[House Report 110-48]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     110-48

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

 
 PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 985) TO AMEND TITLE 5, 
  UNITED STATES CODE, TO CLARIFY WHICH DISCLOSURES OF INFORMATION ARE 
 PROTECTED FROM PROHIBITED PERSONNEL PRACTICES; TO REQUIRE A STATEMENT 
  IN NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS TO THE EFFECT THAT 
   SUCH POLICIES, FORMS, AND AGREEMENTS ARE CONSISTENT WITH CERTAIN 
            DISCLOSURE PROTECTIONS, AND FOR OTHER PURPOSES.

                                _______
                                

   March 13, 2007.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

  Mr. Hastings of Florida, from the Committee on Rules, submitted the 
                               following

                              R E P O R T

                       [To accompany H. Res. 239]

    The Committee on Rules, having had under consideration 
House Resolution 239, by a record vote of 9 to 4, report the 
same to the House with the recommendation that the resolution 
be adopted.

                SUMMARY OF PROVISIONS OF THE RESOLUTION

    The resolution provides for consideration of H.R. 985, to 
amend title 5, United States Code, to clarify which disclosures 
of information are protected from prohibited personnel 
practices; to require a statement in nondisclosure policies, 
forms, and agreements to the effect that such policies, forms, 
and agreements are consistent with certain disclosure 
protections, and for other purposes. The resolution provides 
for one hour and 20 minutes of general debate, with one hour 
equally divided and controlled by the chairman and ranking 
minority member of the Committee on Oversight and Government 
Reform and 20 minutes equally divided and controlled by the 
chairman and ranking member of the Committee on Homeland 
Security.
    The resolution waives all points of order against 
consideration of the bill except those arising under clause 9 
or 10 of rule XXI. The resolution makes in order an amendment 
in the nature of a substitute consisting of the text of the 
bill, modified by the amendments recommended by the Committee 
on Oversight and Government Reform now printed in the bill, as 
the original bill for the purpose of further amendment.
    The resolution makes in order those amendments printed in 
this report. The resolution provides one motion to recommit 
with or without instructions. Finally, the resolution provides 
that during consideration in the House of H.R. 985 pursuant to 
the resolution, notwithstanding the operation of the previous 
question, the Chair may postpone further consideration of the 
bill to a time designated by the Speaker.

                         EXPLANATION OF WAIVERS

    The waiver of all points of order against consideration of 
the bill includes a waiver of clause 4(a) of rule XIII 
(requiring a three-day layover of the committee report). The 
waiver is necessary because the Committee on Oversight and 
Government Reform filed a supplemental report (H. Rept. 110-42, 
Part 2) with the House on Monday, March 12, 2007 and the bill 
may be considered by the House as early as Wednesday, March 14, 
2007.

                            COMMITTEE VOTES

    The results of each record vote on an amendment or motion 
to report, together with the names of those voting for and 
against, are printed below:

Rules Committee record vote No. 63

    Date: March 13, 2007.
    Measure: H.R. 985.
    Motion by: Mr. Dreier.
    Summary of motion: To report an open rule.
    Results: Defeated 4-9.
    Vote by Members: McGovern--Nay; Hastings (FL)--Nay; 
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Sutton--Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings 
(WA)--Yea; Sessions--Yea; Slaughter--Nay.

Rules Committee record vote No. 64

    Date: March 13, 2007.
    Measure: H.R. 985.
    Motion by: Mr. Diaz-Balart.
    Summary of motion: To make in order and provide appropriate 
waivers for an amendment by Davis, Tom (VA), #4, that would 
attempt to retain uniformity in the consideration of 
whistleblower cases in the federal courts by keeping in place 
the current requirement that all whistleblower appeals go 
through the United States Court of Appeals for the Federal 
Circuit rather than opening up appeals to other circuits.
    Results: Defeated 4-9.
    Vote by Members: McGovern--Nay; Hastings (FL)--Nay; 
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Sutton--Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings 
(WA)--Yea; Sessions--Yea; Slaughter--Nay.

