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109th Congress                                            Rept. 109-544
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

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



 
             FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT

                                _______
                                

                 June 29, 2006.--Ordered to be printed

                                _______
                                

  Mr. Tom Davis of Virginia, from the Committee on Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 1317]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Government Reform, to whom was referred the 
bill (H.R. 1317) to amend title 5, United States Code, to 
clarify which disclosures of information are protected from 
prohibited personnel practices; to require a statement in 
nondisclosure policies, forms, and agreements to the effect 
that such policies, forms, and agreements are consistent with 
certain disclosure protections; and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     5
Section-by-Section...............................................     6
Explanation of Amendments........................................     8
Committee Consideration..........................................     8
Rollcall Votes...................................................     9
Application of Law to the Legislative Branch.....................    11
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    11
Statement of General Performance Goals and Objectives............    11
Constitutional Authority Statement...............................    11
Federal Advisory Committee Act...................................    11
Unfunded Mandate Statement.......................................    11
Committee Estimate...............................................    11
Budget Authority and Congressional Budget Office Cost Estimate...    12
Changes in Existing Law Made by the Bill as Reported.............    13
Additional Views.................................................    20
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Federal Employee Protection of 
Disclosures Act''.

SEC. 2. 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 as 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''; and
          (2) in subparagraph (B)--
                  (A) by striking ``which the employee or applicant 
                reasonably believes evidences'' and inserting ``, 
                without restriction as 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)''.

SEC. 3. 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, 
        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 mismanagement, a gross waste of funds, 
                an abuse of authority, or a substantial and specific 
                danger to public health or safety.''.

SEC. 4. REBUTTABLE PRESUMPTION.

  Section 2302(b) of title 5, United States Code, is amended by adding 
at the end the following: ``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 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 or readily ascertainable 
by the employee or applicant would reasonably conclude that the actions 
of the Government evidence such violations, mismanagement, waste, 
abuse, or danger.''.

SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

  (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;
          (2) by redesignating clause (xi) as clause (xii); and
          (3) by inserting after clause (x) the following:
                  ``(xi) the implementation or enforcement of any 
                nondisclosure policy, form, or agreement; 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 paragraph (14); and
          (3) by inserting after paragraph (11) the following:
          ``(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 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 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); the Intelligence Identities 
        Protection Act of 1982 (50 U.S.C. 421 and following) (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.';
          ``(13) conduct, or cause to be conducted, an investigation, 
        other than any ministerial or nondiscretionary factfinding 
        activities necessary for the agency to perform its mission, of 
        an employee or applicant for employment because of any activity 
        protected 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 following:
                  ``(ii)(I) the Federal Bureau of Investigation, the 
                Central Intelligence Agency, the Defense Intelligence 
                Agency, the National Geospatial-Intelligence Agency, or 
                the National Security Agency; or
                  ``(II) as determined by the President, any Executive 
                agency or unit thereof the principal function of which 
                is the conduct of foreign intelligence or 
                counterintelligence activities, if the determination 
                (as that determination relates to a personnel action) 
                is made before that personnel action; or''.

SEC. 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 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 such paragraph (8) or (9) 
(as the case may be) was the primary motivating factor, unless that 
employee demonstrates, by a preponderance of the 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) Requirement.--The Comptroller General shall conduct a study of 
security clearance revocations, taking effect after 1996, with respect 
to personnel that filed claims under chapter 12 of title 5, United 
States Code, in connection therewith. The study shall consist of an 
examination of the number of such clearances revoked, the number 
restored, and the relationship, if any, between the resolution of 
claims filed under such chapter and the restoration of such clearances.
  (b) Report.--Not later than June 30, 2006, the Comptroller General 
shall submit to the Committee on Government Reform of the House of 
Representatives and the Committee on Homeland Security and Governmental 
Affairs of the Senate a report on the results of the study required by 
subsection (a).

SEC. 9. ALTERNATIVE RECOURSE.

