U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

39–010

" SENATE ! 108TH CONGRESS

2d Session

REPORT

2004

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 


E:\Seals\Congress.#13
(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

ARLEN SPECTER, Pennsylvania 

ROBERT F. BENNETT, Utah 

PETER G. FITZGERALD, Illinois 

JOHN E. SUNUNU, New Hampshire 

RICHARD C. SHELBY, Alabama 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

RICHARD J. DURBIN, Illinois 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

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 

(III)

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 have been 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 

2

1Memorandum from President George W. Bush to the Heads of Executive Departments and 

Agencies on Standards of Official Conduct (Jan. 20, 2001). 

memorandum specifically stated that employees shall disclose 

waste, fraud, abuse, and corruption to appropriate authorities.1

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 conVerDate jul 14 2003 00:39 Oct 20, 2004 Jkt 039010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR392.XXX SR392
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2S. Rep. No. 95–969, at 8 (1978).

3S. Rep. No. 100–413, at 6–16 (1988). 

4Whistleblower Protection Act of 1989, Public Law No. 101–12, 103 Stat. 16 (1989). 

5 Id. at § 2(b). 

6S. Rep. No. 103–358 (1994), at 10 (quoting S. Rep. No. 100–413 (1988) at 13).

scientious civil servants deserve statutory protection rather than bureaucratic harassment and intimidation.2

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

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

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

Similarly, the House stated:

4

7 H. Rep. No. 103–769, at 18 (1994). 

8See, e.g., Horton v. Department of the Navy, 66 F.3d 279 (Fed. Cir. 1995) (disclosures to coworker 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). 9See, 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). 12See Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001). 13See, 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). 

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

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

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

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

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 

5

14Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); accord Rusin v. Department of the 

Treasury, 92 M.S.P.R. 298 (2002). 15S. 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). 16See 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.’’). 

should good-faith whistleblowing become chilled by a hostile process on the threshold question of what constitutes a ‘‘disclosure.’’ 

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 

believe that the disclosure evidences a violation of law or other 

enumerated items in 5 U.S.C. § 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. § 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. 

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

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 

6

17Gilbert v. Dept. of Commerce, 194 F.3d 1332 (Fed. Cir. 1999). 18Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). 19 Id. 20 Id. (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)). 21Merriam-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). 

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

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. 

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. 

§ 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

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. 

In 2003, on remand from the Federal Circuit, the MSPB sensibly 

ruled that:

7

22White v. Dept. Air Force, DE–1221–92–0491–M–4 at 7–8 (MSPB September 11, 2003). 23 Chambers v. Dept. Interior, DC–1221–04–0616–S–1 and DC–0752–04–0642–S–1, at 4 

(MSPB July 27, 2004). 24 Richardson v. Perales, 402 U.S. 389, 401 (1971). 

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

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. 

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 preponderVerDate jul 14 2003 00:39 Oct 20, 2004 Jkt 039010 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\SR392.XXX SR392
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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). 27Public Law No. 95–454, Sec. 205, 92 Stat. 1143 (Oct. 13, 1978) (adding 5 U.S.C. 7703). 28Public Law No. 97–164, Sec. 144 (April 2, 1982). 29 5 U.S.C. § 7702, 7703(b)(2). 

ance.’’ 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. 

§ 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

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

During the hearing on S. 1358, attorney Stephen Kohn, Chairman of the National Whistleblower 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 

9

30 Hearing supra note 15, (statement of Stephen Kohn, Chairman, Board of Directors, National 

Whistleblower Center) at 136. 31 5 U.S.C. § 7123. 32 5 U.S.C. § 1508. 33 31 U.S.C. § 3730(h). 34 12 U.S.C. § 1441a(q). 35 12 U.S.C. § 1790b(b). 36 42 U.S.C. § 5851(c). 37 42 U.S.C. § 7622(c). 38 49 U.S.C. § 42121(b)(4). 

authority has never (and most likely can never) been exercised in support of an employee-whistleblower.30

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

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. 

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

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. 

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 CongresVerDate jul 14 2003 00:39 Oct 20, 2004 Jkt 039010 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR392.XXX SR392
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39 5 U.S.C. § 1211(b). 40 U.S. Office of Special Counsel, Annual Report for Fiscal Year 2003, at 7. 41 5 U.S.C. § 1214(b)(2)(C). 

sional 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. 

