[Congressional Record Volume 149, Number 96 (Thursday, June 26, 2003)]
[Senate]
[Pages S8749-S8756]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA (for himself, Mr. Grassley Mr. Levin, Mr. Leahy, and 
        Mr. Durbin):
  S. 1358. A bill to amend chapter 23 of title 5, United States Code, 
to clarify the disclosure of information protected from prohibited 
personnel practices, require a statement in non-disclosure policies, 
forms, and agreements that such policies, forms, and agreements conform 
with certain disclosure protections, provide certain authority for the 
Special Council, and for other purposes; to the Committee on 
Governmental Affairs.
  Mr. AKAKA. Mr. President, I rise today to discuss the Federal 
Employee Protection of Disclosures Act. I offered legislation under 
this title earlier this month. I am modifying that measure, S. 1229, by 
introducing a new bill today which is cosponsored by Senators Grassley, 
Levin, Leahy, and Durbin. This bill, as with S. 1229, amends the 
Whistleblower Protection Act, WPA. These amendments are necessary to 
safeguard Federal employees from retaliation and protect American 
taxpayers from government waste, fraud, and abuse. Our bill follows S. 
995 and S. 3070, the latter of which was favorably reported by the 
Governmental Affairs Committee in the 107th Congress. The bill we 
introduce today is the result of a bipartisan compromise to protect our 
federal whistleblowers.
  Our bill would codify the repeated and unequivocal statements of 
congressional intent that Federal employees are to be protected when 
making ``any disclosure'' evidencing violations of law, gross 
mismanagement, or a gross waste of funds. The bill would also clarify 
the test that must be met to prove that a Federal employee reasonably 
believed that his or her disclosure was evidence of wrongdoing. The 
clear language of the WPA says that an employee is protected for 
disclosing information he or she reasonably believes evidences a 
violation. However, the Federal Circuit Court of Appeals, which has 
sole jurisdiction over whistleblower cases, ruled in 1999 that the 
reasonableness review must begin with the presumption that public 
officers perform their duties in good faith and that this presumption 
stands unless there is ``irrefragable proof'' to the contrary. As 
irrefragable means impossible to refute, our bill replaces this 
excessively high burden with the more reasonable standard of 
substantial evidence.
  The measure would also provide independent litigating authority to 
the Office of Special Counsel, OSC. Under current law, OSC has no 
authority to request the Merit Systems Protection Board, MSPB, to 
reconsider its decision or to seek review of a MSPB decision by the 
Federal Circuit. The limitation undermines both OSC's ability to 
protect whistleblowers and the integrity of the WPA. As such, our bill 
would provide OSC authority to appear in any civil action brought in 
connection with the WPA and obtain review of any MSPB order where OSC 
determines MSPB erred and the case will impact the enforcement of the 
WPA.
  Our bill would codify an ``anti-gag'' provision that Congress has 
passed annually since 1988 as part of the 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. In 
addition, the bill would make it a prohibited personnel practice to 
enforce a non-disclosure agreement that does not comply with open 
government statutes.
  Enactment of the Federal Employee Protection of Disclosures Act will 
strengthen the rights and protections afforded to federal 
whistleblowers and encourage the disclosure of information vital to an 
effective government. Following the events of September 11, we realized 
that whistleblowing is even more important when our national security 
is at stake. In many instances, the security of our Nation depends upon 
those who step forward to blow the whistle on significant lapses in our 
efforts to protect the United States against potential terrorist 
attacks. Congress should act quickly to assure whistleblowers that 
disclosing illegal activities and mismanagement within their agencies 
will not be met with retaliation. I urge my colleagues to join with me 
in protecting our federal whistleblowers.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1358

       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'';

[[Page S8750]]

       (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:

[[Page S8751]]

       ``(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.
  Mr. LEVIN. Mr. President, I am pleased to join Senators Akaka, 
Grassley, Leahy, and Durbin today in introducing the Federal Employees 
Protection of Disclosures Act. Our bill strengthens the law protecting 
employees who blow the whistle on fraud, waste, and abuse in federal 
programs.
  Whistleblowers play a crucial role in ensuring that Congress and the 
public are aware of serious cases of waste, fraud, and mismanagement in 
government. Whistleblowing is never more important than when our 
national security is at stake. Since the terrorist attacks of September 
11, 2001, courageous individuals have stepped forward to blow the 
whistle on significant lapses in our efforts to protect the United 
States against potential future attacks. Most notably, FBI Agent Coleen 
Rowley alerted Congress to serious institutional problems at the FBI 
and their impact on the agency's ability to effectively investigate and 
prevent terrorism.
  In another example, two Border Patrol agents from my State of 
Michigan, Mark Hall and Bob Lindemann, risked their careers when they 
blew the whistle on Border Patrol and INS policies that were 
compromising security on