  Section 1221 of title 5, United States Code, is amended by adding at 
the end the following:
  ``(k)(1) If an employee, former employee, or applicant for 
employment--
          ``(A) seeks corrective action with respect to a prohibited 
        personnel practice described in section 2302(b)(8) by making an 
        allegation (as described in section 1214(a)(1)(A)) to the 
        Special Counsel, and
          ``(B) within 180 days after so seeking such corrective 
        action, has neither--
                  ``(i) been notified by the Special Counsel that the 
                Special Counsel intends to seek corrective action in 
                connection therewith, nor
                  ``(ii) initiated any proceeding under subsection (a) 
                to seek corrective action from the Merit Systems 
                Protection Board in connection with the same matter, 
                such employee, former employee, or applicant may bring 
                an action against the United States at law or equity 
                for de novo review in the appropriate district court of 
                the United States, which shall have jurisdiction over 
                such an action without regard to the amount in 
                controversy. In any such action, the court may award 
                such damages and other relief as provided in subsection 
                (g).
  ``(2) A petition to review a final decision under paragraph (1) shall 
be filed in the United States Court of Appeals for the Federal 
Circuit.''.

SEC. 10. ENHANCEMENT OF CONTRACTOR EMPLOYEE WHISTLEBLOWER PROTECTIONS.

  (a) Civilian Agency Contracts.--Section 315(c) of the Federal 
Property and Administrative Services Act of 1949 (41 U.S.C. 265(c)) is 
amended--
          (1) in paragraph (1), by striking ``If the head'' and all 
        that follows through ``actions:'' and inserting the following: 
        ``Not later than 180 days after submission of a complaint under 
        subsection (b), the head of the executive agency concerned 
        shall determine whether the contractor concerned has subjected 
        the complainant to a reprisal prohibited by subsection (a) and 
        shall either issue an order denying relief or shall take one or 
        more of the following actions:''; and
          (2) by redesignating paragraph (3) as paragraph (4) and 
        adding after paragraph (2) the following new paragraph (3):
  ``(3) If the head of an executive agency has not issued an order 
within 180 days after the submission of a complaint under subsection 
(b) and there is no showing that such delay is due to the bad faith of 
the complainant, the complainant shall be deemed to have exhausted his 
administrative remedies with respect to the complaint, and the 
complainant may bring an action at law or equity for de novo review to 
seek compensatory damages and other relief available under this section 
in the appropriate district court of the United States, which shall 
have jurisdiction over such an action without regard to the amount in 
controversy.''.
  (b) Armed Services Contracts.--Section 2409(c) of title 10, United 
States Code, is amended--
          (1) in paragraph (1), by striking ``If the head'' and all 
        that follows through ``actions:'' and inserting the following: 
        ``Not later than 180 days after submission of a complaint under 
        subsection (b), the head of the agency concerned shall 
        determine whether the contractor concerned has subjected the 
        complainant to a reprisal prohibited by subsection (a) and 
        shall either issue an order denying relief or shall take one or 
        more of the following actions:''; and
          (2) by redesignating paragraph (3) as paragraph (4) and 
        adding after paragraph (2) the following new paragraph (3):
  ``(3) If the head of an agency has not issued an order within 180 
days after the submission of a complaint under subsection (b) and there 
is no showing that such delay is due to the bad faith of the 
complainant, the complainant shall be deemed to have exhausted his 
administrative remedies with respect to the complaint, and the 
complainant may bring an action at law or equity for de novo review to 
seek compensatory damages and other relief available under this section 
in the appropriate district court of the United States, which shall 
have jurisdiction over such an action without regard to the amount in 
controversy.''.

SEC. 11. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION 
                    SECURITY ADMINISTRATION.

