II 

Calendar No. 782

108TH CONGRESS 

2D SESSION S. 2628

[Report No. 108–392] 

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 

JULY 8, 2004

Mr. AKAKA (for himself, Ms. COLLINS, Mr. GRASSLEY, Mr. LEVIN, Mr. 

LEAHY, Mr. DURBIN, Mr. FITZGERALD, Mr. PRYOR, Mr. VOINOVICH, Mr. 

JOHNSON, Mr. DAYTON, Mr. LIEBERMAN, Mr. LAUTENBERG, Mr. CARPER, and Mr. COLEMAN) introduced the following bill; which was read 

twice and referred to the Committee on Governmental Affairs 

OCTOBER 8, 2004

Reported by Ms. COLLINS, without amendment 

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 disclo-
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•S 2628 RS 

sure 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, 

3 SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF IN4 FORMATION BY FEDERAL EMPLOYEES. 

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

6 ‘‘Federal Employee Protection of Disclosures Act’’. 

7 (b) CLARIFICATION OF DISCLOSURES COVERED.—

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

9 amended—

10 (1) in subparagraph (A)—

11 (A) by striking ‘‘which the employee or ap12 plicant reasonably believes evidences’’ and in13 serting ‘‘, without restriction to time, place, 

14 form, motive, context, or prior disclosure made 

15 to any person by an employee or applicant, in16 cluding a disclosure made in the ordinary 

17 course of an employee’s duties, that the em18 ployee or applicant reasonably believes is evi19 dence of’’; and 

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

21 and inserting ‘‘any violation’’; 

22 (2) in subparagraph (B)—

23 (A) by striking ‘‘which the employee or ap24 plicant reasonably believes evidences’’ and in-
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1 serting ‘‘, without restriction to time, place, 

2 form, motive, context, or prior disclosure made 

3 to any person by an employee or applicant, in4 cluding a disclosure made in the ordinary 

5 course of an employee’s duties, of information 

6 that the employee or applicant reasonably be7 lieves is evidence of’’; and 

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

9 and inserting ‘‘any violation (other than a viola10 tion of this section)’’; and 

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

12 ‘‘(C) any disclosure that—

13 ‘‘(i) is made by an employee or appli14 cant of information required by law or Ex15 ecutive order to be kept secret in the inter16 est of national defense or the conduct of 

17 foreign affairs that the employee or appli18 cant reasonably believes is direct and spe19 cific evidence of—

20 ‘‘(I) any violation of any law, 

21 rule, or regulation; 

22 ‘‘(II) gross mismanagement, a 

23 gross waste of funds, an abuse of au24 thority, or a substantial and specific 

25 danger to public health or safety; or 
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1 ‘‘(III) a false statement to Con2 gress on an issue of material fact; and 

3 ‘‘(ii) is made to—

4 ‘‘(I) a member of a committee of 

5 Congress having a primary responsi6 bility for oversight of a department, 

7 agency, or element of the Federal 

8 Government to which the disclosed in9 formation relates and who is author10 ized to receive information of the type 

11 disclosed; 

12 ‘‘(II) any other Member of Con13 gress who is authorized to receive in14 formation of the type disclosed; or 

15 ‘‘(III) an employee of Congress 

16 who has the appropriate security 

17 clearance and is authorized to receive 

18 information of the type disclosed.’’. 

19 (c) COVERED DISCLOSURES.—Section 2302(a)(2) of 

20 title 5, United States Code, is amended—

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

22 at the end; 

23 (2) in subparagraph (C)(iii), by striking the pe24 riod at the end and inserting ‘‘; and’’; and 

25 (3) by adding at the end the following: 
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1 ‘‘(D) ‘disclosure’ means a formal or informal 

2 communication or transmission, but does not include 

3 a communication concerning policy decisions that

4 lawfully exercise discretionary authority unless the 

5 employee providing the disclosure reasonably believes 

6 that the disclosure evidences—

7 ‘‘(i) any violation of any law, rule, or 

8 regulation; or 

9 ‘‘(ii) gross management, a gross waste 

10 of funds, an abuse of authority, or a sub11 stantial and specific danger to public 

12 health or safety.’’. 

