[Senate Report 108-392]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-392
_______________________________________________________________________

                                     

                                                       Calendar No. 782

             FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2628

  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




                October 8, 2004.--Ordered to be printed
                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania          RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah              THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois        MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire        FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama           MARK PRYOR, Arkansas
           Michael D. Bopp, Staff Director and Chief Counsel
            Jennifer A. Hemingway, Professional Staff Member
                      Kendrick MacDowell, Counsel,
  Subcommittee on Financial Management, the Budget, and International 
                                Security
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
                  Lawrence B. Novey, Minority Counsel
                  Jennifer L. Tyree, Minority Counsel
  Subcommittee on Financial Management, the Budget, and International 
                                Security
                      Amy B. Newhouse, Chief Clerk


                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose & Summary................................................1
 II. Background.......................................................2
III. Legislative History.............................................23
 IV. Section-by-Section Analysis.....................................24
  V. Estimated Cost of Legislation...................................26
 VI. Evaluation of Regulatory Impact.................................26
VII. Changes in Existing Law.........................................27


                                                       Calendar No. 782
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-392

======================================================================



 
             FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT

                                _______
                                

                October 8, 2004.--Ordered to be printed

                                _______
                                

Ms. Collins, from the Committee on Governmental Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 2628]

    The Committee on Governmental Affairs, to which was 
referred the bill (S. 2628) 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, having considered the 
same reports favorably thereon and recommends that the bill do 
pass.

                         I. Purpose and Summary

    S. 2628, the Federal Employee Protection of Disclosures 
Act, is a bipartisan bill to make clarifications and changes to 
strengthen the Whistleblower Protection Act (WPA). S. 2628 was 
introduced on July 8, 2004, by Senators Akaka, Collins, 
Grassley, Levin, Leahy, Durbin, Fitzgerald, Pryor, Voinovich, 
Johnson, Dayton, Lieberman and Lautenberg, and is also 
cosponsored by Senators Carper and Coleman. The bill builds on 
an earlier version of the legislation, S. 1358, introduced by 
Senators Akaka, Grassley, Levin, Leahy, and Durbin, on June 26, 
2003, and cosponsored by Senators Dayton, Pryor, Johnson, and 
Lautenberg.
    Since passage of the Civil Service Reform Act (CSRA) in 
1978, Federal employees havebeen encouraged to disclose 
information of government waste, fraud, and abuse by the promise of 
protection from retaliation based on those disclosures. More recently, 
President Bush issued a memorandum for the heads of executive 
departments and agencies on the standards of official conduct. This 
memorandum specifically stated that employees shall disclose waste, 
fraud, abuse, and corruption to appropriate authorities.\1\
---------------------------------------------------------------------------
    \1\ Memorandum from President George W. Bush to the Heads of 
Executive Departments and Agencies on Standards of Official Conduct 
(Jan. 20, 2001).
---------------------------------------------------------------------------
    The Federal Employee Protection of Disclosures Act is 
designed to strengthen the rights and protections of federal 
whistleblowers and to help root out waste, fraud, and abuse. 
Although the events of September 11, 2001, have brought renewed 
attention to those who disclose information regarding security 
lapses at the Nation's airports, borders, law enforcement 
agencies, and nuclear facilities, the right of federal 
employees to be free from workplace retaliation has been 
diminished as a result of a series of decisions of the Federal 
Circuit Court of Appeals that have narrowly defined who 
qualifies as a whistleblower under the WPA and what statements 
are considered protected disclosures. The Committee is 
concerned that inadequate protection for whistleblowing creates 
a disincentive for civil servants to disclose government waste, 
fraud, and abuse, and information related to the public's 
health and safety.
    S. 2628 would restore congressional intent and strengthen 
the WPA by, among other things, clarifying the broad meaning of 
``any'' disclosure covered by the WPA; clarifying that 
disclosures of classified information to appropriate committees 
of Congress are protected; codifying an anti-gag provision to 
allow employees to come forward with disclosures of illegality; 
providing independent amicus brief authority for the Office of 
Special Counsel (OSC), the agency charged with protecting 
whistleblowers and the WPA; and allowing whistleblower cases to 
be heard by all United States Courts of Appeals for a period of 
five years.

                             II. Background

    The Civil Service Reform Act of 1978 created statutory 
protections for federal employees to encourage disclosure of 
government illegality, waste, fraud, and abuse. As stated in 
the Senate Report concerning the whistleblowing provisions of 
the civil service reform legislation:

          Often, the whistleblowers reward for dedication to 
        the highest moral principles is harassment and abuse. 
        Whistleblowers frequently encounter severe damage to 
        their careers and substantial economic loss. Protecting 
        employees who disclose government illegality, waste, 
        and corruption is a major step toward a more effective 
        civil service. In the vast federal bureaucracy it is 
        not difficult to conceal wrongdoing provided that no 
        one summons the courage to disclose the truth. Whenever 
        misdeeds take place in a federal agency, there are 
        employees who know that it has occurred, and who are 
        outraged by it. What is needed is a means to assure 
        them that they will not suffer if they help uncover and 
        correct administrative abuses. What is needed is a 
        means to protect the Pentagon employee who discloses 
        billions of dollars in cost overruns, the GSA employee 
        who discloses widespread fraud, and the nuclear 
        engineer who questions the safety of certain nuclear 
        plants. These conscientious civil servants deserve 
        statutory protection rather than bureaucratic 
        harassment and intimidation.\2\
---------------------------------------------------------------------------
    \2\ S. Rep. No. 95-969, at 8 (1978).

    The CSRA established OSC to investigate and prosecute 
allegations of prohibited personnel practices or other 
violations of the merit system and the Merit Systems Protection 
Board (MSPB) to adjudicate such cases. However, in 1984, the 
MSPB reported that in practice the Act had no effect on the 
number of whistleblowers and that federal employees continued 
to fear reprisals. The Senate Governmental Affairs Committee 
subsequently reported that employees felt that OSC engaged in 
apathetic and sometimes detrimental practices toward employees 
seeking its assistance. The Committee also found that 
restrictive MSPB and federal court decisions had hindered the 
ability of whistleblowers to win redress.\3\
---------------------------------------------------------------------------
    \3\ S. Rep. No. 100-413, at 6-16 (1988).
---------------------------------------------------------------------------
    In response, Congress in 1989 unanimously passed the 
Whistleblower Protection Act.\4\ The stated congressional 
intent of the WPA was to strengthen and improve protection for 
the rights of federal employees, to prevent reprisals, and to 
help eliminate wrongdoing within the government by (1) 
mandating that employees should not suffer adverse consequences 
as a result of prohibited personnel practices; and (2) 
establishing that while disciplining those who commit 
prohibited personnel practices may be used as a means to help 
accomplish that goal, the protection of individuals who are the 
subject of prohibited personnel practices remains the paramount 
consideration.\5\
---------------------------------------------------------------------------
    \4\ Whistleblower Protection Act of 1989, Public Law No. 101-12, 
103 Stat. 16 (1989).
    \5\ Id. at Sec. 2(b).
---------------------------------------------------------------------------
    Congress substantially amended the WPA in 1994, as part of 
legislation to reauthorize OSC and MSPB. The amendment was 
designed, in part, to address a series of actions by the OSC 
and decisions by the MSPB and the Federal Circuit that were 
deemed inconsistent with the congressional intent of the 1989 
Act. Both the House and Senate committee reports accompanying 
the 1994 amendments criticized these decisions, particularly 
those limiting the types of disclosures covered by the WPA. 
Specifically, this Committee explained that the 1994 amendments 
were intended to reaffirm its long-held view that the plain 
language of the Whistleblower Protection Act covers any 
disclosure:
    The Committee * * * reaffirms the plain language of the 
Whistleblower Protection Act, which covers, by its terms, ``any 
disclosure,'' of violations of law, gross mismanagement, a 
gross waste of funds, an abuse of authority, or a substantial 
and specific danger to public health or safety. The Committee 
stands by that language, as it explained in its 1988 report on 
the Whistleblower Protection Act. That report states: ``The 
Committee intends that disclosures be encouraged. The OSC, the 
Board and the courts should not erect barriers to disclosures 
which will limit the necessary flow of information from 
employees who have knowledge of government wrongdoing. For 
example, it is inappropriate for disclosures to be protected 
only if they are made for certain purposes or to certain 
employees or only if the employee is the first to raise the 
issue.'' \6\
---------------------------------------------------------------------------
    \6\ S. Rep. No. 103-358 (1994), at 10 (quoting S. Rep. No. 100-413 
(1988) at 13).
---------------------------------------------------------------------------
    Similarly, the House stated:

          Perhaps the most troubling precedents involve the 
        Board's inability to understand that ``any'' means 
        ``any.'' The WPA protects ``any'' disclosure evidencing 
        a reasonable belief of specified misconduct, a 
        cornerstone to which the MSPB remains blind. The only 
        restrictions are for classified information or material 
        the release of which is specifically prohibited by 
        statute. Employees must disclose that type of 
        information through confidential channels to maintain 
        protection; otherwise there are no exceptions.\7\
---------------------------------------------------------------------------
    \7\ H. Rep. No. 103-769, at 18 (1994).
---------------------------------------------------------------------------

