I 

108TH CONGRESS 

1ST SESSION H. R. 3281

To amend title 5, United States Code, to clarify which disclosures of information are protected from prohibited personnel practices; to require a statement in nondisclosure policies, forms, and agreements to the effect that 

such policies, forms, and agreements are consistent with certain disclosure protections; to provide certain authority to the Special Counsel; 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 8, 2003

Mr. PLATTS (for himself, Mr. WOLF, Mr. WAXMAN, Mr. MCHUGH, Mr. 

SHAYS, Mr. RUPPERSBERGER, Ms. SCHAKOWSKY, and Mr. TIERNEY) introduced the following bill; which was referred to the Committee on Government Reform 

A BILL

To amend title 5, United States Code, to clarify which disclosures of information are protected from prohibited personnel practices; to require a statement in nondisclosure 

policies, forms, and agreements to the effect that such 

policies, forms, and agreements are consistent with certain disclosure protections; to provide certain authority 

to the Special Counsel; and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

•HR 3281 IH 

1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘Whistleblower Protection Enhancement Act’’. 

4 (b) TABLE OF CONTENTS.—The table of contents of 

5 this Act is as follows:

Sec. 1. Short title; table of contents. 

Sec. 2. Clarification of disclosures covered. 

Sec. 3. Covered disclosures. 

Sec. 4. Rebuttable presumption. 

Sec. 5. Nondisclosure policies, forms, and agreements; security clearances; and 

retaliatory investigations. 

Sec. 6. Exclusion of agencies by the President. 

Sec. 7. Attorney fees. 

Sec. 8. Compensatory damages. 

Sec. 9. Disciplinary action. 

Sec. 10. Disclosures to Congress. 

Sec. 11. Authority of Special Counsel relating to civil actions. 

Sec. 12. Judicial review. 

Sec. 13. Nondisclosure policies, forms, and agreements. 

Sec. 14. Clarification of whistleblower rights for critical infrastructure information. 

Sec. 15. Effective date.

6 SEC. 2. CLARIFICATION OF DISCLOSURES COVERED. 

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

8 amended—

9 (1) in subparagraph (A)—

10 (A) by striking ‘‘which the employee or ap11 plicant reasonably believes evidences’’ and in12 serting ‘‘, without restriction as to time, place, 

13 form, motive, context, or prior disclosure made 

14 to any person by an employee or applicant, in15 cluding a disclosure made in the ordinary 

16 course of an employee’s duties, that the em-
3

•HR 3281 IH 

1 ployee or applicant reasonably believes is evi2 dence of’’; and 

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

4 and inserting ‘‘any violation’’; 

5 (2) in subparagraph (B)—

6 (A) by striking ‘‘which the employee or ap7 plicant reasonably believes evidences’’ and in8 serting ‘‘, without restriction as to time, place, 

9 form, motive, context, or prior disclosure made 

10 to any person by an employee or applicant, in11 cluding a disclosure made in the ordinary 

12 course of an employee’s duties, to the Special 

13 Counsel, or to the Inspector General of an 

14 agency or another employee designated by the 

15 head of the agency to receive such disclosures, 

16 of information that the employee or applicant 

17 reasonably believes is evidence of’’; and 

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

19 and inserting ‘‘any violation (other than a viola20 tion of this section)’’; and 

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

22 ‘‘(C) any disclosure that—

23 ‘‘(i) is made by an employee or appli24 cant of information required by law or Ex25 ecutive order to be kept secret in the inter-
4

•HR 3281 IH 

1 est of national defense or the conduct of 

2 foreign affairs that the employee or appli3 cant reasonably believes is direct and spe4 cific evidence of—

5 ‘‘(I) any violation of any law, 

6 rule, or regulation; 