  (a) In General.--Chapter 23 of title 5, United States Code, is 
amended--
          (1) by redesignating sections 2304 and 2305 as sections 2305 
        and 2306, respectively; and
          (2) by inserting after section 2303 the following:

``Sec. 2304. Prohibited personnel practices affecting the 
                    Transportation Security Administration

  ``(a) In General.--Notwithstanding any other provision of law, any 
individual holding or applying for a position within the Transportation 
Security Administration shall be covered by--
          ``(1) the provisions of section 2302(b)(1), (8), and (9);
          ``(2) any provision of law implementing section 2302(b)(1), 
        (8), or (9) by providing any right or remedy available to an 
        employee or applicant for employment in the civil service; and
          ``(3) any rule or regulation prescribed under any provision 
        of law referred to in paragraph (1) or (2).
  ``(b) Rule of Construction.--Nothing in this section shall be 
construed to affect any rights, apart from those described in 
subsection (a), to which an individual described in subsection (a) 
might otherwise be entitled under law.
  ``(c) Effective Date.--This section shall take effect as of the date 
of the enactment of this section.''.
  (b) Clerical Amendment.--The table of sections for chapter 23 of 
title 5, United States Code, is amended by striking the items relating 
to sections 2304 and 2305, respectively, and by inserting the 
following:

``2304. Prohibited personnel practices affecting the Transportation 
Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.

SEC. 12. EFFECTIVE DATE.

  This Act shall take effect 30 days after the date of enactment of 
this Act, except as provided in the amendment made by section 11(a)(2).

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 1317, the Federal Employee Protection of Disclosures 
Act, was introduced March 15, 2005, by Rep. Todd Platts, along 
with 17 original cosponsors. The legislation would modernize, 
clarify, and expand the federal employee whistleblower 
protection laws.
    One of the most significant reforms included in this 
legislation is that, if the Office of Special Counsel (OSC) 
does not take action within 180 days in response to a 
whistleblower complaint filed with them, a federal employee 
could chose to have his or her claim decided in federal 
district court. This would include a right to a jury trial. 
Under current law, the only recourse for most federal 
whistleblowers is the Merit Systems Protection Board (MSPB). In 
addition to this structural change, the legislation includes 
provisions aimed at clarifying congressional intent in response 
to federal court rulings regarding whistleblower claims that 
have been issued over the past decade.

                  BACKGROUND AND NEED FOR LEGISLATION

    As a result of findings that the civil service protections 
of the time were inadequate, Congress and the first Bush 
Administration enacted into law the Whistleblower Protection 
Act (WPA) of 1989, which expressly stated that a federal 
employee who makes ``any'' protected disclosure of waste, 
fraud, or abuse is protected from adverse personnel actions. 
However, as interpreted by the Merit Systems Protection Board 
(MSPB) and the U.S. Court of Appeals for the Federal Circuit 
(``Federal Circuit''), loopholes began to develop in the WPA. 
Accordingly, Congress attempted to strengthen the law in 1994. 
Since the 1994 amendments, however, a number of decisions have 
created exceptions to the law. The purpose of this legislation 
is to make Congress's intent perfectly clear that ``any'' 
whistleblower disclosure includes disclosures ``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.''
    Also, the Federal Circuit at one point stated that, for a 
federal employee to ``reasonably believe'' there is evidence of 
waste, fraud, and abuse, as required by the law, he or she must 
overcome with ``irrefragable proof'' the presumption that the 
agency was acting in good faith. While it appears that the 
Federal Circuit has abandoned this standard in a December 2004 
opinion, the Committee felt strongly that Congress should 
clearly state the proper standard to assist the Court in this 
regard. As a result, this legislation makes it clear that the 
presumption that an agency official was acting in good faith 
may be rebutted by ``substantial evidence,'' not ``irrefragable 
proof.''
    In addition, amendments were adopted in Committee that 
would provide whistleblower protections to employees at the 
Transportation Security Administration as well as enhance the 
whistleblower protections available to contractor personnel.

