I 

109TH CONGRESS 

1ST SESSION H. R. 3097

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. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 28, 2005

Mr. PLATTS introduced the following bill; which was referred to the 

Committee on Government Reform 

A BILL

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Federal Employee Pro5 tection of Disclosures Act’’. 
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1 SEC. 2. CLARIFICATION OF DISCLOSURES COVERED. 

2 Section 2302(b)(8) of title 5, United States Code, is 

3 amended—

4 (1) in subparagraph (A)—

5 (A) by striking ‘‘which the employee or ap6 plicant reasonably believes evidences’’ and in7 serting ‘‘, without restriction as to time, place, 

8 form, motive, context, or prior disclosure made 

9 to any person by an employee or applicant, in10 cluding a disclosure made in the ordinary 

11 course of an employee’s duties, that the em12 ployee or applicant reasonably believes is evi13 dence of’’; and 

14 (B) in clause (i), by striking ‘‘a violation’’ 

15 and inserting ‘‘any violation’’; and 

16 (2) in subparagraph (B)—

17 (A) by striking ‘‘which the employee or ap18 plicant reasonably believes evidences’’ and in19 serting ‘‘, without restriction as to time, place, 

20 form, motive, context, or prior disclosure made 

21 to any person by an employee or applicant, in22 cluding a disclosure made in the ordinary 

23 course of an employee’s duties, of information 

24 that the employee or applicant reasonably be25 lieves is evidence of’’; and 
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1 (B) in clause (i), by striking ‘‘a violation’’ 

2 and inserting ‘‘any violation (other than a viola3 tion of this section)’’. 

4 SEC. 3. COVERED DISCLOSURES. 

5 Section 2302(a)(2) of title 5, United States Code, is 

6 amended—

7 (1) in subparagraph (B)(ii), by striking ‘‘and’’ 

8 at the end; 

9 (2) in subparagraph (C)(iii), by striking the pe10 riod at the end and inserting ‘‘; and’’; and 

11 (3) by adding at the end the following: 

12 ‘‘(D) ‘disclosure’ means a formal or informal 

13 communication, but does not include a communica14 tion concerning policy decisions that lawfully exer15 cise discretionary authority unless the employee pro16 viding the disclosure reasonably believes that the dis17 closure evidences—

18 ‘‘(i) any violation of any law, rule, or regu19 lation; or 

20 ‘‘(ii) gross mismanagement, a gross waste 

21 of funds, an abuse of authority, or a substantial 

22 and specific danger to public health or safety.’’. 

23 SEC. 4. REBUTTABLE PRESUMPTION. 

24 Section 2302(b) of title 5, United States Code, is 

25 amended by adding at the end the following: ‘‘For pur-
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1 poses of paragraph (8), any presumption relating to the 

2 performance of a duty by an employee who has authority 

3 to take, direct others to take, recommend, or approve any 

4 personnel action may be rebutted by substantial evidence. 

5 For purposes of paragraph (8), a determination as to 

6 whether an employee or applicant reasonably believes that 

7 such employee or applicant has disclosed information that 

8 evidences any violation of law, rule, regulation, gross mis9 management, a gross waste of funds, an abuse of author10 ity, or a substantial and specific danger to public health 

11 or safety shall be made by determining whether a disin12 terested observer with knowledge of the essential facts 

13 known to or readily ascertainable by the employee or appli14 cant would reasonably conclude that the actions of the 

15 Government evidence such violations, mismanagement, 

16 waste, abuse, or danger.’’. 

17 SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREE18 MENTS. 

19 (a) PERSONNEL ACTION.—Section 2302(a)(2)(A) of 

20 title 5, United States Code, is amended—

21 (1) in clause (x), by striking ‘‘and’’ at the end; 

22 (2) by redesignating clause (xi) as clause (xii); 

23 and

24 (3) by inserting after clause (x) the following: 
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1 ‘‘(xi) the implementation or enforcement of 

2 any nondisclosure policy, form, or agreement; 

3 and’’. 