13 (d) REBUTTABLE PRESUMPTION.—Section 2302(b) 

14 of title 5, United States Code, is amended by amending 

15 the matter following paragraph (12) to read as follows: 

16 ‘‘This subsection shall not be construed to authorize the 

17 withholding of information from Congress or the taking 

18 of any personnel action against an employee who discloses 

19 information to Congress, except that an employee or appli20 cant may be disciplined for the disclosure of information 

21 described in paragraph (8)(C)(i) to a Member or employee 

22 of Congress who is not authorized to receive such informa23 tion. For purposes of paragraph (8), any presumption re24 lating to the performance of a duty by an employee who 

25 has authority to take, direct others to take, recommend, 
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1 or approve any personnel action may be rebutted by sub2 stantial evidence. For purposes of paragraph (8), a deter3 mination as to whether an employee or applicant reason4 ably believes that they have disclosed information that evi5 dences any violation of law, rule, regulation, gross mis6 management, a gross waste of funds, an abuse of author7 ity, or a substantial and specific danger to public health 

8 or safety shall be made by determining whether a disin9 terested observer with knowledge of the essential facts 

10 known to and readily ascertainable by the employee would 

11 reasonably conclude that the actions of the Government 

12 evidence such violations, mismanagement, waste, abuse, or 

13 danger.’’. 

14 (e) NONDISCLOSURE POLICIES, FORMS, AND AGREE15 MENTS; SECURITY CLEARANCES; AND RETALIATORY IN16 VESTIGATIONS.—

17 (1) PERSONNEL ACTION.—Section 

18 2302(a)(2)(A) of title 5, United States Code, is 

19 amended—

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

21 the semicolon; and

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

23 (xiv) and inserting after clause (x) the fol24 lowing: 
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1 ‘‘(xi) the implementation or enforce2 ment of any nondisclosure policy, form, or 

3 agreement;

4 ‘‘(xii) a suspension, revocation, or 

5 other determination relating to a security 

6 clearance or any other access determina7 tion by a covered agency; 

8 ‘‘(xiii) an investigation, other than 

9 any ministerial or nondiscretionary fact 

10 finding activities necessary for the agency 

11 to perform its mission, of an employee or 

12 applicant for employment because of any 

13 activity protected under this section; and’’. 

14 (2) PROHIBITED PERSONNEL PRACTICE.—Sec15 tion 2302(b) of title 5, United States Code, is 

16 amended—

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

18 the end; 

19 (B) in paragraph (12), by striking the pe20 riod and inserting a semicolon; and 

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

22 following: 

23 ‘‘(13) implement or enforce any nondisclosure 

24 policy, form, or agreement, if such policy, form, or 

25 agreement does not contain the following statement: 
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1 ‘‘ ‘These provisions are consistent with and 

2 do not supersede, conflict with, or otherwise 

3 alter the employee obligations, rights, or liabil4 ities created by Executive Order No. 12958; 

5 section 7211 of title 5, United States Code 

6 (governing disclosures to Congress); section 

7 1034 of title 10, United States Code (governing 

8 disclosure to Congress by members of the mili9 tary); section 2302(b)(8) of title 5, United 

10 States Code (governing disclosures of illegality, 

11 waste, fraud, abuse, or public health or safety 

12 threats); the Intelligence Identities Protection 

13 Act of 1982 (50 U.S.C. 421 et seq.) (governing 

14 disclosures that could expose confidential Gov15 ernment agents); and the statutes which protect 

16 against disclosures that could compromise na17 tional security, including sections 641, 793, 

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

19 Code, and section 4(b) of the Subversive Activi20 ties Control Act of 1950 (50 U.S.C. 783(b)). 

21 The definitions, requirements, obligations, 

22 rights, sanctions, and liabilities created by such 

23 Executive order and such statutory provisions 

24 are incorporated into this agreement and are 

25 controlling.’; or 
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1 ‘‘(14) conduct, or cause to be conducted, an in2 vestigation, other than any ministerial or nondis3 cretionary fact finding activities necessary for the 

4 agency to perform its mission, of an employee or ap5 plicant for employment because of any activity pro6 tected under this section.’’.

