[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3281 Introduced in House (IH)]







108th CONGRESS
  1st Session
                                H. R. 3281

 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; to provide certain authority to 
              the Special Counsel; and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 8, 2003

 Mr. Platts (for himself, Mr. Wolf, Mr. Waxman, Mr. McHugh, Mr. Shays, 
  Mr. Ruppersberger, Ms. Schakowsky, and Mr. Tierney) introduced the 
   following bill; which was referred to the Committee on Government 
                                 Reform

_______________________________________________________________________

                                 A BILL


 
 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; to provide certain authority to 
              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. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Whistleblower 
Protection Enhancement Act''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Clarification of disclosures covered.
Sec. 3. Covered disclosures.
Sec. 4. Rebuttable presumption.
Sec. 5. Nondisclosure policies, forms, and agreements; security 
                            clearances; and retaliatory investigations.
Sec. 6. Exclusion of agencies by the President.
Sec. 7. Attorney fees.
Sec. 8. Compensatory damages.
Sec. 9. Disciplinary action.
Sec. 10. Disclosures to Congress.
Sec. 11. Authority of Special Counsel relating to civil actions.
Sec. 12. Judicial review.
Sec. 13. Nondisclosure policies, forms, and agreements.
Sec. 14. Clarification of whistleblower rights for critical 
                            infrastructure information.
Sec. 15. Effective date.

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'';
            (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, 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) 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.''.

SEC. 3. 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.''.

SEC. 4. REBUTTABLE PRESUMPTION.

    Section 2302(b) of title 5, United States Code, is amended by 
adding after the matter following paragraph (12) (as amended by section 
3) 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.''.

SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS; SECURITY 
              CLEARANCES; AND RETALIATORY INVESTIGATIONS.

    (a) Personnel Action.--Section 2302(a)(2)(A) of title 5, United 
States Code, is amended--
            (1) in clause (x), by striking ``and'' after the semicolon; 
        and
            (2) 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''.
    (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) in paragraph (12), by striking the period and inserting 
        a semicolon; and
            (3) 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 (50 U.S.C. 435 note); section 
                7211 of title 5, United States Code (relating to 
                employees' right to petition Congress); section 1034 of 
                title 10, United States Code (relating to protected 
                communications; prohibition of retaliatory personnel 
                actions); section 2302(b)(8) of title 5, United States 
                Code (relating to disclosures of violations of law, 
                gross mismanagement, and certain other matters); the 
                Intelligence Identities Protection Act of 1982 (50 
                U.S.C. 421 et seq.) (relating to 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.''.
    (c) Board and Court Review of Actions Relating to Security 
Clearances.--
            (1) 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 regard 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 regard 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.''.
            (2) Clerical 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.''.

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 
                        Imagery and Mapping Agency, and 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''.

SEC. 7. ATTORNEY FEES.

    Section 1204(m)(1) of title 5, United States Code, is amended by 
striking ``agency involved'' and inserting ``agency with which the 
prevailing party is employed or has applied for employment''.

SEC. 8. COMPENSATORY DAMAGES.

    Section 1214(g)(2) of title 5, United States Code, is amended by 
inserting ``compensatory or'' after ``foreseeable''.

SEC. 9. DISCIPLINARY ACTION.

    Section 1215(a) of title 5, United States Code, is amended 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 
        in clause (i) and an assessment described in 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 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. 10. 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.''.

SEC. 11. AUTHORITY OF SPECIAL COUNSEL RELATING TO CIVIL ACTIONS.

    (a) 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.''.
    (b) 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 in 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 Whistleblower Protection Enhancement 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.''.

SEC. 12. JUDICIAL REVIEW.

    (a) In General.--Section 7703(b) of title 5, United States Code, is 
amended by striking the matter before paragraph (2) and inserting the 
following:
    ``(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 Whistleblower Protection Enhancement 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.''.
    (b) 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 in 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 Whistleblower Protection Enhancement 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.''.

SEC. 13. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

    (a) In General.--
            (1) 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.''
            (2) Enforceability.--Any nondisclosure policy, form, or 
        agreement described in paragraph (1) that does not contain the 
        statement required under paragraph (1) may not be implemented 
        or enforced to the extent such policy, form, or agreement is 
        inconsistent with that statement.
    (b) Persons Other Than Government Employees.--Notwithstanding 
subsection (a), 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.

SEC. 14. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL 
              INFRASTRUCTURE INFORMATION.

    Section 214(c) of the Homeland Security Act of 2002 (Public Law 
107-296; 6 U.S.C. 133(c)) 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.''.

SEC. 15. EFFECTIVE DATE.

    This Act shall take effect 30 days after the date of the enactment 
of this Act.
                                 <all>