                          LEGISLATIVE HISTORY

    H.R. 1317, legislation to modernize the federal employee 
whistleblower protection laws, was introduced on March 15, 
2005, and referred to the Committee on Government Reform. The 
Committee held a markup to consider H.R. 1317 on September 29, 
2005, and ordered the bill to be reported, as amended, by a 
roll call vote of 34-1. During the markup, a substitute 
amendment was offered by Mr. Platts (R-PA), which was adopted 
by voice vote. In addition, an amendment offered by Ranking 
Member Waxman (D-CA) was agreed to that would enhance 
whistleblower protections for contractor employees, and an 
amendment offered by Rep. Norton (D-DC) was agreed to that 
would clarify that employees of the Transportation Security 
Administration, including those carrying out screener 
functions, had federal whistleblower protections.

                           Section-by-Section


Section 1. Short title

    This section would provide the short title of H.R. 1317 as 
the ``Federal Employees Protection of Disclosure Act.''

Section 2. Clarification of disclosures covered

    This section would amend section 2302(b)(8) of title 5, 
United States Code, to clarify what constitutes a disclosure 
for purposes of whistleblower protection. These changes are 
intended as a response to Federal Circuit decisions that have 
limited the scope of disclosures permitted by law.

Section 3. Covered disclosures

    This section would amend section 2302(a)(2) of title 5, 
United States Code, to define, in statute, the term 
``disclosure,'' for whistleblower protection purposes. The 
section explicitly states that Congress defines a disclosure to 
include both formal and informal communications where the 
employee reasonably believes the disclosure evidences any 
violation of law rule or regulation or gross mismanagement, 
waste, abuse of authority or specific danger to public health 
or safety. However, any communication concerning policy 
decisions resulting from the exercise of lawful discretion 
would not be a disclosure.

Section 4. Rebuttable presumption

    This section would amend section 2302(b) of title 5, United 
States Code, to state that 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.

Section 5. Nondisclosure policies, forms, and agreements

    This section would amend section 2302(a)(2)(A) of title 5, 
United States Code, state that a prohibited personnel practice 
includes the implementation or enforcement of any 
nondisclosurepolicy, form, or agreement. This section would also amend 
section 2302(b) to prohibit any employee from implementing or enforcing 
any nondisclosure policy, form, or agreement, if such policy, form, or 
agreement does not contain the statement included in the legislation. 
Finally, this section would amend section 2302(b) to prohibit any 
employee from conducting, or causing to be conducted, an investigation, 
other than any ministerial or nondiscretionary fact-finding activities 
necessary for the agency to perform its mission, of any employee or 
applicant for employment because of any activity protected under 
section 2302.

Section 6. Exclusion of agencies by the President

    This section would amend section 2302(a)(2)(C) of title 5, 
United States Code, by clarifying the definition of ``covered 
agency'' for purposes of whistleblower protection laws.

Section 7. Disciplinary action

    This section would amend section 1215(a)(3) of title 5, 
United States Code, to clarify the authority of the Merit 
Systems Protection Board in disciplining employees found to 
have violated the provisions of 2302(b)(8) and (9) of title 5, 
United States Code.

Section 8. GAO Study on revocation of security clearances

    This section would require GAO to conduct a study of 
security clearance revocations, taking effect after 1996, with 
respect to personnel that filed claims under chapter 12 of 
title 5, United States Code, in connection therewith.

Section 9. Alternative recourse

    This section would amend section 1221 of title 5, United 
States Code, to provide that an employee, former employee, or 
applicant that seeks corrective action with respect to a 
prohibited personnel practice described in section 2302(b)(8) 
may bring an action, under certain circumstances, against the 
United States in federal district court within 180 days after 
seeking such corrective action. A petition to review a final 
decision by a district court shall be filed in the United 
States District Court of Appeals for the Federal Circuit.

Section 10. Enhancement of contractor employee whistleblower 
        protections

    This provision would amend section 315(c) of the Federal 
Property and Administrative Services Act (41 U.S.C. 265(c)) to 
require that the head of an executive agency make a 
determination, within 180 days after the submission of a 
complaint by a contractor employee about reprisal by his 
employer for the employee's disclosure of wrongdoing by the 
employer. The agency head shall determine whether there was a 
reprisal and whether the agency will take action with regard to 
the employee's complaint. If the head of the executive agency 
fails to make such determination within 180 days, and there is 
no showing that such delay is due to the bad faith of the 
complainant, the complainant can then seek corrective action in 
federal district court.