[[Page S8752]]

the Northern Border. Their disclosure led to my holding a hearing at 
the Permanent Subcommittee on Investigations in November 2001, that 
exposed serious deficiencies in the way Border Patrol and INS were 
dealing with aliens who were arrested while trying to enter the country 
illegally. Since the hearing, some of the most troublesome policies 
have been changed, improving the security situation and validating the 
two agents' concerns. Despite the fact that their concerns proved to be 
dead on, shortly after they blew the whistle, disciplinary action was 
proposed against the two agents. Fortunately in this case, 
whistleblower protections worked. The Office of Special Counsel 
conducted an investigation and the decision to discipline the agents 
was reversed. However, that disciplinary an action was proposed in the 
first place is a troubling reminder of how important it is for us to 
both strengthen protections for whistleblowers and empower the Office 
of Special Counsel to discipline managers who seek to muzzle employees.
  Agent Rowley, Mark Hall and Bob Lindermann are simply the latest in a 
long line of Federal employees who have taken great personal risks in 
blowing the whistle on government waste, fraud, and mismanagement. 
Congress has long recognized the obligation we have to protect a 
Federal employee when he or she discloses evidence of wrongdoing in a 
Federal program. If an employee reasonably believes that a fraud or 
mismanagement is occurring, and that employee has the courage and the 
sense of responsibility to make that fraud or mismanagement known, it 
is our duty to protect the employee from any reprisal. We want Federal 
employees to identify problems so we can fix them, and if they fear 
reprisal for doing so, then we are not only failing to protect the 
whistleblower, but we are also failing to protect the taxpayer.
  I sponsored the Whistleblower Protection Act in 1989 which 
strengthened and clarified whistleblower rights, as well as the bill 
passed by Congress to strengthen the law further in 1994. 
Unfortunately, however, repeated holdings by the United States Court of 
Appeals for the Federal Circuit have corrupted the intent of Congress, 
with the result that additional clarifying language is sorely needed. 
The case of LaChance versus White represents perhaps the most notable 
example of the Federal Circuit's misinterpretation of the whistleblower 
law.
  In LaChance, decided on May 14, 1999, the court imposed an unfounded 
and virtually unattainable standard on Federal employee whistleblowers 
in proving their cases. In that case, John E. White was an education 
specialist for the Air Force who spoke out against a new educational 
system that purported to mandate quality standards for schools 
contracting with the Air Force bases. White criticized the new system 
as counterproductive because it was too burdensome and seriously 
reduced the education opportunities available on base. After making 
these criticisms, local agency officials reassigned White, relieving 
him of his duties and allegedly isolating him. However, after an 
independent management review supported White's concerns, the Air Force 
canceled the program White had criticized. White appealed the 
reassignment in 1992 and the case has been in litigation ever since.
  The administrative judge initially dismissed White's case, finding 
that his disclosures were not protected by the Whistleblower Protection 
Act. The MSPB, however, reversed the administrative judge's decision 
and remanded the case back to the administrative judge, holding that 
since White disclosed information he reasonably believed evidenced 
gross mismanagement, this disclosure was protected under the Act. On 
remand, the administrative judge found that the Air Force had violated 
the Whistleblower Protection Act and ordered the Air Force to return 
White to his prior status; the MSPB affirmed the decision of the 
administrative judge. OPM petitioned the Federal Circuit for a review 
of the board's decision. The Federal Circuit subsequently reversed the 
MSPB's decision, holding that there was not adequate evidence to 
support a violation under the Whistleblower Protection Act. The Federal 
Circuit held that the evidence that White was a specialist on the 
subject at issue and aware of the alleged improper activities and that 
his belief was shared by other employees was not sufficient to meet the 
``reasonable belief'' test in the law. The court held that ``the board 
must look for evidence that it was reasonable to believe that the 
disclosures revealed misbehavior'' by the Air Force. The court went on 
to say: ``In this case, review of the Air Force's policy and 
implementation via the QES standards might well show them to be 
entirely appropriate, even if not the best option. Indeed, this review 
would start out with a presumption that public officers perform their 
duties correctly, fairly, in good faith, and in accordance with the law 
and governing regulations. * * * And this presumption stands unless 
there is `irrefragable proof to the contrary'.''
  It was appropriate for the Federal Circuit to remand the case to the 
MSPB to have it reconsider whether it was reasonable for White to 
believe that what the Air Force did in this case involved gross 
mismanagement. However, the Federal Circuit went on to impose a clearly 
erroneous and excessive standard for him to demonstrate his 
``reasonable belief''--requiring him to provide ``irrefragable'' proof 
that the Air Force had engaged in gross mismanagement.
  Irrefragable means ``undeniable, incontestable, incontrovertible, 
incapable of being overthrown.'' How can a Federal employee meet a 
standard of ``irrefragable'' in proving gross mismanagement? It is 
virtually impossible standard of proof to meet. Moreover, there is 
nothing in the law or legislative history that even suggests such a 
standard applies to the Whistleblower Protection Act. The intent of the 
law is not for a federal employee to act as an investigator and compile 
``irrefragable'' proof that the Federal Government, in fact, committed 
fraud, waste or abuse. Rather, under the clear language of the statute, 
the employee needs only to have ``a reasonable belief'' that there is 
fraud, waste or abuse occurring in order to make a protected 
disclosure.
  LaChance is only one example of the Federal Circuit misinterpreting 
the law. Our bill corrects LaChance and as well as several other 
Federal Circuit holdings. In addition, the bill strengthens the Office 
of Special Counsel and creates additional protections for federal 
employees who are retaliated against for blowing the whistle.
  One of the most important issues addressed in the bill is to clarify 
again that the law is intended to protect a broad range of 
whistleblower disclosures. The legislative history supporting the 1994 
Whistleblower Protection Act amendments emphasized: ``[I]t also is not 
possible to further clarify the clear language in section 2302(b)(8) 
that protection for `any' whistleblowing disclosure truly means `any'. 
A protected disclosure may be made as part of an employee's job duties, 
may concern policy or individual misconduct, and may be oral or written 
and to any audience inside or outside the agency, without restriction 
to time, place, motive or content.''
  Despite this clear Congressional intent that was clearly articulated 
in 1994, the Federal Circuit has acted to push a number of 
whistleblower disclosures outside the protections of the whistleblower 
law. For example, in Horton versus the Department of the Navy, the 
Federal Circuit ruled that a whistleblower's disclosures to co-workers, 
or to the wrong-doer, or to a court ruled that a whistleblower's 
disclosures to official in the agency chain of command or those made in 
the course of normal job duties were not protected. In Huffman versus 
Office of Personnel Management, the Federal Circuit reaffirmed Horton 
and Willis. And in Meuwissen versus Department of Interior, the Federal 
Circuit held that a whistleblower's disclosures of previously known 
information do not qualify as ``disclosures'' under the WPA. All of 
these rulings violate clear Congressional intent to afford broad 
protection to whistleblower disclosures.
  In order to make it clear that any lawful disclosure that an employee 
or job applicant reasonably believes is evidence of waste, fraud, 
abuse, or gross mismanagement is covered by the WPA, the bill codifies 
previous statements of Congressional intent. Using the 1994 legislative 
history, it amends the whistleblower statute to

