[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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