Clarification of what constitutes a protected disclosure under the WPA

    Despite the intended clarification of the 1994 amendments, 
it is necessary again to state legislatively what constitutes a 
protected disclosure under the WPA. Judicial reluctance to 
apply an expansive definition of protected disclosures as 
Congress intended has been manifest in several Federal Circuit 
cases.\8\
---------------------------------------------------------------------------
    \8\ See, e.g., Horton v. Department of the Navy, 66 F.3d 279 (Fed. 
Cir. 1995) (disclosures to co-worker or wrongdoer not protected because 
not disclosed to person in position to redress wrong); Willis v. 
Department of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998) (stating in 
dictum that disclosure made as part of normal job duties not 
protected); Meuwissen v. Department of Interior, 234 F.3d 9 (Fed. Cir. 
2000) (disclosure of information already known not protected).
---------------------------------------------------------------------------
    In some cases, the MSPB has undertaken a careful 
examination of broad language in Federal Circuit decisions, and 
limited the holding to its facts--thus blunting what might have 
been reckless precedent.\9\ In Askew v. Department of the Army, 
the MSPB additionally concluded that loose language in 
Meuwissen \10\ was broader than necessary to decide the case 
and sensibly limited the holding to its factual context.\11\
---------------------------------------------------------------------------
    \9\ See, e.g., Johnson v. Department of Health and Human Services, 
87 M.S.P.R. 204, 210 (2000) (limiting Willis to its factual context and 
rejecting claim that Willis stood for the broad proposition that had 
been rejected by both the MSPB and the Federal Circuit); accord Askew 
v. Department of the Army, 88 M.S.P.R. 674, 679-80 (2001) (cautioning 
that Willis ought not be read too broadly and rejecting the proposition 
that Willis held that ``disclosure of information in the course of an 
employee's performance of her normal duties cannot be protected 
whistleblowing''); Sood v. Department of Veterans Affairs, 88 M.S.P.R. 
214, 220 (2001); Czarkowski v. Department of the Navy, 87 M.S.P.R. 107 
(2000).
    \10\ 234 F.3d 9 (Fed. Cir. 2000).
    \11\ 88 M.S.P.R. 674, 681-82 (2001).
---------------------------------------------------------------------------
    In other cases, the Federal Circuit itself has acknowledged 
that its holdings have generated confusion, and attempted to 
eliminate some of that confusion by narrowing some overbroad 
loopholes that (a) disclosures must be made to a person with 
actual authority to correct the wrong, and (b) disclosures made 
in the normal course of employment duties are not 
protected.\12\
---------------------------------------------------------------------------
    \12\ See Huffman v. Office of Personnel Management, 263 F.3d 1341 
(Fed. Cir. 2001).
---------------------------------------------------------------------------
    The evident judicial difficulty in settling upon a precise 
scope of protection appears to be driven, at least in part, by 
concern that management of the federal workforce may become 
unduly burdensome if it is too easy to claim whistleblower 
status in ordinary employment disputes.\13\ Certainly the 
Department of Justice has voiced this concern with the broad 
scope of whistleblower protection. It is a concern that the 
Committee takes seriously. However, the purpose of S. 2628 is, 
in part, to resolve this particular policy tension in favor of 
greater whistleblower protection. We can take other steps to 
deter and weed out frivolous whistleblower claims, but we 
cannot begin to calculate the potential damage to the nation 
should good-faith whistleblowing become chilled by a hostile 
process on the threshold question of what constitutes a 
``disclosure.''
---------------------------------------------------------------------------
    \13\ See, e.g., Herman v. Department of Justice, 193 F.3d 1375 
(Fed. Cir. 1999); Frederick v. Department of Justice, 73 F.3d 349, 353 
(Fed. Cir. 1996).
---------------------------------------------------------------------------
    S. 2628 accordingly amends the WPA to 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.''
    While S. 2628 definitively resolves the scope of protected 
disclosures in favor of the broadest protection--and 
effectively restores Congress' original intent--we note that a 
prima facie whistleblower case additionally requires a showing 
that the employee reasonably believethat the disclosure 
evidences a violation of law or other enumerated items in 5 U.S.C. 
Sec. 2302(b)(8). As detailed further below, the Federal Circuit has 
held that the reasonable belief test is an objective one, viz., whether 
a disinterested observer with knowledge of the facts known to and 
readily ascertainable by the employee could reasonably conclude that 
the conduct evidences a violation of law, gross mismanagement, or other 
matters identified in 5 U.S.C. Sec. 2302(b)(8).14 The 
Committee deems it prudent to codify that objective test in the 
whistleblower statute, and has done so in S. 2628. Thus, in screening 
frivolous claims, the focus would properly shift to the objective 
reasonableness of the employee's belief rather than the semantics of 
``disclosure.'' In our view, potential mischief with an expanded scope 
of protection may be countered by careful application of this objective 
reasonable belief test. Failing this filter, the agency may still 
prevail on its defense that it would have taken the same action even 
absent the disclosure. But in this latter scenario, there may still be 
some collateral benefit from ventilating the underlying claim.
---------------------------------------------------------------------------
    \14\ Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); 
accord Rusin v. Department of the Treasury, 92 M.S.P.R. 298 (2002).
---------------------------------------------------------------------------
    Finally, the Committee does acknowledge one reasonable 
limitation on the scope of protected disclosures that emerged 
during the hearing on this bill's predecessor, S. 1358. The 
Senior Executives Association testified that they believed that 
an unrestricted scope of protected disclosure could be 
construed to include lawful policy decisions of a supervisor or 
manager, and recommended that the bill be clarified to deny 
protection for disclosures that relate only to agency policy 
decisions that a reasonable employee should 
follow.15 Put another way, disclosures must be 
specific and factual, not general, philosophical, or policy 
disagreements. S. 2628 incorporates that limitation, which 
reflects congressional intent at the inception of statutory 
whisteblower protection.16
---------------------------------------------------------------------------
    \15\ S. 1358--The Federal Employee Protection of Disclosures Act: 
Amendments to the Whistleblower Protection Act: Hearing on S. 1358 
Before the Committee on Governmental Affairs, S. Hrg. 108-414, at 163 
(2003).
    \16\ See S. Rep. No. 969, 95th Cong., 2d Sess. 8 (1978), reprinted 
in 1978 U.S.C.C.A.N. 2723, 2730 (``the Committee intends that only 
disclosures of public health or safety dangers which are both 
substantial and specific are to be protected. Thus, for example, 
general criticisms by an employee of the Environmental Protection 
Agency that the agency is not doing enough to protect the environment 
would not be protected under this subsection.'').
---------------------------------------------------------------------------
    At the same time, the Committee recognizes the need to curb 
a disturbing trend that the WPA does not cover disclosures of 
tangible misconduct arguably flowing from a policy decision. As 
a result, S. 2628 provides balance by codifying that an 
employee is still protected for disclosing evidence of 
illegality, gross waste, gross mismanagement, abuse of 
authority or a substantial and specific danger to public health 
or safety, if it is evidence of empirical consequences arguably 
resulting from a policy decision, whether properly or 
improperly implemented. This language is consistent with 
Federal Circuit precedent.17
---------------------------------------------------------------------------
    \17\ Gilbert v. Dept. of Commerce, 194 F.3d 1332 (Fed. Cir. 1999).
---------------------------------------------------------------------------

Reasonable belief--Irrefragable proof

    As noted above, a prima facie whistleblower case entails a 
showing that the employee reasonably believes that the 
disclosure evidences a violation of law, rule, or regulation, 
or gross mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to public 
health and safety. The test for reasonable belief, as developed 
in case law and prospectively codified in S. 2628, is an 
objective one. However, again with loose language, if not 
actual application, the Federal Circuit added the ungainly 
burden of ``irrefragable proof'' to rebut the standard 
presumption that the government acts in good 
faith.18 S. 2628 would purge the word 
``irrefragable'' from whistleblower jurisprudence.
---------------------------------------------------------------------------
    \18\ Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
---------------------------------------------------------------------------
    In Lachance v. White, the Office of Personnel Management 
(OPM) sought review of an MSPB order that found that White made 
protected disclosures resulting in a downgrade in position. OPM 
argued that White's belief that he uncovered gross 
mismanagement (an allegedly wasteful Air Force education 
program) was inadequate to support a violation of the WPA 
without an independent review of the reasonableness of the 
belief by MSPB. The Federal Circuit agreed and stated that MSPB 
must look for evidence that it was reasonable to believe that 
the disclosures revealed misbehavior by the Air Force described 
by 5 U.S.C. Sec. 2302(b)(8). The court said that the test is: 
``Could a disinterested observer with knowledge of the 
essential facts known to and readily ascertainable by the 
employee reasonably conclude that the actions of the government 
evidence gross mismanagement? A purely subjective perspective 
of an employee is not sufficient even if shared by other 
employees.'' 19
---------------------------------------------------------------------------
    \19\ Id.
---------------------------------------------------------------------------
    However, the court then added that the reasonableness 
review must begin with the ``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.'' 20 Irrefragable means impossible to 
refute.21 Read literally, therefore, the holding 
would have required employees to establish the reasonableness 
of their belief at the threshold by offering indisputable proof 
that the public official or officials acted in bad faith or 
violated the law. Such an evidentiary burden is contrary to 
logic and clear congressional intent. Fortunately, the MSPB 
recognized the misstep on remand.
---------------------------------------------------------------------------
    \20\ Id. (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 
(Fed. Cir. 1993)).
    \21\ Merriam-Webster's Collegiate Dictionary (10th ed. 1999). The 
peculiar word has some currency in other jurisprudence entrusted to the 
Federal Circuit, government contracting for example, though the concept 
there is usually ``almost irrefragable,'' or ``well nigh 
irrefragable''--rendered in familiar terms as ``clear and convincing.'' 
See, e.g., Galen Medical Associates, Inc. v. United States, 369 F.3d 
1324, 1330 (Fed. Cir. 2004).
---------------------------------------------------------------------------
    In 2003, on remand from the Federal Circuit, the MSPB 
sensibly ruled that:

          The WPA clearly does not place a burden on an 
        appellant to submit ``irrefragable proof'' to rebut a 
        presumption that federal officials act in good faith 
        and in accordance with law. There is no suggestion in 
        the legislative history of the WPA that Congress 
        intended such a burden be placed on an appellant. When 
        Congress amended the WPA in 1994, it did nothing to 
        indicate that the objective test, which had been 
        articulated by the Board by that time, was inconsistent 
        with the statute. The dictionary definition of 
        ``irrefragable'' suggests that a putative whistleblower 
        would literally have to show that the agency actually 
        engaged in gross mismanagement, even though the WPA 
        states that he need only have a reasonable belief as to 
        that matter. The Federal Circuit itself has not imposed 
        an ``irrefragable proof'' burden on appellants in cases 
        decided after White * * * and has, in fact, stated that 
        the ``proper test'' is the objective, ``disinterested 
        observer'' standard.
          As the objective test contemplates, the Board can 
        presume that ``public officers perform their duties 
        correctly, fairly, in good faith, and in accordance 
        with the law and governing regulations,'' which is the 
        portion of Alaska Airlines, Inc. v. Johnson quoted by 
        the court in White * * * That presumption is merely one 
        consideration in deciding whether a reasonable person 
        in the appellant's situation could have believed that 
        the agency engaged in gross mismanagement. For all of 
        the above reasons, we conclude that the part of the 
        quote from Alaska Airlines dealing with a rebuttal of 
        that presumption by irrefragable proof has to be dictum 
        which was simply added to the end of the quotation from 
        Alaska Airlines, a case which had nothing to do with 
        the WPA or the case law that had developed on the 
        objective test for reasonable belief under that 
        statute.22
---------------------------------------------------------------------------
    \22\ White v. Dept. Air Force, DE-1221-92-0491-M-4 at 7-8 (MSPB 
September 11, 2003).

