Congressional Record: January 11, 2007 (Senate)
Page S455-S458
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. AKAKA (for himself, Ms. Collins, Mr. Grassley, Mr. Levin,
Mr. Lieberman, Mr. Leahy, Mr. Voinovich, Mr. Carper, Mr.
Durbin, Mr. Pryor, and Mr. Lautenberg):
S. 274. A bill to amend chapter 23 of title 5, United States Code, to
clarify the disclosures of information protected from prohibited
personnel practices, require a statement in nondisclosure policies,
forms, and agreements that such policies, forms, and agreements conform
with certain disclosure protections, provide certain authority for the
Special Counsel, and for other purposes; to the Committee on Homeland
Security and Governmental Affairs.
Mr. AKAKA. Mr. President, today I rise to reintroduce the Federal
Employee Protection of Disclosures Act, which will make much needed
changes to the Whistleblower Protection Act, WPA. I am pleased once
again to be
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joined in this effort by Senators Collins, Grassley, Levin, Lieberman,
Leahy, Voinovich, Carper, Durbin, Pryor, and Lautenberg.
Senator Levin and I first introduced this legislation in 2000. In the
House, Representatives Henry Waxman and Tom Davis, the chairman and
ranking member of the House Government Reform Committee, and
Representative Todd Platts, who has sponsored companion legislation
since 2003, have been working to enact strong whistleblower
protections.
Over the years, we've worked to educate our colleagues on the need to
strengthen the WPA and build consensus for the legislation. I'm
especially pleased that last year our bill passed the Senate by
unanimous consent as an amendment to the fiscal year 2007 Defense
Authorization Act. While the measure was removed with other non-defense
specific material in conference, I believe the Senate's action will
provide the momentum to make a real difference for Federal
whistleblowers in the 110th Congress.
We agree that to ensure the success of any government program there
must be appropriate checks in place to weed out mismanagement and
wasteful spending. A strong and vibrant WPA is a critical tool in
saving taxpayer money and ensuring an open government.
The Federal Employee Protection of Disclosures Act addresses many
court decisions that have eroded protections for Federal employees and
have ignored congressional intent. Our legislation ensures that Federal
whistleblowers are protected from retaliatory action when notifying the
public and government leaders of waste, fraud, and abuse. If we fail to
protect whistleblowers, then our efforts to improve government
management, protect the public, and secure the nation will also fail.
The legislation: clarifies congressional intent that Federal
employees are protected for any disclosure of waste, fraud, or abuse--
including those made as part of an employee's job duties; provides an
independent determination as to whether the loss or denial of a
security clearance is retaliation against a whistleblower; and suspends
the Federal Circuit Court of Appeals' sole jurisdiction over Federal
employee whistleblower cases for 5 years, which would ensure a fuller
review of a whistleblower's claim.
Given that the United States will be fighting the war on terror for
years to come and that funding such operations requires significant
resources, it is imperative that government funds are spent wisely.
That is why Federal employees must be confident that they can disclose
government waste, fraud, and abuse without fear of retaliation.
Restoring credibility to the WPA is no less than a necessity. I look
forward to working with my colleagues to pass this critical
legislation.
I ask unanimous consent that the text of the legislation be printed
in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 274
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION
BY FEDERAL EMPLOYEES.
(a) Short Title.--This Act may be cited as the ``Federal
Employee Protection of Disclosures Act''.
(b) Clarification of Disclosures Covered.--Section
2302(b)(8) of title 5, United States Code, is amended--
(1) in subparagraph (A)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, that the employee or applicant reasonably
believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation''; and
(2) in subparagraph (B)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, of information that the employee or
applicant reasonably believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''.
(c) Covered Disclosures.--Section 2302(a)(2) of title 5,
United States Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee providing the
disclosure reasonably believes that the disclosure
evidences--
``(i) any violation of any law, rule, or regulation; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.''.
(d) Rebuttable Presumption.--Section 2302(b) of title 5,
United States Code, is amended by amending the matter
following paragraph (12) to read as follows:
``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses
information to Congress, except that an employee or applicant
may be disciplined for the disclosure of information
described in paragraph (8)(C)(i) to a Member or employee of
Congress who is not authorized to receive such information.
For purposes of paragraph (8), a determination as to whether
an employee or applicant reasonably believes that they have
disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety shall be made by
determining whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by
the employee could reasonably conclude that the actions of
the Government evidence such violations, mismanagement,
waste, abuse, or danger.''.