[[Page S8753]]

cover 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 credible evidence of any violation of any law, 
rule, or regulation, or other misconduct specified in the whistleblower 
law. I want to emphasize here that, other than the explicitly listed 
exceptions identified in the statute, we intend for there to be no 
exceptions, inferred or otherwise, as to what is a protected 
disclosure. And the prohibition on inferred exceptions is intended to 
apply to all protected speech categories in section 2302(b)(8) of the 
law. The intent here, again, is to make it clear that when the WPA 
speaks of protecting disclosures by Federal employees ``any'' means 
``any.''
  The bill also addresses the clearly erroneous standard established by 
the Federal Circuit's LaChance decision I mentioned earlier. Rather 
than needing ``irrefragable proof'' to overcome the presumption that a 
public officer performed his or her duties correctly, fairly, in good 
faith, and in accordance with the law and regulations, the bill makes 
it clear that the whistleblower can rebut this presumption with 
``substantial evidence.'' This burden of proof is a far more reasonable 
and appropriate standard for whistleblowing cases.
  The Federal Circuit's repeated misinterpretations of the 
whistleblower law are unacceptable and demand Congressional action. In 
response to the court's inexplicable and inappropriate rulings, our 
bill would suspend for five years the Federal Circuit's exclusive 
jurisdiction over whistleblower appeals. It would instead allow a 
whistleblower to file a petition to review a final order or final 
decision of the MSPB in the Federal Circuit or in any other United 
States appellate court of competent jurisdiction and defined under 5 
U.S.C. 7703(b)(2). In most cases, using another court would mean going 
to the federal circuit where the contested personnel action took place. 
This five year period would allow Congress to evaluate whether other 
appellate courts would issue whistleblower decisions which are 
consistent with the Federal Circuit's interpretation of WPA protections 
and guide Congressional efforts to clarify the law if necessary.
  In addition to addressing jurisdictional issues and troublesome 
Federal Circuit precedents, our bill would also make important 
additions to the list of protected disclosures. First, it would subject 
certain disclosures of classified information to whistleblower 
protections. However, in order for a disclosure of classified 
information to be protected, the employee would have to possess a 
reasonable belief that the disclosure was direct and specific evidence 
of a violation of law, rule or regulation, gross mismanagement, a gross 
waste of funds, an abuse of authority, a substantial and specified 
danger to public health or safety, or a false statement to Congress on 
an issue of material fact. A whistleblower must also limit the 
disclosure to a member of Congress or staff of the executive or 
legislative branch holding the appropriate security clearance and 
authorized to receive the information disclosed. Federal agencies 
covered by the WPA would be required to establish a process to provide 
confidential advice to employees on how to lawfully make a protected 
disclosure of classified information to Congress.

