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Reported to Senate (10/08/2004)

 
[Congressional Bills 108th Congress]
[From the U.S. Government Printing Office]
[S. 2628 Reported in Senate (RS)]






                                                       Calendar No. 782
108th CONGRESS
  2d Session
                                S. 2628

                          [Report No. 108-392]

  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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              July 8, 2004

   Mr. Akaka (for himself, Ms. Collins, Mr. Grassley, Mr. Levin, Mr. 
   Leahy, Mr. Durbin, Mr. Fitzgerald, Mr. Pryor, Mr. Voinovich, Mr. 
Johnson, Mr. Dayton, Mr. Lieberman, Mr. Lautenberg, Mr. Carper, and Mr. 
   Coleman) introduced the following bill; which was read twice and 
           referred to the Committee on Governmental Affairs

                            October 8, 2004

               Reported by Ms. Collins, without amendment

_______________________________________________________________________

                                 A BILL


 
  To amend chapter 23 of title 5, United States Code, to clarify the 
    disclosures of information protected from prohibited personnel 
 practices, require a statement in nondisclosure policies, forms, and 
   agreements that such policies, forms, and agreements conform with 
   certain disclosure protections, provide certain authority for the 
                Special Counsel, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL 
              EMPLOYEES.

    (a) Short Title.--This Act may be cited as the ``Federal Employee 
Protection of Disclosures Act''.
    (b) Clarification of Disclosures Covered.--Section 2302(b)(8) of 
title 5, United States Code, is amended--
            (1) in subparagraph (A)--
                    (A) by striking ``which the employee or applicant 
                reasonably believes evidences'' and inserting ``, 
                without restriction to time, place, form, motive, 
                context, or prior disclosure made to any person by an 
                employee or applicant, including a disclosure made in 
                the ordinary course of an employee's duties, that the 
                employee or applicant reasonably believes is evidence 
                of''; and
                    (B) in clause (i), by striking ``a violation'' and 
                inserting ``any violation'';
            (2) in subparagraph (B)--
                    (A) by striking ``which the employee or applicant 
                reasonably believes evidences'' and inserting ``, 
                without restriction to time, place, form, motive, 
                context, or prior disclosure made to any person by an 
                employee or applicant, including a disclosure made in 
                the ordinary course of an employee's duties, of 
                information that the employee or applicant reasonably 
                believes is evidence of''; and
                    (B) in clause (i), by striking ``a violation'' and 
                inserting ``any violation (other than a violation of 
                this section)''; and
            (3) by adding at the end the following:
                    ``(C) any disclosure that--
                            ``(i) is made by an employee or applicant 
                        of information required by law or Executive 
                        order to be kept secret in the interest of 
                        national defense or the conduct of foreign 
                        affairs that the employee or applicant 
                        reasonably believes is direct and specific 
                        evidence of--
                                    ``(I) any violation of any law, 
                                rule, or regulation;
                                    ``(II) gross mismanagement, a gross 
                                waste of funds, an abuse of authority, 
                                or a substantial and specific danger to 
                                public health or safety; or
                                    ``(III) a false statement to 
                                Congress on an issue of material fact; 
                                and
                            ``(ii) is made to--
                                    ``(I) a member of a committee of 
                                Congress having a primary 
                                responsibility for oversight of a 
                                department, agency, or element of the 
                                Federal Government to which the 
                                disclosed information relates and who 