Section 11. Prohibited personnel practices affecting employees of the 
        transportation Security Administration

    This section would add a new section 2304 to title 5, 
United States Code, clarifying that employees at the 
Transportation Security Administration, including those 
carrying out screener functions, have the same whistleblower 
protections as other federal employees.

Section 12. Effective date

    This section would provide that the provisions of H.R. 1317 
would take effect 30 days after date of enactment of the Act.

                       Explanation of Amendments

    The amendments adopted in Committee are reflected in the 
descriptive portions of this report.

                        Committee Consideration

    On Thursday, September 29, 2005, the Committee ordered the 
bill reported to the House by a recorded vote.


              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill provides enhanced transparency to the operations of 
the executive branch. As such this bill does not relate to 
employment or access to public services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 1317. Article I, Section 8, Clause 18 of the 
Constitution of the United States grants the Congress the power 
to enact this law.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement whether 
the provisions of the reported include unfunded mandates. In 
compliance with this requirement the Committee has received a 
letter from the Congressional Budget Office included herein.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 1317. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 1317 from the Director of 
Congressional Budget Office:

                                                  October 18, 2004.
Hon. Tom Davis,
Chairman, Committee on Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1317, the Federal 
Employee Protection of Disclosures Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                               Douglas Holtz-Eakin.
    Enclosure.

H.R. 1317--Federal Employee Protection of Disclosures Act

    H.R. 1317 would amend the Whistleblower Protection Act 
(WPA). The bill would clarify current law and extend new and 
expanded protections to federal employees who report abuse, 
fraud, and waste involving government activities. The 
legislation also would make changes to the laws governing the 
Merit Systems Protection Board (MSPB) and the Office of Special 
Counsel (OSC), which implement provisions of the WPA. In 
addition, the legislation would require a study by the 
Government Accountability Office (GAO) regarding the revocation 
of security clearances in retaliation for whistleblowing.
    CBO estimates that implementing H.R. 1317 would not have a 
significant budgetary impact. H.R. 1317 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of state, local, or tribal governments.
    According to the MSPB and OSC, there generally are between 
400 and 500 whistleblower cases per year. In 2005, the MSPB 
received an appropriation of $35 million, and the OSC received 
$15 million. Although H.R. 1317 could increase the number of 
whistleblower cases, CBO expects that any such increase and any 
additional administrative and staffing costs would not be 
significant. In addition, the legislation would require the GAO 
to prepare a study by June 2006 on security clearance 
revocations since 1996. Based on similar reports, CBO estimates 
that preparing and distributing the report would cost less than 
$500,000 in fiscal year 2006, assuming the availability of 
appropriated funds. Enacting the legislation would not affect 
direct spending or revenues.
    On April 20, 2005, CBO transmitted a cost estimate for S. 
494, the Federal Employee Protection of Disclosures Act, as 
ordered reported by the Senate Committee on Homeland Security 
and Governmental Affairs on April 13, 2005. The Senate bill 
contains additional amendments to the laws that govern the MSBP 
and OSC. The differences in the estimated costs reflect the 
differences between the two bills.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, 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, existing law in which no change is 
proposed is shown in roman):

TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *



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

           *       *       *       *       *       *       *



SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL

           *       *       *       *       *       *       *



Sec. 1215. Disciplinary action

  (a)(1) * * *

           *       *       *       *       *       *       *

  [(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 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) (as the case may be) was the primary 
motivating factor, unless that employee demonstrates, by a 
preponderance of the 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.

