II 

Calendar No. 114 

109TH CONGRESS 

1ST SESSION S. 494 

[Report No. 109–72] 

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 

MARCH 2, 2005 

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

LEAHY, Mr. VOINOVICH, Mr. LIEBERMAN, Mr. COLEMAN, Mr. DURBIN, 

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

twice and referred to the Committee on Homeland Security and Governmental Affairs 

MAY 25, 2005 

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-
2 

•S 494 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-
3 

•S 494 RS

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 regu8 lation; or 

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

10 funds, an abuse of authority, or a substantial 

11 and specific danger to public health or safety.’’. 

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

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

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

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

16 withholding of information from Congress or the taking 

17 of any personnel action against an employee who discloses 

18 information to Congress, except that an employee or appli19 cant may be disciplined for the disclosure of information 

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

21 of Congress who is not authorized to receive such informa22 tion. For purposes of paragraph (8), any presumption re23 lating to the performance of a duty by an employee who 

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

25 or approve any personnel action may be rebutted by sub-
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1 stantial evidence. For purposes of paragraph (8), a deter2 mination as to whether an employee or applicant reason3 ably believes that they have disclosed information that evi4 dences any violation of law, rule, regulation, gross mis5 management, a gross waste of funds, an abuse of author6 ity, or a substantial and specific danger to public health 

7 or safety shall be made by determining whether a disin8 terested observer with knowledge of the essential facts 

9 known to and readily ascertainable by the employee would 

10 reasonably conclude that the actions of the Government 

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

12 danger.’’. 

13 (e) NONDISCLOSURE POLICIES, FORMS, AND AGREE14 MENTS; SECURITY CLEARANCES; AND RETALIATORY IN15 VESTIGATIONS.— 

16 (1) PERSONNEL ACTION.—Section 

17 2302(a)(2)(A) of title 5, United States Code, is 

18 amended— 

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

20 the semicolon; and 

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

22 (xiv) and inserting after clause (x) the fol23 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 do not su2 persede, conflict with, or otherwise alter the em3 ployee obligations, rights, or liabilities created by 

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

5 United States Code (governing disclosures to Con6 gress); section 1034 of title 10, United States Code 

7 (governing disclosure to Congress by members of the 

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

9 States Code (governing disclosures of illegality, 

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

11 threats); the Intelligence Identities Protection Act of 

12 1982 (50 U.S.C. 421 et seq.) (governing disclosures 

13 that could expose confidential Government agents); 

14 and the statutes which protect against disclosures 

15 that could compromise national security, including 

16 sections 641, 793, 794, 798, and 952 of title 18, 

17 United States Code, and section 4(b) of the Subver18 sive Activities Control Act of 1950 (50 U.S.C. 

19 783(b)). The definitions, requirements, obligations, 

20 rights, sanctions, and liabilities created by such Ex21 ecutive order and such statutory provisions are in22 corporated into this agreement and are controlling’; 

23 or 

24 ‘‘(14) conduct, or cause to be conducted, an in25 vestigation, other than any ministerial or nondis-
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1 cretionary fact finding activities necessary for the 

2 agency to perform its mission, of an employee or ap3 plicant for employment because of any activity pro4 tected under this section.’’. 

5 (3) BOARD AND COURT REVIEW OF ACTIONS

6 RELATING TO SECURITY CLEARANCES.— 

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

8 United States Code, is amended by inserting 

9 after section 7702 the following: 

10 ‘‘§ 7702a. Actions relating to security clearances 

11 ‘‘(a) In any appeal relating to the suspension, revoca12 tion, or other determination relating to a security clear13 ance or access determination, the Merit Systems Protec14 tion Board or any reviewing court— 

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

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

17 ‘‘(2) may not order the President or the des18 ignee of the President to restore a security clearance 

19 or otherwise reverse a determination of clearance 

20 status or reverse an access determination; and 

21 ‘‘(3) subject to paragraph (2), may issue declar22 atory relief and any other appropriate relief. 

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

24 declares that any suspension, revocation, or other deter25 mination with regards to a security clearance or access 
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1 determination was made in violation of paragraph (8) or 

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

3 a review of that suspension, revocation, access determina4 tion, or other determination, giving great weight to the 

5 Board or court judgment. 

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

7 judgment declaring that a security clearance suspension, 

8 revocation, access determination, or other determination 

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

10 2302(b), the affected agency shall issue an unclassified re11 port to the congressional committees of jurisdiction (with 

12 a classified annex if necessary), detailing the cir13 cumstances of the agency’s security clearance suspension, 

14 revocation, other determination, or access determination. 

15 A report under this paragraph shall include any proposed 

16 agency action with regards to the security clearance or ac17 cess determination. 