7 (3) BOARD AND COURT REVIEW OF ACTIONS

8 RELATING TO SECURITY CLEARANCES.—

9 (A) IN GENERAL.—Chapter 77 of title 5, 

10 United States Code, is amended by inserting 

11 after section 7702 the following: 

12 ‘‘§ 7702a. Actions relating to security clearances 

13 ‘‘(a) In any appeal relating to the suspension, revoca14 tion, or other determination relating to a security clear15 ance or access determination, the Merit Systems Protec16 tion Board or any reviewing court—

17 ‘‘(1) shall determine whether paragraph (8) or 

18 (9) of section 2302(b) was violated; 

19 ‘‘(2) may not order the President or the des20 ignee of the President to restore a security clearance 

21 or otherwise reverse a determination of clearance 

22 status or reverse an access determination; and 

23 ‘‘(3) subject to paragraph (2), may issue declar24 atory relief and any other appropriate relief. 
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1 ‘‘(b)(1) If, in any final judgment, the Board or court 

2 declares that any suspension, revocation, or other deter3 mination with regards to a security clearance or access 

4 determination was made in violation of paragraph (8) or

5 (9) of section 2302(b), the affected agency shall conduct 

6 a review of that suspension, revocation, access determina7 tion, or other determination, giving great weight to the 

8 Board or court judgment. 

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

10 judgment declaring that a security clearance suspension, 

11 revocation, access determination, or other determination 

12 was made in violation of paragraph (8) or (9) of section 

13 2302(b), the affected agency shall issue an unclassified re14 port to the congressional committees of jurisdiction (with 

15 a classified annex if necessary), detailing the cir16 cumstances of the agency’s security clearance suspension, 

17 revocation, other determination, or access determination. 

18 A report under this paragraph shall include any proposed 

19 agency action with regards to the security clearance or ac20 cess determination. 

21 ‘‘(c) An allegation that a security clearance or access 

22 determination was revoked or suspended in retaliation for 

23 a protected disclosure shall receive expedited review by the 

24 Office of Special Counsel, the Merit Systems Protection 

25 Board, and any reviewing court. 
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1 ‘‘(d) For purposes of this section, corrective action 

2 may not be ordered if the agency demonstrates by a pre3 ponderance of the evidence that it would have taken the 

4 same personnel action in the absence of such disclosure.’’. 

5 (B) TECHNICAL AND CONFORMING AMEND6 MENT.—The table of sections for chapter 77 of 

7 title 5, United States Code, is amended by in8 serting after the item relating to section 7702 

9 the following:

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

10 (f) EXCLUSION OF AGENCIES BY THE PRESIDENT.—

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

12 amended by striking clause (ii) and inserting the following: 

13 ‘‘(ii)(I) the Federal Bureau of Inves14 tigation, the Central Intelligence Agency, 

15 the Defense Intelligence Agency, the Na16 tional Imagery and Mapping Agency, the 

17 National Security Agency; and 

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

19 any executive agency or unit thereof the 

20 principal function of which is the conduct 

21 of foreign intelligence or counterintel22 ligence activities, if the determination (as 

23 that determination relates to a personnel 

24 action) is made before that personnel ac25 tion; or’’. 
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1 (g) ATTORNEY FEES.—Section 1204(m)(1) of title 5, 

2 United States Code, is amended by striking ‘‘agency in3 volved’’ and inserting ‘‘agency where the prevailing party 

4 is employed or has applied for employment’’. 

5 (h) DISCIPLINARY ACTION.—Section 1215(a)(3) of 

6 title 5, United States Code, is amended to read as follows: 

7 ‘‘(3)(A) A final order of the Board may im8 pose— 

9 ‘‘(i) disciplinary action consisting of re10 moval, reduction in grade, debarment from 

11 Federal employment for a period not to exceed 

12 5 years, suspension, or reprimand; 

13 ‘‘(ii) an assessment of a civil penalty not to 

14 exceed $1,000; or

15 ‘‘(iii) any combination of disciplinary ac16 tions described under clause (i) and an assess17 ment described under clause (ii). 

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

19 an employee has committed a prohibited personnel 

20 practice under paragraph (8) or (9) of section 

21 2302(b), the Board shall impose disciplinary action 

22 if the Board finds that the activity protected under 

23 paragraph (8) or (9) of section 2302(b) was a sig24 nificant motivating factor, even if other factors also 

25 motivated the decision, for the employee’s decision to 
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1 take, fail to take, or threaten to take or fail to take 

2 a personnel action, unless that employee dem3 onstrates, by preponderance of evidence, that the 

4 employee would have taken, failed to take, or threat5 ened to take or fail to take the same personnel ac6 tion, in the absence of such protected activity.’’. 

