[Congressional Record Volume 151, Number 22 (Wednesday, March 2, 2005)]
[Senate]
[Pages S1935-S1938]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA (for himself, Ms. Collins, Mr. Grassley, Mr. Levin, 
        Mr. Leahy, Mr. Voinovich, Mr. Lieberman, Mr. Coleman, Mr. 
        Durbin, Mr. Dayton, Mr. Pryor, Mr. Johnson, Mr. Lautenberg, and 
        Mr. Carper):
  S. 494. 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

[[Page S1936]]

protections, provide certain authority for the Special Counsel, and for 
other purposes; to the Committee on Homeland Security and Governmental 
Affairs.
  Mr. AKAKA. Mr. President. Today I rise to reintroduce the Federal 
Employee Protection of Disclosures Act, which was unanimously reported 
out of the Senate Homeland Security and Governmental Affairs Committee 
last year with strong bipartisan support. I am joined again in this 
effort by Senator Collins, chairman of the committee, whose focus on 
this issue and willingness to work with me in developing this 
legislation demonstrates how important it is to ensure that Federal 
employees are protected when they disclose government waste, fraud, and 
abuse. I am pleased to be joined by our committee's ranking member, 
Senator Lieberman.
  Once again, I am proud to have the support of Senator Charles 
Grassley and Senator Carl Levin, both of whom are longstanding 
advocates of Federal whistleblowers. My colleagues from Iowa and 
Michigan championed the 1989 Whistleblower Protection Act and have 
supported my legislation since 2001. Their support, along with the 
strong bipartisan support of Senators Leahy, Voinovich, Coleman, 
Durbin, Dayton, Pryor, Johnson, Lautenberg, and Carper demonstrates the 
importance of this good government legislation.
  Our legislation will strengthen the protections given to Federal 
whistleblowers and encourage employees to come forward to disclose 
government waste, fraud, and abuse. Providing meaningful protection to 
whistleblowers fosters an environment that promotes the disclosure of 
government wrongdoing and mismanagement that may adversely affect the 
American public. If Federal employees fear reprisal for blowing the 
whistle, we fail to protect the whistleblower, taxpayers, and, in 
notable instances, national security and our public health.
  The most recent example is the disclosure by Dr. David Graham of the 
Food and Drug Administration, FDA, who exposed problems at the FDA 
regarding the safety of new pharmaceuticals. By revealing the threat 
posed to public health and the safety of pharmaceuticals currently on 
the market, as well as the organizational structure of the Center for 
Drug Evaluation and Research, CDER, and CDER's internal conflict of 
interest in evaluating the safety of drugs both pre- and post-
marketing, Dr. Graham risked his career to report hazards to our public 
health.
  As a direct result of Dr. Graham's decision to speak publicly, 
Americans are now more aware of the potential risks of various 
pharmaceuticals and government leaders are seeking ways to increase 
transparency of the oversight of new medications. Two weeks ago, the 
FDA announced the creation of a new Drug Safety Oversight Board to 
monitor the safety of prescription and over-the-counter drugs on the 
market more effectively. This new board is aimed at eliminating the 
conflict of interest found under the current CDER structure as 
disclosed by Dr. Graham.
  Other examples of whistle blowers who uncovered government 
mismanagement and threats to public safety include: Ms. Colleen Rowley 
who disclosed institutional problems at the Federal Bureau of 
Investigation prior to 2001 which affected national security, Mr. 
Richard Foster, who sought to disclose the actual cost of pending 
Medicare legislation to Congress, and Border Patrol Agents Mark Hall 
and Bob Lindemann, who revealed security lapses at our northern border 
immediately after September 11, 2001.
  In spite of the positive changes resulting from their disclosures, we 
are concerned that the very public struggles these individuals have 
endured after alerting Americans to waste, fraud, abuse, and security 
and health violations in the Federal Government may discourage others 
from coming forward. The root of these struggles lies in part with 
problems with the current legal structure and interpretation of the 
Whistleblower Protection Act. As a result of recent court decisions, 
legitimate whistleblowers have been denied adequate protection from 
retaliatory I practices. In fact, Federal whistleblowers have prevailed 
on the merits of their claims before the Federal Circuit Court of 
Appeals, which has sole jurisdiction over Federal employee 
whistleblower appeals, only once since 1994.
  To address these issues, our legislation would clarify congressional 
intent regarding the scope of protection provided to whistleblowers; 
provide for an independent determination as to whether a whistleblower 
was retaliated against by the revocation of his or her security 
clearance; establish a pilot program to suspend the Federal Circuit 
Court of Appeals' monopoly on Federal employee whistleblower cases for 
a period of five years; and provide the Office of Special Counsel, 
which is charged with representing the interests of Federal 
whistleblowers, the authority to file amicus briefs with federal courts 
in support of whistleblowers.
  Several of the provisions in the legislation reflect our efforts to 
address concerns raised by the Justice Department. While the Department 
still has objections to the intent of the legislation, partially 
because of its role in representing the interests of the alleged 
retaliatory agencies, I will continue to work with the Department. I am 
optimistic that we can reach an agreement on this good government 
measure in the near future.
  Congress has a duty to provide strong and meaningful protections for 
Federal whistleblowers. Only when Federal employees are confident that 
they will not face retaliation will they feel comfortable coming 
forward to disclose information that can be used to improve government 
operations, our national security, and the health of our citizens. I 
look forward to working with my colleagues to make this goal a reality.
  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. 494

