II 

108TH CONGRESS 

2D SESSION 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. 

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, and Mr. LAUTENBERG) 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, 
2 

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1 SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF IN2 FORMATION BY FEDERAL EMPLOYEES. 

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

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

5 (b) CLARIFICATION OF DISCLOSURES COVERED.— 

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

7 amended— 

8 (1) in subparagraph (A)— 

9 (A) by striking ‘‘which the employee or ap10 plicant reasonably believes evidences’’ and in11 serting ‘‘, without restriction to time, place, 

12 form, motive, context, or prior disclosure made 

13 to any person by an employee or applicant, in14 cluding a disclosure made in the ordinary 

15 course of an employee’s duties, that the em16 ployee or applicant reasonably believes is evi17 dence of’’; and 

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

19 and inserting ‘‘any violation’’; 

20 (2) in subparagraph (B)— 

21 (A) by striking ‘‘which the employee or ap22 plicant reasonably believes evidences’’ and in23 serting ‘‘, without restriction to time, place, 

24 form, motive, context, or prior disclosure made 

25 to any person by an employee or applicant, in26 cluding a disclosure made in the ordinary 
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1 course of an employee’s duties, of information 

2 that the employee or applicant reasonably be3 lieves is evidence of’’; and 

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

5 and inserting ‘‘any violation (other than a viola6 tion of this section)’’; and 

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

8 ‘‘(C) any disclosure that— 

9 ‘‘(i) is made by an employee or appli10 cant of information required by law or Ex11 ecutive order to be kept secret in the inter12 est of national defense or the conduct of 

13 foreign affairs that the employee or appli14 cant reasonably believes is direct and spe15 cific evidence of— 

16 ‘‘(I) any violation of any law, 

17 rule, or regulation; 

18 ‘‘(II) gross mismanagement, a 

19 gross waste of funds, an abuse of au20 thority, or a substantial and specific 

21 danger to public health or safety; or 

22 ‘‘(III) a false statement to Con23 gress on an issue of material fact; and 

24 ‘‘(ii) is made to— 
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1 ‘‘(I) a member of a committee of 

2 Congress having a primary responsi3 bility for oversight of a department, 

4 agency, or element of the Federal 

5 Government to which the disclosed in6 formation relates and who is author7 ized to receive information of the type 

8 disclosed; 

9 ‘‘(II) any other Member of Con10 gress who is authorized to receive in11 formation of the type disclosed; or 

12 ‘‘(III) an employee of Congress 

13 who has the appropriate security 

14 clearance and is authorized to receive 

15 information of the type disclosed.’’. 

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

17 title 5, United States Code, is amended— 

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

19 at the end; 

20 (2) in subparagraph (C)(iii), by striking the pe21 riod at the end and inserting ‘‘; and’’; and 

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

23 ‘‘(D) ‘disclosure’ means a formal or informal 

24 communication or transmission, but does not include 

25 a communication concerning policy decisions that 
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1 lawfully exercise discretionary authority unless the 

2 employee providing the disclosure reasonably believes 

3 that the disclosure evidences— 

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

5 regulation; or 

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

7 of funds, an abuse of authority, or a sub8 stantial and specific danger to public 

9 health or safety.’’. 

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

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

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

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

14 withholding of information from Congress or the taking 

15 of any personnel action against an employee who discloses 

16 information to Congress, except that an employee or appli17 cant may be disciplined for the disclosure of information 

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

19 of Congress who is not authorized to receive such informa20 tion. For purposes of paragraph (8), any presumption re21 lating to the performance of a duty by an employee who 

22 has authority to take, direct others to take, recommend, 

23 or approve any personnel action may be rebutted by sub24 stantial evidence. For purposes of paragraph (8), a deter25 mination as to whether an employee or applicant reason-
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1 ably believes that they have disclosed information that evi2 dences any violation of law, rule, regulation, gross mis3 management, a gross waste of funds, an abuse of author4 ity, or a substantial and specific danger to public health 

5 or safety shall be made by determining whether a disin6 terested observer with knowledge of the essential facts 

7 known to and readily ascertainable by the employee would 

8 reasonably conclude that the actions of the Government 

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

10 danger.’’. 