                                is authorized to receive information of 
                                the type disclosed;
                                    ``(II) any other Member of Congress 
                                who is authorized to receive 
                                information of the type disclosed; or
                                    ``(III) an employee of Congress who 
                                has the appropriate security clearance 
                                and is authorized to receive 
                                information of the type disclosed.''.
    (c) Covered Disclosures.--Section 2302(a)(2) of title 5, United 
States Code, is amended--
            (1) in subparagraph (B)(ii), by striking ``and'' at the 
        end;
            (2) in subparagraph (C)(iii), by striking the period at the 
        end and inserting ``; and''; and
            (3) by adding at the end the following:
            ``(D) `disclosure' means a formal or informal communication 
        or transmission, but does not include a communication 
        concerning policy decisions that lawfully exercise 
discretionary authority unless the employee providing the disclosure 
reasonably believes that the disclosure evidences--
                            ``(i) any violation of any law, rule, or 
                        regulation; or
                            ``(ii) gross management, a gross waste of 
                        funds, an abuse of authority, or a substantial 
                        and specific danger to public health or 
                        safety.''.
    (d) Rebuttable Presumption.--Section 2302(b) of title 5, United 
States Code, is amended by amending the matter following paragraph (12) 
to read as follows:
``This subsection shall not be construed to authorize the withholding 
of information from Congress or the taking of any personnel action 
against an employee who discloses information to Congress, except that 
an employee or applicant may be disciplined for the disclosure of 
information described in paragraph (8)(C)(i) to a Member or employee of 
Congress who is not authorized to receive such information. For 
purposes of paragraph (8), any presumption relating to the performance 
of a duty by an employee who has authority to take, direct others to 
take, recommend, or approve any personnel action may be rebutted by 
substantial evidence. For purposes of paragraph (8), a determination as 
to whether an employee or applicant reasonably believes that they have 
disclosed information that evidences any violation of law, rule, 
regulation, gross mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to public health or 
safety shall be made by determining whether a disinterested observer 
with knowledge of the essential facts known to and readily 
ascertainable by the employee would reasonably conclude that the 
actions of the Government evidence such violations, mismanagement, 
waste, abuse, or danger.''.
    (e) Nondisclosure Policies, Forms, and Agreements; Security 
Clearances; and Retaliatory Investigations.--
            (1) Personnel action.--Section 2302(a)(2)(A) of title 5, 
        United States Code, is amended--
                    (A) in clause (x), by striking ``and'' after the 
                semicolon; and
                    (B) by redesignating clause (xi) as clause (xiv) 
                and inserting after clause (x) the following:
                            ``(xi) the implementation or enforcement of 
                        any nondisclosure policy, form, or agreement;
                            ``(xii) a suspension, revocation, or other 
                        determination relating to a security clearance 
                        or any other access determination by a covered 
                        agency;
                            ``(xiii) an investigation, other than any 
                        ministerial or nondiscretionary fact finding 
                        activities necessary for the agency to perform 
                        its mission, of an employee or applicant for 
                        employment because of any activity protected 
                        under this section; and''.
            (2) Prohibited personnel practice.--Section 2302(b) of 
        title 5, United States Code, is amended--
                    (A) in paragraph (11), by striking ``or'' at the 
                end;
                    (B) in paragraph (12), by striking the period and 
                inserting a semicolon; and
                    (C) by inserting after paragraph (12) the 
                following:
            ``(13) implement or enforce any nondisclosure policy, form, 