  Current law permits Federal employees to file a case at the MSPB when 
they feel that a manager has taken a personnel action against them in 
retaliation for blowing the whistle. The legislation would add three 
new personnel actions to the list of adverse actions that cannot be 
taken against whistleblowers for engaging in protected activity. These 
actions would include enforcement of any nondisclosure policy, form or 
agreement against a whistleblower for making a protected disclosure; 
the suspension, revocation, or other determination relating to a 
whistleblower's security clearance; and an investigation of an employee 
or applicant for employment if taken due to their participation in 
whistleblowing activity.
  It is important to note that, if it is demonstrated that a security 
clearance was suspended or revoked in retaliation for whistleblowing, 
the legislation limits the relief that the MSPB and reviewing court can 
order. The bill specifies that the MSPB or reviewing court may issue 
declaratory and other appropriate relief but may not direct a security 
clearance to be restored. Appropriate relief may include back pay, an 
order to reassign the employee, attorney fees, or any other relief the 
Board or court is authorized to provide for other prohibited personnel 
practices. In addition, if the Board finds an action on a security 
clearance to have been illegal, it may bar the agency from directly or 
indirectly taking any other personnel action based on that illegal 
security clearance action. Our legislation would also require the 
agency to review and provide a report to Congress detailing the 
circumstances of the agency's security clearance decision, and 
authorizes expedited MSPB review of whistleblower cases where a 
security clearance was revoked or suspended. The latter is important 
because a person whose clearance has been suspended or revoked and 
whose job responsibilities require clearance may be unable to work 
while their case is being considered.
  Our bill would also add two prohibited personnel practices of the 
whistleblower law. First, it would codify the ``anti-gag'' provision 
that has been in force since 1988, by virture of its inclusion in 
appropriations bills. Second, it would prohibit a manager from 
initiating an investigation of an employee or applicant for employment 
because they engage in a protected activity, including whistleblowing.
  Another issue addressed in the bill involves certain employees who 
are excluded from the WPA. Among these are employees who hold 
``confidential policy-making positions.'' In 1994, Congress amended the 
WPA to keep agencies from designating employees confidential 
policymakers after the employees filed whistleblower complaints. The 
WPA also allows the President to exclude from WPA jurisdiction any 
agency whose principal function is the conduct of foreign intelligence 
or counterintelligence activities. Our legislation maintains this 
authority but makes it clear that a decision to exclude an agency from 
WPA protections must also be made prior to a personnel action being 
taken against a whistleblower from that agency. This provision is 
necessary to ensure that agencies cannot argue that employees are 
exempt from whistleblower protections after an employee files a claim 
that they were retaliated against.
  Another key section of the bill would strengthen the Office of 
Special Counsel. OSC is the independent federal agency responsible for 
investigating and prosecuting federal employee complaints of 
whistleblower retaliation. Current law, however, limits OSC's ability 
to effectively enforce and defend whistleblower laws. For example, the 
law provides the OSC with no authority to request the Merit Systems 
Protection Board to reconsider one of its decisions or to seek 
appellate review of an MSPB decision. Even when another party petitions 
for a review of a MSPB decision, OSC is typically denied the right to 
participate in the proceedings.
  Our bill would provide explicit authority for the Office of Special 
Counsel to appear in any civil action brought in connection with the 
whistleblower law. In addition, it would authorize OSC to obtain 
circuit court review of any MSPB order in a whistleblowing case if the 
OSC determines the Board erred and the case would have a substantial 
impact on the enforcement of the whisltleblower statute. In a letter to 
me addressing these provisions, special Counsel Elaine Kaplan said, ``I 
believe that these changes are necessary, not only to ensure OSC's 
effectiveness, but to address continuing concerns about the whittling 
away of the WPA's protections by narrow judicial interpretations of the 
law.'' I ask unanimous consent that the OSC letter be printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                               U.S. Office of Special Counsel,