7 (i) SPECIAL COUNSEL AMICUS CURIAE APPEAR8 ANCE.—Section 1212 of title 5, United States Code, is 

9 amended by adding at the end the following: 

10 ‘‘(h)(1) The Special Counsel is authorized to appear 

11 as amicus curiae in any action brought in a court of the 

12 United States related to any civil action brought in con13 nection with section 2302(b) (8) or (9), or subchapter III 

14 of chapter 73, or as otherwise authorized by law. In any 

15 such action, the Special Counsel is authorized to present 

16 the views of the Special Counsel with respect to compli17 ance with section 2302(b) (8) or (9) or subchapter III of 

18 chapter 77 and the impact court decisions would have on 

19 the enforcement of such provisions of law. 

20 ‘‘(2) A court of the United States shall grant the ap21 plication of the Special Counsel to appear in any such ac22 tion for the purposes described in subsection (a).’’. 

23 (j) JUDICIAL REVIEW.—
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1 (1) IN GENERAL.—Section 7703(b)(1) of title 

2 5, United States Code, is amended to read as fol3 lows: 

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

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

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

7 States Court of Appeals for the Federal Circuit. Notwith8 standing any other provision of law, any petition for re9 view must be filed within 60 days after the date the peti10 tioner received notice of the final order or decision of the 

11 Board. 

12 ‘‘(B) During the 5-year period beginning on the effec13 tive date of the Federal Employee Protection of Disclo14 sures Act, a petition to review a final order or final deci15 sion of the Board in a case alleging a violation of para16 graph (8) or (9) of section 2302(b) shall be filed in the 

17 United States Court of Appeals for the Federal Circuit 

18 or any court of appeals of competent jurisdiction as pro19 vided under subsection (b)(2).’’. 

20 (2) REVIEW OBTAINED BY OFFICE OF PER21 SONNEL MANAGEMENT.—Section 7703(d) of title 5, 

22 United States Code, is amended to read as follows: 

23 ‘‘(d)(1) Except as provided under paragraph (2), this 

24 paragraph shall apply to any review obtained by the Direc25 tor of the Office of Personnel Management. The Director 
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1 of the Office of Personnel Management may obtain review 

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

3 60 days after the date the Director received notice of the 

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

5 review in the United States Court of Appeals for the Fed6 eral Circuit if the Director determines, in his discretion,

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

8 rule, or regulation affecting personnel management and

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

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

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

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

13 decision under this section unless the Director first peti14 tions the Board for a reconsideration of its decision, and 

15 such petition is denied. In addition to the named respond16 ent, the Board and all other parties to the proceedings 

17 before the Board shall have the right to appear in the pro18 ceeding before the Court of Appeals. The granting of the 

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

20 Court of Appeals. 

21 ‘‘(2) During the 5-year period beginning on the effec22 tive date of the Federal Employee Protection of Disclo23 sures Act, this paragraph shall apply to any review relat24 ing to paragraph (8) or (9) of section 2302(b) obtained 

25 by the Director of the Office of Personnel Management. 
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1 The Director of the Office of Personnel Management may 

2 obtain review of any final order or decision of the Board 

3 by filing, within 60 days after the date the Director re4 ceived notice of the final order or decision of the Board, 

5 a petition for judicial review in the United States Court 

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

7 of competent jurisdiction as provided under subsection 

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

9 the Board erred in interpreting paragraph (8) or (9) of 

10 section 2302(b). If the Director did not intervene in a 

11 matter before the Board, the Director may not petition 

12 for review of a Board decision under this section unless 

13 the Director first petitions the Board for a reconsideration 

14 of its decision, and such petition is denied. In addition 

15 to the named respondent, the Board and all other parties 

16 to the proceedings before the Board shall have the right 

17 to appear in the proceeding before the court of appeals. 

18 The granting of the petition for judicial review shall be 

19 at the discretion of the Court of Appeals.’’. 