        or agreement, if such policy, form, or agreement does not 
        contain the following statement:
                    ```These provisions are consistent with and do not 
                supersede, conflict with, or otherwise alter the 
                employee obligations, rights, or liabilities created by 
                Executive Order No. 12958; section 7211 of title 5, 
                United States Code (governing disclosures to Congress); 
                section 1034 of title 10, United States Code (governing 
                disclosure to Congress by members of the military); 
                section 2302(b)(8) of title 5, United States Code 
                (governing disclosures of illegality, waste, fraud, 
                abuse, or public health or safety threats); the 
                Intelligence Identities Protection Act of 1982 (50 
                U.S.C. 421 et seq.) (governing disclosures that could 
                expose confidential Government agents); and the 
                statutes which protect against disclosures that could 
                compromise national security, including sections 641, 
                793, 794, 798, and 952 of title 18, United States Code, 
                and section 4(b) of the Subversive Activities Control 
                Act of 1950 (50 U.S.C. 783(b)). The definitions, 
                requirements, obligations, rights, sanctions, and 
                liabilities created by such Executive order and such 
                statutory provisions are incorporated into this 
                agreement and are controlling.'; or
            ``(14) conduct, or cause to be conducted, an investigation, 
        other than any ministerial or nondiscretionary fact finding 
        activities necessary for the agency to perform its mission, of 
        an employee or applicant for employment because of any activity 
        protected under this section.''.
            (3) Board and court review of actions relating to security 
        clearances.--
                    (A) In general.--Chapter 77 of title 5, United 
                States Code, is amended by inserting after section 7702 
                the following:
``Sec. 7702a. Actions relating to security clearances
    ``(a) In any appeal relating to the suspension, revocation, or 
other determination relating to a security clearance or access 
determination, the Merit Systems Protection Board or any reviewing 
court--
            ``(1) shall determine whether paragraph (8) or (9) of 
        section 2302(b) was violated;
            ``(2) may not order the President or the designee of the 
        President to restore a security clearance or otherwise reverse 
        a determination of clearance status or reverse an access 
        determination; and
            ``(3) subject to paragraph (2), may issue declaratory 
        relief and any other appropriate relief.
    ``(b)(1) If, in any final judgment, the Board or court declares 
that any suspension, revocation, or other determination with regards to 
a security clearance or access determination was made in violation of 
paragraph (8) or (9) of section 2302(b), the affected agency shall 
conduct a review of that suspension, revocation, access determination, 
or other determination, giving great weight to the Board or court 
judgment.
    ``(2) Not later than 30 days after any Board or court judgment 
declaring that a security clearance suspension, revocation, access 
determination, or other determination was made in violation of 
paragraph (8) or (9) of section 2302(b), the affected agency shall 
issue an unclassified report to the congressional committees of 
jurisdiction (with a classified annex if necessary), detailing the 
circumstances of the agency's security clearance suspension, 
revocation, other determination, or access determination. A report 
under this paragraph shall include any proposed agency action with 
regards to the security clearance or access determination.
    ``(c) An allegation that a security clearance or access 
determination was revoked or suspended in retaliation for a protected 
disclosure shall receive expedited review by the Office of Special 
Counsel, the Merit Systems Protection Board, and any reviewing court.
    ``(d) For purposes of this section, corrective action may not be 
ordered if the agency demonstrates by a preponderance of the evidence 
that it would have taken the same personnel action in the absence of 
such disclosure.''.
                    (B) Technical and conforming amendment.--The table 
                of sections for chapter 77 of title 5, United States 
                Code, is amended by inserting after the item relating 
                to section 7702 the following:

``7702a. Actions relating to security clearances.''.
    (f) Exclusion of Agencies by the President.--Section 2302(a)(2)(C) 
of title 5, United States Code, is amended by striking clause (ii) and 
inserting the following:
                            ``(ii)(I) the Federal Bureau of 
                        Investigation, the Central Intelligence Agency, 
                        the Defense Intelligence Agency, the National 
                        Imagery and Mapping Agency, the National 
                        Security Agency; and
                            ``(II) as determined by the President, any 
                        executive agency or unit thereof the principal 
                        function of which is the conduct of foreign 
                        intelligence or counterintelligence activities, 
                        if the determination (as that determination 
                        relates to a personnel action) is made before 
                        that personnel action; or''.
    (g) Attorney Fees.--Section 1204(m)(1) of title 5, United States 
Code, is amended by striking ``agency involved'' and inserting ``agency 
where the prevailing party is employed or has applied for employment''.
    (h) Disciplinary Action.--Section 1215(a)(3) of title 5, United 
States Code, is amended to read as follows:
            ``(3)(A) A final order of the Board may impose--
                    ``(i) disciplinary action consisting of removal, 
                reduction in grade, debarment from Federal employment 
                for a period not to exceed 5 years, suspension, or 
                reprimand;
                    ``(ii) an assessment of a civil penalty not to 
                exceed $1,000; or
                    ``(iii) any combination of disciplinary actions 
                described under clause (i) and an assessment described 
                under clause (ii).
            ``(B) In any case in which the Board finds that an employee 
        has committed a prohibited personnel practice under paragraph 
        (8) or (9) of section 2302(b), the Board shall impose 
        disciplinary action if the Board finds that the activity 
        protected under paragraph (8) or (9) of section 2302(b) was a 
        significant motivating factor, even if other factors also 
        motivated the decision, for the employee's decision to take, 
        fail to take, or threaten to take or fail to take a personnel 
        action, unless that employee demonstrates, by preponderance of 
        evidence, that the employee would have taken, failed to take, 
        or threatened to take or fail to take the same personnel 
        action, in the absence of such protected activity.''.
    (i) Special Counsel Amicus Curiae Appearance.--Section 1212 of 
title 5, United States Code, is amended by adding at the end the 
following:
    ``(h)(1) The Special Counsel is authorized to appear as amicus 
curiae in any action brought in a court of the United States related to 
any civil action brought in connection with section 2302(b) (8) or (9), 
or subchapter III of chapter 73, or as otherwise authorized by law. In 
any such action, the Special Counsel is authorized to present the views 
of the Special Counsel with respect to compliance with section 2302(b) 
(8) or (9) or subchapter III of chapter 77 and the impact court 
decisions would have on the enforcement of such provisions of law.
    ``(2) A court of the United States shall grant the application of 
the Special Counsel to appear in any such action for the purposes 
described in subsection (a).''.
    (j) Judicial Review.--
            (1) In general.--Section 7703(b)(1) of title 5, United 
        States Code, is amended to read as follows:
    ``(b)(1)(A) Except as provided in subparagraph (B) and paragraph 
(2), a petition to review a final order or final decision of the Board 
shall be filed in the United States Court of Appeals for the Federal 
Circuit. Notwithstanding any other provision of law, any petition for 
review must be filed within 60 days after the date the petitioner 
received notice of the final order or decision of the Board.
    ``(B) During the 5-year period beginning on the effective date of 
the Federal Employee Protection of Disclosures Act, a petition to 
review a final order or final decision of the Board in a case alleging 
a violation of paragraph (8) or (9) of section 2302(b) shall be filed 
in the United States Court of Appeals for the Federal Circuit or any 
court of appeals of competent jurisdiction as provided under subsection 
(b)(2).''.
            (2) Review obtained by office of personnel management.--
        Section 7703(d) of title 5, United States Code, is amended to 
        read as follows:
    ``(d)(1) Except as provided under paragraph (2), this paragraph 
shall apply to any review obtained by the Director of the Office of 
Personnel Management. The Director of the Office of Personnel 
Management may obtain review of any final order or decision of the 
Board by filing, within 60 days after the date the Director received 
notice of the final order or decision of the Board, a petition for 
judicial review in the United States Court of Appeals for the Federal 
Circuit if the Director determines, in his discretion, that the Board 
erred in interpreting a civil service law, rule, or regulation 
affecting personnel management and that the Board's decision will have 
a substantial impact on a civil service law, rule, regulation, or 
policy directive. If the Director did not intervene in a matter before 
the Board, the Director may not petition for review of a Board decision 
under this section unless the Director first petitions the Board for a 
reconsideration of its decision, and such petition is denied. In 
addition to the named respondent, the Board and all other parties to 
the proceedings before the Board shall have the right to appear in the 
proceeding before the Court of Appeals. The granting of the petition 
for judicial review shall be at the discretion of the Court of Appeals.
    ``(2) During the 5-year period beginning on the effective date of 
the Federal Employee Protection of Disclosures Act, this paragraph 
shall apply to any review relating to paragraph (8) or (9) of section 
2302(b) obtained by the Director of the Office of Personnel Management. 
The Director of the Office of Personnel Management may obtain review of 
any final order or decision of the Board by filing, within 60 days 
after the date the Director received notice of the final order or 