Although the MSPB rejected the ``irrefragable proof'' burden, 
there is some evidence that the message has not reached 
everyone. For example, in an order denying a stay request, the 
MSPB administrative judge in Chambers v. Department of the 
Interior quoted the Federal Circuit's ``irrefragable proof'' 
language.23 While the decision did not actually 
employ the ``irrefragable proof'' standard, as it was 
irrelevant to the limited procedural disposition at issue--and 
while it seems unlikely that such an unwieldy burden would ever 
actually be applied--the concept of ``irrefragable proof'' has 
no place in whistleblower jurisprudence.
---------------------------------------------------------------------------
    \23\ Chambers v. Dept. Interior, DC-1221-04-0616-S-1 and DC-0752-
04-0642-S-1, at 4 (MSPB July 27, 2004).
---------------------------------------------------------------------------
    S. 2628 codifies the objective test in Lachance, but 
provides that any presumption that a public official (i.e., the 
official whose misconduct the whistleblower is disclosing) 
acted in good faith may be rebutted by ``substantial evidence'' 
rather than ``irrefragable proof.'' Substantial evidence has 
been defined by the Supreme Court as ``such relevant evidence 
as a reasonable mind might accept as adequate to support a 
conclusion.'' 24 It consists of ``more than a mere 
scintilla of evidence but may be somewhat less than a 
preponderance.'' 25 By establishing a substantial 
evidence test, the Committee intends to provide a standard that 
will not be a higher burden than the preponderance of the 
evidence standard that employees must meet to prove their case 
on the merits, which is consistent with the legislative history 
of the Act. Indeed, a cornerstone of 5 U.S.C. Sec. 2302(b)(8) 
since its initial passage in 1978 has been that an employee 
need not ultimately prove any misconduct to qualify for 
whistleblower protection. All that is necessary is for the 
employee to have a reasonable belief that the information is 
evidence of misconduct listed in section 
2302(b)(8).26
---------------------------------------------------------------------------
    \24\ Richardson v. Perales, 402 U.S. 389, 401 (1971).
    \25\ Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting 
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
    \26\ Ramos v. FAA, 4 M.S.P.R. 388 (1980).
---------------------------------------------------------------------------

All-circuit review

    When the Civil Service Reform Act of 1978 was enacted, it 
gave employees an option of where to appeal final orders of the 
MSPB. The 1978 Act allowed a petition to be filed in either the 
Court of Claims, the U.S. Court of Appeals for the circuit 
where the petitioner resided, or the U.S. Court of Appeals for 
the D.C. Circuit.27 In 1982, when the Federal 
Circuit was created, Congress established that petitions for 
review of an MSPB order could be filed only with the Federal 
Circuit.28 (An exception applies to cases of 
discrimination before the MSPB, which are filed in district 
court under the applicable anti-discrimination law.) 
29
---------------------------------------------------------------------------
    \27\ Public Law No. 95-454, Sec. 205, 92 Stat. 1143 (Oct. 13, 1978) 
(adding 5 U.S.C. 7703).
    \28\ Public Law No. 97-164, Sec. 144 (April 2, 1982).
    \29\ 5 U.S.C. Sec. 7702, 7703(b)(2).
---------------------------------------------------------------------------
    During the hearing on S. 1358, attorney Stephen Kohn, 
Chairman of the NationalWhistleblower Center, testified that:

          Restricting appeals to one judicial circuit 
        undermines the basic principle of appellate review 
        applicable to all other whistleblower laws. That 
        principle is based on an informed peer review process 
        which holds all circuit judges accountable. * * * [As 
        appeals courts disagree with each other,] courts either 
        reconsider prior decisions and/or the case is heard by 
        the Supreme Court, which resolves the dispute.
          By segregating federal employee whistleblowers into 
        one judicial circuit, the WPA avoids this peer review 
        process and no ``split in the circuits'' can ever 
        occur. In the Federal Circuit no other judges 
        critically review the decisions of the Court, no 
        ``split in the circuits'' can ever occur, and thus 
        federal employees are denied the most important single 
        procedure which holds appeals court judges reviewable 
        and accountable. A ``split in the circuits'' is the 
        primary method in which the U.S. Supreme Court reviews 
        wrongly decided appeals court decisions.
          Employees cannot obtain meaningful Supreme Court 
        review of cases decided against whistleblowers, but the 
        government-employers can. The second method for which 
        an appeals court decision is subject to Supreme Court 
        review, is when the Solicitor of the United States 
        asserts that the case raises a significant question of 
        law. In the case of the WPA, the Solicitor represents 
        the employer-agency. That authority has never (and most 
        likely can never) been exercised in support of an 
        employee-whistleblower.30
---------------------------------------------------------------------------
    \30\ Hearing supra note 15, (statement of Stephen Kohn, Chairman, 
Board of Directors, National Whistleblower Center) at 136.

    The Committee believes that this argument raises valid 
points about the current arrangement for judicial review. 
Moreover, unlike Federal employee whistleblower cases, a number 
of Federal statutes already allow cases involving rights and 
protections of Federal employees, or involving whistleblowers, 
to be subject to multi-circuit review, i.e., they may be 
appealed to Courts of Appeals across the country. Decisions of 
the Federal Labor Relations Authority (FLRA) may be appealed to 
Court of Appeals for the Circuit where the petitioner resides 
or to the D.C. Circuit.31
---------------------------------------------------------------------------
    \31\ 5 U.S.C. Sec. 7123.
---------------------------------------------------------------------------
    In addition, in cases involving allegations of 
discrimination, cases decided by the MSPB may be brought in the 
United States District Courts. State or local government 
employees affected by the MSPB's Hatch Act decisions may also 
obtain review in the U.S. District Courts.32 Appeal 
from decisions of the District Courts in these cases may then 
be brought in the appropriate Court of Appeals for the 
appropriate Circuit.
---------------------------------------------------------------------------
    \32\ 5 U.S.C. Sec. 1508.
---------------------------------------------------------------------------
    Moreover, a multi-circuit appellate review process is 
available under existing law for several kinds of whistleblower 
claims. For example, under the False Claims Act, as amended in 
1986, whistleblowers who disclose fraud in government contracts 
can file a case in District Court and appeal to the appropriate 
Federal Court of Appeals.33 Congress passed the 
Resolution Trust Corporation Completion Act in 1993, which 
provided employees of banking related agencies the right to go 
to District Court and have regular avenues of 
appeal.34 In 1991, Congress passed the Federal 
Deposit Insurance Corporation Improvement Act which provides 
district court review with regular avenues of appeal for 
whistleblowers in federal credit unions.35
---------------------------------------------------------------------------
    \33\ 31 U.S.C. Sec. 3730(h).
    \34\ 12 U.S.C. Sec. 1441a(q).
    \35\ 12 U.S.C. Sec. 1790b(b).
---------------------------------------------------------------------------
    Department of Labor corporate whistleblower laws passed as 
part of the Energy Reorganization Act, as amended in 
1992,36 and the Clean Air Act, as amended in 
1977,37 allow whistleblowers to obtain review of 
orders issued in the Department of Labor administrative process 
in the appropriate Federal Court of Appeals. The Wendell H. 
Ford Aviation Investment and Reform Act for the 21st Century 
(AIR 21),38 passed in 2000, allows whistleblowers to 
obtain review of their cases in the appropriate Federal Court 
of Appeals.
---------------------------------------------------------------------------
    \36\ 42 U.S.C. Sec. 5851(c).
    \37\ 42 U.S.C. Sec. 7622(c).
    \38\ 49 U.S.C. Sec. 42121(b)(4).
---------------------------------------------------------------------------
    Subject to a five-year sunset, S. 2628 would conform the 
system for judicial review of Federal whistleblower cases to 
that established for private sector whistleblower cases and 
certain other Federal employee appeal systems by suspending the 
Federal Circuit's exclusive jurisdiction over whistleblower 
appeals. The five year period will allow Congress to evaluate 
whether decisions of other appellate courts in whistleblower 
cases are consistent with the Federal Circuit's interpretation 
of WPA protections, guide Congressional efforts to clarify the 
law if necessary, and determine if this structural reform 
should be made permanent.

Office of Special Counsel--Amicus Curiae Authority

    The OSC, initially established in 1979 as the investigative 
and prosecutorial arm of the MSPB, became an independent agency 
within the Executive Branch, separate from the MSPB, with 
passage of the WPA in 1989. The Special Counsel does not serve 
at the President's pleasure, but ``may be removed by the 
President only for inefficiency, neglect of duty, or 
malfeasance in office.'' \39\ The primary mission of OSC is to 
protect federal employees and applicants from prohibited 
employment practices, with a particular focus on protecting 
whistleblowers from retaliation. OSC accomplishes this mission 
by investigating complaints filed by federal employees and 
applicants that allege that federal officials have committed 
prohibited personnel practices.
---------------------------------------------------------------------------
    \39\ 5 U.S.C. Sec. 1211(b).
---------------------------------------------------------------------------
    When such a claim is filed by a federal employee, OSC 
investigates the allegation to determine whether there are 
reasonable grounds to believe that a prohibited personnel 
practice has occurred. If the Special Counsel determines there 
are reasonable grounds to believe that a prohibited personnel 
practice has occurred, a report is sent to the head of the 
employing agency, outlining OSC's findings and requesting that 
the agency remedy the illegal action. In the majority of cases 
in which the Special Counsel believes that a prohibited 
personnel practice has occurred, the agencies voluntarily take 
corrective action.'' \40\ If an agency does not do so, OSC is 
authorized to file a petition for corrective action with the 
MSPB.'' \41\
---------------------------------------------------------------------------
    \40\ U.S. Office of Special Counsel, Annual Report for Fiscal Year 
2003, at 7.
    \41\ 5 U.S.C. Sec. 1214(b)(2)(C).
---------------------------------------------------------------------------
    If the OSC does not send the whistleblower's disclosures to 
an agency head, it returns the information and any accompanying 
documents to the whistleblower explaining why the Special 
Counsel did not refer the information. In such a situation, the 
whistleblower may file a request for corrective action with the 
MSPB. This procedure is commonly known as an individual right 
of action (IRA). At proceedings before the MSPB, OSC is 
represented by its own attorneys while the employing agency is 
represented by the agency's counsel. In IRAs, OSC may not 
intervene unless it has the consent of the whistleblower.
    Under this system, however, OSC's ability to effectively 
enforce and defend whistleblower laws is limited. For example, 
the law provides the OSC with no authority to request that the 
MSPB reconsider its decision or to seek review of an MSPB 
decision by the Federal Circuit. Even when another party with 
authority to petition for a review of an MSPB decision does so, 
OSC has historically been denied the right to participate in 
those proceedings. Further, OPM, which typically is not a party 
to the case, can request that the MSPB reconsider its rulings, 
while OSC cannot. OSC's handicap is especially acute because 
the majority of the MSPB's whistleblower decisions arise in IRA 
cases where OSC is not a party.
    Furthermore, the Department of Justice (DOJ) has recognized 
OSC's right to appear as an intervenor only in those few cases 
where OSC was a party before the Board and the case reaches the 
court of appeals on another party's petition for review. These 
cases usually involve agency officials' efforts to reverse 
Board decisions that have granted a petition by OSC to impose 
discipline for retaliating against a whistleblower. Because OSC 
lacks independent litigating authority, it must be represented 
by the Justice Department, rather than its own attorneys in 
such cases. DOJ's representation of OSC could be a significant 
impediment to the effective enforcement of the WPA because DOJ 
routinely represents employing agencies and their officers or 
OPM on appeal in IRA cases. Indeed, DOJ itself could be the 
respondent in such cases.
    As a result of the current structure, OSC is blocked from 
participating in the forum in which the law is largely shaped: 
the U.S. Court of Appeals for the Federal Circuit (and, if this 
legislation is enacted, the other Circuits). Should the OSC 
conclude that MSPB misinterprets one of the laws within OSC's 
jurisdiction, the OSC has no right to appeal that decision, 
even if it was a party before the MSPB. This limitation 
undermines both OSC's ability to protect whistleblowers and the 
integrity of the whistleblower law.
    The Committee believes that OSC should play a role in 
whistleblower cases before the Federal Circuit. As such, S. 
2628 provides the Special Counsel with authority to file amicus 
briefs with the federal courts on matters relating to 
whistleblower cases or other matters designated in the bill. 
This authority is similar to that granted to the Chief Counsel 
for Advocacy of the Small Business Administration. Under 
section 612 of the Regulatory Flexibility Act (RFA),\42\ the 
Chief Counsel for Advocacy has the authority to appear as 
amicus curiae (i.e., ``friend of the court'') in any court 
action to review a government rule. Specifically, the Chief 
Counsel is authorized to present views with respect to 
compliance with the RFA, the adequacy of a rulemaking record 
pertaining to small entities, and the effect of rules on small 
entities. Federal courts are bound to grant the amicus curiae 
application of the Chief Counsel.\43\
---------------------------------------------------------------------------
    \42\ Public Law No. 96-354.
    \43\ 5 U.S.C. Sec. 612(c).
---------------------------------------------------------------------------
    Before passage of the Small Business Regulatory Enforcement 
Fairness Act (SBREFA) in 1988,\44\ there was no judicial review 
of RFA actions, and the Chief Counsel's amicus authority was 
frequently challenged. However, merely the threat of exercising 
the authority could achieve corrective action.
---------------------------------------------------------------------------
    \44\ Public Law No. 104-121.
---------------------------------------------------------------------------
    For example, in 1994, the Chief Counsel prepared an amicus 
curiae brief in Time Warner Entertainment Company v. FCC \45\ 
The Chief Counsel argued, among other things, that 
noncompliance with the RFA was arbitrary and capricious under 
the Administrative Procedure Act. After last-minute 
negotiations, the FCC agreed to alter its policy and the Chief 
Counsel withdrew its notice of intent to file. Furthermore, in 
Southern Offshore Fishing Association v. Daley,\46\ the Chief 
Counsel withdrew its notice of intent to file after it was able 
to obtain an agreement from the Department of Justice (DOJ) 
that the proper standard of review in RFA cases is the 
``arbitrary and capricious'' standard. This acknowledgment from 
DOJ was significant--not only because it conceded the use of 
the appropriate standard, but also because it implicitly 
accepted the Chief Counsel's authority to file amicus briefs. 
This concession was important as DOJ had always objected to 
Advocacy's right to file such briefs in the past.
---------------------------------------------------------------------------
    \45\ 56 F.3d 151 (D.C. Cir. 1995), cert. denied, 516 US 112 (1996).
    \46\ 995 F. Supp. 1411 (M.D. Fla. 1998).
---------------------------------------------------------------------------
    The Committee believes that granting this authority to OSC 
is necessary, not only to ensure OSC's effectiveness, but also 
to address continuing concerns about the whittling away of the 
WPA's protections by narrow judicial interpretations of the 
law.