4 (b) PROHIBITED PERSONNEL PRACTICE.—Section 

5 2302(b) of title 5, United States Code, is amended—

6 (1) in paragraph (11), by striking ‘‘or’’ at the 

7 end; 

8 (2) in paragraph (12), by striking the period 

9 and inserting a semicolon; and 

10 (3) by inserting after paragraph (12) the fol11 lowing: 

12 ‘‘(13) implement or enforce any nondisclosure 

13 policy, form, or agreement, if such policy, form, or 

14 agreement does not contain the following statement: 

15 ‘‘ ‘These provisions are consistent with and do not su16 persede, conflict with, or otherwise alter the employee obli17 gations, rights, or liabilities created by Executive Order 

18 No. 12958; section 7211 of title 5, United States Code 

19 (governing disclosures to Congress); section 1034 of title 

20 10, United States Code (governing disclosures to Congress 

21 by members of the military); section 2302(b)(8) of title 

22 5, United States Code (governing disclosures of illegality, 

23 waste, fraud, abuse, or public health or safety threats); 

24 the Intelligence Identities Protection Act of 1982 (50 

25 U.S.C. 421 and following) (governing disclosures that 
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1 could expose confidential Government agents); and the 

2 statutes which protect against disclosures that could com3 promise national security, including sections 641, 793, 

4 794, 798, and 952 of title 18, United States Code, and 

5 section 4(b) of the Subversive Activities Control Act of 

6 1950 (50 U.S.C. 783(b)). The definitions, requirements, 

7 obligations, rights, sanctions, and liabilities created by 

8 such Executive order and such statutory provisions are in9 corporated into this agreement and are controlling.’; or 

10 ‘‘(14) conduct, or cause to be conducted, an in11 vestigation, other than any ministerial or nondis12 cretionary factfinding activities necessary for the 

13 agency to perform its mission, of an employee or ap14 plicant for employment because of any activity pro15 tected under this section.’’. 

16 SEC. 6. EXCLUSION OF AGENCIES BY THE PRESIDENT. 

17 Section 2302(a)(2)(C) of title 5, United States Code, 

18 is amended by striking clause (ii) and inserting the fol19 lowing: 

20 ‘‘(ii)(I) the Federal Bureau of Investiga21 tion, the Central Intelligence Agency, the De22 fense Intelligence Agency, the National 

23 Geospatial-Intelligence Agency, the National Se24 curity Agency; and 
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1 ‘‘(II) as determined by the President, any 

2 executive agency or unit thereof the principal 

3 function of which is the conduct of foreign in4 telligence or counterintelligence activities, if the 

5 determination (as that determination relates to 

6 a personnel action) is made before that per7 sonnel action; or’’. 

8 SEC. 7. DISCIPLINARY ACTION. 

9 Section 1215(a)(3) of title 5, United States Code, is 

10 amended to read as follows: 

11 ‘‘(3)(A) A final order of the Board may impose—

12 ‘‘(i) disciplinary action consisting of removal, 

13 reduction in grade, debarment from Federal employ14 ment for a period not to exceed 5 years, suspension, 

15 or reprimand; 

16 ‘‘(ii) an assessment of a civil penalty not to ex17 ceed $1,000; or 

18 ‘‘(iii) any combination of disciplinary actions 

19 described under clause (i) and an assessment de20 scribed under clause (ii). 

21 ‘‘(B) In any case in which the Board finds that an 

22 employee has committed a prohibited personnel practice 

23 under paragraph (8) or (9) of section 2302(b), the Board 

24 shall impose disciplinary action if the Board finds that the 

25 activity protected under such paragraph (8) or (9) (as the 
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1 case may be) was the primary motivating factor, unless 

2 that employee demonstrates, by a preponderance of the 

3 evidence, that the employee would have taken, failed to 

4 take, or threatened to take or fail to take the same per5 sonnel action, in the absence of such protected activity.’’. 

6 SEC. 8. GOVERNMENT ACCOUNTABILITY OFFICE STUDY ON 

7 REVOCATION OF SECURITY CLEARANCES. 

8 (a) REQUIREMENT.—The Comptroller General shall 

9 conduct a study of security clearance revocations, taking 

10 effect after 1996, with respect to personnel that filed 

11 claims under chapter 12 of title 5, United States Code, 

12 in connection therewith. The study shall consist of an ex13 amination of the number of such clearances revoked, the 

14 number restored, and the relationship, if any, between the 

15 resolution of claims filed under such chapter and the res16 toration of such clearances. 

17 (b) REPORT.—Not later than June 30, 2006, the 

18 Comptroller General shall submit to the Committee on 

19 Government Reform of the House of Representatives and 

20 the Committee on Homeland Security and Governmental 

21 Affairs of the Senate a report on the results of the study 

22 required by subsection (a). 
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1 SEC. 9. EFFECTIVE DATE. 

2 This Act shall take effect 30 days after the date of 

3 enactment of this Act.

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