                               Washington, DC, September 11, 2002.
     Hon. Carl Levin,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Levin: Thank you for giving me the opportunity 
     to comment on the proposed Title VI of H.R. 5005, concerning

[[Page S8754]]

     the protection of federal employee whistleblowers.
       As the head of the U.S. Office of Special Counsel (OSC), 
     the independent federal agency that is responsible for 
     investigating and prosecuting federal employees' complaints 
     of whistleblower retaliation, I share your recognition that 
     is crucial to ensure that the laws protecting whistleblowers 
     are strong and effective. Federal employees are often in the 
     best position to observe and identify official misconduct or 
     malfeasance as well as dangers to the public health and 
     safety, and the national security.
       Now, perhaps more than ever before, our national interest 
     demands that federal workers feel safe to come forward to 
     bring appropriate attention to these conditions so that they 
     may be corrected. Further, and again more than ever, the 
     public now needs assurance that the workforce which is 
     carrying out crucial operations is alert, and that its 
     leaders welcome and encourage their constructive 
     participation in making the government a highly efficient and 
     effective steward of the public interest.
       To these ends, Title VI contains a number of provisions 
     that will strengthen the Whistleblower Protection Act (WPA) 
     and close loopholes in the Act's coverage. The amendment 
     would reverse the effects of several judicial decisions that 
     have imposed unduly narrow and restrictive tests for 
     determining whether employees qualify for the protection of 
     the WPA. These decisions, among other things, have held that 
     employees are not protected against retaliation when they 
     make their disclosures in the line of duty or when they 
     confront subject officials with their suspicions of 
     wrongdoing. They have also made it more difficult for 
     whistleblowers to secure the Act's protection by interposing 
     what the Court of Appeals for the Federal Circuit has called 
     an ``irrefragable'' presumption that government officials 
     perform their duties lawfully and in good faith.
       In addition to reversing these rulings, Title VI would 
     grant the Special Counsel independent litigating authority 
     and the right to request judicial review of decisions of the 
     Merit Systems Protection Board (MSPB) in cases that will have 
     a substantial impact upon the enforcement of the WPA. I 
     firmly believe that these changes are necessary, not only to 
     ensure OSC's effectiveness, but to address continuing 
     concerns about the whittling away of the WPA's protections 
     by narrow judicial interpretations of the law. The changes 
     would ensure that OSC, the government agency charged with 
     protecting whistleblowers, will have a meaningful 
     opportunity to participate in the shaping of the law.
       Further, Title VI would strengthen OSC's capacity to use 
     its disciplinary action authority to deter agency 
     supervisors, managers, and other officials from engaging in 
     retaliation, and to punish those who do so. The amendment 
     does this in two ways. First, it clarifies the burden of 
     proof in disciplinary action cases that OSC brings by 
     employing the test first set forth by the Supreme Court in 
     Mt. Healthy School District v. Board of Education. Under this 
     test, in order to secure discipline of an agency official 
     accused of engaging in whistleblower retaliation, OSC would 
     have to show that protected whistleblowing was a 
     ``significant, motivating factor'' in the decision to take or 
     threaten to take a personnel action. If OSC made such a 
     showing, the MSPB would order appropriate discipline unless 
     the official showed, by preponderant evidence, that he or she 
     would have taken or threatened to take the same action even 
     had there been no protected activity.
       This change is necessary in order to ensure that the burden 
     of proof in these cases is not so onerous as to make it 
     virtually impossible to secure discipline against 
     retaliators. Under current law, OSC bears the unprecedented 
     burden of demonstrating that protected activity was the but-
     for cause of an adverse personnel action against a 
     whistleblower. The amendment would correct the imbalance by 
     imposing the well-established Mt. Healthy test in these 
     cases.
       In addition, the bill would relieve OSC of attorney fee 
     liability in disciplinary action cases in which it ultimately 
     does not prevail. The amendment would shift liability for 
     fees to the manager's employing agency, where an award of 
     fees would be in the interest of justice. The employing 
     agency would indemnify the manager for these costs which 
     would have been incurred by him in the course of performing 
     his official duties.
       Under current law, if OSC ultimately does not prevail in a 
     case it brings against a manager whom our investigation shows 
     has engaged in retaliation, then we must pay attorney fees, 
     even if our prosecution decision was an entirely reasonable 
     one. For a small agency like OSC, with a limited budget, the 
     specter of having to pay large attorney fee awards simply 
     because we do not ultimately prevail in a case, is a 
     significant obstacle to our ability to use this important 
     authority to hold managers accountable. It is, moreover, an 
     unprecedented burden; virtually all fee shifting provisions 
     which could result in an award of fees against a government 
     agency, depend upon a showing that the government agency has 
     acted unreasonably or in bad faith.
       In addition to these provisions, the bill would also 
     provide that for a period of five years, beginning on 
     February 1, 2003, there would be multi-circuit review of 
     decisions of the MSPB, just as there is now multi-circuit 
     review of decisions of the MSPB's sister agency, the 
     Federal Labor Relations Authority. This experiment will 
     give Congress the opportunity to judge whether providing 
     broader perspectives of all of the nation's courts of 
     appeals will enhance the development of the law under the 
     WPA.
       There are several other provisions of the amendments that 
     would strengthen the Act's coverage and remedies. The 
     amendments, for example, would extend coverage of the WPA to 
     circumstances in which an agency initiated an investigation 
     of an employee or applicant in reprisal for whistleblowing or 
     where an agency implemented an illegal non-disclosure form or 
     policy. The amendments also would authorize an award of 
     compensatory damages in federal employee whistleblower cases. 
     Such awards are authorized for federal employees under the 
     civil rights acts, and for environmental and nuclear 
     whistleblowers, among others, under other federal statutes. 
     Given the important public policies underlying the WPA, it 
     seems appropriate that the same sort of make whole relief 
     should be available to federal employee whistleblowers.
       Finally, Title VI contains a provision that would provide 
     relief to employees who allege that their security clearances 
     were denied or revoked because of protected whistleblowing, 
     without interfering with the longstanding authority of the 
     President to make security clearance determinations. The 
     amendment would allow employees to file OSC complaints 
     alleging they suffered a retaliatory adverse security 
     clearance determination. OSC would be given the authority to 
     investigate such complaints and the MSPB would have the 
     authority to issue declaratory and appropriate relief other 
     than ordering the restoration of the clearance. Further, 
     where the Board found retaliation, the employing agency would 
     be required to conduct its own investigation of the 
     revocation and report back to Congress.
       This amendment provides a balance resolution of the tension 
     between protecting national security whistleblowers against 
     retaliation and maintaining the President's traditional 
     prerogative to decide who will have access to classified 
     information. Especially in light of the current heightened 
     concerns about issues of national security, this change in 
     the law is clearly warranted.
       Thank you again for providing me with an opportunity to 
     comment on these amendments, and for your continuing interest 
     in the work of the Office of Special Counsel.
           Sincerely,
                                                    Elaine Kaplan.