11 (e) NONDISCLOSURE POLICIES, FORMS, AND AGREE12 MENTS; SECURITY CLEARANCES; AND RETALIATORY IN13 VESTIGATIONS.— 

14 (1) PERSONNEL ACTION.—Section 

15 2302(a)(2)(A) of title 5, United States Code, is 

16 amended— 

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

18 the semicolon; and 

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

20 (xiv) and inserting after clause (x) the fol21 lowing: 

22 ‘‘(xi) the implementation or enforce23 ment of any nondisclosure policy, form, or 

24 agreement; 
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1 ‘‘(xii) a suspension, revocation, or 

2 other determination relating to a security 

3 clearance or any other access determina4 tion by a covered agency; 

5 ‘‘(xiii) an investigation, other than 

6 any ministerial or nondiscretionary fact 

7 finding activities necessary for the agency 

8 to perform its mission, of an employee or 

9 applicant for employment because of any 

10 activity protected under this section; and’’. 

11 (2) PROHIBITED PERSONNEL PRACTICE.—Sec12 tion 2302(b) of title 5, United States Code, is 

13 amended— 

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

15 the end; 

16 (B) in paragraph (12), by striking the pe17 riod and inserting a semicolon; and 

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

19 following: 

20 ‘‘(13) implement or enforce any nondisclosure 

21 policy, form, or agreement, if such policy, form, or 

22 agreement does not contain the following statement: 

23 ‘‘ ‘These provisions are consistent with and 

24 do not supersede, conflict with, or otherwise 

25 alter the employee obligations, rights, or liabil-
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1 ities created by Executive Order No. 12958; 

2 section 7211 of title 5, United States Code 

3 (governing disclosures to Congress); section 

4 1034 of title 10, United States Code (governing 

5 disclosure to Congress by members of the mili6 tary); section 2302(b)(8) of title 5, United 

7 States Code (governing disclosures of illegality, 

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

9 threats); the Intelligence Identities Protection 

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

11 disclosures that could expose confidential Gov12 ernment agents); and the statutes which protect 

13 against disclosures that could compromise na14 tional security, including sections 641, 793, 

15 794, 798, and 952 of title 18, United States 

16 Code, and section 4(b) of the Subversive Activi17 ties Control Act of 1950 (50 U.S.C. 783(b)). 

18 The definitions, requirements, obligations, 

19 rights, sanctions, and liabilities created by such 

20 Executive order and such statutory provisions 

21 are incorporated into this agreement and are 

22 controlling.’; or 

23 ‘‘(14) conduct, or cause to be conducted, an in24 vestigation, other than any ministerial or nondis25 cretionary fact finding activities necessary for the 
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1 agency to perform its mission, of an employee or ap2 plicant for employment because of any activity pro3 tected under this section.’’. 

4 (3) BOARD AND COURT REVIEW OF ACTIONS

5 RELATING TO SECURITY CLEARANCES.— 

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

7 United States Code, is amended by inserting 

8 after section 7702 the following: 

9 ‘‘§ 7702a. Actions relating to security clearances 

10 ‘‘(a) In any appeal relating to the suspension, revoca11 tion, or other determination relating to a security clear12 ance or access determination, the Merit Systems Protec13 tion Board or any reviewing court— 

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

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

16 ‘‘(2) may not order the President or the des17 ignee of the President to restore a security clearance 

18 or otherwise reverse a determination of clearance 

19 status or reverse an access determination; and 

20 ‘‘(3) subject to paragraph (2), may issue declar21 atory relief and any other appropriate relief. 

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

23 declares that any suspension, revocation, or other deter24 mination with regards to a security clearance or access 

25 determination was made in violation of paragraph (8) or 
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1 (9) of section 2302(b), the affected agency shall conduct 

2 a review of that suspension, revocation, access determina3 tion, or other determination, giving great weight to the 

4 Board or court judgment. 

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

6 judgment declaring that a security clearance suspension, 

7 revocation, access determination, or other determination 

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

9 2302(b), the affected agency shall issue an unclassified re10 port to the congressional committees of jurisdiction (with 

11 a classified annex if necessary), detailing the cir12 cumstances of the agency’s security clearance suspension, 

13 revocation, other determination, or access determination. 

14 A report under this paragraph shall include any proposed 

15 agency action with regards to the security clearance or ac16 cess determination. 

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

18 determination was revoked or suspended in retaliation for 

19 a protected disclosure shall receive expedited review by the 

20 Office of Special Counsel, the Merit Systems Protection 

21 Board, and any reviewing court. 

22 ‘‘(d) For purposes of this section, corrective action 

23 may not be ordered if the agency demonstrates by a pre24 ponderance of the evidence that it would have taken the 

25 same personnel action in the absence of such disclosure.’’. 
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1 (B) TECHNICAL AND CONFORMING AMEND2 MENT.—The table of sections for chapter 77 of 

3 title 5, United States Code, is amended by in4 serting after the item relating to section 7702 

5 the following: 

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

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

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

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

9 ‘‘(ii)(I) the Federal Bureau of Inves10 tigation, the Central Intelligence Agency, 

11 the Defense Intelligence Agency, the Na12 tional Imagery and Mapping Agency, the 

13 National Security Agency; and 

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

15 any executive agency or unit thereof the 

16 principal function of which is the conduct 

17 of foreign intelligence or counterintel18 ligence activities, if the determination (as 

19 that determination relates to a personnel 

20 action) is made before that personnel ac21 tion; or’’. 