           *       *       *       *       *       *       *


  SUBCHAPTER III--INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES

Sec. 1221. Individual right of action in certain reprisal cases

  (a) * * *

           *       *       *       *       *       *       *

  (k)(1) If an employee, former employee, or applicant for 
employment--
          (A) seeks corrective action with respect to a 
        prohibited personnel practice described in section 
        2302(b)(8) by making an allegation (as described in 
        section 1214(a)(1)(A)) to the Special Counsel, and
          (B) within 180 days after so seeking such corrective 
        action, has neither--
                  (i) been notified by the Special Counsel that 
                the Special Counsel intends to seek corrective 
                action in connection therewith, nor
                  (ii) initiated any proceeding under 
                subsection (a) to seek corrective action from 
                the Merit Systems Protection Board in 
                connection with the same matter, such employee, 
                former employee, or applicant may bring an 
                action against the United States at law or 
                equity for de novo review in the appropriate 
                district court of the United States, which 
                shall have jurisdiction over such an action 
                without regard to the amount in controversy. In 
                any such action, the court may award such 
                damages and other relief as provided in 
                subsection (g).
  (2) A petition to review a final decision under paragraph (1) 
shall be filed in the United States Court of Appeals for the 
Federal Circuit.

           *       *       *       *       *       *       *


                  CHAPTER 23--MERIT SYSTEM PRINCIPLES

Sec.
2301.  Merit system principles.
     * * * * * * *
[2304.  Responsibility of the Government Accountability Office.
[2305.  Coordination with certain other provisions of law.]
2304.  Prohibited personnel practices affecting the Transportation 
          Security Administration.
2305.  Responsibility of the Government Accountability Office.
2306.  Coordination with certain other provisions of law.

           *       *       *       *       *       *       *


Sec. 2302. Prohibited personnel practices

  (a)(1) * * *
  (2) For the purpose of this section--
          (A) ``personnel action'' means--
                  (i) * * *

           *       *       *       *       *       *       *

                  (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;

           *       *       *       *       *       *       *

          (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) * * *
                  (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) * * *
                  [(ii) the Federal Bureau of Investigation, 
                the Central Intelligence Agency, the Defense 
                Intelligence Agency, the National Geospatial-
                Intelligence 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, or the National Security 
                Agency; or
                  (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 Government Accountability 
                Office[.]; and
          (D) ``disclosure'' means a formal or informal 
        communication, 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 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--
          (1) * * *

           *       *       *       *       *       *       *

          (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], 
                without restriction as 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--
                          (i) [a violation] any violation of 
                        any law, rule, or regulation, 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], without 
                restriction as 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--
                          (i) [a violation] any violation 
                        (other than a violation of this 
                        section) of any law, rule, or 
                        regulation, or

           *       *       *       *       *       *       *

          (11)(A) * * *
          (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) 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 
        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); the 
        Intelligence Identities Protection Act of 1982 (50 
        U.S.C. 421 and following) (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.'';
          (13) conduct, or cause to be conducted, an 
        investigation, other than any ministerial or 
        nondiscretionary factfinding activities necessary for 
        the agency to perform its mission, of an employee or 
        applicant for employment because of any activity 
        protected under this section; or
          [(12)] (14) 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.
This subsection shall not 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. 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 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 or readily ascertainable by the employee or applicant 
would reasonably conclude that the actions of the Government 
evidence such violations, mismanagement, waste, abuse, or 
danger.

           *       *       *       *       *       *       *


Sec. 2304. Prohibited personnel practices affecting the Transportation 
                    Security Administration

  (a) In General.--Notwithstanding any other provision of law, 
any individual holding or applying for a position within the 
Transportation Security Administration shall be covered by--
          (1) the provisions of section 2302(b)(1), (8), and 
        (9);
          (2) any provision of law implementing section 
        2302(b)(1), (8), or (9) by providing any right or 
        remedy available to an employee or applicant for 
        employment in the civil service; and
          (3) any rule or regulation prescribed under any 
        provision of law referred to in paragraph (1) or (2).
  (b) Rule of Construction.--Nothing in this section shall be 
construed to affect any rights, apart from those described in 
subsection (a), to which an individual described in subsection 
(a) might otherwise be entitled under law.
  (c) Effective Date.--This section shall take effect as of the 
date of the enactment of this section.