Burden of proof in OSC disciplinary actions

    Current law authorizes the OSC to pursue disciplinary 
action against managers who retaliate against whistleblowers. 
More generally, if the Special Counsel determines that 
disciplinary action should be taken against an employee for 
having committed a prohibited personnel practice or other 
misconduct within OSC's purview, the Special Counsel shall 
present a written complaint to the MSPB, and then the Board may 
issue an order taking disciplinary action against the 
employee.\47\
---------------------------------------------------------------------------
    \47\ 5 U.S.C. Sec. 1215.
---------------------------------------------------------------------------
    However, under MSPB case law, OSC bears the burden of 
demonstrating that protected activity was the ``but-for cause'' 
of an adverse personnel action against a whistleblower--in 
other words, if the whistleblowing activity had not occurred, 
then that manager would not have taken the adverse personnel 
action.\48\ This can be a heavy burden to meet. In 1989, 
Congress lowered the burden of proof for whistleblowers to win 
corrective action against retaliation. The 1989 Act eliminated 
the relevance of employer motives, eased the standard to 
establish a prima facie case (showing that the protected speech 
was a contributing factor in the action), and raised the burden 
for agencies, who must now provide independent justification 
for the personnel action at issue by clear and convincing 
evidence.\49\ However, the 1989 statutory language only 
established burdens for defending against retaliation. It 
failed to address disciplinary actions. As a result, the Board 
has on many occasions ruled that whistleblower reprisal had 
been proven for purposes of providing relief to the employees, 
but rejected OSC's claim for disciplinary action against the 
managers in the same case.\50\
---------------------------------------------------------------------------
    \48\ Special Counsel v. Santella, 65 M.S.P.R. 452 (1994).
    \49\ 5 U.S.C. Sec. Sec. 1214 and 1221. See also 135 Cong. Rec. 
4509, 4517, 5033 (1989).
    \50\ Letter from Elaine Kaplan, Special Counsel, Office of Special 
Counsel, to Sen. Carl Levin (Sept. 11, 2002) (explaining that MSPB case 
law relating to OSC's disciplinary authority should be overturned, Ms. 
Kaplan wrote ``change is necessary in order to ensure that the burden 
of proof in these [disciplinary] cases is not so onerous as to make it 
virtually impossible to secure disciplinary action against 
retaliators.'').
---------------------------------------------------------------------------
    The bill addresses the burden of proof problem in OSC 
disciplinary action cases by employing the same burden-of-proof 
as was set forth by the Supreme Court in Mt. Healthy v. 
Doyle.\51\ Under the Mt. Healthy test, 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, even if other factors were considered in the 
decision. If OSC made such a showing, the MSPB would order 
appropriate discipline unless the official showed, ``by a 
preponderance of evidence,'' that he or she would have taken or 
threatened to take the same personnel action even if there had 
been no protected whistleblower disclosure.
---------------------------------------------------------------------------
    \51\ Mt. Healthy City School District Board of Education v. Doyle, 
429 U.S. 274 (1977).
---------------------------------------------------------------------------

OSC attorney fees

    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, 
requiring OSC to pay attorney fees can have a chilling effect 
on OSC's aggressive protection of the WPA and whistleblowers.
    Illustrative of the problem and the importance of S. 2628's 
solution is Santella v. Special Counsel.\52\ In a 2-1 decision, 
the Board held that OSC could be held liable to pay attorney 
fees, even in cases where its decision to prosecute was a 
reasonable one, if the accused agency officials were ultimately 
found ``substantially innocent'' of the charges brought against 
them. The Board majority further ruled that two supervisors in 
the Internal Revenue Service (IRS) were ``substantially 
innocent'' of retaliation, notwithstanding an earlier finding 
by an MSPB administrative law judge that their subordinates' 
whistleblowing was a contributing factor in four personnel 
actions the supervisors took against them.
---------------------------------------------------------------------------
    \52\ 86 M.S.P.R. 48 (May 9, 2000).
---------------------------------------------------------------------------
    OSC argued that because its decision to prosecute the 
supervisors was a reasonable one and based upon then-existing 
law, an award of fees would not be in the interests of justice. 
In fact, OSC contended, sanctioning an award of fees under 
these circumstances would be counter to the public interest and 
contrary to congressional intent that OSC vigorously enforce 
the Whistleblower Protection Act by seeking the discipline of 
supervisors who violate the Act. OSC also argued that, in the 
alternative, if the supervisors were entitled to be reimbursed 
for their attorney fees, then their employing agency, the IRS, 
should be found liable.
    The Board majority rejected OSC's arguments. It held that 
OSC, and not IRS should be liable for any award of fees. It 
further found that--because the supervisors had ultimately 
prevailed in the case under the Board's more stringent burden 
of proof--they were ``substantially innocent'' of the charges, 
and reimbursement of their fees would be in the interests of 
justice.
    Vice Chair Slavet dissented. She observed that OSC had 
presented ``direct evidence of retaliatory animus on the part 
of one of the [supervisors] and circumstantial evidence of 
retaliation supporting all the charges.'' Further, she noted, 
``the majority opinion simply does not grapple with the fact 
that the controlling law changed midstream. OSC proved its 
charges to the satisfaction of the ALJ under the law as it 
existed when the action was commenced, but lost when the test 
was revised and made harder to meet in the course of the 
litigation.'' Under these circumstances, then Vice Chair Slavet 
observed, OSC's pursuit of the case was reasonable and an award 
of fees was not in the interests of justice.
    The Committee believes that OSC's disciplinary action 
authority is a powerful weapon to deter whistleblowing 
retaliation. However, OSC is a small agency with a relatively 
limited budget. Should the Santella case remain valid law, OSC 
would be required to predict to a certainty that it will 
prevail and even predict the unpredictable: changes in the law 
that might affect OSC's original assessment of a case's merit. 
This burden would hinder OSC's disciplinary action weapon and 
threaten its ability to protect the WPA. To correct this 
problem, S. 2628 would require the employing agency, rather 
than OSC, to reimburse the manager's attorney fees.

Anti-gag provisions

    In 1988, Senator Grassley attached an amendment to the 
Treasury, Postal and General Government Appropriations bill, 
which was and continues to be referred to as the ``anti-gag'' 
provision.\53\ This provision has been included in 
appropriations legislation every year since then. The annual 
anti-gag provision states that no appropriated funds may be 
used to implement or enforce agency non-disclosure policies or 
agreements unless there is a specific, express statement 
informing employees that the disclosure restrictions do not 
override their right to disclose waste, fraud, and abuse under 
the WPA, to communicate with Congress under the Lloyd 
Lafollette Act, and to make appropriate disclosures under other 
particular laws specified in the addendum. This bill would 
institutionalize the anti-gag provision by codifying it and 
making it enforceable.
---------------------------------------------------------------------------
    \53\ Public Law No. 105-277, The Omnibus Consolidated and Emergency 
Supplemental Appropriations Act, 1999, 636.
---------------------------------------------------------------------------
    Specifically, S. 2628 would require every nondisclosure 
policy, form, or agreement of the Government to contain the 
specific addendum set forth in the legislation informing 
employees of their rights. A nondisclosure policy, form or 
agreement that does not contain the required statement may not 
be implemented or enforced to the extent inconsistent with that 
statement.
    Furthermore, the bill makes it a prohibited personnel 
practice for any manager to implement or enforce any 
nondisclosure policy, form, or agreement that does not contain 
the specific statement mandated in the bill. Making it a 
prohibited personnel practice means that the anti-gag 
requirement is enforceable by the OSC and the MSPB, and that an 
employee can seek protection against a personnel action taken 
in violation of the anti-gag requirement.