22 (g) ATTORNEY FEES.—Section 1204(m)(1) of title 5, 

23 United States Code, is amended by striking ‘‘agency in24 volved’’ and inserting ‘‘agency where the prevailing party 

25 is employed or has applied for employment’’. 
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1 (h) DISCIPLINARY ACTION.—Section 1215(a)(3) of 

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

3 ‘‘(3)(A) A final order of the Board may im4 pose— 

5 ‘‘(i) disciplinary action consisting of re6 moval, reduction in grade, debarment from 

7 Federal employment for a period not to exceed 

8 5 years, suspension, or reprimand; 

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

10 exceed $1,000; or 

11 ‘‘(iii) any combination of disciplinary ac12 tions described under clause (i) and an assess13 ment described under clause (ii). 

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

15 an employee has committed a prohibited personnel 

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

17 2302(b), the Board shall impose disciplinary action 

18 if the Board finds that the activity protected under 

19 paragraph (8) or (9) of section 2302(b) was a sig20 nificant motivating factor, even if other factors also 

21 motivated the decision, for the employee’s decision to 

22 take, fail to take, or threaten to take or fail to take 

23 a personnel action, unless that employee dem24 onstrates, by preponderance of evidence, that the 

25 employee would have taken, failed to take, or threat-
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1 ened to take or fail to take the same personnel ac2 tion, in the absence of such protected activity.’’. 

3 (i) SPECIAL COUNSEL AMICUS CURIAE APPEAR4 ANCE.—Section 1212 of title 5, United States Code, is 

5 amended by adding at the end the following: 

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

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

8 United States related to any civil action brought in con9 nection with section 2302(b) (8) or (9), or subchapter III 

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

11 such action, the Special Counsel is authorized to present 

12 the views of the Special Counsel with respect to compli13 ance with section 2302(b) (8) or (9) or subchapter III of 

14 chapter 77 and the impact court decisions would have on 

15 the enforcement of such provisions of law. 

16 ‘‘(2) A court of the United States shall grant the ap17 plication of the Special Counsel to appear in any such ac18 tion for the purposes described in subsection (a).’’. 

19 (j) JUDICIAL REVIEW.— 

20 (1) IN GENERAL.—Section 7703(b)(1) of title 

21 5, United States Code, is amended to read as fol22 lows: 

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

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

25 final decision of the Board shall be filed in the United 
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1 States Court of Appeals for the Federal Circuit. Notwith2 standing any other provision of law, any petition for re3 view must be filed within 60 days after the date the peti4 tioner received notice of the final order or decision of the 

5 Board. 

6 ‘‘(B) During the 5-year period beginning on the effec7 tive date of the Federal Employee Protection of Disclo8 sures Act, a petition to review a final order or final deci9 sion of the Board in a case alleging a violation of para10 graph (8) or (9) of section 2302(b) shall be filed in the 

11 United States Court of Appeals for the Federal Circuit 

12 or any court of appeals of competent jurisdiction as pro13 vided under subsection (b)(2).’’. 

14 (2) REVIEW OBTAINED BY OFFICE OF PER15 SONNEL MANAGEMENT.—Section 7703(d) of title 5, 

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

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

18 paragraph shall apply to any review obtained by the Direc19 tor of the Office of Personnel Management. The Director 

20 of the Office of Personnel Management may obtain review 

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

22 60 days after the date the Director received notice of the 

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

24 review in the United States Court of Appeals for the Fed25 eral Circuit if the Director determines, in his discretion, 
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1 that the Board erred in interpreting a civil service law, 

2 rule, or regulation affecting personnel management and 

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

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

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

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

7 decision under this section unless the Director first peti8 tions the Board for a reconsideration of its decision, and 

9 such petition is denied. In addition to the named respond10 ent, the Board and all other parties to the proceedings 

11 before the Board shall have the right to appear in the pro12 ceeding before the Court of Appeals. The granting of the 

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

14 Court of Appeals. 

15 ‘‘(2) During the 5-year period beginning on the effec16 tive date of the Federal Employee Protection of Disclo17 sures Act, this paragraph shall apply to any review relat18 ing to paragraph (8) or (9) of section 2302(b) obtained 

19 by the Director of the Office of Personnel Management. 