Rules Committee record vote No. 65

    Date: March 13, 2007.
    Measure: H.R. 985.
    Motion by: Mr. Hastings of Washington.
    Summary of motion: To make in order and provide appropriate 
waivers for an amendment by Hoekstra (MI), #3, that would 
strike section 10 of the bill, which extends whistleblower 
rights to national security employees.
    Results: Defeated 4-9.
    Vote by Members: McGovern--Nay; Hastings (FL)--Nay; 
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Sutton--Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings 
(WA)--Yea; Sessions--Yea; Slaughter--Nay.

Rules Committee record vote No. 66

    Date: March 13, 2007.
    Measure: H.R. 985.
    Motion by: Mr. McGovern.
    Summary of motion: To report the rule.
    Results: Adopted 9-4.
    Vote by Members: McGovern--Yea; Hastings (FL)--Yea; 
Matsui--Yea; Cardoza--Yea; Welch--Yea; Castor--Yea; Arcuri--
Yea; Sutton--Yea; Dreier--Nay; Diaz-Balart--Nay; Hastings 
(WA)--Nay; Sessions--Nay; Slaughter--Yea.

                  SUMMARY OF AMENDMENTS MADE IN ORDER

    (Summaries derived information provided by sponsors.)
    1. Stupak (MI): Section 13 of the bill clarifies that 
instances of political interference with science are to be 
considered ``abuses of authority'' and their disclosure 
therefore protected. The Stupak amendment adds an example of 
such interference, namely preventing a federal scientist or 
grantee from publishing or presenting their research. (10 
minutes)
    2. Platts (PA): This amendment would require that the Merit 
Systems Protection Board rely on a consistent standard for 
``clear and convincing evidence'' as the burden of proof that 
must be met to sustain an agency's affirmative defense (that it 
would have taken the same personnel action independent of an 
employee's protected conduct). Under the amendment, ``clear and 
convincing evidence'' would be defined as ``evidence indicating 
that the matter to be proved is highly probable or reasonably 
certain.'' (10 minutes)
    3. Platts (PA): This amendment would clarify that an 
otherwise-protected disclosure cannot be disqualified because 
of the forum in which it is communicated. In addition, the 
amendment would extend equal burdens of proof and individual 
rights of action to those serving as witnesses in Inspector 
General or Special Counsel investigations, as well as to those 
who allege retaliation for refusing to violate the law. (10 
minutes)
    4. Sali (ID): This amendment would remove the provision 
that would make influencing federally funded scientific 
research a prohibited personnel practice. (10 minutes)
    5. Tierney (MA): The amendment changes the section on 
national security whistleblowers to limit which members of 
Congress can receive information about especially sensitive 
subjects, such as sources and methods (to members of the 
intelligence committees or other relevant committees) and 
special access programs (to defense committees), and for other 
programs (to committees with oversight over the program in 
question). (10 minutes)

            TEXT OF AMENDMENTS MADE IN ORDER UNDER THE RULE

1. An Amendment To Be Offered by Representative Stupak of Michigan, or 
                 His Designee, Debatable for 10 Minutes

  Page 28, line 19, strike ``and''.
  Page 28, line 21, strike ``technical.'.'' and insert 
``technical; and''.
  Page 28, after line 21, add the following:
          ``(3) any action that restricts or prevents an 
        employee or any person performing federally funded 
        research or analysis from publishing in peer-reviewed 
        journals or other scientific publications or making 
        oral presentations at professional society meetings or 
        other meetings of their peers.''.
                              ----------                              


2. An Amendment To Be Offered by Representative Platts of Pennsylvania, 
               or His Designee, Debatable for 10 Minutes

  Strike the heading for section 3 and insert the following 
(and amend the table of contents accordingly):

SEC. 3. DEFINITIONAL AMENDMENTS.