Board review of actions relating to security clearance

    Since the terrorist attacks of September 11, 2001, 
whistleblowers in several high profile cases have come forward 
to disclose government waste, fraud, and abuse that posed a 
risk to national security. However, several of these 
individuals faced retaliatory action through means against 
which the employees lacked protection-- the removal of their 
security clearance.\54\ When an individual's security clearance 
is revoked or his or her access to classified information is 
denied as a means of retaliation, the effective result is 
typically employment termination without recourse to an 
independent third-party proceeding. In light of the heightened 
need to ensure that federal employees can come forward with 
information vital to preserving our national security, the 
Committee supports strengthening protections for 
whistleblowers, including those whose security clearance or 
access to classified information is the retaliatory vehicle.
---------------------------------------------------------------------------
    \54\ See Mark Hertsgaard, Nuclear Insecurity, Vanity Fair, Nov. 
2003, at 175.
---------------------------------------------------------------------------
    In 2000, the Federal Circuit held that the MSPB lacks 
jurisdiction over an employee's claim that his security 
clearance was revoked in retaliation for whistleblowing.\55\ It 
held that the MSPB may neither review a security clearance 
determination nor require the grant or reinstatement of a 
clearance, and that the denial or revocation of a clearance is 
not a personnel action.
---------------------------------------------------------------------------
    \55\ Hesse v. State, 217 F.3d 1372 (Fed. Cir. 2000).
---------------------------------------------------------------------------
    As a result of this decision, an employee's security 
clearance or access to classified information can be suspended 
or revoked in retaliation for making protected disclosures, the 
employee can be terminated from his or her federal government 
job because of the suspended or revoked clearance, and MSPB may 
not review the suspension or revocation. According to the 
former Special Counsel Elaine Kaplan, revocation of a security 
clearance is a way to camouflage retaliation. At the hearing 
during the 107th Congress on S. 995, one of the predecessor 
bills to S. 2628, Senator Levin asked Ms. Kaplan, then the 
Special Counsel, about ``a situation where a federal employee 
can blow the whistle on waste, fraud or abuse, and then, in 
retaliation for so doing, have his or her security clearance 
withdrawn and then be fired because he or she no longer has a 
security clearance.'' Ms. Kaplan responded:

          It is sort of Kafkaesque. If you are complaining 
        about being fired, and then one can go back and say, 
        ``Well, you are fired because you do not have your 
        security clearance and we cannot look at why you do not 
        have your security clearance,'' it can be a basis for 
        camouflaging retaliation.\56\
---------------------------------------------------------------------------
    \56\ S. 995--Whistleblower Protection Act Amendments: Hearing on S. 
995 before the Subcommittee on International Security, Proliferation, 
and Federal Services of the Committee on Governmental Affairs, S. Hrg. 
107-160 (2001) (testimony of Hon. Elaine Kaplan, Special Counsel, 
Office of Special Counsel).

    S. 2628 makes it a prohibited personnel practice for a 
manager to suspend, revoke, or take other action with respect 
to an employee's security clearance or access to classified 
information in retaliation for the employee blowing the 
whistle. The bill specifies that the MSPB, or a reviewing 
court, may issue declaratory and other appropriate relief. But 
the legislation is clear that the MSPB or a reviewing court may 
not direct the President or the President's designee to restore 
or take other action with a security clearance or access to 
classified information.
    Appropriate relief may include back pay, an order to 
reassign the employee, attorney fees, and any other relief the 
Board or court is authorized to provide for other prohibited 
personnel practices. In addition, if the Board finds the action 
illegal, it may bar the agency from directly or indirectly 
taking any other personnel action based on the illegal security 
clearance or access determination action. The bill also 
requires agencies to issue a report to Congress detailing the 
circumstances of the agency's security clearance or access 
decision. This report should include a summary of relevant 
facts ascertained by the agency, including the facts in support 
and those that do not support the allegations of the 
whistleblowers, the reasons for the agency action, and a 
response to any comments or findings by the MSPB or reviewing 
court. If necessary, the report may contain a classified 
addendum.
    S. 2628 also provides for expedited review of whistleblower 
cases by the OSC, the MSPB and the reviewing court where a 
security clearance was revoked or suspended. A person whose 
clearance has been suspended or revoked, and whose job 
responsibilities require clearance, may be unable to work while 
his or her case is being considered.
    In drafting this provision for previous whistleblower 
legislation in the 107th Congress, the bill's sponsors and 
others from the Committee worked with the Administration to 
produce a fair and balanced approach to resolving this 
matter.\57\ Despite these efforts, the Administration still has 
expressed concerns over this provision. In particular, DOJ 
asserts that this provision is a substantial intrusion into 
Executive Branch prerogative to control national security 
information and those who have access to it.\58\ We note again 
that the proceedings contemplated by this provision do not 
intrude upon any agency's authority to revoke a security 
clearance. The focus of the contemplated proceedings is not 
whether the national interest is served by granting or revoking 
a security clearance, but whether an agency has unlawfully 
retaliated against a whistleblower. We note further that 
Executive Branch authority is not exclusive, and that Congress 
properly plays a role.\59\
---------------------------------------------------------------------------
    \57\ Hearing supra note 15, at 172 (testimony of Sen. Charles 
Grassley).
    \58\ ``Letter from William Moschella, Department of Justice, to 
Sen. Fitzgerald on S. 1358'' (Nov. 10, 2003) (see supra note 15, at 
56).
    \59\ See Department of Navy v. Egan, 484 U.S. 518, 530 (1988) 
(``unless Congress has specifically provided otherwise, courts 
traditionally have been reluctant to intrude upon the authority of the 
Executive in military and national security affairs) (emphasis added, 
citations omitted).
---------------------------------------------------------------------------
    The Department of Justice has also argued that inclusion of 
this protection would induce more employees to challenge and 
litigate security clearance determinations and, as a result, 
deter managers from making their best judgments on these 
sensitive issues.\60\ The Committee, however, believes that the 
language in this provision strikes an appropriate balance. It 
bears repeating that, under this bill, the Executive Branch 
retains the authority to ignore the MSPB's recommendations on 
the restoration of a clearance of access. There is no authority 
under this bill to direct that a security clearance or access 
to classified information be restored.
---------------------------------------------------------------------------
    \60\ Moschella letter supra note 58.
---------------------------------------------------------------------------
    The Committee recognizes that it seeks both a full and fair 
examination of whistleblower claims as well as unfettered 
agency authority to make sensitive security clearance 
determinations--and that some tension between these important 
goals may be inevitable. For example, the Board has 
considerable latitude in fashioning relief for retaliation, 
short of ordering restoration of the security clearance, but, 
consistent with the standard principles for providing relief, 
an agency might successfully resist relief that was so onerous 
or costly as to be tantamount to ordering restoration. This 
provision should not become an elevation of form over substance 
such that agencies experience any diminution of their authority 
to act in the national interest.
    The Department has also claimed that the provision is 
unnecessary, as all agencies are required to establish an 
internal review board to consider appeals of security clearance 
revocations, and cited the expertise of internal agency boards, 
in contrast to the lack of MSPB expertise in making decisions 
on clearances.\61\ However, the Committee is persuaded by the 
testimony of Thomas Devine of the Government Accountability 
Project, that the internal agency boards have a conflict of 
interest in adjudicating such matters as the board judging the 
dispute is also the adverse party. Moreover, internal review 
boards often lack rudimentary procedural protections. 
Whistleblowers may wait up to three years before even hearing 
the accusations against them. Then, at the review itself, 
whistleblowers are not allowed to present witnesses or 
evidence.\62\
---------------------------------------------------------------------------
    \61\ Id.
    \62\ Hearing supra note 15 at 17-18 (testimony of Thomas Devine, 
Legal Director, Government Accountability Project).
---------------------------------------------------------------------------
    Regarding the expertise of the MSPB in adjudicating 
security clearance determinations, S. 2628 would permit the 
MSPB to determine whether a disclosure is protected and whether 
there exists the proper nexus between the disclosure and the 
personnel action of denying or revoking a clearance or access 
to classified information, but would not permit the MSPB to 
make decisions relative to clearances. S. 2628 does not 
authorize Board review of the substance of a security clearance 
determination, because Board review under S. 2628 would 
evaluate whether there was unlawful retaliation not whether the 
clearance determination was otherwise proper. Such a 
determination is analogous to MSPB's current duties and is 
squarely within its expertise.
    In testimony before the Committee, the Department of 
Justice argued that the burden of proof in whistleblower cases 
is fundamentally incompatible with the standard for granting 
security clearances. DOJ pointed out that under the WPA, a 
putative whistleblower establishes a prima facie case of 
whistleblower retaliation by showing that there was a protected 
disclosure and that a personnel action was taken within a 
certain period of time following the disclosure. Once the 
employee meets that burden, the burden shifts to the agency to 
establish by clear and convincing evidence that it would have 
taken the action absent the protected disclosure.
    According to DOJ, the bill would require, in the security 
clearance context, that where individuals make protected 
disclosures, the agency must justify its security clearance 
decision by the standard of clear and convincing evidence. 
Thus, rather than awarding security clearances or granting 
access to classified information only where clearly consistent 
with the interests of national security--which is the standard 
for granting or revoking security clearances and making access 
determinations--agencies would be permitted to deny or revoke 
them only upon the basis of clear and convincing evidence.\63\
---------------------------------------------------------------------------
    \63\ Hearing supra note 15 (testimony of Mr. Peter Keisler, 
Assistant Attorney General, Civil Division, U.S. Department of 
Justice).
---------------------------------------------------------------------------
    The Department of Justice has raised a valid concern over 
the appropriate burden of proof. The Committee emphasizes that 
it does not intend any disruption of the security clearance 
process, any chilling effect upon officials making these 
sensitive determinations, or any creation of ``entitlement'' to 
a security clearance. Our narrow purpose is to deter unlawful 
retaliation against whistleblowers by revoking a security 
clearance or denying access to classified materials, and thus 
to close the loophole that security clearance revocations have 
opened.
    The Committee acknowledges that the conventional burden of 
proof in whistleblower cases may not fairly integrate into the 
security clearance determination process. Given the relative 
ease with which putative whistleblowers may make a prima facie 
showing, these cases are often decided based upon the agency's 
showing that it would have taken the action regardless of the 
whistleblowing. The agency's burden at this stage, however, is 
clear and convincing evidence. The Committee concludes that in 
the especially sensitive area of security clearance and 
classified access determinations--where the threshold 
presumption is that an individual is not entitled to such a 
privilege--requiring ``clear and convincing'' evidence to 
justify revocation might distort such determinations. Thus, S. 
2628, unlike its predecessor S. 1358, changes the agency's 
burden to mere preponderance. We believe that such a change 
better preserves an agency's discretion with respect to 
security clearance determinations, and may also be less 
intrusive into the agency's security clearance or classified 
access process.