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

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 

11

42Public Law No. 96–354. 43 5 U.S.C. § 612(c). 44Public Law No. 104–121. 45 56 F.3d 151 (D.C. Cir. 1995), cert. denied, 516 US 112 (1996). 46 995 F. Supp. 1411 (M.D. Fla. 1998). 

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

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. 

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 

12

47 5 U.S.C. § 1215. 48Special Counsel v. Santella, 65 M.S.P.R. 452 (1994). 49 5 U.S.C. §§ 1214 and 1221. See also 135 Cong. Rec. 4509, 4517, 5033 (1989). 50Letter 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.’’). 51Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). 

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. 

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

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

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. 

13

52 86 M.S.P.R. 48 (May 9, 2000). 

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. 

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 discipliVerDate jul 14 2003 00:39 Oct 20, 2004 Jkt 039010 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\SR392.XXX SR392
14

53Public Law No. 105–277, The Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, 636. 54See Mark Hertsgaard, Nuclear Insecurity, Vanity Fair, Nov. 2003, at 175. 55 Hesse v. State, 217 F.3d 1372 (Fed. Cir. 2000). 

nary 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 nondisclosure 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. 

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. 

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 

15

56S. 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).

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. 

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

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 

16

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). 59See 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). 60Moschella letter supra note 58. 61 Id. 

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

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. 

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, 

17

62 Hearing supra note 15 at 17–18 (testimony of Thomas Devine, Legal Director, Government 

Accountability Project). 63 Hearing supra note 15 (testimony of Mr. Peter Keisler, Assistant Attorney General, Civil 

Division, U.S. Department of Justice). 

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

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

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. 

18

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 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 

§ 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 § 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

19

66S. Rep. No. 105–165 (1998). 67 18 U.S.C. § 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. § 783. 69 18 U.S.C. § 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. 

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 from accomplishing 

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

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

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. § 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 

20

70 5 U.S.C. § 2302(a)(2)(B). 71 5 U.S.C. § 2302(a)(2)(B). 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). 74 140 Cong. Rec. 29,353 (1994) and H.R. Rep. No. 103–769, at 15. 

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

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. 

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 

21

75 76 M.S.P.R. 317, 323–24 (1997). 76 Hearing supra note 15 at 60. 77Pub. L. No. 107–296, § 214. 78See 5 U.S.C. § 552.

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.’’ 

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

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: 

[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 

22

79Letter from Elaine Kaplan, Special Counsel, Office of Special Counsel, to Sen. Charles 

Grassley (March 10, 2003). 80 6 C.F.R. 29.8(f) (2004). 81 Rusin v. Dept. of Treasury, 92 M.S.P.R. 298 (2002). 

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

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 full protections 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. § 2302(b)(8). 

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

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 preVerDate jul 14 2003 00:39 Oct 20, 2004 Jkt 039010 PO 00000 Frm 00026 Fmt 6659 Sfmt 6602 E:\HR\OC\SR392.XXX SR392
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82 Reprinted in 135 Cong. Rec. 5033 (1989). 83 140 Cong. Rec. H11422 (daily ed. Oct 7, 1994) (statement of Rep. McCloskey). 

cludes 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. 

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 voice vote. Members 

24

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 reVerDate jul 14 2003 00:39 Oct 20, 2004 Jkt 039010 PO 00000 Frm 00028 Fmt 6659 Sfmt 6602 E:\HR\OC\SR392.XXX SR392
25

taliation under 5 U.S.C. § 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 to compliance 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. 

26

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 UnVerDate jul 14 2003 00:39 Oct 20, 2004 Jkt 039010 PO 00000 Frm 00030 Fmt 6659 Sfmt 6602 E:\HR\OC\SR392.XXX SR392
27

funded 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 øagency 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. 

28

(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) * * * 

* * * * * * *

ø(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 

29

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; 

øand¿

(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; 

30 

(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 

ø(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 policyadvocating 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; øand¿ 

(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); 

ø(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 Officeø.¿ 

(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 

31

(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 øwhich 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) øa 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 øwhich 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) øa 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— 

32

(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; øor¿

(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 titleø.¿;

(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 Congressø.¿, 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 informaVerDate jul 14 2003 00:39 Oct 20, 2004 Jkt 039010 PO 00000 Frm 00036 Fmt 6659 Sfmt 6602 E:\HR\OC\SR392.XXX SR392
33

tion. 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 

34

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) øof 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 

35

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.

Æ