7 ‘‘(II) gross mismanagement, a 

8 gross waste of funds, an abuse of au9 thority, or a substantial and specific 

10 danger to public health or safety; or 

11 ‘‘(III) a false statement to Con12 gress on an issue of material fact; and 

13 ‘‘(ii) is made to—

14 ‘‘(I) a member of a committee of 

15 Congress having a primary responsi16 bility for oversight of a department, 

17 agency, or element of the Federal 

18 Government to which the disclosed in19 formation relates and who is author20 ized to receive information of the type 

21 disclosed; 

22 ‘‘(II) any other Member of Con23 gress who is authorized to receive in24 formation of the type disclosed; or 
5

•HR 3281 IH 

1 ‘‘(III) an employee of Congress 

2 who has the appropriate security 

3 clearance and is authorized to receive 

4 information of the type disclosed.’’. 

5 SEC. 3. COVERED DISCLOSURES. 

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

7 amended—

8 (1) in the matter following paragraph (12), by 

9 striking ‘‘This subsection’’ and inserting the fol10 lowing: 

11 ‘‘This subsection’’; and 

12 (2) by adding at the end the following: 

13 ‘‘In this subsection, the term ‘disclosure’ means a formal 

14 or informal communication or transmission.’’. 

15 SEC. 4. REBUTTABLE PRESUMPTION. 

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

17 amended by adding after the matter following paragraph 

18 (12) (as amended by section 3) the following: ‘‘For pur19 poses of paragraph (8), any presumption relating to the 

20 performance of a duty by an employee who has authority 

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

22 personnel action may be rebutted by substantial evi23 dence.’’.
6

•HR 3281 IH 

1 SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREE2 MENTS; SECURITY CLEARANCES; AND RETAL3 IATORY INVESTIGATIONS. 

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

5 title 5, United States Code, is amended—

6 (1) in clause (x), by striking ‘‘and’’ after the 

7 semicolon; and 

8 (2) by redesignating clause (xi) as clause (xiv) 

9 and inserting after clause (x) the following: 

10 ‘‘(xi) the implementation or enforcement of 

11 any nondisclosure policy, form, or agreement; 

12 ‘‘(xii) a suspension, revocation, or other de13 termination relating to a security clearance; 

14 ‘‘(xiii) an investigation of an employee or 

15 applicant for employment because of any activ16 ity protected under this section; and’’. 

17 (b) PROHIBITED PERSONNEL PRACTICE.—Section 

18 2302(b) of title 5, United States Code, is amended—

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

20 end; 

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

22 and inserting a semicolon; and 

23 (3) by inserting after paragraph (12) the fol24 lowing: 
7

•HR 3281 IH 

1 ‘‘(13) implement or enforce any nondisclosure 

2 policy, form, or agreement, if such policy, form, or 

3 agreement does not contain the following statement: 

4 ‘‘ ‘These provisions are consistent with and 

5 do not supersede, conflict with, or otherwise 

6 alter the employee obligations, rights, or liabil7 ities created by Executive Order No. 12958 (50 

8 U.S.C. 435 note); section 7211 of title 5, 

9 United States Code (relating to employees’ 

10 right to petition Congress); section 1034 of title 

11 10, United States Code (relating to protected 

12 communications; prohibition of retaliatory per13 sonnel actions); section 2302(b)(8) of title 5, 

14 United States Code (relating to disclosures of 

15 violations of law, gross mismanagement, and 

16 certain other matters); the Intelligence Identi17 ties Protection Act of 1982 (50 U.S.C. 421 et 

18 seq.) (relating to disclosures that could expose 

19 confidential Government agents); and the stat20 utes which protect against disclosures that 

21 could compromise national security, including 

22 sections 641, 793, 794, 798, and 952 of title 

23 18, United States Code, and section 4(b) of the 

24 Subversive Activities Control Act of 1950 (50 

25 U.S.C. 783(b)). The definitions, requirements, 
8

•HR 3281 IH 

1 obligations, rights, sanctions, and liabilities cre2 ated by such Executive order and such statu3 tory provisions are incorporated into this agree4 ment and are controlling.’; or 

5 ‘‘(14) conduct, or cause to be conducted, an in6 vestigation of an employee or applicant for employ7 ment because of any activity protected under this 

8 section.’’. 

