[Congressional Record Volume 148, Number 107 (Wednesday, July 31, 2002)]
[Senate]
[Pages S7746-S7747]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA:
  S. 2829. A bill to authorize appropriations for the Merit Systems 
Protection Board and the Office of Special Counsel, to provide for the 
protection of certain disclosures of information by Federal employees, 
and for other purposes; to the Committee on Governmental Affairs.
  Mr. AKAKA. Mr. President. Today I rise to introduce legislation 
reauthorizing the Office of Special Counsel, OSC, and the Merit Systems 
Protection Board, MSPB. These two agencies safeguard the merit system 
principles and protect Federal employees who step forward to disclose 
government waste, fraud, and abuse.
  The Office of Special Counsel protects Federal employees and 
applicants from reprisal for whistleblowing and other prohibited 
personnel practices. OSC serves as a safe and secure channel for 
Federal workers who wish to disclose violations of law, gross 
mismanagement or waste of funds, abuse of authority, and a specific 
danger to the public health and safety. In addition, OSC enforces and 
provides advisory opinions regarding the Hatch Act, which restricts the 
political activities of Federal employees. It also protects the rights 
of Federal employee, military veterans and reservists under the 
Uniformed Services Employment and Reemployment Rights Act of 1994.
  The Merit Systems Protection Board monitors the Federal Government's 
merit-based system of employment by hearing and deciding appeals from 
Federal employees regarding job removal and other major personnel 
actions. The Board also decides other types of civil service cases, 
reviews regulations of the Office of Personnel Management, and conducts 
studies of the merit systems. Together, OSC and MSPB act as stalwarts 
of justice for the dedicated men and women who serve the public.
  In addition to reauthorizing these two important agencies, my bill 
would restore congressional intent regarding who is entitled to relief 
under the Whistleblower Protection Act, WPA. On several occasions, 
Congress has had to revisit the WPA to close loopholes in the law. 
Congress has been forced to specify that ``any'' disclosure truly means 
``any'' disclosure. This is regardless of the setting of the 
disclosure, the form of the disclosure, or the person to whom the 
disclosure is made.
  Since Congress amended the WPA in 1994, the Federal Circuit Court of 
Appeals, which has sole jurisdiction over the WPA, has continued to 
disregard clear statutory language that the Act covers disclosures such 
as those made to supervisors, to possible wrongdoers, or as part of an 
employee's job duties.
  In order to protect the statute's foundation that `any' lawful 
disclosure that an employee or applicant reasonably believes is 
credible evidence of waste, fraud, abuse, or gross mismanagement is 
covered by the WPA, language in this bill codifies the repeated and 
unconditional statements of congressional intent and legislative 
history. It specifically covers any disclosure of information without 
restriction to time, place, form, motive, or 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 any 
violation of any law, rule, or regulation, or other misconduct 
specified.
  The bill also addresses another burden created by the Federal Circuit 
not found in the Whistleblower Protection Act. In interpreting the 
meaning of `reasonable belief,' the Federal Circuit held that the 
reasonableness of the whistleblower's belief that the government 
violated the law or engaged in gross mismanagement must first begin 
with a presumption that public officers performed their duties 
correctly, fairly, in good faith, and in accordance with the law. 
However, this presumption can only be overcome by ``irrefragable 
proof'' to the contrary. The irrefragable standard is impossible to 
overcome and has a chilling effect on those who would disclose 
government wrongdoing. As such, this new provision states that any 
presumption that a public officer has performed their duties in good 
faith must be overcome by substantial evidence.
  My bill also codifies an ``anti-gag'' provision that Congress has 
passed annually since 1988 as part of its appropriations process. The 
yearly appropriations language bars agencies from implementing or 
enforcing any nondisclosure policy, form, or agreement that does not 
contain specified language preserving open government statutes such as 
the WPA, the Military Whistleblower Protection Act, and the Lloyd 
Lafollette Act, which prohibits discrimination against government 
employees who communicate with Congress. Moreover, Congress unanimously 
has supported the concept that Federal employees should not be subject 
to restraint nor suffer retaliation for disclosing wrongdoing.
  Now more than ever, Federal employees must feel comfortable coming 
forward with information concerning violations of law or actions that 
could cause substantial harm to public safety. We must support the 
brave men and women who come forward to report wrongdoing. We must 
ensure that such acts of bravery are not rewarded with retaliation.
  Protection of Federal whistleblowers is a bipartisan effort. 
Enactment of the original bill in 1989 and the 1994 amendments enjoyed 
unanimous bicameral and bipartisan support. More recently, Senators 
Levin and Grassley joined me in introducing S. 995, which makes many of 
the same amendments to the WPA as this bill. I urge my colleagues to 
join with me in clarifying the WPA and supporting the reauthorization 
of two very important agencies.
  At this time I ask unanimous consent that the text of the legislation 
be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2829

     SECTION 1. AUTHORIZATION OF APPROPRIATIONS.

       (a) Merit Systems Protection Board.--Section 8(a)(1) of the 
     Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is 
     amended by striking ``1998, 1999, 2000, 2001 and 2002'' and 
     inserting ``2003, 2004, 2005, 2006, and 2007''.
       (b) Office of Special Counsel.--Section 8(a)(2) of the 
     Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is 
     amended by striking ``1993, 1994, 1995, 1996, and 1997,'' and 
     inserting ``2003, 2004, 2005, 2006, and 2007''.
       (c) Effective Date.--This section shall take effect on 
     October 1, 2002.

     SEC. 2. DISCLOSURE OF VIOLATIONS OF LAW; RETURN OF DOCUMENTS.

       Section 1213(g) of title 5, United States Code, is 
     amended--
       (1) in paragraph (1), by striking the last sentence; and
       (2) by striking paragraph (3) and inserting the following:
       ``(3) If the Special Counsel does not transmit the 
     information to the head of the agency under paragraph (2), 
     the Special Counsel shall inform the individual of--
       ``(A) the reasons why the disclosure may not be further 
     acted on under this chapter; and
       ``(B) other offices available for receiving disclosures, 
     should the individual wish to pursue the matter further.''.

     SEC. 3. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY 
                   FEDERAL EMPLOYEES.

       (a) 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''; 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 
     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

[[Page S7747]]

       ``(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;
       ``(II) any other Member of Congress who is authorized to 
     receive information of the type disclosed; or
       ``(III) an employee of the executive branch or Congress who 
     has the appropriate security clearance for access to the 
     information disclosed.''.
       (b) 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.''.
       (c) Rebuttable Presumption.--Section 2308(b) of title 5, 
     United States Code, is amended by adding after the matter 
     following paragraph (12) (as amended by subsection (b) of 
     this section) the following:
       ``For purposes of paragraph (8), any presumption relating 
     to the performance of a duty by an employee may be rebutted 
     by substantial evidence.''.
       (d) Nondisclosure Policies, Forms, and Agreements.--
       (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 (xii) and 
     inserting after clause (x) the following:
       ``(xi) the implementation or enforcement of any 
     nondisclosure policy, form, or agreement; and''.
       (e) 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 or merit systems protection board 
     decisions.--Section 7703 of title 5, United States Code, is 
     amended by adding at the end the following:
       ``(e) 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.''.

     SEC. 4. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

       (a) In General.--Each agreement in Standard Forms, 312 and 
     4414 of the Government and any other nondisclosure policy, 
     form, or agreement 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.''
       Any nondisclosure policy, form, or agreement that does not 
     contain the above statement may not be implemented or 
     enforced to the extent that it conflicts with language in the 
     above statement.
       (b) Persons Other Than Federal 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.

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