Classified disclosures to Congress

    Section 2302(b) of Title 5, United States Code, states that 
nothing in this subsection shall be construed to authorize the 
withholding of information from Congress or the taking of any 
personnel action against an employee who discloses information 
to the Congress. However, to clarify that employees should not 
face retaliation for the disclosure of classified information 
that evidences waste, fraud, and abuse, S. 2628 amends 5 U.S.C. 
2302(b)(8) to provide whistleblower protections for certain 
disclosures of classified information to Congress. A 
whistleblower must limit the disclosure to a member of Congress 
who is authorized to receive the information disclosed or 
congressional staff who holds the appropriate security 
clearance and is authorized to receive the information 
disclosed. In order for a disclosure of classified information 
to be protected, the employee must have a reasonable belief 
that the disclosure is 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 
specific danger to public health or safety, or a false 
statement to Congress on an issue of material fact.
    The language in this bill is very similar to a provision 
ordered reported by the Senate Armed Services Committee in 1997 
as Sec. 1068 of S. 924, the National Defense Authorization bill 
for FY 1998. In 1998, another similar measure, containing 
provisions affecting the Intelligence Community, was reported 
by the Senate Intelligence Committee and passed the Senate by a 
vote of 93 to 1, as Sec. 501 of S. 2052, the Intelligence 
Authorization bill for FY 1999. The Senate provision was not 
contained in the enacted legislation, which instead 
incorporated a modified version of provisions that passed the 
House. Those enacted provisions established a secure process by 
which a whistleblower in the Intelligence Community intending 
to disclose wrongdoing to Congress may initially report to the 
appropriate inspector general, and then, if the information is 
not transmitted to the Intelligence Committees through that 
process, may contact the Intelligence Committees directly.\64\ 
The conferees explained that this measure ``establishes an 
additional process to accommodate the disclosure of classified 
information of interest to Congress,'' and emphasized that the 
new provision ``is not the exclusive process by which an 
Intelligence Community employee may make a report to 
Congress.'' \65\
---------------------------------------------------------------------------
    \64\ Intelligence Authorization Act for FY 1999, Pub. L. No. 105-
272, title VII (1998) (``Intelligence Community Whistleblower 
Protection Act of 1998'').
    \65\ H.R. Rep. No. 105-760 (1998) (emphasis added).
---------------------------------------------------------------------------
    The Senate Intelligence Committee had held hearings and 
reported out S. 1668 which contained these same provisions in 
1998. In its report, the Intelligence Committee described its 
consideration of constitutional and other ramifications of the 
legislation. That Committee was persuaded that the regulation 
of national security information, while implicit in the command 
authority of the President, is equally implicit in the national 
security and foreign affairs authorities vested in Congress by 
the Constitution. The Intelligence Committee was further 
convinced that the provision was constitutional because it did 
not prevent the President fromaccomplishing his 
constitutionally assigned functions, and because any intrusion upon his 
authority is justified by an overriding need to promote objectives 
within the constitutional authority of Congress.\66\
---------------------------------------------------------------------------
    \66\ S. Rep. No. 105-165 (1998).
---------------------------------------------------------------------------
    The provision in S. 2628 is intended to ensure that 
Congress receives the information necessary to fulfill its 
constitutional oversight responsibilities, while protecting 
employees from adverse actions based on what was considered an 
unauthorized disclosure to Congress, and also retaining 
appropriate security-related restrictions in defining the 
individuals to whom classified information may be disclosed.
    In addition, out of concerns that individuals might 
transmit classified information to unauthorized individuals, S. 
2628 reaffirms that those who give classified information to 
persons not authorized to receive it, specifically individuals 
not listed in 5 U.S.C. 2302(b)(8), could face criminal 
penalties. Generally, federal law prescribes a prison sentence 
of no more than a year and/or a $1,000 fine for officers and 
employees of the federal government who knowingly remove 
classified material without the authority to do so and with the 
intention of keeping that material at an unauthorized 
location.\67\ Stiffer penalties--fines of up to $10,000 and 
imprisonment for up to ten years--attach when a federal 
employee transmits classified information to anyone who the 
employee has reason to believe is an agent of a foreign 
government.\68\ Anyone who publishes, makes available to an 
unauthorized person, or otherwise uses to the United States' 
detriment classified information regarding the codes, 
cryptography, and communications intelligence utilized by the 
United States or a foreign government faces fines and a ten-
year prison sentence.\69\
---------------------------------------------------------------------------
    \67\ 18 U.S.C. Sec. 1924. Agencies often require employees to sign 
non-disclosure agreements prior to obtaining access to classified 
information, the validity of which was upheld by the Supreme Court in 
Snepp v. United States, 444 U.S. 507 (1980).
    \68\ 50 U.S.C. Sec. 783.
    \69\ 18 U.S.C. Sec. 798. This provision is part of the Espionage 
Act (codified at 18 U.S.C. 792-799), which generally protects against 
the unauthorized transmission of a much broader category of ``national 
defense'' information, prescribing fines and a prison term of up to ten 
years.
---------------------------------------------------------------------------
    To help ensure that employees are aware of those Members of 
Congress and their staff who are authorized to receive 
disclosures of classified information, S. 2628 also requires 
that agencies, as part of their educational requirements under 
5 U.S.C. Sec. 2302(c) to inform employees of their 
whistleblower rights and remedies, to inform employees how to 
make a disclosure of classified information. Such education 
could include appropriate questions to ask Members of Congress 
and their staff to ensure that they have the appropriate 
clearance and authorization, secure locations for disclosing 
and transmitting classified information, and other information 
that would assist potential whistleblowers in making a 
protected disclosure without violating federal law and 
subjecting themselves to criminal penalties.

Ex post facto agency loophole amendment

    The WPA provides that certain employees and agencies are 
exempt from the Act. Employees excluded from the Act include 
those in positions exempted from the competitive service 
because of their confidential, policy-determining, policy-
making, or policy advocating character and those employees 
excluded by the President if necessary and warranted by 
conditions of good administration.\70\ Certain agencies are 
also excluded from the Act. They include the Government 
Accountability Office, the Federal Bureau of Investigation, the 
Central Intelligence Agency, the National Security Agency, and 
other agencies determined by the President to have the 
principal function of conducting foreign intelligence or 
counterintelligence activities.'' \71\
---------------------------------------------------------------------------
    \70\ 5 U.S.C. Sec. 2302(a)(2)(B).
    \71\ 5 U.S.C. Sec. 2302(a)(2)(B).
---------------------------------------------------------------------------
    In 1994 Congress amended the WPA to block agencies from 
designating particular positions as confidential policymaker 
exceptions after the employees in those positions filed 
prohibited personnel practice complaints. As a result, Congress 
restricted this jurisdictional loophole to positions designated 
as exceptions ``prior to the personnel action.'' \72\ 
Unfortunately, a similar practice has occurred again, in a 
context with far broader consequences. An agency was exempted 
from the Act over a year into whistleblower litigation, and 
only after the Board had overturned an Administrative Judge's 
decision to order a hearing.\73\ S. 2628 would close the 
loophole for agencies in the same manner as Congress did for 
positions in 1994, by specifying that an agency may be excluded 
under the Act only prior to the occurrence of any personnel 
action against a whistleblower to which the exclusion of the 
agency relates. The Committee believes that it is important for 
employees to know their rights and protections under the WPA, 
including if they have no rights under section 2302 before they 
make any whistleblowing disclosure in reliance on the 
protections of the WPA, and that this provision will aid in 
helping employees determining the appropriate way to disclose 
waste, fraud, and abuse.
---------------------------------------------------------------------------
    \72\  Id.
    \73\ ``See Czarkowski v. Dept. of Navy, Docket No. DC-1221-99-0547-
B-1. The agency invoked the exemption after the Board rejected an 
earlier effort to avoid litigation on a different basis and ordered a 
hearing, Czarkowski v. Dept. of the Navy, 87 M.S.P.R. 107 (2000).
---------------------------------------------------------------------------

Prohibition on retaliatory investigations

    S. 2628 codifies that an investigation of any employee can 
constitute retaliation for making a whistleblowing disclosure. 
This provision is already implicit in the catch-all provision 
in 5 U.S.C. 2302(c)(2)(A)(xi). In the legislative history to 
the 1994 Amendments, House Civil Service Subcommittee Chairman 
Frank McCloskey highlighted retaliatory investigations as a 
personnel action and noted that the primary criterion for a 
prohibited threat is that alleged harassment is discriminatory, 
or could have a chilling effect on merit system duties and 
responsibilities.\74\ In 1997 the Board upheld this legislative 
history in Russell v. Department of Justice and affirmed that 
the WPA protects employees from retaliatory investigations.\75\ 
Specifically, the Board held that ``[w]hen . . . an 
investigation is so closely related to the personnel action 
that it could have been a pretext for gathering evidence to 
retaliate, and the agency does not show by clear and convincing 
evidence that the evidence would have been gathered absent the 
protected disclosure, then the appellant will prevail on his 
affirmative defense of retaliation for whistleblowing.''
---------------------------------------------------------------------------
    \74\ 140 Cong. Rec. 29,353 (1994) and H.R. Rep. No. 103-769, at 15.
    \75\ 76 M.S.P.R. 317, 323-24 (1997).
---------------------------------------------------------------------------
    However, DOJ expressed concerns with earlier versions of 
this provision claiming that the term investigation is 
undefined and that the breadth of the term could adversely 
impact the ability of agencies to function. Specifically, DOJ 
claimed that any type of inquiry by any agency--including 
criminal investigations, routine background investigations for 
initial employment, investigations for determining eligibility 
for a security clearance, Inspector General investigations, and 
management inquiries of potential wrongdoing in the workplace--
could be subject to challenge and litigation.\76\
---------------------------------------------------------------------------
    \76\ Hearing supra note 15 at 60.
---------------------------------------------------------------------------
    To address this concern, S. 2628 provides that protection 
for retaliatory investigations does not extend to ministerial 
or nondiscretionary fact finding activities necessary for the 
agency to perform its mission.

Clarification of whistleblower rights for critical infrastructure 
        information

    The Homeland Security Act encouraged corporations to submit 
critical infrastructure information voluntarily to the 
Department of Homeland Security (DHS) so that the Department 
could assess potential security threats.\77\ To encourage 
submission, the Act specifically stipulates that voluntarily 
submitted critical infrastructure information is to be treated 
as exempt under the Freedom of Information Act.\78\ According 
to section 214(c) of the Act, nothing in the Act shall be 
construed to limit or otherwise affect the ability of a State, 
local, or Federal government entity or third parties to 
independently obtain critical infrastructure information in a 
manner not covered by this provision. However, the Act also 
criminalizes the unauthorized disclosure of this type of 
information. As such, the provision could be read to limit a 
whistleblower's disclosure of independently obtained critical 
information. According to former Special Counsel Elaine Kaplan:
---------------------------------------------------------------------------
    \77\ Pub. L. No. 107-296, Sec. 214.
    \78\ See 5 U.S.C. Sec. 552.