  In section 3, insert ``(a) Disclosure.--'' before ``Section'' 
and add at the end the following:
  (b) Clear and Convincing Evidence.--Sections 
1214(b)(4)(B)(ii) and 1221(e)(2) of title 5, United States 
Code, are amended by adding at the end the following: ``For 
purposes of the preceding sentence, `clear and convincing 
evidence' means evidence indicating that the matter to be 
proved is highly probable or reasonably certain.''.
                              ----------                              


3. An Amendment To Be Offered by Representative Platts of Pennsylvania, 
               or His Designee, Debatable for 10 Minutes

  In section 2, in the matter to be inserted by paragraphs 
(1)(A) and (2)(A) thereof, insert ``forum,'' after 
``context,''.
  In section 2, insert ``(a) In General.--'' before ``Section'' 
and add at the end the following:
  (b) Prohibited Personnel Practices Under Section 
2302(b)(9).--Title 5, United States Code, is amended in 
subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of section 1214 
and in subsections (a) and (e)(1) of section 1221 by inserting 
``or 2302(b)(9)(B)-(D)'' after ``section 2302(b)(8)'' each 
place it appears.
  In section 1221(k)(1) of title 5, United States Code (as 
added by section 9(a)), insert ``or 2302(b)(9)(B)-(D)'' after 
``section 2302(b)(8)''.
  In section 7703(b)(3) of title 5, United States Code (as 
added by section 9(b)(2)), insert ``or 2302(b)(9)(B)-(D)'' 
after ``section 2302(b)(8)''.
  In the matter to be inserted by section 9(d)(2) in section 
7703(c) of title 5, United States Code, insert ``or 
2302(b)(9)(B)-(D)'' after ``section 2302(b)(8)''.
  In section 2303a(a)(2)(A) of title 5, United States Code (as 
amended by section 10(a)), insert ``forum,'' after 
``context,''.
                              ----------                              


 4. An Amendment To Be Offered by Representative Sali of Idaho, or His 
                   Designee, Debatable for 10 Minutes

  Strike section 13 (and make all necessary technical and 
conforming changes).
                              ----------                              


      5. An Amendment To Be Offered by Representative Tierney of 
        Massachusetts, or His Designee, Debatable for 10 Minutes

  Page 13, strike line 19, and all that follows through page 
24, line 7, and insert the following:

SEC. 10. NATIONAL SECURITY WHISTLEBLOWER RIGHTS.

  (a) In General.--Chapter 23 of title 5, United States Code, 
is amended by inserting after section 2303 the following:

``Sec. 2303a. National security whistleblower rights

  ``(a) Prohibition of Reprisals.--
          ``(1) In general.--In addition to any rights provided 
        in section 2303 of this title, title VII of Public Law 
        105-272, or any other provision of law, an employee or 
        former employee in a covered agency may not be 
        discharged, demoted, or otherwise discriminated against 
        (including by denying, suspending, or revoking a 
        security clearance, or by otherwise restricting access 
        to classified or sensitive information) as a reprisal 
        for making a disclosure described in paragraph (2).
          ``(2) Disclosures described.--A disclosure described 
        in this paragraph is any disclosure of covered 
        information which is made--
                  ``(A) by an employee or former employee in a 
                covered agency (without restriction as to time, 
                place, form, motive, context, or prior 
                disclosure made to any person by an employee or 
                former employee, including a disclosure made in 
                the course of an employee's duties); and
                  ``(B) to an authorized Member of Congress, an 
                authorized official of an Executive agency, or 
                the Inspector General of the covered agency in 
                which such employee or former employee is or 
                was employed.
  ``(b) Investigation of Complaints.--An employee or former 
employee in a covered agency who believes that such employee or 
former employee has been subjected to a reprisal prohibited by 
subsection (a) may submit a complaint to the Inspector General 
and the head of the covered agency. The Inspector General shall 
investigate the complaint and, unless the Inspector General 
determines that the complaint is frivolous, submit a report of 
the findings of the investigation within 120 days to the 
employee or former employee (as the case may be) and to the 
head of the covered agency.
  ``(c) Remedy.--
          ``(1) Within 180 days of the filing of the complaint, 
        the head of the covered agency shall, taking into 
        consideration the report of the Inspector General under 
        subsection (b) (if any), determine whether the employee 
        or former employee has been subjected to a reprisal 
        prohibited by subsection (a), and shall either issue an 
        order denying relief or shall implement corrective 
        action to return the employee or former employee, as 
        nearly as possible, to the position he would have held 
        had the reprisal not occurred, including voiding any 
        directive or order denying, suspending, or revoking a 
        security clearance or otherwise restricting access to 
        classified or sensitive information that constituted a 
        reprisal, as well as providing back pay and related 
        benefits, medical costs incurred, travel expenses, any 
        other reasonable and foreseeable consequential damages, 
        and compensatory damages (including attorney's fees, 
        interest, reasonable expert witness fees, and costs). 
        If the head of the covered agency issues an order 
        denying relief, he shall issue a report to the employee 
        or former employee detailing the reasons for the 
        denial.
          ``(2)(A) If the head of the covered agency, in the 
        process of implementing corrective action under 
        paragraph (1), voids a directive or order denying, 
        suspending, or revoking a security clearance or 
        otherwise restricting access to classified or sensitive 
        information that constituted a reprisal, the head of 
        the covered agency may re-initiate procedures to issue 
        a directive or order denying, suspending, or revoking a 
        security clearance or otherwise restricting access to 
        classified or sensitive information only if those re-
        initiated procedures are based exclusively on national 
        security concerns and are unrelated to the actions 
        constituting the original reprisal.
          ``(B) In any case in which the head of a covered 
        agency re-initiates procedures under subparagraph (A), 
        the head of the covered agency shall issue an 
        unclassified report to its Inspector General and to 
        authorized Members of Congress (with a classified 
        annex, if necessary), detailing the circumstances of 
        the agency's re-initiated procedures and describing the 
        manner in which those procedures are based exclusively 
        on national security concerns and are unrelated to the 
        actions constituting the original reprisal. The head of 
        the covered agency shall also provide periodic updates 
        to the Inspector General and authorized Members of 
        Congress detailing any significant actions taken as a 
        result of those procedures, and shall respond promptly 
        to inquiries from authorized Members of Congress 
        regarding the status of those procedures.
          ``(3) If the head of the covered agency has not made 
        a determination under paragraph (1) within 180 days of 
        the filing of the complaint (or he has issued an order 
        denying relief, in whole or in part, whether within 
        that 180-day period or thereafter, then, within 90 days 
        after such order is issued), the employee or former 
        employee may bring an action at law or equity for de 
        novo review to seek any corrective action described in 
        paragraph (1) in the appropriate United States district 
        court (as defined by section 1221(k)(2)), which shall 
        have jurisdiction over such action without regard to 
        the amount in controversy. An appeal from a final 
        decision of a district court in an action under this 
        paragraph may, at the election of the appellant, be 
        taken to the Court of Appeals for the Federal Circuit 
        (which shall have jurisdiction of such appeal), in lieu 
        of the United States court of appeals for the circuit 
        embracing the district in which the action was brought.
          ``(4) An employee or former employee adversely 
        affected or aggrieved by an order issued under 
        paragraph (1), or who seeks review of any corrective 
        action determined under paragraph (1), may obtain 
        judicial review of such order or determination in the 
        United States Court of Appeals for the Federal Circuit 
        or any United States court of appeals having 
        jurisdiction over appeals from any United States 
        district court which, under section 1221(k)(2), would 
        be an appropriate United States district court. No 
        petition seeking such review may be filed more than 60 
        days after issuance of the order or the determination 