  Mr. LEVIN. OSC currently has the authority to pursue disciplinary 
action against managers who retaliate against whistleblowers. However, 
Federal Circuit decisions, like LaChance, have undermined the agency's 
ability to successfully pursue such cases. The Special Counsel has said 
that ``change is necessary in order to ensure that the burden of proof 
in these cases is not so onerous as to make it virtually impossible to 
secure disciplinary action against retaliators.'' In addition to it 
being difficult to win, if the OSC loses a disciplinary case, it has to 
pay the legal fees of those against whom OSC initiates disciplinary 
action. In its letter, OSC said that ``the specter of having to pay 
large attorney fee awards . . . is a significant obstacle to our 
ability to use this important authority to hold managers accountable.'' 
Our bill addresses these problems by establishing a reasonable burden 
of proof for disciplinary actions and requiring the employing agency, 
not the OSC, to reimburse the prevailing party for attorney fees in a 
disciplinary proceeding.
  Finally, the bill addresses a new issue that has arisen in connection 
with the recent enactment of the Homeland Security Act or HSA. To 
evaluate the vulnerability to terrorist attack of certain critical 
infrastructure such as chemical plants, computer networks and other key 
facilities, the HSA asks private companies that own these facilities to 
submit unclassified information about them to the government. In doing 
so, the law also created some ambiguity on the question of whether 
Federal employee whistleblowers would be protected by the WPA if they 
should disclose information that has been independently obtained by the 
whistleblower about such facilities but which may also have been 
disclosed to the government under the critical infrastructure 
information program.
  While I believe it was Congress's intent to extend whistleblower 
protections to Federal employees who disclose such independently 
obtained information, the law's ambiguities are troublesome in the 
context of the tendency of the Federal Circuit to narrowly construe the 
scope of protections afforded by the WPA. Our bill would thus clarify 
that whistleblower protections do extend to Federal employees who 
disclose independently obtained information that may also have been 
disclosed to the government as part of the