(e) Nondisclosure Policies, Forms, and Agreements; Security
Clearances; and Retaliatory Investigations.--
(1) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (x), by striking ``and'' after the semicolon;
and
(B) by redesignating clause (xi) as clause (xiv) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement;
``(xii) a suspension, revocation, or other determination
relating to a security clearance or any other access
determination by a covered agency;
``(xiii) an investigation, other than any ministerial or
nondiscretionary fact finding activities necessary for the
agency to perform its mission, of an employee or applicant
for employment because of any activity protected under this
section; and''
(2) Prohibited personnel practice.--Section 2302(b) of
title 5, United States Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
a semicolon; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by Executive Order No. 12958; section
7211 of title 5, United States Code (governing disclosures to
Congress); section 1034 of title 10, United States Code
(governing disclosure to Congress by members of the
military); section 2302(b)(8) of title 5, United States Code
(governing disclosures of illegality, waste, fraud, abuse, or
public health or safety threats); the Intelligence Identities
Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing
disclosures that could expose confidential Government
agents); and the statutes which protect against disclosures
that could compromise national security, including sections
641, 793, 794, 798, and 952 of title 18, United States Code,
and section 4(b) of the Subversive Activities Control Act of
1950 (50 U.S.C. 783(b)). The definitions, requirements,
obligations, rights, sanctions, and liabilities created by
such Executive order and such statutory provisions are
incorporated into this agreement and are controlling'; or
``(14) conduct, or cause to be conducted, an investigation,
other than any ministerial or nondiscretionary fact finding
activities necessary for the agency to perform its mission,
of an employee or applicant for employment because of any
activity protected under this section.''.
(3) Board and court review of actions relating to security
clearances.--
(A) In general.--Chapter 77 of title 5, United States Code,
is amended by inserting after section 7702 the following:
``Sec. 7702a. Actions relating to security clearances
``(a) In any appeal relating to the suspension, revocation,
or other determination relating to a security clearance or
access determination, the Merit Systems Protection Board or
any reviewing court--
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``(1) shall determine whether paragraph (8) or (9) of
section 2302(b) was violated;
``(2) may not order the President or the designee of the
President to restore a security clearance or otherwise
reverse a determination of clearance status or reverse an
access determination; and
``(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
``(b)(1) If, in any final judgment, the Board or court
declares that any suspension, revocation, or other
determination with regard to a security clearance or access
determination was made in violation of paragraph (8) or (9)
of section 2302(b), the affected agency shall conduct a
review of that suspension, revocation, access determination,
or other determination, giving great weight to the Board or
court judgment.
``(2) Not later than 30 days after any Board or court
judgment declaring that a security clearance suspension,
revocation, access determination, or other determination was
made in violation of paragraph (8) or (9) of section 2302(b),
the affected agency shall issue an unclassified report to the
congressional committees of jurisdiction (with a classified
annex if necessary), detailing the circumstances of the
agency's security clearance suspension, revocation, other
determination, or access determination. A report under this
paragraph shall include any proposed agency action with
regard to the security clearance or access determination.
``(c) An allegation that a security clearance or access
determination was revoked or suspended in retaliation for a
protected disclosure shall receive expedited review by the
Office of Special Counsel, the Merit Systems Protection
Board, and any reviewing court.
``(d) For purposes of this section, corrective action may
not be ordered if the agency demonstrates by a preponderance
of the evidence that it would have taken the same personnel
action in the absence of such disclosure.''.
(B) Technical and conforming amendment.--The table of
sections for chapter 77 of title 5, United States Code, is
amended by inserting after the item relating to section 7702
the following:
``7702a. Actions relating to security clearances.''.
(f) Exclusion of Agencies by the President.--Section
2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Imagery and Mapping Agency, the National Security
Agency; and
``(II) as determined by the President, any executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action; or''.
(g) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party is employed or
has applied for employment''.
(h) Disciplinary Action.--Section 1215(a)(3) of title 5,
United States Code, is amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case in which the Board finds that an employee
has committed a prohibited personnel practice under paragraph
(8) or (9) of section 2302(b), the Board shall impose
disciplinary action if the Board finds that the activity
protected under paragraph (8) or (9) of section 2302(b) was a
significant motivating factor, even if other factors also
motivated the decision, for the employee's decision to take,
fail to take, or threaten to take or fail to take a personnel
action, unless that employee demonstrates, by preponderance
of evidence, that the employee would have taken, failed to
take, or threatened to take or fail to take the same
personnel action, in the absence of such protected
activity.''.