9 (c) BOARD AND COURT REVIEW OF ACTIONS RELAT10 ING TO SECURITY CLEARANCES.—

11 (1) IN GENERAL.—Chapter 77 of title 5, United 

12 States Code, is amended by inserting after section 

13 7702 the following: 

14 ‘‘§ 7702a. Actions relating to security clearances 

15 ‘‘(a) In any appeal relating to the suspension, revoca16 tion, or other determination relating to a security clear17 ance, the Merit Systems Protection Board or any review18 ing court—

19 ‘‘(1) shall determine whether section 2302 was 

20 violated; 

21 ‘‘(2) may not order the President to restore a 

22 security clearance; and 

23 ‘‘(3) subject to paragraph (2), may issue declar24 atory relief and any other appropriate relief. 
9

•HR 3281 IH 

1 ‘‘(b)(1) If, in any final judgment, the Board or court 

2 declares that any suspension, revocation, or other deter3 mination with regard to a security clearance was made in 

4 violation of section 2302, the affected agency shall conduct 

5 a review of that suspension, revocation, or other deter6 mination, giving great weight to the Board or court judg7 ment. 

8 ‘‘(2) Not later than 30 days after any Board or court 

9 judgment declaring that a security clearance suspension, 

10 revocation, or other determination was made in violation 

11 of section 2302, the affected agency shall issue an unclas12 sified report to the congressional committees of jurisdic13 tion (with a classified annex if necessary), detailing the 

14 circumstances of the agency’s security clearance suspen15 sion, revocation, or other determination. A report under 

16 this paragraph shall include any proposed agency action 

17 with regard to the security clearance. 

18 ‘‘(c) An allegation that a security clearance was re19 voked or suspended in retaliation for a protected disclo20 sure shall receive expedited review by the Office of Special 

21 Counsel, the Merit Systems Protection Board, and any re22 viewing court.’’. 

23 (2) CLERICAL AMENDMENT.—The table of sec24 tions for chapter 77 of title 5, United States Code, 
10

•HR 3281 IH 

1 is amended by inserting after the item relating to 

2 section 7702 the following:

‘‘7702a. Actions relating to security clearances.’’.

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

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

5 is amended by striking clause (ii) and inserting the fol6 lowing: 

7 ‘‘(ii)(I) the Federal Bureau of Inves8 tigation, the Central Intelligence Agency, 

9 the Defense Intelligence Agency, the Na10 tional Imagery and Mapping Agency, and 

11 the National Security Agency; and 

12 ‘‘(II) as determined by the President, 

13 any Executive agency or unit thereof the 

14 principal function of which is the conduct 

15 of foreign intelligence or counterintel16 ligence activities, if the determination (as 

17 that determination relates to a personnel 

18 action) is made before that personnel ac19 tion; or’’. 

20 SEC. 7. ATTORNEY FEES. 

21 Section 1204(m)(1) of title 5, United States Code, 

22 is amended by striking ‘‘agency involved’’ and inserting 

23 ‘‘agency with which the prevailing party is employed or 

24 has applied for employment’’.
11

•HR 3281 IH 

1 SEC. 8. COMPENSATORY DAMAGES. 

2 Section 1214(g)(2) of title 5, United States Code, is 

3 amended by inserting ‘‘compensatory or’’ after ‘‘foresee4 able’’. 

5 SEC. 9. DISCIPLINARY ACTION. 

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

7 amended by striking paragraph (3) and inserting the fol8 lowing: 

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

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

11 reduction in grade, debarment from Federal employ12 ment for a period not to exceed 5 years, suspension, 

13 or reprimand; 

14 ‘‘(ii) an assessment of a civil penalty not to ex15 ceed $1,000; or 

16 ‘‘(iii) any combination of disciplinary actions 

17 described in clause (i) and an assessment described 

18 in clause (ii). 