[[Page S8755]]

critical infrastructure information program
  We need to encourage Federal employees to blow the whistle on waste, 
fraud and abuse in Federal Government agencies and programs. These 
people take great risks and often face enormous obstacles in doing what 
they believe is right. The Congress and the country owe a particular 
debt of gratitude to those whistleblowers who put their careers on the 
line to protect national security. Since September 11, 2001, we have 
seen a number of examples of how crucial people like Coleen Rowley, 
Mark Hall and Bob Lindermann are to keeping our country safe. I request 
unanimous consent that a letter from Agent Rowley be printed in the 
Record. In the letter she says that when she blew the whistle, she was 
lucky enough to garner the support of many of her colleagues and 
members of Congress. However, her letter warns that for every Coleen 
Rowley, ``there are many more who do not benefit from the relative 
safety of public notoriety.'' It is to protect those responsible, 
courageous many that we offer this legislation. We need more like them.
  I ask unanimous consent to print in the Record a section-by-section 
explanation of the bill.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                September 2, 2002.
       Dear Senators: I have proudly served in federal law 
     enforcement for over 21 years. Prior to my personal 
     involvement in a specific matter, I did not fully appreciate 
     the strong disincentives that sometimes keep government 
     employees from exposing waste, fraud, abuse, or other 
     failures they witness on the job. Nor did I appreciate the 
     strong incentives that do exist for agencies to avoid 
     institutional embarrassment.
       The decision to step forward with information that exposed 
     my agency to scrutiny was one of the most difficult of my 
     career. I did not come to it quickly or lightly. I first 
     attempted to warn my superiors through regular channels. Only 
     after those warnings failed to bring about the necessary 
     response and congressional inquiry was initiated, did I go 
     outside the agency with my concerns. I had no intention or 
     desire to be in the public spotlight, so I did not go to the 
     news media. I provided the information to Members of Congress 
     with oversight responsibility. I felt compelled to do so 
     because my responsibility is to the American people, not to a 
     government agency.
       Unfortunately, the cloak of secrecy which is necessary for 
     the effective operation of government agencies involved in 
     national security and criminal investigations fosters an 
     environment where the incentives to avoid embarrassment and 
     the disincentives to step forward combine. When that happens, 
     the public loses. We need laws that strike a better balance, 
     that are able to protect effective government operation 
     without sacrificing accountability to the public. I was lucky 
     enough to garner a good deal of support from my colleagues in 
     the Minneapolis office and Members of Congress. But for every 
     one like me, there are many more who do not benefit from the 
     relative safety of public notoriety. They need credible, 
     functioning rights and remedies to retain the freedom to 
     warn.
       I also need to state that I write this letter in my 
     personal capacity, and that it reflects my personal views 
     only, not those of the government agency for which I work.
       Thank you for your consideration,
                                                    Coleen Rowley.

  There being no objection, the analysis was ordered to be printed in 
the Record, as follows:

   Section-by-Section Analysis of the Federal Employee Protection of 
                            Disclosures Act