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

19 determination was revoked or suspended in retaliation for 

20 a protected disclosure shall receive expedited review by the 

21 Office of Special Counsel, the Merit Systems Protection 

22 Board, and any reviewing court. 

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

24 may not be ordered if the agency demonstrates by a pre-
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1 ponderance of the evidence that it would have taken the 

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

3 (B) TECHNICAL AND CONFORMING AMEND4 MENT.—The table of sections for chapter 77 of 

5 title 5, United States Code, is amended by in6 serting after the item relating to section 7702 

7 the following: 

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

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

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

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

11 ‘‘(ii)(I) the Federal Bureau of Investiga12 tion, the Central Intelligence Agency, the De13 fense Intelligence Agency, the National Imagery 

14 and Mapping Agency, the National Security 

15 Agency; and 

16 ‘‘(II) as determined by the President, any 

17 executive agency or unit thereof the principal 

18 function of which is the conduct of foreign in19 telligence or counterintelligence activities, if the 

20 determination (as that determination relates to 

21 a personnel action) is made before that per22 sonnel action; or’’. 

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

24 United States Code, is amended by striking ‘‘agency in-
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1 volved’’ and inserting ‘‘agency where the prevailing party 

2 is employed or has applied for employment’’. 

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

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

5 ‘‘(3)(A) A final order of the Board may im6 pose— 

7 ‘‘(i) disciplinary action consisting of re8 moval, reduction in grade, debarment from 

9 Federal employment for a period not to exceed 

10 5 years, suspension, or reprimand; 

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

12 exceed $1,000; or 

13 ‘‘(iii) any combination of disciplinary ac14 tions described under clause (i) and an assess15 ment described under clause (ii). 

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

17 an employee has committed a prohibited personnel 

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

19 2302(b), the Board shall impose disciplinary action 

20 if the Board finds that the activity protected under 

21 paragraph (8) or (9) of section 2302(b) was a sig22 nificant motivating factor, even if other factors also 

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

24 take, fail to take, or threaten to take or fail to take 

25 a personnel action, unless that employee dem-
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1 onstrates, by preponderance of evidence, that the 

2 employee would have taken, failed to take, or threat3 ened to take or fail to take the same personnel ac4 tion, in the absence of such protected activity.’’. 

5 (i) SPECIAL COUNSEL AMICUS CURIAE APPEAR6 ANCE.—Section 1212 of title 5, United States Code, is 

7 amended by adding at the end the following: 

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

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

10 United States related to any civil action brought in con11 nection with section 2302(b) (8) or (9), or subchapter III 

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

13 such action, the Special Counsel is authorized to present 

14 the views of the Special Counsel with respect to compli15 ance with section 2302(b) (8) or (9) or subchapter III of 

16 chapter 77 and the impact court decisions would have on 

17 the enforcement of such provisions of law. 

18 ‘‘(2) A court of the United States shall grant the ap19 plication of the Special Counsel to appear in any such ac20 tion for the purposes described in subsection (a).’’. 

21 (j) JUDICIAL REVIEW.— 

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

23 5, United States Code, is amended to read as fol24 lows: 
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1 ‘‘(b)(1)(A) Except as provided in subparagraph (B) 

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

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

4 States Court of Appeals for the Federal Circuit. Notwith5 standing any other provision of law, any petition for re6 view must be filed within 60 days after the date the peti7 tioner received notice of the final order or decision of the 

8 Board. 

9 ‘‘(B) During the 5-year period beginning on the effec10 tive date of the Federal Employee Protection of Disclo11 sures Act, a petition to review a final order or final deci12 sion of the Board in a case alleging a violation of para13 graph (8) or (9) of section 2302(b) shall be filed in the 

14 United States Court of Appeals for the Federal Circuit 

15 or any court of appeals of competent jurisdiction as pro16 vided under subsection (b)(2).’’. 

17 (2) REVIEW OBTAINED BY OFFICE OF PER18 SONNEL MANAGEMENT.—Section 7703(d) of title 5, 

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

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

21 paragraph shall apply to any review obtained by the Direc22 tor of the Office of Personnel Management. The Director 

23 of the Office of Personnel Management may obtain review 

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

25 60 days after the date the Director received notice of the 
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1 final order or decision of the Board, a petition for judicial 

2 review in the United States Court of Appeals for the Fed3 eral Circuit if the Director determines, in his discretion, 

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

5 rule, or regulation affecting personnel management and 

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

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

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

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

10 decision under this section unless the Director first peti11 tions the Board for a reconsideration of its decision, and 

12 such petition is denied. In addition to the named respond13 ent, the Board and all other parties to the proceedings 

14 before the Board shall have the right to appear in the pro15 ceeding before the Court of Appeals. The granting of the 

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

17 Court of Appeals. 

18 ‘‘(2) During the 5-year period beginning on the effec19 tive date of the Federal Employee Protection of Disclo20 sures Act, this paragraph shall apply to any review relat21 ing to paragraph (8) or (9) of section 2302(b) obtained 

22 by the Director of the Office of Personnel Management. 

