohibits judicial review of agency or Board actions under this title.
 
 
(Sec. 203) Amends the Inspector General Act of 1978 to require the Inspector General to submit a complaint or information submitted under the Intelligence Community Whistleblower Protection Act or the Central Intelligence Agency Act of 1949 directly to the Chair of the Board upon determining that submission to the agency head would create a conflict of interest. Allows 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 those Acts.
 

Title III: Effective Date
 - Makes this Act effective 30 days after its enactment.
 

action_date: 2010-12-22
text: 
Whistleblower Protection Enhancement Act of 2010 - 
Title I: Protection of Certain Disclosures of Information by Federal Employees
 - (Sec. 101) Amends federal personnel law relating to whistleblower protections to provide that such protections shall apply to a disclosure of any violation of law, except for an alleged violation that is a minor, inadvertent violation that occurs during the conscientious carrying out of official duties.
 
Provides that a disclosure shall not be excluded from whistleblower protections: (1) because the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant reasonably believed to evidence gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety; (2) because the disclosure revealed information that had been previously disclosed; (3) because of the employee or applicant's motive for making the disclosure; (4) because the disclosure was not made in writing; (5) because the disclosure was made while the employee was off duty; or (6) because of the amount of time which has passed since the occurrence of the events described in the disclosure. 
 
Provides that a disclosure shall not be excluded from whistleblower protections if it is made during the normal course of duties of an employee with respect to whom another employee with authority took, failed to take, or threatened to take or fail to take a personnel action in reprisal for the disclosure.
 
(Sec. 102) Defines "disclosure" as a formal or informal communication or transmission, excluding a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant making the disclosure reasonably believes that it evidences: (1) any violation of any law, rule, or regulation, except for an alleged violation that is a minor, inadvertent violation that occurs during the conscientious carrying out of official duties; or (2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 103) Provides that any presumption regarding a public officer's performance of a duty may be rebutted by substantial evidence.
 
Establishes a "disinterested observer" standard for evaluating the validity of disclosures that evidence violations of law, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
 
(Sec. 104) Includes as a prohibited personnel practice the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement that its provisions are consistent with requirements that preserve the right of federal employees to make disclosures of illegality, waste, fraud, abuse, or public health or safety threats. Allows a non-disclosure policy, form, or agreement in effect before the enactment of this Act to be enforced after notice of such statement is provided to a specific employee or on the agency website.
 
Allows any action ordered to correct a prohibited personnel practice to include fees, costs, or damages reasonably incurred due to an agency investigation of the employee that was commenced, expanded, or extended in retaliation for the disclosure of protected activity that formed the basis of the corrective action.
 
(Sec. 105) Adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989 (WPA). Provides that a whistleblower at an agency cannot be deprived of WPA coverage unless the President removes the agency from coverage prior to a challenged personnel action taken against the whistleblower.
 
(Sec. 106) Revises the standard of proof in disciplinary proceedings against an agency employee who takes an adverse personnel action against a whistleblower to require the Office of Special Counsel to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
 
(Sec. 107) Authorizes: (1) the Merit Systems Protection Board (MSPB), in disciplinary actions, to require payment of reasonable attorney fees by the agency where the prevailing party was employed or had applied for employment at the time of the events giving rise to the case; and (2) compensatory damages (including interest, reasonable expert witness fees, and costs) if the MSPB orders corrective action.
 
(Sec. 108) Requires that, during the five-year period beginning on the effective date of this Act, a petition to review a final order or decision of the MSPB that raises no challenge to the MSPB's disposition of allegations of a prohibited personnel practice shall be filed in any court of appeals of competent jurisdiction (rather than exclusively in the Federal Circuit). Provides that the granting of a petition shall be at the discretion of the court of appeals.
 
(Sec. 109) Extends whistleblower and other anti-discrimination protections to employees (and applicants for employment) of the Transportation Security Administration (TSA). 
 
(Sec. 110) Extends whistleblower protections to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information and that are not specifically prohibited by law or that disclose information which is not specifically required to be kept classified in the interest of national defense or the conduct of foreign affairs. 
 
(Sec. 111) Amends the Homeland Security Act of 2002 to provide that a permissible use of independently obtained infrastructure information includes the disclosure of such information for whistleblower purposes.
 
(Sec. 112) Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept classified in the interest of national defense or the conduct of foreign affairs.
 
