(This measure has not been amended since it was introduced. The summary has been expanded because action occurred on the measure.)
Federal Employee Protection of Disclosures Act - Revises the definition of protected employee disclosures (whistleblowing) to include: (1) any lawful disclosure without restriction to time, place, form, motive, context, or prior disclosure; and (2) formal or informal communications or transmissions. Excludes from such definition disclosures pertaining to policy decisions that lawfully exercise discretionary authority unless the disclosing employee reasonably believes that there is evidence of a violation of law or government waste, fraud, or abuse. Protects certain disclosures involving classified information to Members of Congress and congressional employees who are authorized to receive classified information. Provides for employee discipline for disclosures to congressional employees who are not authorized to receive such information.
Codifies the legal standard for determining whether a whistleblower has a reasonable belief that a disclosure evidences governmental waste, fraud, or abuse, or a violation of law.
Provides that the following actions may not be taken against whistleblowers for protected disclosures: (1) the implementation or enforcement of any nondisclosure policy, form, or agreement; (2) a security clearance suspension or revocation; and (3) an investigation (other than routine nondiscretionary agency investigations) of an employee or applicant for employment.
Authorizes the Merit Systems Protection Board (MSPB) to conduct an expedited review of cases charging retaliation for whistleblowing when the whistleblower's security clearance or access determination is suspended, revoked, or otherwise adversely affected. Requires an agency that improperly revokes a whistleblower's security clearance to report to Congress explaining its actions. Exempts an agency from this requirement if the agency can show by a preponderance of the evidence (currently, clear and convincing evidence required) that it would have taken the same personnel action in the absence of the whistleblower disclosure.
Authorizes the President to exclude certain agencies engaged in the conduct of foreign intelligence or counterintelligence activities from whistleblower protections if such exclusion is made prior to any personnel action against the whistleblower.
Expands the authority of the MSPB to impose disciplinary action for prohibited personnel practices.
Authorizes the Office of Special Counsel to appear as amicus curiae (friend of the court) in any civil action involving whistleblowers and the Hatch Act.
Allows petitions for review of whistleblower actions to be filed in any Federal Court of Appeals of competent jurisdiction (currently limited to the U.S. Court of Appeals for the Federal Circuit), for five years after the date of enactment of this Act.
Requires all Federal agency nondisclosure policies, forms, and agreements to contain specified language preserving the right of Federal employees to disclose certain protected information.
Amends the Homeland Security Act of 2002 to extend existing whistleblower rights for independently obtained information that may also qualify as voluntarily submitted critical infrastructure information under such Act.
Requires Federal agencies to instruct employee how to make a lawful disclosure of classified information to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such information.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2628 Introduced in Senate (IS)]
108th CONGRESS
2d Session
S. 2628
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, and Mr. Lautenberg) introduced the
following bill; which was read twice and referred to the Committee on
Governmental Affairs
_______________________________________________________________________
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.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S7839-7840)
Read twice and referred to the Committee on Governmental Affairs. (text of measure as introduced: CR S7840-7842)
Committee on Governmental Affairs referred to Subcommittee on Financial Management, the Budget, and International Security.
Committee on Governmental Affairs. Ordered to be reported without amendment favorably.
Committee on Governmental Affairs. Reported by Senator Collins without amendment. With written report No. 108-392.
Committee on Governmental Affairs. Reported by Senator Collins without amendment. With written report No. 108-392.
Placed on Senate Legislative Calendar under General Orders. Calendar No. 782.
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