decision of the Board, a petition for judicial review in the United 
States Court of Appeals for the Federal Circuit or any court of appeals 
of competent jurisdiction as provided under subsection (b)(2) if the 
Director determines, in his discretion, that the Board erred in 
interpreting paragraph (8) or (9) of section 2302(b). If the Director 
did not intervene in a matter before the Board, the Director may not 
petition for review of a Board decision under this section unless the 
Director first petitions the Board for a reconsideration of its 
decision, and such petition is denied. In addition to the named 
respondent, the Board and all other parties to the proceedings before 
the Board shall have the right to appear in the proceeding before the 
court of appeals. The granting of the petition for judicial review 
shall be at the discretion of the Court of Appeals.''.
    (k) Nondisclosure Policies, Forms, and Agreements.--
            (1) In general.--
                    (A) Requirement.--Each agreement in Standard Forms 
                312 and 4414 of the Government and any other 
                nondisclosure policy, form, or agreement of the 
                Government shall contain the following statement: 
                ``These restrictions are consistent with and do not 
                supersede, conflict with, or otherwise alter the 
                employee obligations, rights, or liabilities created by 
                Executive Order No. 12958; section 7211 of title 5, 
                United States Code (governing disclosures to Congress); 
                section 1034 of title 10, United States Code (governing 
                disclosure to Congress by members of the military); 
                section 2302(b)(8) of title 5, United States Code 
                (governing disclosures of illegality, waste, fraud, 
                abuse or public health or safety threats); the 
                Intelligence Identities Protection Act of 1982 (50 
                U.S.C. 421 et seq.) (governing disclosures that could 
                expose confidential Government agents); and the 
                statutes which protect against disclosure that may 
                compromise the national security, including sections 
                641, 793, 794, 798, and 952 of title 18, United States 
                Code, and section 4(b) of the Subversive Activities Act 
                of 1950 (50 U.S.C. 783(b)). The definitions, 
                requirements, obligations, rights, sanctions, and 
                liabilities created by such Executive order and such 
                statutory provisions are incorporated into this 
                agreement and are controlling.''.
                    (B) Enforceability.--Any nondisclosure policy, 
                form, or agreement described under subparagraph (A) 
                that does not contain the statement required under 
                subparagraph (A) may not be implemented or enforced to 
                the extent such policy, form, or agreement is 
                inconsistent with that statement.
            (2) Persons other than government employees.--
        Notwithstanding paragraph (1), a nondisclosure policy, form, or 
        agreement that is to be executed by a person connected with the 
        conduct of an intelligence or intelligence-related activity, 
        other than an employee or officer of the United States 
        Government, may contain provisions appropriate to the 
        particular activity for which such document is to be used. Such 
        form or agreement shall, at a minimum, require that the person 
        will not disclose any classified information received in the 
        course of such activity unless specifically authorized to do so 
        by the United States Government. Such nondisclosure forms shall 
        also make it clear that such forms do not bar disclosures to 
        Congress or to an authorized official of an executive agency or 
        the Department of Justice that are essential to reporting a 
        substantial violation of law.
    (l) Clarification of Whistleblower Rights for Critical 
Infrastructure Information.--Section 214(c) of the Homeland Security 
Act of 2002 (Public Law 107-296) is amended by adding at the end the 
following: ``For purposes of this section a permissible use of 
independently obtained information includes the disclosure of such 
information under section 2302(b)(8) of title 5, United States Code.''.
    (m) Advising Employees of Rights.--Section 2302(c) of title 5, 
United States Code, is amended by inserting ``, including how to make a 
lawful disclosure of information that is specifically required by law 
or Executive order to be kept secret in the interest of national 
defense or the conduct of foreign affairs to the Special Counsel, the 
Inspector General of an agency, Congress, or other agency employee 
designated to receive such disclosures'' after ``chapter 12 of this 
title''.
    (n) Scope of Due Process.--
            (1) Special counsel.--Section 1214(b)(4)(B)(ii) of title 5, 
        United States Code, is amended by inserting ``, after a finding 
        that a protected disclosure was a contributing factor,'' after 
        ``ordered if''.
            (2) Individual action.--Section 1221(e)(2) of title 5, 
        United States Code, is amended by inserting ``, after a finding 
        that a protected disclosure was a contributing factor,'' after 
        ``ordered if''.
    (o) Effective Date.--This Act shall take effect 30 days after the 
date of enactment of this Act.




                                                       Calendar No. 782

108th CONGRESS

  2d Session

                                S. 2628

                          [Report No. 108-392]

_______________________________________________________________________

                                 A BILL

  To amend chapter 23 of title 5, United States Code, to clarify the 
    disclosures of information protected from prohibited personnel 
 practices, require a statement in nondisclosure policies, forms, and 
   agreements that such policies, forms, and agreements conform with 
   certain disclosure protections, provide certain authority for the 
                Special Counsel, and for other purposes.

_______________________________________________________________________

                            October 8, 2004

                       Reported without amendment