(Sec. 113) Authorizes the Special Counsel to appear as amicus curiae in civil whistleblower actions.
 
(Sec. 114) Provides that corrective action relating to a prohibited personnel practice may not be ordered if, after a finding that a protected disclosure was a contributing factor in taking a personnel action, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.
 
(Sec. 115) Requires all government nondisclosure policies, forms, or agreements to contain a specific statement preserving the right of federal employees to disclose certain protected information. Prohibits implementing or enforcing nondisclosure policies, forms, and agreements without such statement. Permits nondisclosure policies, forms, and agreements in effect before the enactment of this Act to continue to be enforced with respect to: (1) current employees if the agency provides notice of the statement to such employees; and (2) former employees if the agency posts notice of the statement on its website for a one-year period.
 
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: (1) require nondisclosure of classified information; and (2) make it clear that the forms do not bar disclosures to Congress or an authorized official that are essential to reporting a substantial violation of law, consistent with the protection of sources and methods.
 
(Sec. 116) Requires the Comptroller General to report to specified congressional committees on the implementation of this title, including an analysis of changes in the number of cases filed with the MSPB alleging violations, the outcome of such cases, and the impact the process has had on the MSPB and the federal court system.
 
Requires the MSPB to include in its annual program performance reports information on the number and outcome of whistleblower cases filed.
 
(Sec. 117) Establishes a five-year program to allow current and former federal employees or applicants for employment to seek de novo review in a U.S. district court if such an individual is seeking corrective action or has filed an appeal with the MSPB with respect to a personnel action. 
 
(Sec. 118) Authorizes the MSPB, an administrative law judge appointed by the MSPB, or any designated MSPB employee to grant summary judgment motions in cases involving alleged prohibited personnel practices. Terminates this authority five years after the enactment of this Act. 
 

Title II: Effective Date
 - Makes this Act effective 30 days after its enactment.
 


Legislative actions:
action_date: 2010-12-22
text: Message on House action received in Senate and at desk: House amendments to Senate bill.
action_date: 2010-12-22
text: Motion to reconsider laid on the table Agreed to without objection.
action_date: 2010-12-22
text: On passage Passed without objection.
action_date: 2010-12-22
text: Passed/agreed to in House: On passage Passed without objection.
action_date: 2010-12-22
text: Considered by unanimous consent. (consideration: CR H8966-8974; text as received in House: CR H8966-8973)
action_date: 2010-12-22
text: Mr. Van Hollen asked unanimous consent to take from the Speaker's table and consider.
action_date: 2010-12-14
text: Held at the desk.
action_date: 2010-12-14
text: Message on Senate action sent to the House.
action_date: 2010-12-14
text: Received in the House.
action_date: 2010-12-10
text: Passed Senate with an amendment by Unanimous Consent. (text: CR S8817-8824)
action_date: 2010-12-10
text: Passed/agreed to in Senate: Passed Senate with an amendment by Unanimous Consent.(text: CR S8817-8824)
action_date: 2010-12-10
text: The committee substitute as amended agreed to by Unanimous Consent. (consideration: CR S8817)
action_date: 2010-12-10
text: Measure laid before Senate by unanimous consent. (consideration: CR S8809-8824; text of measure as reported in Senate: CR S8809-8817)
action_date: 2009-12-03
text: Placed on Senate Legislative Calendar under General Orders. Calendar No. 219.
action_date: 2009-12-03
text: Committee on Homeland Security and Governmental Affairs. Reported by Senator Lieberman with an amendment in the nature of a substitute. With written report No. 111-101.
action_date: 2009-12-03
text: Committee on Homeland Security and Governmental Affairs. Reported by Senator Lieberman with an amendment in the nature of a substitute. With written report No. 111-101.
action_date: 2009-07-29
text: Committee on Homeland Security and Governmental Affairs. Ordered to be reported with an amendment in the nature of a substitute favorably.
action_date: 2009-06-11
text: Committee on Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia. Hearings held. With printed Hearing: S.Hrg. 111-299.
action_date: 2009-03-20
text: Committee on Homeland Security and Governmental Affairs referred to Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia.
action_date: 2009-02-03
text: Read twice and referred to the Committee on Homeland Security and Governmental Affairs. (text of measure as introduced: CR S1435-1438)
action_date: 2009-02-03
text: Sponsor introductory remarks on measure. (CR S1434-1435)
action_date: 2009-02-03
text: Introduced in Senate