       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, of information that the employee or 
     applicant reasonably believes is evidence of''; and
       (B) in clause (i), by striking ``a violation'' and 
     inserting ``any violation (other than a violation of this 
     section)''; and
       (3) by adding at the end the following:
       ``(C) any disclosure that--
       ``(i) is made by an employee or applicant of information 
     required by law or Executive order to be kept secret in the 
     interest of national defense or the conduct of foreign 
     affairs that the employee or applicant reasonably believes is 
     direct and specific evidence of--

       ``(I) any violation of any law, rule, or regulation;
       ``(II) gross mismanagement, a gross waste of funds, an 
     abuse of authority, or a substantial and specific danger to 
     public health or safety; or
       ``(III) a false statement to Congress on an issue of 
     material fact; and

       ``(ii) is made to--

       ``(I) a member of a committee of Congress having a primary 
     responsibility for oversight of a department, agency, or 
     element of the Federal Government to which the disclosed 
     information relates and who is authorized to receive 
     information of the type disclosed;
       ``(II) any other Member of Congress who is authorized to 
     receive information of the type disclosed; or
       ``(III) an employee of Congress who has the appropriate 
     security clearance and is authorized to receive information 
     of the type disclosed.''.

       (c) Covered Disclosures.--Section 2302(a)(2) of title 5, 
     United States Code, is amended--
       (1) in subparagraph (B)(ii), by striking ``and'' at the 
     end;
       (2) in subparagraph (C)(iii), by striking the period at the 
     end and inserting ``; and''; and

[[Page S1937]]

       (3) by adding at the end the following:
       ``(D) `disclosure' means a formal or informal communication 
     or transmission, but does not include a communication 
     concerning policy decisions that lawfully exercise 
     discretionary authority unless the employee providing the 
     disclosure reasonably believes that the disclosure 
     evidences--
       ``(i) any violation of any law, rule, or regulation; or
       ``(ii) gross management, a gross waste of funds, an abuse 
     of authority, or a substantial and specific danger to public 
     health or safety.''.
       (d) Rebuttable Presumption.--Section 2302(b) of title 5, 
     United States Code, is amended by amending the matter 
     following paragraph (12) to read as follows:

     ``This subsection shall not be construed to authorize the 
     withholding of information from Congress or the taking of any 
     personnel action against an employee who discloses 
     information to Congress, except that an employee or applicant 
     may be disciplined for the disclosure of information 
     described in paragraph (8)(C)(i) to a Member or employee of 
     Congress who is not authorized to receive such information. 
     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. For 
     purposes of paragraph (8), a determination as to whether an 
     employee or applicant reasonably believes that they have 
     disclosed information that evidences any violation of law, 
     rule, regulation, gross mismanagement, a gross waste of 
     funds, an abuse of authority, or a substantial and specific 
     danger to public health or safety shall be made by 
     determining whether a disinterested observer with knowledge 
     of the essential facts known to and readily ascertainable by 
     the employee would reasonably conclude that the actions of 
     the Government evidence such violations, mismanagement, 
     waste, abuse, or danger.''.
       (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 or any other access 
     determination by a covered agency;
       ``(xiii) an investigation, other than any ministerial or 
     nondiscretionary fact finding activities necessary for the 
     agency to perform its mission, 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, 
     other than any ministerial or nondiscretionary fact finding 
     activities necessary for the agency to perform its mission, 
     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 or 
     access determination, the Merit Systems Protection Board or 
     any reviewing court--
       ``(1) shall determine whether paragraph (8) or (9) of 
     section 2302(b) was violated;
       ``(2) may not order the President or the designee of the 
     President to restore a security clearance or otherwise 
     reverse a determination of clearance status or reverse an 
     access determination; 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 or access 
     determination was made in violation of paragraph (8) or (9) 
     of section 2302(b), the affected agency shall conduct a 
     review of that suspension, revocation, access determination, 
     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, access determination, or other determination was 
     made in violation of paragraph (8) or (9) of section 2302(b), 
     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, other 
     determination, or access determination. A report under this 
     paragraph shall include any proposed agency action with 
     regards to the security clearance or access determination.
       ``(c) An allegation that a security clearance or access 
     determination 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.
       ``(d) For purposes of this section, corrective action may 
     not be ordered if the agency demonstrates by a preponderance 
     of the evidence that it would have taken the same personnel 
     action in the absence of such disclosure.''.
       (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(a)(3) of title 5, 
     United States Code, is amended to read as follows:
       ``(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 paragraph 
     (8) or (9) of section 2302(b), the Board shall impose 
     disciplinary action if the Board finds that the activity 
     protected under paragraph (8) or (9) of section 2302(b) 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) Special Counsel Amicus Curiae Appearance.--Section 1212 
     of title 5, United States Code, is amended by adding at the 
     end the following:
       ``(h)(1) The Special Counsel is authorized to appear as 
     amicus curiae in any action brought in a court of the United 
     States related to any civil action brought in connection with 
     section 2302(b) (8) or (9), or subchapter III of chapter 73, 
     or as otherwise authorized by law. In any such action, the 
     Special Counsel is authorized to present the views of the 
     Special Counsel with respect to compliance with section 
     2302(b) (8) or (9) or subchapter III of chapter 77 and the 
     impact court decisions would have on the enforcement of such 
     provisions of law.
       ``(2) A court of the United States shall grant the 
     application of the Special Counsel to appear in any such 
     action for the purposes described in subsection (a).''.
       (j) Judicial Review.--
       (1) In general.--Section 7703(b)(1) of title 5, United 
     States Code, is amended to read as follows:
       ``(b)(1)(A) Except as provided in subparagraph (B) and 
     paragraph (2), a petition to review a final order or final 
     decision of the

[[Page S1938]]

     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 in a case alleging a violation of paragraph (8) or (9) 
     of section 2302(b) 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).''.
       (2) Review obtained by office of personnel management.--
     Section 7703(d) of title 5, United States Code, is amended to 
     read as follows:
       ``(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 relating to 
     paragraph (8) or (9) of section 2302(b) 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 
     paragraph (8) or (9) of section 2302(b). 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.''.
       (k) 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.
       (l) Clarification of Whistleblower Rights for Critical 
     Infrastructure Information.--Section 214(c) of the Homeland 
     Security Act of 2002 (6 U.S.C. 133(c)) is amended by adding 
     at the end the following: ``For purposes of this section a 
     permissible use of independently obtained information 
     includes the disclosure of such information under section 
     2302(b)(8) of title 5, United States Code.''.
       (m) Advising Employees of Rights.--Section 2302(c) of title 
     5, United States Code, is amended by inserting ``, including 
     how to make a lawful disclosure 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 to the Special Counsel, the Inspector General 
     of an agency, Congress, or other agency employee designated 
     to receive such disclosures'' after ``chapter 12 of this 
     title''.
       (n) Scope of Due Process.--
       (1) Special counsel.--Section 1214(b)(4)(B)(ii) of title 5, 
     United States Code, is amended by inserting ``, after a 
     finding that a protected disclosure was a contributing 
     factor,'' after ``ordered if''.
       (2) Individual action.--Section 1221(e)(2) of title 5, 
     United States Code, is amended by inserting ``, after a 
     finding that a protected disclosure was a contributing 
     factor,'' after ``ordered if''.
       (o) Effective Date.--This Act shall take effect 30 days 
     after the date of enactment of this Act.
                                 ______