Sec. [2304] 2305. Responsibility of the Government Accountability 
                    Office

  If requested by either House of the Congress (or any 
committee thereof), or if considered necessary by the 
Comptroller General, the Government Accountability Office shall 
conduct audits and reviews to assure compliance with the laws, 
rules, and regulations governing employment in the executive 
branch and in the competitive service and to assess the 
effectiveness and soundness of Federal personnel management.

Sec. [2305] 2306. Coordination with certain other provisions of law

  No provision of this chapter, or action taken under this 
chapter, shall be construed to impair the authorities and 
responsibilities set forth in section 102 of the National 
Security Act of 1947 (61 Stat. 495; 50 U.S.C. 403), the Central 
Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a 
and following), the Act entitled ``An Act to provide certain 
administrative authorities for the National Security Agency, 
and for other purposes'', approved May 29, 1959 (73 Stat. 63; 
50 U.S.C. 402 note), and the Act entitled ``An Act to amend the 
Internal Security Act of 1950'', approved March 26, 1964 (78 
Stat. 168; 50 U.S.C. 831-835).

           *       *       *       *       *       *       *

                              ----------                              


SECTION 315 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 
                                  1949

SEC. 315. CONTRACTOR EMPLOYEES: PROTECTION FROM REPRISAL FOR DISCLOSURE 
                    OF CERTAIN INFORMATION.

  (a) * * *

           *       *       *       *       *       *       *

  (c) Remedy and Enforcement Authority.--(1) [If the head of an 
executive agency determines that a contractor has subjected a 
person to a reprisal prohibited by subsection (a), the head of 
the executive agency may take one or more of the following 
actions:] Not later than 180 days after submission of a 
complaint under subsection (b), the head of the executive 
agency concerned shall determine whether the contractor 
concerned has subjected the complainant to a reprisal 
prohibited by subsection (a) and shall either issue an order 
denying relief or shall take one or more of the following 
actions:
          (A) * * *

           *       *       *       *       *       *       *

  (3) If the head of an executive agency has not issued an 
order within 180 days after the submission of a complaint under 
subsection (b) and there is no showing that such delay is due 
to the bad faith of the complainant, the complainant shall be 
deemed to have exhausted his administrative remedies with 
respect to the complaint, and the complainant may bring an 
action at law or equity for de novo review to seek compensatory 
damages and other relief available under this section in the 
appropriate district court of the United States, which shall 
have jurisdiction over such an action without regard to the 
amount in controversy.
  [(3)] (4) Any person adversely affected or aggrieved by an 
order issued under paragraph (1) may obtain review of the 
order's conformance with this subsection, and any regulations 
issued to carry out this section, in the United States court of 
appeals for a circuit in which the reprisal is alleged in the 
order to have occurred. No petition seeking such review may be 
filed more than 60 days after issuance of the order by the head 
of the agency. Review shall conform to chapter 7 of title 5, 
United States Code.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 2409 OF TITLE 10, UNITED STATES CODE

Sec. 2409. Contractor employees: protection from reprisal for 
                    disclosure of certain information

  (a) * * *

           *       *       *       *       *       *       *

  (c) Remedy and Enforcement Authority.--(1) [If the head of 
the agency determines that a contractor has subjected a person 
to a reprisal prohibited by subsection (a), the head of the 
agency may take one or more of the following actions:] Not 
later than 180 days after submission of a complaint under 
subsection (b), the head of the agency concerned shall 
determine whether the contractor concerned has subjected the 
complainant to a reprisal prohibited by subsection (a) and 
shall either issue an order denying relief or shall take one or 
more of the following actions:
          (A) * * *

           *       *       *       *       *       *       *

  (3) If the head of an agency has not issued an order within 
180 days after the submission of a complaint under subsection 
(b) and there is no showing that such delay is due to the bad 
faith of the complainant, the complainant shall be deemed to 
have exhausted his administrative remedies with respect to the 
complaint, and the complainant may bring an action at law or 
equity for de novo review to seek compensatory damages and 
other relief available under this section in the appropriate 
district court of the United States, which shall have 
jurisdiction over such an action without regard to the amount 
in controversy.
  [(3)] (4) Any person adversely affected or aggrieved by an 
order issued under paragraph (1) may obtain review of the 
order's conformance with this subsection, and any regulations 
issued to carry out this section, in the United States court of 
appeals for a circuit in which the reprisal is alleged in the 
order to have occurred. No petition seeking such review may be 
filed more than 60 days after issuance of the order by the head 
of the agency. Review shall conform to chapter 7 of title 5.