        to implement corrective action by the head of the 
        agency. Review shall conform to chapter 7.
          ``(5)(A) If, in any action for damages or relief 
        under paragraph (3) or (4), an Executive agency moves 
        to withhold information from discovery based on a claim 
        that disclosure would be inimical to national security 
        by asserting the privilege commonly referred to as the 
        `state secrets privilege', and if the assertion of such 
        privilege prevents the employee or former employee from 
        establishing an element in support of the employee's or 
        former employee's claim, the court shall resolve the 
        disputed issue of fact or law in favor of the employee 
        or former employee, provided that an Inspector General 
        investigation under subsection (b) has resulted in 
        substantial confirmation of that element, or those 
        elements, of the employee's or former employee's claim.
          ``(B) In any case in which an Executive agency 
        asserts the privilege commonly referred to as the 
        `state secrets privilege', whether or not an Inspector 
        General has conducted an investigation under subsection 
        (b), the head of that agency shall, at the same time it 
        asserts the privilege, issue a report to authorized 
        Members of Congress, accompanied by a classified annex 
        if necessary, describing the reasons for the assertion, 
        explaining why the court hearing the matter does not 
        have the ability to maintain the protection of 
        classified information related to the assertion, 
        detailing the steps the agency has taken to arrive at a 
        mutually agreeable settlement with the employee or 
        former employee, setting forth the date on which the 
        classified information at issue will be declassified, 
        and providing all relevant information about the 
        underlying substantive matter.
  ``(d) Applicability to Non-Covered Agencies.--An employee or 
former employee in an Executive agency (or element or unit 
thereof) that is not a covered agency shall, for purposes of 
any disclosure of covered information (as described in 
subsection (a)(2)) which consists in whole or in part of 
classified or sensitive information, be entitled to the same 
protections, rights, and remedies under this section as if that 
Executive agency (or element or unit thereof) were a covered 
agency.
  ``(e) Construction.--Nothing in this section may be 
construed--
          ``(1) to authorize the discharge of, demotion of, or 
        discrimination against an employee or former employee 
        for a disclosure other than a disclosure protected by 
        subsection (a) or (d) of this section or to modify or 
        derogate from a right or remedy otherwise available to 
        an employee or former employee; or
          ``(2) to preempt, modify, limit, or derogate any 
        rights or remedies available to an employee or former 
        employee under any other provision of law, rule, or 
        regulation (including the Lloyd-La Follette Act).
No court or administrative agency may require the exhaustion of 
any right or remedy under this section as a condition for 
pursuing any other right or remedy otherwise available to an 
employee or former employee under any other provision of law, 
rule, or regulation (as referred to in paragraph (2)).
  ``(f) Definitions.--For purposes of this section--
          ``(1) the term `covered information', as used with 
        respect to an employee or former employee, means any 
        information (including classified or sensitive 
        information) which the employee or former employee 
        reasonably believes evidences--
                  ``(A) any violation of any law, rule, or 
                regulation; or
                  ``(B) gross mismanagement, a gross waste of 
                funds, an abuse of authority, or a substantial 
                and specific danger to public health or safety;
          ``(2) the term `covered agency' means--
                  ``(A) the Federal Bureau of Investigation, 
                the Office of the Director of National 
                Intelligence, the Central Intelligence Agency, 
                the Defense Intelligence Agency, the National 
                Geospatial-Intelligence Agency, the National 
                Security Agency, and the National 
                Reconnaissance Office; and
                  ``(B) any other Executive agency, or element 
                or unit thereof, determined by the President 
                under section 2302(a)(2)(C)(ii)(II) to have as 
                its principal function the conduct of foreign 
                intelligence or counterintelligence activities;
          ``(3) the term `authorized Member of Congress' 
        means--
                  ``(A) with respect to covered information 
                about sources and methods of the Central 
                Intelligence Agency, the Director of National 
                Intelligence, and the National Intelligence 
                Program (as defined in section 3(6) of the 
                National Security Act of 1947), a member of the 
                House Permanent Select Committee on 
                Intelligence, the Senate Select Committee on 
                Intelligence, or any other committees of the 
                House of Representatives or Senate to which 
                this type of information is customarily 
                provided;
                  ``(B) with respect to special access programs 
                specified in section 119 of title 10, an 
                appropriate member of the Congressional defense 
                committees (as defined in such section); and
                  ``(C) with respect to other covered 
                information, a member of the House Permanent 
                Select Committee on Intelligence, the Senate 
                Select Committee on Intelligence, the House 
                Committee on Oversight and Government Reform, 
                the Senate Committee on Homeland Security and 
                Governmental Affairs, or any other committees 
                of the House of Representatives or the Senate 
                that have oversight over the program which the 
                covered information concerns; and
          ``(4) the term `authorized official of an Executive 
        agency' shall have such meaning as the Office of 
        Personnel Management shall by regulation prescribe, 
        except that such term shall, with respect to any 
        employee or former employee in an agency, include the 
        head, the general counsel, and the ombudsman of such 
        agency.''.

                                  
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