II

106TH CONGRESS

2D SESSION S. 3190

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.

IN THE SENATE OF THE UNITED STATES

OCTOBER 12 (legislative day, SEPTEMBER 22), 2000

Mr. AKAKA (for himself and Mr. LEVIN) introduced the following bill; which

was read twice and referred to the Committee on Governmental Affairs

A BILL

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

clarify the disclosures of information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special

Counsel, and for other purposes.

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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•S 3190 IS

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 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) in clause (x) by striking ‘‘and’’ after

19 the semicolon; and

20 (B) by redesignating clause (xi) as clause

21 (xii) and inserting after clause (x) the following:

22 ‘‘(xi) the implementation or enforcement of

23 any nondisclosure policy, form, or agreement;

24 and’’.
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•S 3190 IS

1 (2) PROHIBITED PERSONNEL PRACTICE.—Sec2 tion 2302(b) of title 5, United States Code, is

3 amended—

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

5 the end;

6 (B) in paragraph (12), by striking the pe7 riod and inserting ‘‘; or’’; and

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

9 following:

10 ‘‘(13) implement or enforce any nondisclosure

11 policy, form, or agreement, if such policy, form, or

12 agreement does not contain the following statement:

13 ‘‘ ‘These provisions are consistent with and do not su14 persede, conflict with, or otherwise alter the employee obli15 gations, rights, or liabilities created by Executive Order

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

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

18 10, United States Code (governing disclosure to Congress

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

20 5, United States Code (governing disclosures of illegality,

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

22 the Intelligence Identities Protection Act of 1982 (50

23 U.S.C. 421 et seq.) (governing disclosures that could ex24 pose confidential Government agents); and the statutes

25 which protect against disclosures that could compromise
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•S 3190 IS

1 national security, including sections 641, 793, 794, 798,

2 and 952 of title 18, United States Code, and section 4(b)

3 of the Subversive Activities Act of 1950 (50 U.S.C.

4 783(b)). The definitions, requirements, obligations, rights,

5 sanctions, and liabilities created by such Executive order

6 and such statutory provisions are incorporated into this

7 agreement 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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•S 3190 IS

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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