(i) Special Counsel Amicus Curiae Appearance.--Section 1212
of title 5, United States Code, is amended by adding at the
end the following:
``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to any civil action brought in connection with
section 2302(b) (8) or (9), or subchapter III of chapter 73,
or as otherwise authorized by law. In any such action, the
Special Counsel is authorized to present the views of the
Special Counsel with respect to compliance with section
2302(b) (8) or (9) or subchapter III of chapter 73 and the
impact court decisions would have on the enforcement of such
provisions of law.
``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such
action for the purposes described in subsection (a).''.
(j) Judicial Review.--
(1) In general.--Section 7703(b)(1) of title 5, United
States Code, is amended to read as follows:
``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2), a petition to review a final order or final
decision of the Board shall be filed in the United States
Court of Appeals for the Federal Circuit. Notwithstanding any
other provision of law, any petition for review must be filed
within 60 days after the date the petitioner received notice
of the final order or decision of the Board.
``(B) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act, a
petition to review a final order or final decision of the
Board in a case alleging a violation of paragraph (8) or (9)
of section 2302(b) shall be filed in the United States Court
of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction as provided under subsection
(b)(2).''.
(2) Review obtained by office of personnel management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in his discretion, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals. The granting of the petition for
judicial review shall be at the discretion of the Court of
Appeals.
``(2) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act,
this paragraph shall apply to any review relating to
paragraph (8) or (9) of section 2302(b) obtained by the
Director of the Office of Personnel Management. The Director
of the Office of Personnel Management may obtain review of
any final order or decision of the Board by filing, within 60
days after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as
provided under subsection (b)(2) if the Director determines,
in his discretion, that the Board erred in interpreting
paragraph (8) or (9) of section 2302(b). If the Director did
not intervene in a matter before the Board, the Director may
not petition for review of a Board decision under this
section unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.
In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the
right to appear in the proceeding before the court of
appeals. The granting of the petition for judicial review
shall be at the discretion of the Court of Appeals.''.
(k) Nondisclosure Policies, Forms, and Agreements.--
(1) In general.--
(A) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These restrictions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
Executive Order No. 12958; section 7211 of title 5, United
States Code (governing disclosures to Congress); section 1034
of title 10, United States Code (governing disclosure to
Congress by members of the military); section 2302(b)(8) of
title 5, United States Code (governing disclosures of
illegality, waste, fraud, abuse or public health or safety
threats); the Intelligence Identities Protection Act of 1982
(50 U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes
which protect against disclosure that may compromise the
national security, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.''.
(B) Enforceability.--Any nondisclosure policy, form, or
agreement described under subparagraph (A) that does not
contain the statement required under subparagraph (A) may not
be implemented or enforced to the extent such policy, form,
or agreement is inconsistent with that statement.
(2) Persons other than government employees.--
Notwithstanding paragraph (1), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the United
States Government, may contain provisions appropriate to the
particular activity for which such document is to be used.
Such form or agreement
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shall, at a minimum, require that the person will not
disclose any classified information received in the course of
such activity unless specifically authorized to do so by the
United States Government. Such nondisclosure forms shall also
make it clear that such forms do not bar disclosures to
Congress or to an authorized official of an executive agency
or the Department of Justice that are essential to reporting
a substantial violation of law.
(l) Clarification of Whistleblower Rights for Critical
Infrastructure Information.--Section 214(c) of the Homeland
Security Act of 2002 (6 U.S.C. 133(c)) is amended by adding
at the end the following: ``For purposes of this section a
permissible use of independently obtained information
includes the disclosure of such information under section
2302(b)(8) of title 5, United States Code.''.
(m) Advising Employees of Rights.--Section 2302(c) of title
5, United States Code, is amended by inserting ``, including
how to make a lawful disclosure of information that is
specifically required by law or Executive order to be kept
secret in the interest of national defense or the conduct of
foreign affairs to the Special Counsel, the Inspector General
of an agency, Congress, or other agency employee designated
to receive such disclosures'' after ``chapter 12 of this
title''.
(n) Scope of Due Process.--
(1) Special counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(2) Individual action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(o) Effective Date.--This Act shall take effect 30 days
after the date of enactment of this Act.
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