23 The Director of the Office of Personnel Management may 

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

25 by filing, within 60 days after the date the Director re-
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1 ceived notice of the final order or decision of the Board, 

2 a petition for judicial review in the United States Court 

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

4 of competent jurisdiction as provided under subsection 

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

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

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

8 matter before the Board, the Director may not petition 

9 for review of a Board decision under this section unless 

10 the Director first petitions the Board for a reconsideration 

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

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

13 to the proceedings before the Board shall have the right 

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

15 The granting of the petition for judicial review shall be 

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

17 (k) NONDISCLOSURE POLICIES, FORMS, AND AGREE18 MENTS.— 

19 (1) IN GENERAL.— 

20 (A) REQUIREMENT.—Each agreement in 

21 Standard Forms 312 and 4414 of the Govern22 ment and any other nondisclosure policy, form, 

23 or agreement of the Government shall contain 

24 the following statement: ‘‘These restrictions are 

25 consistent with and do not supersede, conflict 
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1 with, or otherwise alter the employee obliga2 tions, rights, or liabilities created by Executive 

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

4 United States Code (governing disclosures to 

5 Congress); section 1034 of title 10, United 

6 States Code (governing disclosure to Congress 

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

8 of title 5, United States Code (governing disclo9 sures of illegality, waste, fraud, abuse or public 

10 health or safety threats); the Intelligence Iden11 tities Protection Act of 1982 (50 U.S.C. 421 et 

12 seq.) (governing disclosures that could expose 

13 confidential Government agents); and the stat14 utes which protect against disclosure that may 

15 compromise the national security, including sec16 tions 641, 793, 794, 798, and 952 of title 18, 

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

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

19 783(b)). The definitions, requirements, obliga20 tions, rights, sanctions, and liabilities created 

21 by such Executive order and such statutory 

22 provisions are incorporated into this agreement 

23 and are controlling.’’. 

24 (B) ENFORCEABILITY.—Any nondisclosure 

25 policy, form, or agreement described under sub-
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1 paragraph (A) that does not contain the state2 ment required under subparagraph (A) may not 

3 be implemented or enforced to the extent such 

4 policy, form, or agreement is inconsistent with 

5 that statement. 

6 (2) PERSONS OTHER THAN GOVERNMENT EM7 PLOYEES.—Notwithstanding paragraph (1), a non8 disclosure policy, form, or agreement that is to be 

9 executed by a person connected with the conduct of 

10 an intelligence or intelligence-related activity, other 

11 than an employee or officer of the United States 

12 Government, may contain provisions appropriate to 

13 the particular activity for which such document is to 

14 be used. Such form or agreement shall, at a min15 imum, require that the person will not disclose any 

16 classified information received in the course of such 

17 activity unless specifically authorized to do so by the 

18 United States Government. Such nondisclosure 

19 forms shall also make it clear that such forms do 

20 not bar disclosures to Congress or to an authorized 

21 official of an executive agency or the Department of 

22 Justice that are essential to reporting a substantial 

23 violation of law. 

24 (l) CLARIFICATION OF WHISTLEBLOWER RIGHTS

25 FOR CRITICAL INFRASTRUCTURE INFORMATION.—Section 
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1 214(c) of the Homeland Security Act of 2002 (6 U.S.C. 

2 133(c)) is amended by adding at the end the following: 

3 ‘‘For purposes of this section a permissible use of inde4 pendently obtained information includes the disclosure of 

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

6 United States Code.’’. 

7 (m) ADVISING EMPLOYEES OF RIGHTS.—Section 

8 2302(c) of title 5, United States Code, is amended by in9 serting ‘‘, including how to make a lawful disclosure of 

10 information that is specifically required by law or Execu11 tive order to be kept secret in the interest of national de12 fense or the conduct of foreign affairs to the Special Coun13 sel, the Inspector General of an agency, Congress, or other 

14 agency employee designated to receive such disclosures’’ 

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

16 (n) SCOPE OF DUE PROCESS.— 

17 (1) SPECIAL COUNSEL.—Section 

18 1214(b)(4)(B)(ii) of title 5, United States Code, is 

19 amended by inserting ‘‘, after a finding that a pro20 tected disclosure was a contributing factor,’’ after 

21 ‘‘ordered if’’. 

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

23 of title 5, United States Code, is amended by insert24 ing ‘‘, after a finding that a protected disclosure was 

25 a contributing factor,’’ after ‘‘ordered if’’. 
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1 (o) EFFECTIVE DATE.—This Act shall take effect 30 

2 days after the date of enactment of this Act. 

Calendar No. 114 

109TH CONGRESS 

1ST SESSION S. 494 

[Report No. 109–72] 

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 

MAY 25, 2005 

Reported without amendment