          [T]he statutory language is very ambiguous in several 
        respects. The rights preserved under section 214(c) 
        extend to government entities, agencies, authorities 
        and ``third parties.'' It is unclear whether employees 
        of the United States would be considered ``third 
        parties.'' Elsewhere in section 214, the statute uses 
        the phrase ``officer or employee of the United States'' 
        when it refers to disclosures by federal employees. 
        See, section 214(a)(1)(D).
          Similarly, the phrase to ``use'' the information ``in 
        any manner permitted by law,'' does not clearly 
        encompass ``disclosures'' of information. Elsewhere, in 
        section 214(a)(1)(D), the statute states that an 
        officer or employee of the United States, shall not 
        ``us[e] or disclos[e]'' voluntarily provided critical 
        infrastructure information. The use of the disjunctive 
        ``use or disclose'' (emphasis added) in section 
        214(a)(1)(D) suggests that the word ``use'' alone in 
        section 214(c) may not encompass the act of 
        ``disclosing.'' In short, it is unclear whether 
        Congress intended to authorize ``disclosures of 
        information'' that are protected by the WPA when it 
        authorized the ``use of information in any manner 
        permitted by law'' in section 214(c).
          These ambiguities become especially troublesome in 
        the context of the tendency of the judiciary to 
        narrowly construe the scope of protection afforded 
        under the WPA.\79\

    \79\ Letter from Elaine Kaplan, Special Counsel, Office of Special 
Counsel, to Sen. Charles Grassley (March 10, 2003).
---------------------------------------------------------------------------
    When DHS issued proposed regulations it received comments 
expressing concern that whistleblowers could be treated 
unfairly and subject to termination, fines, and imprisonment 
which would discourage the accurate reporting of information 
vital to the public. In its interim regulations published in 
February 2004, DHS specifically referenced the WPA to ensure 
fullprotections for whistleblowers.\80\ Although interim 
regulations implementing section 214 of Public Law 107-296 appear to 
ensure that disclosures of independently obtained critical 
infrastructure information are permitted, S. 2628 would codify, 
consistent with those regulations, that disclosures of this type are 
free from criminal penalties and does not cancel whisleblower rights in 
5 U.S.C. Sec. 2302(b)(8).
---------------------------------------------------------------------------
    \80\ 6 C.F.R. 29.8(f) (2004).
---------------------------------------------------------------------------

Right to a full hearing

    Recent Board case law has created a highly disturbing trend 
by canceling the employee's right to a due process hearing and 
a public record to resolve disputes whether a whistleblower 
validly disclosed information evidencing betrayal of the public 
trust, and whether the disclosure in part contributed to 
ensuing retaliation. The prevailing practice at the Board now 
is to deny a forum on those issues if the agency first prevails 
in its affirmative defense of proving by clear and convincing 
evidence that it would have taken the same action for lawful 
reasons independent of protected whistleblowing.\81\
---------------------------------------------------------------------------
    \81\ Rusin v. Dept. of Treasury, 92 M.S.P.R. 298 (2002).
---------------------------------------------------------------------------
    While more efficient, this undermines two primary purposes 
of the WPA. First, it provides whistleblowers with no 
guaranteed forum to air grievances--some of which may be 
legitimate and important even though the agency fairly and 
independently took the disputed personnel action. Lost in this 
procedure are an employee's: (1) opportunity to present 
evidence that the dissent alleging misconduct was reasonable, 
(2) opportunity to present evidence of illegal harassment; and 
(3) opportunity to confront those responsible through cross-
examination on the record in a public hearing under oath.
    Second, the current procedure which allows the agency to 
present its evidence first precludes the Board from exercising 
some of its most significant merit system oversight duties. 
These include creating a record of both parties' positions on 
alleged, serious misconduct that could threaten or harm 
citizens. Similarly, it precludes the Board from a significant 
merit system oversight function that Congress emphasized when 
it passed the 1994 amendments to the Act. As the Joint 
Explanatory statement for the WPA explained, ``Whistleblowing 
should never be a factor that contributes in any way to an 
adverse personnel action.'' \82\ The duty is so significant 
that under the 1994 amendments to the Act, the Board must refer 
managers for OSC disciplinary investigation whenever there is a 
finding that reprisal was a contributing factor in a personnel 
action, even if the agency ultimately prevails on its 
affirmative defense of independent justification.\83\ The 
current procedure relieves the Board of these oversight 
responsibilities, as long as the agency has an acceptable net 
excuse for actions that may include attacks on the merit 
system.
---------------------------------------------------------------------------
    \82\ Reprinted in 135 Cong. Rec. 5033 (1989).
    \83\ 140 Cong. Rec. H11422 (daily ed. Oct 7, 1994) (statement of 
Rep. McCloskey).
---------------------------------------------------------------------------
    S. 2628 resolves this problem by making it a prerequisite 
for presentation of the agency's defense that the employee has 
first established a prima facie case that the protected 
activity was a contributing factor in the personnel action.

                        III. Legislative History

    S. 2628 was introduced by Senators Akaka, Collins, 
Grassley, Levin, Leahy, Durbin,
    Fitzgerald, Pryor, Voinovich, Johnson, Dayton, Lieberman, 
and Lautenberg on July 8, 2004, and was referred to the 
Committee on Governmental Affairs. The bill was referred to the 
Subcommittee on Financial Management, the Budget, and 
International Security (FMBIS) on July 9, 2004. Senators Carper 
and Coleman are also cosponsors of the legislation. The bill 
builds on provisions of S. 1358, which was introduced by 
Senators Akaka, Grassley, Levin, Leahy, and Durbin on June 6, 
2004, and also cosponsored by Senators Dayton, Pryor, Johnson, 
and Lautenberg.
    On October 8, FMBIS polled out S. 1358 and on November 12, 
2003, the Committee held a hearing on the bill. Witnesses 
included Senator Charles Grassley (R-IA); Mr. Peter Keisler, 
Assistant Attorney General, Civil Division, U.S. Department of 
Justice; Ms. Elaine Kaplan, attorney and former U.S. Special 
Counsel; Mr. Thomas Devine, Legal Director, Government 
Accountability Project; Mr. Stephen Kohn, Chairman, Board of 
Directors, National Whistleblower Center; and Mr. William 
Bransford, Partner, Shaw, Bransford, Veilleux & Roth, P.C., on 
behalf of the Senior Executives Association. The Committee also 
received written testimony from Ms. Susanne Marshall, Chairman, 
U.S. Merit Systems Protection Board.
    Both S. 2628 and S. 1358 follow previous versions of the 
legislation: S. 995, introduced on June 7, 2001, and S. 3070, 
introduced on October 8, 2002, and favorably reported by the 
Committee on November 19, 2002. A hearing on S. 995 was held 
before the Subcommittee on International Security, 
Proliferation, and Federal Services on July 25, 2001.
    On July 20, 2004, the Subcommittee favorably polled out S. 
2628 and on July 21, 2004, the Committee considered S. 2628 and 
ordered the bill reported without amendment by voicevote. 
Members present were Senators Akaka, Carper, Collins, Durbin, 
Fitzgerald, Lautenberg, Lieberman, Specter, and Voinovich.

                    IV. Section-by-Section Analysis

    Section 1(a) titles the bill as the Federal Employee 
Protection of Disclosures Act.
    Section 1(b) 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 consequences of 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, but only when the 
disclosure is to a Member or legislative staff holding an 
appropriate security clearance and authorized to receive the 
type of information disclosed.
    Section 1(c) would clarify the definition of ``disclosure'' 
to include a formal or informal communication or transmission, 
but not to include legitimate policy decisions that lawfully 
exercise discretionary agency authority unless the employee 
reasonably believes the disclosure evidences government waste, 
fraud, or abuse.
    Section 1(d) addresses the reasonable belief test set forth 
by the U.S. Court of Appeals for the Federal Circuit in 
Lachance v. White. The court articulated an objective test for 
determining whether a whistleblower had a reasonable belief 
that the disclosed information evidenced waste, fraud, abuse, 
or other violations or safety issues: would a disinterested 
observer with knowledge of the essential facts known to and 
readily ascertainable by the employee reasonably conclude that 
the actions of the government evidence government waste, fraud, 
or abuse? However, in the case of gross mismanagement the court 
further required ``irrefragable proof''--literally meaning 
undeniable and incontestable proof--to overcome the presumption 
that a public officer performs his or her duties fairly, 
lawfully, and in good faith. This section would codify the 
objective test for reasonable belief, but would replace the 
burden of irrefragable proof with substantial evidence.
    The provision also states that employees may be disciplined 
for disclosing classified information to a Member of Congress 
or congressional staff who is not authorized to receive such 
information.
    Section 1(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 or access determination; and investigation 
(other than routine, non discretionary agency investigations) 
of an employee or applicant for employment.
    Section 1(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 a discretionary or non-routine investigation of an 
employee or applicant for employment because the employee 
engaged in protected activity.
    Section 1(e)(3) would authorize the Merit Systems 
Protection Board (MSPB) to conduct an expedited review of cases 
charging retaliation under 5 U.S.C. Sec. 2302(b)(8) and (b)(9) 
when an employee's security clearance or access determination 
is suspended, revoked, or otherwise adversely affected. The 
MSPB would be authorized to issue declaratory and other 
appropriate relief, but would not be able to restore a security 
clearance. If MSPB or a reviewing court were to find that a 
security clearance or access determination decision was 
retaliatory, the agency involved would be required to review 
its security clearance decision and issue a report to Congress 
explaining its decision. This section also states that for the 
sole purposes of determining whether a security clearance or 
access determination was made in retaliation for 
whistleblowing, the agency must demonstrate by a preponderance 
of the evidence, rather than clear and convincing evidence, 
that it would have taken the action even absent the 
whistleblowing.
    Section 1(f) would require that removal of an agency by the 
President from WPA coverage be made prior to any personnel 
action, to which the exclusion relates, being taken against a 
whistleblower at that agency.
    Section 1(g) would require that, in disciplinary actions, 
any attorney fees would be reimbursed by the manager's 
employing agency rather than OSC.
    Section 1(h) would establish a more reasonable burden of 
proof in disciplinary actions 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. Current law requires OSC to demonstrate 
that an adverse personnel action would not have occurred ``but 
for'' the whistleblower's protected activity.
    Section 1(i) would strengthen OSC's ability to protect 
whistleblowers and the integrity of the WPA and the Hatch Act 
by authorizing OSC to appear as amicus curiae in any civil 
action brought in connection with the WPA and the Hatch Act and 
present its views with respect tocompliance with the law and 
the impact court decisions would have on the enforcement of such 
provisions of the law.
    Section 1(j) would suspend the U.S. Court of Appeals for 
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 for a period of five years.
    Section 1(k) would require all Federal nondisclosure 
policies, forms, and agreements to contain specified language 
preserving the right of Federal employees to disclose certain 
protected information.
    Section 1(l) would clarify that section 214(c) of the 
Homeland Security Act (HSA) maintains existing WPA rights for 
independently obtained information that may also qualify as 
voluntarily submitted critical infrastructure information under 
the HSA.
    Section 1(m) would require agencies, as part of their 
education requirements under 5 U.S.C. 2302(c), to advise 
employees of their rights and protections and to educate 
employees on how to lawfully make a protected disclosure of 
classified information to the Special Counsel, the Inspector 
General, Congress, or other designated agency official 
authorized to receive classified information.
    Section 1(n) would specify that an agency may present its 
defense to a whistleblower case only after the whistleblower 
has first made a prima facie showing that protected activity 
was a contributing factor in the personnel action.
    Section 1(o) states that the Act would take effect 30 days 
after the date of enactment.

