I

106TH CONGRESS

2D SESSION H. R. 5512

To amend chapter 23 of title 5, United States Code, to clarify the disclosures

of information protected from prohibited personnel practices; to require

a statement in nondisclosure policies, forms, and agreements that such

policies, forms, and agreements conform with certain disclosure protections; to provide certain authority for the Special Counsel; and for

other purposes.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 19, 2000

Mrs. MORELLA (for herself and Mr. GILMAN) introduced the following bill;

which was referred to the Committee on Government Reform

A BILL

To amend chapter 23 of title 5, United States Code, to

clarify the disclosures of information protected from prohibited personnel practices; to require a statement in

nondisclosure policies, forms, and agreements that such

policies, forms, and agreements conform with certain disclosure protections; to provide certain authority for 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,
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1 SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF IN2 FORMATION BY FEDERAL EMPLOYEES.

3 (a) CLARIFICATION OF DISCLOSURES COVERED.—

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

5 amended—

6 (1) by striking ‘‘by an employee or applicant’’

7 and inserting ‘‘, without restriction as to time, place,

8 form, motive, or context, made to any person by an

9 employee or applicant, including a disclosure made

10 in the ordinary course of an employee’s duties,’’; and

11 (2) in clause (i), by striking ‘‘a violation’’ and

12 inserting ‘‘any violation’’.

13 (b) NONDISCLOSURE POLICIES, FORMS, AND AGREE14 MENTS.—

15 (1) PERSONNEL ACTION.—Section

16 2302(a)(2)(A) of title 5, United States Code, is

17 amended—

18 (A) by aligning the text of clauses (x) and

19 (xi) with the text of clause (ix);

20 (B) in clause (x), by striking ‘‘and’’ after

21 the semicolon;

22 (C) by redesignating clause (xi) as clause

23 (xii); and

24 (D) by inserting after clause (x) the fol25 lowing:
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1 ‘‘(xi) the implementation or enforcement of

2 any nondisclosure policy, form, or agreement;

3 and’’.

4 (2) PROHIBITED PERSONNEL PRACTICE.—Sec5 tion 2302(b) of title 5, United States Code, is

6 amended—

7 (A) in paragraph (11), by striking ‘‘or’’ at

8 the end;

9 (B) in paragraph (12), by striking the pe10 riod and inserting ‘‘; or’’; and

11 (C) by inserting after paragraph (12) the

12 following:

13 ‘‘(13) implement or enforce any nondisclosure

14 policy, form, or agreement, if such policy, form, or

15 agreement does not contain the following statement:

16 ‘‘ ‘These provisions are consistent with and do not su17 persede, conflict with, or otherwise alter the employee obli18 gations, rights, or liabilities created by Executive Order

19 12958 (50 U.S.C. 435 note, relating to classified national

20 security information); section 7211 of title 5, United

21 States Code (governing disclosures to Congress); section

22 1034 of title 10, United States Code (governing disclosure

23 to Congress by members of the military); section

24 2302(b)(8) of title 5, United States Code (governing dis25 closures of illegality, waste, fraud, abuse, or public health
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1 or safety threats); and the Intelligence Identities Protec2 tion Act of 1982 (50 U.S.C. 421 et seq.) (governing disclo3 sures that could expose confidential Government agents).

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

6 such statutory provisions are incorporated into this agree7 ment and are controlling.’ ’’.

8 (c) AUTHORITY OF SPECIAL COUNSEL RELATING TO

9 CIVIL ACTIONS.—

10 (1) REPRESENTATION OF SPECIAL COUNSEL.—

11 Section 1212 of title 5, United States Code, is

12 amended by adding at the end the following:

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

14 relating to litigation before the Supreme Court, attorneys

15 designated by the Special Counsel may appear for the Spe16 cial Counsel and represent the Special Counsel in any civil

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

18 subchapter III of chapter 73, or as otherwise authorized

19 by law.’’.

20 (2) JUDICIAL REVIEW OF MERIT SYSTEMS PRO21 TECTION BOARD DECISIONS.—Section 7703 of title

22 5, United States Code, is amended by adding at the

23 end the following:

24 ‘‘(e) The Special Counsel may obtain review of any

25 final order or decision of the Board by filing a petition
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1 for judicial review in the United States Court of Appeals

2 for the Federal Circuit if the Special Counsel determines,

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

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

5 or subchapter III of chapter 73 and that the Board’s deci6 sion will have a substantial impact on the enforcement of

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

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

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

10 petition for review of a Board decision under this section

11 unless the Special Counsel first petitions the Board for

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

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

14 other parties to the proceedings before the Board shall

15 have the right to appear in the proceedings before the

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

17 review shall be at the discretion of the Court of Appeals.’’.

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