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

20 employee has committed a prohibited personnel practice 

21 under section 2302(b) (8) or (9), the Board shall impose 

22 disciplinary action if the Board finds that the activity pro23 tected under section 2302(b) (8) or (9) was a significant 

24 motivating factor, even if other factors also motivated the 

25 decision, for the employee’s decision to take, fail to take, 

26 or threaten to take or fail to take a personnel action, un-
12

•HR 3281 IH 

1 less that employee demonstrates, by a preponderance of 

2 the evidence, that the employee would have taken, failed 

3 to take, or threatened to take or fail to take the same 

4 personnel action, in the absence of such protected activ5 ity.’’. 

6 SEC. 10. DISCLOSURES TO CONGRESS. 

7 Section 2302 of title 5, United States Code, is 

8 amended by adding at the end the following: 

9 ‘‘(f) Each agency shall establish a process that pro10 vides confidential advice to employees on making a lawful 

11 disclosure to Congress of information that is specifically 

12 required by law or Executive order to be kept secret in 

13 the interest of national defense or the conduct of foreign 

14 affairs.’’. 

15 SEC. 11. AUTHORITY OF SPECIAL COUNSEL RELATING TO 

16 CIVIL ACTIONS. 

17 (a) REPRESENTATION OF SPECIAL COUNSEL.—Sec18 tion 1212 of title 5, United States Code, is amended by 

19 adding at the end the following: 

20 ‘‘(h) Except as provided in section 518 of title 28, 

21 relating to litigation before the Supreme Court, attorneys 

22 designated by the Special Counsel may appear for the Spe23 cial Counsel and represent the Special Counsel in any civil 

24 action brought in connection with section 2302(b)(8) or 
13

•HR 3281 IH 

1 subchapter III of chapter 73, or as otherwise authorized 

2 by law.’’. 

3 (b) JUDICIAL REVIEW OF MERIT SYSTEMS PROTEC4 TION BOARD DECISIONS.—Section 7703 of title 5, United 

5 States Code, is amended by adding at the end the fol6 lowing: 

7 ‘‘(e)(1) Except as provided in paragraph (2), this 

8 paragraph shall apply to any review obtained by the Spe9 cial Counsel. The Special Counsel may obtain review of 

10 any final order or decision of the Board by filing a petition 

11 for judicial review in the United States Court of Appeals 

12 for the Federal Circuit if the Special Counsel determines, 

13 in the discretion of the Special Counsel, that the Board 

14 erred in deciding a case arising under section 2302(b)(8) 

15 or subchapter III of chapter 73 and that the Board’s deci16 sion will have a substantial impact on the enforcement of 

17 section 2302(b)(8) or subchapter III of chapter 73. If the 

18 Special Counsel was not a party or did not intervene in 

19 a matter before the Board, the Special Counsel may not 

20 petition for review of a Board decision under this section 

21 unless the Special Counsel first petitions the Board for 

22 reconsideration of its decision, and such petition is denied. 

23 In addition to the named respondent, the Board and all 

24 other parties to the proceedings before the Board shall 

25 have the right to appear in the proceedings before the 
14

•HR 3281 IH 

1 Court of Appeals. The granting of the petition for judicial 

2 review shall be at the discretion of the Court of Appeals. 

3 ‘‘(2) During the 5-year period beginning on the effec4 tive date of the Whistleblower Protection Enhancement 

5 Act, this paragraph shall apply to any review obtained by 

6 the Special Counsel. The Special Counsel may obtain re7 view of any final order or decision of the Board by filing 