           *       *       *       *       *       *       *


            ADDITIONAL VIEWS OF REPRESENTATIVE HENRY WAXMAN

    H.R. 1317, the ``Federal Employee Protection of Disclosures 
Act,'' makes a number of improvements to current law to protect 
whistleblowers in federal government agencies; improvements 
made necessary in large part by court decisions which have 
weakened whistleblower law. I am a proud cosponsor of this 
legislation.
    A key component of accountability is whistleblower 
protection. Federal employees are on the inside. They see when 
taxpayer dollars are wasted. They are often the first to see 
the signals of corrupt or incompetent management. Yet without 
adequate protections, they cannot step forward to blow the 
whistle.
    During the Committee's consideration of H.R. 1317, a number 
of amendments were offered by Democratic members. Two 
amendments were agreed to in principle, one offered by myself 
to give federal contractor employees some whistleblower 
protections, and another offered by Rep. Norton to ensure that 
employees of the Transportation Security Agency, including 
those carrying out screening functions, are covered by the 
whistleblower provisions of federal law. I would like to thank 
the majority for working with us in good faith to reach 
agreement on the specific language of these amendments.
    Unfortunately, two other amendments did not get included in 
the bill as reported by the Committee. The first was offered by 
Reps. Carolyn Maloney and Diane Watson to extend whistleblower 
protections to employees of certain national security and 
intelligence agencies and give those employees recourse when 
their security clearances are inappropriately stripped.
    There are many federal government workers who deserve 
whistleblower protection, but perhaps none more than national 
security whistleblowers. These are federal government employees 
who have undergone extensive background investigations, 
obtained security clearances, and handled classified 
information on a routine basis. Our own government has 
concluded that they can be trusted to work on the most 
sensitive law enforcement and intelligence projects. Ironically 
when these officials come forward to identify waste, fraud, or 
abuse they have little, if any, protection under our 
whistleblower laws.
    This bill, H.R. 1317, was considered in Committee in 
September 2005 and is being reported in June 2006. During that 
intervening time, the majority worked with the minority on the 
issue of national security whistleblower protections.
    In April 2006, the Government Reform Committee passed H.R. 
5112, the Executive Branch Reform Act of 2006 by a unanimous 
vote of 32-0. That bill included provisions similar to those of 
the Maloney/Watson amendment. As H.R. 1317 moves forward in the 
legislative process, every effort should be made to include the 
bipartisan national security whistleblower provisions of H.R. 
5112.
     The second amendment which did not pass was offered by 
Rep. Van Hollen, suspending the exclusive jurisdiction of the 
Federal Circuit for five years and allowing appeals of 
decisions of the Merit Systems Protection Board to be made to 
any court of appeals of competent jurisdiction for that five-
year period.
     The monopoly that the Federal Circuit Court of Appeals 
currently enjoys on whistleblower appeals undermines an 
important principle of appellate review--that of a peer review 
process that helps to hold circuit court judges accountable. 
This principle is especially important because without multiple 
circuit review, no splits in the circuit can ever occur, and 
this is the most likely avenue for review by the Supreme Court.
    Moreover, other statutes governing federal and private 
whistleblowers, like the Hatch Act, the False Claims Act, and 
appeals of decisions of the Federal Labor Relations Authority, 
all provide for multi-circuit reviews. The Van Hollen amendment 
would have provided similar treatment for cases under the 
Whistleblower Protection Act.
                                                   Henry A. Waxman.