                    V. Estimated Cost of Legislation


S. 2628--Federal Employee Protection of Disclosures Act

    S. 2628 would amend the Whistleblower Protection Act (WPA). 
The bill would clarify current law and give new protections to 
federal employees who report abuse, fraud, and waste involving 
government activities. The legislation also would make several 
changes to the laws governing the Merit System Protection Board 
(MSPB) and the Office of Special Counsel (OSC), which implement 
provisions of the WPA.
    CBO estimates that implementing S. 2628 would cost $2 
million a year and $10 million over the 2005-2009 period, 
assuming appropriation of the necessary amounts. Enacting the 
legislation would not affect direct spending or revenues. S. 
2628 contains no intergovernmental or private-sector mandates 
as defined in the Unfunded Mandates Reform Act and would not 
affect the budgets of state, local, or tribal governments.
    Under current law, the OSC investigates complaints 
regarding reprisal against federal employees that inform 
authorities of fraud or other improprieties in the operation of 
federal programs (such individuals are known as 
whistleblowers). The OSC seeks corrective action for valid 
complaints. If agencies fail to take corrective action, the OSC 
or the employee can pursue a case through the MSPB for 
resolution. Whistleblower cases may also be reviewed by the 
U.S. Court of Appeals.
    According to the MSPB and OSC, there are between 400 to 500 
whistleblower cases per year. S. 2628 would expand the 
definition of protected whistleblowing, create new avenues of 
appeal for employees who lose their security clearances in 
retaliation for whistleblowing, increase the authority of the 
OSC, and suspend the U.S. Court of Appeals exclusive 
jurisdiction over whistleblower appeals for five years. In 
2004, the MSPB received an appropriation of $33 million, and 
the OSC received $13 million.
    CBO expects that S. 2628's changes in whistleblower laws 
would increase the workload of the MSPB and OSC. Based on 
information from those agencies, we estimate that implementing 
this bill would cost up to $2 million a year to cover 
additional staffing, travel, and security clearance reviews.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

                  VI. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill. CBO states that 
there are no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and no costs on 
state, local, or tribal governments. The legislation contains 
no other regulatory impact.

                      VII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic and existing law, in which no 
change is proposed, is shown in roman):

   TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES

         PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES


CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, 
                      AND EMPLOYEE RIGHT OF ACTION


              Subchapter I--Merit Systems Protection Board


SEC. 1204. POWERS AND FUNCTIONS OF THE MERIT SYSTEMS PROTECTION BOARD.

           *       *       *       *       *       *       *


    (m)(1) Except as provided in paragraph (2) of this 
subsection, the Board, or an administrative law judge or other 
employee of the Board designated to hear a case arising under 
section 1215, may require payment by the [agency involved] 
agency where the prevailing party is employed or has applied 
for employment of reasonable attorney fees incurred by an 
employee or applicant for employment if the employee or 
applicant is the prevailing party and the Board, administrative 
law judge, or other employee (as the case may be) determines 
that payment by the agency is warranted in the interest of 
justice, including any case in which a prohibited personnel 
practice was engaged in by the agency or any case in which the 
agency's action was clearly without merit.

                Subchapter II--Office of Special Counsel


SEC. 1212. POWERS AND FUNCTIONS OF THE OFFICE OF SPECIAL COUNSEL.

    (a) The Office of Special Counsel shall--

           *       *       *       *       *       *       *

    (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).

SEC. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; CORRECTIVE 
                    ACTION.

           *       *       *       *       *       *       *


    (b) * * *

           *       *       *       *       *       *       *

          (4)(A) The Board shall order such corrective action 
        as the Board considers appropriate, if the Board 
        determines that the Special Counsel has demonstrated 
        that a prohibited personnel practice, other than one 
        described in section 2302(b)(8), has occurred, exists, 
        or is to be taken.
          (B)(i) Subject to the provisions of clause (ii), in 
        any case involving an alleged prohibited personnel 
        practice as described under section 2302(b)(8), the 
        Board shall order such corrective action as the Board 
        considers appropriate if the Special Counsel has 
        demonstrated that a disclosure described under section 
        2302(b)(8) was a contributing factor in the personnel 
        action which was taken or is to be taken against the 
        individual.
          (ii) Corrective action under clause (i) may not be 
        ordered if, after a finding that a protected disclosure 
        was a contributing factor, the agency demonstrates by 
        clear and convincing evidence that it would have taken 
        the same personnel action in the absence of such 
        disclosure.

SEC. 1215. DISCIPLINARY ACTION.

    (a) * * *

           *       *       *       *       *       *       *

          [(3) A final order of the Board may impose 
        disciplinary action consisting of removal, reduction in 
        grade, debarment from Federal employment for a period 
        not to exceed 5 years, suspension, reprimand, or an 
        assessment of a civil penalty not to exceed $1,000.]
          (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.

SEC. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES.

    (e)(1) Subject to the provisions of paragraph (2), in any 
case involving an alleged prohibited personnel practice as 
described under section 2302(b)(8), the Board shall order such 
corrective action as the Board considers appropriate if the 
employee, former employee, or applicant for employment has 
demonstrated that a disclosure described under section 
2302(b)(8) was a contributing factor in the personnel action 
which was taken or is to be taken against such employee, former 
employee, or applicant. The employee may demonstrate that the 
disclosure was a contributing factor in the personnel action 
through circumstantial evidence, such as evidence that--
          (A) the official taking the personnel action knew of 
        the disclosure; and
          (B) the personnel action occurred within a period of 
        time such that a reasonable person could conclude that 
        the disclosure was a contributing factor in the 
        personnel action.
    (2) Corrective action under paragraph (1) may not be 
ordered if, after a finding that a protected disclosure was a 
contributing factor, the agency demonstrates by clear and 
convincing evidence that it would have taken the same personnel 
action in the absence of such disclosure.

                          PART III--EMPLOYEES


                     Subpart A--General Provisions


                  CHAPTER 23--MERIT SYSTEM PRINCIPLES


SEC. 2302. PROHIBITED PERSONNEL PRACTICES.

    (a)(1) For the purpose of this title, ``prohibited 
personnel practice'' means any action described in subsection 
(b).
    (2) For the purpose of this section--
          (A) ``personnel action'' means--
                  (i) an appointment;
                  (ii) a promotion;
                  (iii) an action under chapter 75 of this 
                title or other disciplinary or corrective 
                action;
                  (iv) a detail, transfer, or reassignment;
                  (v) a reinstatement;
                  (vi) a restoration;
                  (vii) a reemployment;
                  (viii) a performance evaluation under chapter 
                43 of this title;
                  (ix) a decision concerning pay, benefits, or 
                awards, concerning education or training if the 
                education or training may reasonably be 
                expected to lead to an appointment, promotion, 
                performance evaluation, or other action 
                described in this subparagraph;
                  (x) a decision to order psychiatric testing 
                or examination; [and]
                  (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
                  [(xi)] (xiv) any other significant change in 
                duties, responsibilities, or working 
                conditions; with respect to an employee in, or 
                applicant for, a covered position in an agency, 
                and in the case of an alleged prohibited 
                personnel practice described in subsection 
                (b)(8), an employee or applicant for employment 
                in a Government corporation as defined in 
                section 9101 of title 31;
          (B) ``covered position'' means, with respect to any 
        personnel action, any position in the competitive 
        service, a career appointee position in the Senior 
        Executive Service, or a position in the excepted 
        service, but does not include any position which is, 
        prior to the personnel action--
                  (i) excepted from the competitive service 
                because of its confidential, policy 
                determining, policy-making, or policy-
                advocating character; or
                  (ii) excluded from the coverage of this 
                section by the President based on a 
                determination by the President that it is 
                necessary and warranted by conditions of good 
                administration; [and]
          (C) ``agency'' means an Executive agency and the 
        Government Printing Office, but does not include--
                  (i) a Government corporation, except in the 
                case of an alleged prohibited personnel 
                practice described under subsection (b)(8);
                  [(ii) the Federal Bureau of Investigation, 
                the Central Intelligence Agency, the Defense 
                Intelligence Agency, the National Imagery and 
                Mapping Agency, the National Security Agency, 
                and, 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; 
                or]
                  (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
                  (iii) the General Accounting Office[.]
          (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.
    (b) Any employee who has authority to take, direct others 
to take, recommend, or approve any personnel action, shall not, 
with respect to such authority--

           *       *       *       *       *       *       *

          (8) take or fail to take, or threaten to take or fail 
        to take, a personnel action with respect to any 
        employee or applicant for employment because of--
                  (A) any disclosure of information by an 
                employee or applicant [which the employee or 
                applicant reasonably believes evidences], 
                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--
                          (i) [a violation] 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, if such 
                        disclosure is not specifically 
                        prohibited by law and if such 
                        information is not specifically 
                        required by Executive order to be kept 
                        secret in the interest of national 
                        defense or the conduct of foreign 
                        affairs; or
                  (B) any disclosure 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 [which the employee or applicant 
                reasonably believes evidences] 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--
                          (i) [a violation] any violation 
                        (other than a violation of this 
                        section) 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;
                  (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 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 the 
                                information disclosed.

           *       *       *       *       *       *       *

          (11)(A) knowingly take, recommend, or approve any 
        personnel action if the taking of such action would 
        violate a veterans' preference requirement; or
          (B) knowingly fail to take, recommend, or approve any 
        personnel action if the failure to take such action 
        would violate a veterans' preference requirement; [or]
          (12) take or fail to take any other personnel action 
        if the taking of or failure to take such action 
        violates any law, rule, or regulation implementing, or 
        directly concerning, the merit system principles 
        contained in section 2301 of this title[.];
          (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.
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.
    (c) The head of each agency shall be responsible for the 
prevention of prohibited personnel practices, for the 
compliance with and enforcement of applicable civil service 
laws, rules, and regulations, and other aspects of personnel 
management, and for ensuring (in consultation with the Office 
of Special Counsel) that agency employees are informed of the 
rights and remedies available to them under this chapter and 
chapter 12 of this title, 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. Any individual to whom the head of an agency 
delegates authority for personnel management, or for any aspect 
thereof, shall be similarly responsible within the limits of 
the delegation.

           Subpart F--Labor Management and Employee Relations


                          CHAPTER 77--APPEALS


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.

SEC. 7703. JUDICIAL REVIEW OF DECISIONS OF THE MERIT SYSTEMS PROTECTION 
                    BOARD.

    (a)(1) Any employee or applicant for employment adversely 
affected or aggrieved by a final order or decision of the Merit 
Systems Protection Board may obtain judicial review of the 
order or decision.

           *       *       *       *       *       *       *

    (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 
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).

           *       *       *       *       *       *       *

    (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.

                   THE HOMELAND SECURITY ACT OF 2002


            PUBLIC LAW 107-296 (AS CODIFIED AT 6 U.S.C. 133)


SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE 
                    INFORMATION.

           *       *       *       *       *       *       *


    (c) Independently obtained information. Nothing in this 
section shall be construed to limit or otherwise affect the 
ability of a State, local, or Federal Government entity, 
agency, or authority, or any third party, under applicable law, 
to obtain critical infrastructure information in a manner not 
covered by subsection (a), including any information lawfully 
and properly disclosed generally or broadly to the public and 
to use such information in any manner permitted by law. 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 S, United States 
Code.

                                  