20 (k) NONDISCLOSURE POLICIES, FORMS, AND AGREE21 MENTS.—

22 (1) IN GENERAL.—

23 (A) REQUIREMENT.—Each agreement in 

24 Standard Forms 312 and 4414 of the Govern25 ment and any other nondisclosure policy, form, 
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1 or agreement of the Government shall contain 

2 the following statement: ‘‘These restrictions are 

3 consistent with and do not supersede, conflict 

4 with, or otherwise alter the employee obliga5 tions, rights, or liabilities created by Executive 

6 Order No. 12958; section 7211 of title 5, 

7 United States Code (governing disclosures to 

8 Congress); section 1034 of title 10, United 

9 States Code (governing disclosure to Congress 

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

11 of title 5, United States Code (governing disclo12 sures of illegality, waste, fraud, abuse or public 

13 health or safety threats); the Intelligence Iden14 tities Protection Act of 1982 (50 U.S.C. 421 et 

15 seq.) (governing disclosures that could expose 

16 confidential Government agents); and the stat17 utes which protect against disclosure that may 

18 compromise the national security, including sec19 tions 641, 793, 794, 798, and 952 of title 18, 

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

21 Subversive Activities Act of 1950 (50 U.S.C. 

22 783(b)). The definitions, requirements, obliga23 tions, rights, sanctions, and liabilities created 

24 by such Executive order and such statutory 
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1 provisions are incorporated into this agreement 

2 and are controlling.’’. 

3 (B) ENFORCEABILITY.—Any nondisclosure 

4 policy, form, or agreement described under sub5 paragraph (A) that does not contain the state6 ment required under subparagraph (A) may not 

7 be implemented or enforced to the extent such 

8 policy, form, or agreement is inconsistent with 

9 that statement. 

10 (2) PERSONS OTHER THAN GOVERNMENT EM11 PLOYEES.—Notwithstanding paragraph (1), a non12 disclosure policy, form, or agreement that is to be 

13 executed by a person connected with the conduct of 

14 an intelligence or intelligence-related activity, other 

15 than an employee or officer of the United States 

16 Government, may contain provisions appropriate to 

17 the particular activity for which such document is to 

18 be used. Such form or agreement shall, at a min19 imum, require that the person will not disclose any 

20 classified information received in the course of such 

21 activity unless specifically authorized to do so by the 

22 United States Government. Such nondisclosure 

23 forms shall also make it clear that such forms do 

24 not bar disclosures to Congress or to an authorized 

25 official of an executive agency or the Department of 
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1 Justice that are essential to reporting a substantial 

2 violation of law. 

3 (l) CLARIFICATION OF WHISTLEBLOWER RIGHTS

4 FOR CRITICAL INFRASTRUCTURE INFORMATION.—Section 

5 214(c) of the Homeland Security Act of 2002 (Public Law 

6 107–296) is amended by adding at the end the following: 

7 ‘‘For purposes of this section a permissible use of inde8 pendently obtained information includes the disclosure of 

9 such information under section 2302(b)(8) of title 5, 

10 United States Code.’’. 

11 (m) ADVISING EMPLOYEES OF RIGHTS.—Section 

12 2302(c) of title 5, United States Code, is amended by in13 serting ‘‘, including how to make a lawful disclosure of 

14 information that is specifically required by law or Execu15 tive order to be kept secret in the interest of national de16 fense or the conduct of foreign affairs to the Special Coun17 sel, the Inspector General of an agency, Congress, or other 

18 agency employee designated to receive such disclosures’’ 

19 after ‘‘chapter 12 of this title’’. 

20 (n) SCOPE OF DUE PROCESS.—

21 (1) SPECIAL COUNSEL.—Section 

22 1214(b)(4)(B)(ii) of title 5, United States Code, is 

23 amended by inserting ‘‘, after a finding that a pro24 tected disclosure was a contributing factor,’’ after 

25 ‘‘ordered if’’. 
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1 (2) INDIVIDUAL ACTION.—Section 1221(e)(2) 

2 of title 5, United States Code, is amended by insert3 ing ‘‘, after a finding that a protected disclosure was 

4 a contributing factor,’’ after ‘‘ordered if’’. 

5 (o) EFFECTIVE DATE.—This Act shall take effect 30 

6 days after the date of enactment of this Act.

Calendar No. 782

108TH CONGRESS 

2D SESSION S. 2628

[Report No. 108–392] 

A BILL

To amend chapter 23 of title 5, United States 

Special Counsel, and for other purposes. protections, provide certain authority for the and agreements conform with certain disclosure forms, and agreements that such policies, forms, quire a statement in nondisclosure policies, protected from prohibited personnel practices, reCode, to clarify the disclosures of information 

OCTOBER 8, 2004

Reported without amendment