20 The Director of the Office of Personnel Management may 

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

22 by filing, within 60 days after the date the Director re23 ceived notice of the final order or decision of the Board, 

24 a petition for judicial review in the United States Court 

25 of Appeals for the Federal Circuit or any court of appeals 
16 

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1 of competent jurisdiction as provided under subsection 

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

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

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

5 matter before the Board, the Director may not petition 

6 for review of a Board decision under this section unless 

7 the Director first petitions the Board for a reconsideration 

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

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

10 to the proceedings before the Board shall have the right 

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

12 The granting of the petition for judicial review shall be 

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

14 (k) NONDISCLOSURE POLICIES, FORMS, AND AGREE15 MENTS.— 

16 (1) IN GENERAL.— 

17 (A) REQUIREMENT.—Each agreement in 

18 Standard Forms 312 and 4414 of the Govern19 ment and any other nondisclosure policy, form, 

20 or agreement of the Government shall contain 

21 the following statement: ‘‘These restrictions are 

22 consistent with and do not supersede, conflict 

23 with, or otherwise alter the employee obliga24 tions, rights, or liabilities created by Executive 

25 Order No. 12958; section 7211 of title 5, 
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1 United States Code (governing disclosures to 

2 Congress); section 1034 of title 10, United 

3 States Code (governing disclosure to Congress 

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

5 of title 5, United States Code (governing disclo6 sures of illegality, waste, fraud, abuse or public 

7 health or safety threats); the Intelligence Iden8 tities Protection Act of 1982 (50 U.S.C. 421 et 

9 seq.) (governing disclosures that could expose 

10 confidential Government agents); and the stat11 utes which protect against disclosure that may 

12 compromise the national security, including sec13 tions 641, 793, 794, 798, and 952 of title 18, 

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

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

16 783(b)). The definitions, requirements, obliga17 tions, rights, sanctions, and liabilities created 

18 by such Executive order and such statutory 

19 provisions are incorporated into this agreement 

20 and are controlling.’’. 

21 (B) ENFORCEABILITY.—Any nondisclosure 

22 policy, form, or agreement described under sub23 paragraph (A) that does not contain the state24 ment required under subparagraph (A) may not 

25 be implemented or enforced to the extent such 
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1 policy, form, or agreement is inconsistent with 

2 that statement. 

3 (2) PERSONS OTHER THAN GOVERNMENT EM4 PLOYEES.—Notwithstanding paragraph (1), a non5 disclosure policy, form, or agreement that is to be 

6 executed by a person connected with the conduct of 

7 an intelligence or intelligence-related activity, other 

8 than an employee or officer of the United States 

9 Government, may contain provisions appropriate to 

10 the particular activity for which such document is to 

11 be used. Such form or agreement shall, at a min12 imum, require that the person will not disclose any 

13 classified information received in the course of such 

14 activity unless specifically authorized to do so by the 

15 United States Government. Such nondisclosure 

16 forms shall also make it clear that such forms do 

17 not bar disclosures to Congress or to an authorized 

18 official of an executive agency or the Department of 

19 Justice that are essential to reporting a substantial 

20 violation of law. 

21 (l) CLARIFICATION OF WHISTLEBLOWER RIGHTS

22 FOR CRITICAL INFRASTRUCTURE INFORMATION.—Section 

23 214(c) of the Homeland Security Act of 2002 (Public Law 

24 107–296) is amended by adding at the end the following: 

25 ‘‘For purposes of this section a permissible use of inde-
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1 pendently obtained information includes the disclosure of 

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

3 United States Code.’’. 

4 (m) ADVISING EMPLOYEES OF RIGHTS.—Section 

5 2302(c) of title 5, United States Code, is amended by in6 serting ‘‘, including how to make a lawful disclosure of 

7 information that is specifically required by law or Execu8 tive order to be kept secret in the interest of national de9 fense or the conduct of foreign affairs to the Special Coun10 sel, the Inspector General of an agency, Congress, or other 

11 agency employee designated to receive such disclosures’’ 

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

13 (n) SCOPE OF DUE PROCESS.— 

14 (1) SPECIAL COUNSEL.—Section 

15 1214(b)(4)(B)(ii) of title 5, United States Code, is 

16 amended by inserting ‘‘, after a finding that a pro17 tected disclosure was a contributing factor,’’ after 

18 ‘‘ordered if’’. 

19 (2) INDIVIDUAL ACTION.—Section 1221(e)(2) 

20 of title 5, United States Code, is amended by insert21 ing ‘‘, after a finding that a protected disclosure was 

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

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

24 days after the date of enactment of this Act. 

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