8 a petition for judicial review in the United States Court 

9 of Appeals for the Federal Circuit or any court of appeals 

10 of competent jurisdiction as provided under subsection 

11 (b)(2) if the Special Counsel determines, in the discretion 

12 of the Special Counsel, that the Board erred in deciding 

13 a case arising under section 2302(b)(8) or subchapter III 

14 of chapter 73 and that the Board’s decision will have a 

15 substantial impact on the enforcement of section 

16 2302(b)(8) or subchapter III of chapter 73. If the Special 

17 Counsel was not a party or did not intervene in a matter 

18 before the Board, the Special Counsel may not petition 

19 for review of a Board decision under this section unless 

20 the Special Counsel first petitions the Board for reconsid21 eration of its decision, and such petition is denied. In addi22 tion to the named respondent, the Board and all other 

23 parties to the proceedings before the Board shall have the 

24 right to appear in the proceedings before the court of ap-
15

•HR 3281 IH 

1 peals. The granting of the petition for judicial review shall 

2 be at the discretion of the court of appeals.’’. 

3 SEC. 12. JUDICIAL REVIEW. 

4 (a) IN GENERAL.—Section 7703(b) of title 5, United 

5 States Code, is amended by striking the matter before 

6 paragraph (2) and inserting the following: 

7 ‘‘(b)(1)(A) Except as provided in subparagraph (B) 

8 and paragraph (2), a petition to review a final order or 

9 final decision of the Board shall be filed in the United 

10 States Court of Appeals for the Federal Circuit. Notwith11 standing any other provision of law, any petition for re12 view must be filed within 60 days after the date the peti13 tioner received notice of the final order or decision of the 

14 Board. 

15 ‘‘(B) During the 5-year period beginning on the effec16 tive date of the Whistleblower Protection Enhancement 

17 Act, a petition to review a final order or final decision of 

18 the Board shall be filed in the United States Court of Ap19 peals for the Federal Circuit or any court of appeals of 

20 competent jurisdiction as provided under subsection 

21 (b)(2). Notwithstanding any other provision of law, any 

22 petition for review must be filed within 60 days after the 

23 date the petitioner received notice of the final order or 

24 decision of the Board.’’.
16

•HR 3281 IH 

1 (b) REVIEW OBTAINED BY OFFICE OF PERSONNEL

2 MANAGEMENT.—Section 7703 of title 5, United States 

3 Code, is amended by striking subsection (d) and inserting 

4 the following: 

5 ‘‘(d)(1) Except as provided in paragraph (2), this 

6 paragraph shall apply to any review obtained by the Direc7 tor of the Office of Personnel Management. The Director 

8 of the Office of Personnel Management may obtain review 

9 of any final order or decision of the Board by filing, within 

10 60 days after the date the Director received notice of the 

11 final order or decision of the Board, a petition for judicial 

12 review in the United States Court of Appeals for the Fed13 eral Circuit if the Director determines, in his discretion, 

14 that the Board erred in interpreting a civil service law, 

15 rule, or regulation affecting personnel management and 

16 that the Board’s decision will have a substantial impact 

17 on a civil service law, rule, regulation, or policy directive. 

18 If the Director did not intervene in a matter before the 

19 Board, the Director may not petition for review of a Board 

20 decision under this section unless the Director first peti21 tions the Board for a reconsideration of its decision, and 

22 such petition is denied. In addition to the named respond23 ent, the Board and all other parties to the proceedings 

24 before the Board shall have the right to appear in the pro25 ceeding before the Court of Appeals. The granting of the 
17

•HR 3281 IH 

1 petition for judicial review shall be at the discretion of the 

2 Court of Appeals. 

3 ‘‘(2) During the 5-year period beginning on the effec4 tive date of the Whistleblower Protection Enhancement 

5 Act, this paragraph shall apply to any review obtained by 

6 the Director of the Office of Personnel Management. The 

7 Director of the Office of Personnel Management may ob8 tain review of any final order or decision of the Board 

9 by filing, within 60 days after the date the Director re10 ceived notice of the final order or decision of the Board, 