       The Federal Employee Protection of Disclosures Act would 
     strengthen protections for Federal employees who blow the 
     whistle on waste, fraud and abuse in the Federal Government.
       Protected Whistleblower Disclosures--To correct court 
     decisions improperly limiting the disclosures protected by 
     the Whistleblower Protection Act, WPA, section (b) of the 
     bill would clarify Congressional intent that the law covers 
     ``any'' whistleblowing disclosure, whether that disclosure is 
     made as part of an employee's job duties, concerns policy or 
     individual misconduct, is oral or written, or is made to any 
     audience inside or outside an agency, and without restriction 
     to time, place, motive or context. This section would also 
     protect certain disclosures of classified information to 
     Congress when the disclosure is to a Member or legislative 
     staff holding an appropriate security clearance and 
     authorized to receive the type of information disclosed.
       Informal Disclosures.--Section (c) would clarify the 
     definition of ``disclosure'' to include a formal or informal 
     communication or transmission.
       Irrefragable Proof.--In LaChance v. White, the U.S. Court 
     of Appeals for the Federal Circuit imposed an erroneous 
     standard for determining when an employee makes a protected 
     disclosure under the WPA. Under the clear language of the 
     statute, an employee need only have a reasonable belief that 
     he or she is providing evidence of fraud, waste or abuse to 
     make a protected disclosure. But the court ruled that an 
     employee had to have ``irrefragable proof''--meaning 
     undeniable and incontestable proof--to overcome the 
     presumption that a public officer is performing their duties 
     in accordance with law. Section (d) would replace this 
     unreasonable standard of proof by providing that a 
     whistleblower can rebut the presumption with ``substantial 
     evidence.''
       Prohibited Personnel Actions.--Section (e)(1) would add 
     three actions to the list of prohibited personnel actions 
     that may not be taken against whistleblowers for protected 
     disclosures: enforcement of a nondisclosure policy, form or 
     agreement; suspension, revocation, or other determination 
     relating to an employee's security clearance; and 
     investigation of an employee or applicant for employment due 
     to protected whistleblowing activities.
       Nondisclosure Actions Against Whistleblowers.--Section 
     (e)(2) would bar agencies from implementing or enforcing 
     against whistleblowers any nondisclosure policy, form or 
     agreement that fails to contain specified language preserving 
     the right of federal employees to disclose certain protected 
     information. It would also prohibit a manager from initiating 
     an investigation of an employee or applicant for employment 
     because they engaged in protected activity.
       Retaliations Involving Security Clearances.--Section (e)(3) 
     would make it a prohibited personnel practice for a manager 
     to suspend, revoke or take other action with respect to an 
     employee's security clearance in retaliation for 
     whistleblowing. This section would also authorize the Merit 
     Systems Protection Board, MSPB, to conduct an expedited 
     review of such matters and issue declaratory and other 
     appropriate relief, but would not empower MSPB to restore a 
     security clearance. If MSPB or a reviewing court were to find 
     that a security clearance decision was retaliatory, the 
     agency involved would be required to review its security 
     clearance decision and issue a report to Congress explaining 
     it.
       Exclusions From WPA.--Current law allows the President to 
     exclude certain employees and agencies from the WPA if they 
     perform certain intelligence related or policy making 
     functions. In 1994, Congress amended the WPA to stop agencies 
     from removing employees from WPA coverage after the employees 
     filed whistleblower complaints. Section (f) would also 
     require that removal of an agency from the WPA be made prior 
     to a personnel action being taken against a whistleblower at 
     that agency.
       Attorney Fees.--The Office of Special Counsel, OSC, has 
     authority to pursue disciplinary action against managers who 
     retaliate against whistleblowers. Currently, if OSC loses a 
     disciplinary case, it must pay the legal fees of those 
     against whom it initiated the action. Because the amounts 
     involved could significantly deplete OSC's limited resources, 
     section (g) would require the employing agency, rather than 
     OSC, to reimburse the manager's attorney fees.
       Burden of Proof in Disciplinary Actions.--Currently, when 
     OSC pursues disciplinary action against managers who 
     retaliate against whistleblowers, OSC must demonstrate that 
     an adverse personnel action would not have occurred ``but 
     for'' the whistleblower's protected activity. Section (i) 
     would establish a more reasonable burden of proof by 
     requiring OSC to demonstrate that the whistleblower's 
     protected disclosure was a ``significant motivating factor'' 
     in the decision by the manager to take the adverse action, 
     even if other factors also motivated the decision. This 
     standard would be equivalent of the Mt. Healthy standard.
       Disclosures to Congress.--Section (j) would require 
     agencies to establish a process to provide confidential 
     advice to employees on how to lawfully make a protected 
     disclosure of classified information to Congress.
       Authority of Special Counsel.--Under current law, OSC has 
     no authority to request MSPB to reconsider a decision or seek 
     appellate review of a MSPB decision. This limitation 
     undermines OSC's ability to protect whistleblowers and 
     integrity of the WPA. Section k would authorize OSC to appear 
     in any civil action brought in connection with the WPA and 
     request appellate review of any MSPB order where OSC 
     determines MSPB erred and the case would have a substantial 
     impact on WPA enforcement.
       Judicial Review.--In 1982, Congress replaced normal 
     Administrative Procedures Act appellate review of MSPB 
     decisions with exclusive jurisdiction in the U.S. Court of 
     Appeals for the Federal Circuit. While the 1989 WPA and its 
     1994 amendments strengthened and clarified whistleblower 
     protections, Federal Circuit holdings have repeatedly 
     misinterpreted key provisions of the law. Subject to a five 
     year sunset , section (l) would suspend the Federal Circuit's 
     exclusive jurisdiction over whistleblower appeals and allow 
     petitions for review to be filed either in the Federal 
     Circuit or any other federal circuit court of competent 
     jurisdiction.
       Nondisclosure Restrictions on Whistleblowers.--Section (m) 
     would require all federal nondisclosure policies, forms and 
     agreements to contain specified language preserving the right 
     of federal employees to disclose certain protected 
     information. This section would codify the so-called anti-gag 
     provision that has been included in federal appropriations 
     bills since 1988.
       Critical Infrastructure Information.--Section (n) would 
     clarify that section 214(c) of

[[Page S8756]]

     the Homeland Security Act, HSA, maintains existing WPA rights 
     for independently obtained information that may also qualify 
     as critical infrastructure information under the HSA.
                                 ______