[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1358 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 1358
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
June 26, 2003
Mr. Akaka (for himself, Mr. Grassley, Mr. Levin, Mr. Leahy, and Mr.
Durbin) 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, 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
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) a 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(b) of title 5, United States
Code, is amended--
(1) in the matter following paragraph (12), by striking
``This subsection'' and inserting the following:
``This subsection''; and
(2) by adding at the end the following:
``In this subsection, the term `disclosure' means a formal or
informal communication or transmission.''.
(d) Rebuttable Presumption.--Section 2302(b) of title 5, United
States Code, is amended by adding after the matter following paragraph
(12) (as amended by subsection (c) of this section) 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.''.
(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;
``(xiii) an investigation 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
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, the Merit Systems
Protection Board or any reviewing court--
``(1) shall determine whether section 2302 was violated;
``(2) may not order the President to restore a security
clearance; 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 was made in violation of section 2302, the
affected agency shall conduct a review of that suspension, revocation,
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, or other
determination was made in violation of section 2302, 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, or other determination. A report under this
paragraph shall include any proposed agency action with regards to the
security clearance.
``(c) An allegation that a security clearance 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.''.
(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 of title 5, United States
Code, is amended in subsection (a), by striking paragraph (3) and
inserting the following:
``(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 section
2302(b) (8) or (9), the Board shall impose disciplinary action
if the Board finds that the activity protected under section
2302(b) (8) or (9) was a significant motivating factor, even if
other factors also motivated the decision, for the employee's
decision to take, fail to take, or threaten to take or fail to
take a personnel action, unless that employee demonstrates, by
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) Disclosures to Congress.--Section 2302 of title 5, United
States Code, is amended by adding at the end the following:
``(f) Each agency shall establish a process that provides
confidential advice to employees on making a lawful disclosure to
Congress 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.''.
(j) Authority of Special Counsel Relating to Civil Actions.--
(1) Representation of special counsel.--Section 1212 of
title 5, United States Code, is amended by adding at the end
the following:
``(h) Except as provided in section 518 of title 28, relating to
litigation before the Supreme Court, attorneys designated by the
Special Counsel may appear for the Special Counsel and represent the
Special Counsel in any civil action brought in connection with section
2302(b)(8) or subchapter III of chapter 73, or as otherwise authorized
by law.''.
(2) Judicial review of merit systems protection board
decisions.--Section 7703 of title 5, United States Code, is
amended by adding at the end the following:
``(e)(1) Except as provided under paragraph (2), this paragraph
shall apply to any review obtained by the Special Counsel. The Special
Counsel may obtain review of any final order or decision of the Board
by filing a petition for judicial review in the United States Court of
Appeals for the Federal Circuit if the Special Counsel determines, in
the discretion of the Special Counsel, that the Board erred in deciding
a case arising under section 2302(b)(8) or subchapter III of chapter 73
and that the Board's decision will have a substantial impact on the
enforcement of section 2302(b)(8) or subchapter III of chapter 73. If
the Special Counsel was not a party or did not intervene in a matter
before the Board, the Special Counsel may not petition for review of a
Board decision under this section unless the Special Counsel first
petitions the Board for 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 proceedings 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 obtained by the Special Counsel. The Special
Counsel may obtain review of any final order or decision of the Board
by filing 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 Special Counsel
determines, in the discretion of the Special Counsel, that the Board
erred in deciding a case arising under section 2302(b)(8) or subchapter
III of chapter 73 and that the Board's decision will have a substantial
impact on the enforcement of section 2302(b)(8) or subchapter III of
chapter 73. If the Special Counsel was not a party or did not intervene
in a matter before the Board, the Special Counsel may not petition for
review of a Board decision under this section unless the Special
Counsel first petitions the Board for 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 proceedings before the court of
appeals. The granting of the petition for judicial review shall be at
the discretion of the court of appeals.''.
(k) Judicial Review.--
(1) In general.--Section 7703(b) of title 5, United States
Code, is amended by striking paragraph (1) and inserting the
following:
``(b)(1)(A) Except as provided in subparagraph (B) and paragraph
(2) of this subsection, 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 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). 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.''.
(2) Review obtained by office of personnel management.--
Section 7703 of title 5, United States Code, is amended by
striking subsection (d) and inserting the following:
``(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 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 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.''.
(l) 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.
(m) 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.''.
(n) Effective Date.--This Act shall take effect 30 days after the
date of enactment of this Act.
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