11 a petition for judicial review in the United States Court 

12 of Appeals for the Federal Circuit or any court of appeals 

13 of competent jurisdiction as provided under subsection 

14 (b)(2) if the Director determines, in his discretion, that 

15 the Board erred in interpreting a civil service law, rule, 

16 or regulation affecting personnel management and that 

17 the Board’s decision will have a substantial impact on a 

18 civil service law, rule, regulation, or policy directive. If the 

19 Director did not intervene in a matter before the Board, 

20 the Director may not petition for review of a Board deci21 sion under this section unless the Director first petitions 

22 the Board for a reconsideration of its decision, and such 

23 petition is denied. In addition to the named respondent, 

24 the Board and all other parties to the proceedings before 

25 the Board shall have the right to appear in the proceeding 
18

•HR 3281 IH 

1 before the court of appeals. The granting of the petition 

2 for judicial review shall be at the discretion of the Court 

3 of Appeals.’’. 

4 SEC. 13. NONDISCLOSURE POLICIES, FORMS, AND AGREE5 MENTS. 

6 (a) IN GENERAL.—

7 (1) REQUIREMENT.—Each agreement in Stand8 ard Forms 312 and 4414 of the Government and 

9 any other nondisclosure policy, form, or agreement 

10 of the Government shall contain the following state11 ment: ‘‘These restrictions are consistent with and do 

12 not supersede, conflict with, or otherwise alter the 

13 employee obligations, rights, or liabilities created by 

14 Executive Order No. 12958; section 7211 of title 5, 

15 United States Code (governing disclosures to Con16 gress); section 1034 of title 10, United States Code 

17 (governing disclosure to Congress by members of the 

18 military); section 2302(b)(8) of title 5, United 

19 States Code (governing disclosures of illegality, 

20 waste, fraud, abuse or public health or safety 

21 threats); the Intelligence Identities Protection Act of 

22 1982 (50 U.S.C. 421 et seq.) (governing disclosures 

23 that could expose confidential Government agents); 

24 and the statutes which protect against disclosure 

25 that may compromise the national security, includ-
19

•HR 3281 IH 

1 ing sections 641, 793, 794, 798, and 952 of title 18, 

2 United States Code, and section 4(b) of the Subver3 sive Activities Act of 1950 (50 U.S.C. 783(b)). The 

4 definitions, requirements, obligations, rights, sanc5 tions, and liabilities created by such Executive order 

6 and such statutory provisions are incorporated into 

7 this agreement and are controlling.’’ 

8 (2) ENFORCEABILITY.—Any nondisclosure pol9 icy, form, or agreement described in paragraph (1) 

10 that does not contain the statement required under 

11 paragraph (1) may not be implemented or enforced 

12 to the extent such policy, form, or agreement is in13 consistent with that statement. 

14 (b) PERSONS OTHER THAN GOVERNMENT EMPLOY15 EES.—Notwithstanding subsection (a), a nondisclosure 

16 policy, form, or agreement that is to be executed by a per17 son connected with the conduct of an intelligence or intel18 ligence-related activity, other than an employee or officer 

19 of the United States Government, may contain provisions 

20 appropriate to the particular activity for which such docu21 ment is to be used. Such form or agreement shall, at a 

22 minimum, require that the person will not disclose any 

23 classified information received in the course of such activ24 ity unless specifically authorized to do so by the United 

25 States Government. Such nondisclosure forms shall also 
20

•HR 3281 IH 

1 make it clear that such forms do not bar disclosures to 

2 Congress or to an authorized official of an executive agen3 cy or the Department of Justice that are essential to re4 porting a substantial violation of law. 

5 SEC. 14. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR 

6 CRITICAL INFRASTRUCTURE INFORMATION. 

7 Section 214(c) of the Homeland Security Act of 2002 

8 (Public Law 107–296; 6 U.S.C. 133(c)) is amended by 

9 adding at the end the following: ‘‘For purposes of this sec10 tion a permissible use of independently obtained informa11 tion includes the disclosure of such information under sec12 tion 2302(b)(8) of title 5, United States Code.’’. 

13 SEC. 15. EFFECTIVE DATE. 

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

15 the enactment of this Act.

Æ