[Congressional Record Volume 153, Number 6 (Thursday, January 11, 2007)]
[Senate]
[Pages S455-S458]
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. Lieberman, Mr. Leahy, Mr. Voinovich, Mr. Carper, Mr. 
        Durbin, Mr. Pryor, and Mr. Lautenberg):
  S. 274. A bill to amend chapter 23 of title 5, United States Code, to 
clarify the disclosures of information protected from prohibited 
personnel practices, require a statement in nondisclosure policies, 
forms, and agreements that such policies, forms, and agreements conform 
with certain disclosure protections, provide certain authority for the 
Special Counsel, and for other purposes; 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 will make much needed 
changes to the Whistleblower Protection Act, WPA. I am pleased once 
again to be

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joined in this effort by Senators Collins, Grassley, Levin, Lieberman, 
Leahy, Voinovich, Carper, Durbin, Pryor, and Lautenberg.
  Senator Levin and I first introduced this legislation in 2000. In the 
House, Representatives Henry Waxman and Tom Davis, the chairman and 
ranking member of the House Government Reform Committee, and 
Representative Todd Platts, who has sponsored companion legislation 
since 2003, have been working to enact strong whistleblower 
protections.
  Over the years, we've worked to educate our colleagues on the need to 
strengthen the WPA and build consensus for the legislation. I'm 
especially pleased that last year our bill passed the Senate by 
unanimous consent as an amendment to the fiscal year 2007 Defense 
Authorization Act. While the measure was removed with other non-defense 
specific material in conference, I believe the Senate's action will 
provide the momentum to make a real difference for Federal 
whistleblowers in the 110th Congress.
  We agree that to ensure the success of any government program there 
must be appropriate checks in place to weed out mismanagement and 
wasteful spending. A strong and vibrant WPA is a critical tool in 
saving taxpayer money and ensuring an open government.
  The Federal Employee Protection of Disclosures Act addresses many 
court decisions that have eroded protections for Federal employees and 
have ignored congressional intent. Our legislation ensures that Federal 
whistleblowers are protected from retaliatory action when notifying the 
public and government leaders of waste, fraud, and abuse. If we fail to 
protect whistleblowers, then our efforts to improve government 
management, protect the public, and secure the nation will also fail.
  The legislation: clarifies congressional intent that Federal 
employees are protected for any disclosure of waste, fraud, or abuse--
including those made as part of an employee's job duties; provides an 
independent determination as to whether the loss or denial of a 
security clearance is retaliation against a whistleblower; and suspends 
the Federal Circuit Court of Appeals' sole jurisdiction over Federal 
employee whistleblower cases for 5 years, which would ensure a fuller 
review of a whistleblower's claim.
  Given that the United States will be fighting the war on terror for 
years to come and that funding such operations requires significant 
resources, it is imperative that government funds are spent wisely. 
That is why Federal employees must be confident that they can disclose 
government waste, fraud, and abuse without fear of retaliation. 
Restoring credibility to the WPA is no less than a necessity. I look 
forward to working with my colleagues to pass this critical 
legislation.
  I ask unanimous consent that the text of the legislation be printed 
in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 274

       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''; and
       (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)''.
       (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
       (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 mismanagement, 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), 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 could 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--

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       ``(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 regard 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 
     regard 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 73 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 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

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     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.
                                 ______