I 
108TH CONGRESS 
1ST SESSION H. R. 3281
To amend title 5, United States Code, to clarify which disclosures of informa-
tion are protected from prohibited personnel practices; to require a state-
ment in nondisclosure policies, forms, and agreements to the effect that 
such policies, forms, and agreements are consistent with certain disclo-
sure protections; to provide certain authority to the Special Counsel; 
and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
OCTOBER 8, 2003
Mr. PLATTS (for himself, Mr. WOLF, Mr. WAXMAN, Mr. MCHUGH, Mr. 
SHAYS, Mr. RUPPERSBERGER, Ms. SCHAKOWSKY, and Mr. TIERNEY) in-
troduced the following bill; which was referred to the Committee on Gov-
ernment Reform 
A BILL 
To amend title 5, United States Code, to clarify which disclo-
sures of information are protected from prohibited per-
sonnel practices; to require a statement in nondisclosure 
policies, forms, and agreements to the effect that such 
policies, forms, and agreements are consistent with cer-
tain disclosure protections; to provide certain authority 
to the Special Counsel; and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Whistleblower Protection Enhancement Act’’. 
(b) TABLE OF CONTENTS.—The table of contents of 
this Act is as follows:
Sec. 1. Short title; table of contents. 
Sec. 2. Clarification of disclosures covered. 
Sec. 3. Covered disclosures. 
Sec. 4. Rebuttable presumption. 
Sec. 5. Nondisclosure policies, forms, and agreements; security clearances; and 
retaliatory investigations. 
Sec. 6. Exclusion of agencies by the President. 
Sec. 7. Attorney fees. 
Sec. 8. Compensatory damages. 
Sec. 9. Disciplinary action. 
Sec. 10. Disclosures to Congress. 
Sec. 11. Authority of Special Counsel relating to civil actions. 
Sec. 12. Judicial review. 
Sec. 13. Nondisclosure policies, forms, and agreements. 
Sec. 14. Clarification of whistleblower rights for critical infrastructure informa-
tion. 
Sec. 15. Effective date.
SEC. 2. CLARIFICATION OF DISCLOSURES COVERED. 
Section 2302(b)(8) of title 5, United States Code, is 
amended—
(1) in subparagraph (A)—
(A) by striking ‘‘which the employee or ap-
plicant reasonably believes evidences’’ and in-
serting ‘‘, without restriction as to time, place, 
form, motive, context, or prior disclosure made 
to any person by an employee or applicant, in-
cluding a disclosure made in the ordinary 
course of an employee’s duties, that the em-
ployee or applicant reasonably believes is evi-
dence of’’; and 
(B) in clause (i), by striking ‘‘a violation’’ 
and inserting ‘‘any violation’’; 
(2) in subparagraph (B)—
(A) by striking ‘‘which the employee or ap-
plicant reasonably believes evidences’’ and in-
serting ‘‘, without restriction as to time, place, 
form, motive, context, or prior disclosure made 
to any person by an employee or applicant, in-
cluding a disclosure made in the ordinary 
course of an employee’s duties, to the Special 
Counsel, or to the Inspector General of an 
agency or another employee designated by the 
head of the agency to receive such disclosures, 
of information that the employee or applicant 
reasonably believes is evidence of’’; and 
(B) in clause (i), by striking ‘‘a violation’’ 
and inserting ‘‘any violation (other than a viola-
tion of this section)’’; and 
(3) by adding at the end the following: 
‘‘(C) any disclosure that—
‘‘(i) is made by an employee or appli-
cant of information required by law or Ex-
ecutive order to be kept secret in the inter-
est of national defense or the conduct of 
foreign affairs that the employee or appli-
cant reasonably believes is direct and spe-
cific evidence of—
‘‘(I) any violation of any law, 
rule, or regulation; 
‘‘(II) gross mismanagement, a 
gross waste of funds, an abuse of au-
thority, or a substantial and specific 
danger to public health or safety; or 
‘‘(III) a false statement to Con-
gress on an issue of material fact; and 
‘‘(ii) is made to—
‘‘(I) a member of a committee of 
Congress having a primary responsi-
bility for oversight of a department, 
agency, or element of the Federal 
Government to which the disclosed in-
formation relates and who is author-
ized to receive information of the type 
disclosed; 
‘‘(II) any other Member of Con-
gress who is authorized to receive in-
formation of the type disclosed; or
‘‘(III) an employee of Congress 
who has the appropriate security 
clearance and is authorized to receive 
information of the type disclosed.’’. 
SEC. 3. COVERED DISCLOSURES. 
Section 2302(b) of title 5, United States Code, is 
amended—
(1) in the matter following paragraph (12), by 
striking ‘‘This subsection’’ and inserting the fol-
lowing: 
‘‘This subsection’’; and 
(2) by adding at the end the following: 
‘‘In this subsection, the term ‘disclosure’ means a formal 
or informal communication or transmission.’’. 
SEC. 4. REBUTTABLE PRESUMPTION. 
Section 2302(b) of title 5, United States Code, is 
amended by adding after the matter following paragraph 
(12) (as amended by section 3) the following: ‘‘For pur-
poses of paragraph (8), any presumption relating to the 
performance of a duty by an employee who has authority 
to take, direct others to take, recommend, or approve any 
personnel action may be rebutted by substantial evi-
dence.’’.
SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREE-
MENTS; SECURITY CLEARANCES; AND RETAL-
IATORY INVESTIGATIONS. 
(a) PERSONNEL ACTION.—Section 2302(a)(2)(A) of 
title 5, United States Code, is amended—
(1) in clause (x), by striking ‘‘and’’ after the 
semicolon; and 
(2) by redesignating clause (xi) as clause (xiv) 
and inserting after clause (x) the following: 
‘‘(xi) the implementation or enforcement of 
any nondisclosure policy, form, or agreement; 
‘‘(xii) a suspension, revocation, or other de-
termination relating to a security clearance; 
‘‘(xiii) an investigation of an employee or 
applicant for employment because of any activ-
ity protected under this section; and’’. 
(b) PROHIBITED PERSONNEL PRACTICE.—Section 
2302(b) of title 5, United States Code, is amended—
(1) in paragraph (11), by striking ‘‘or’’ at the 
end; 
(2) in paragraph (12), by striking the period 
and inserting a semicolon; and 
(3) by inserting after paragraph (12) the fol-
lowing:
‘‘(13) implement or enforce any nondisclosure 
policy, form, or agreement, if such policy, form, or 
agreement does not contain the following statement: 
‘‘ ‘These provisions are consistent with and 
do not supersede, conflict with, or otherwise 
alter the employee obligations, rights, or liabil-
ities created by Executive Order No. 12958 (50 
U.S.C. 435 note); section 7211 of title 5, 
United States Code (relating to employees’ 
right to petition Congress); section 1034 of title 
10, United States Code (relating to protected 
communications; prohibition of retaliatory per-
sonnel actions); section 2302(b)(8) of title 5, 
United States Code (relating to disclosures of 
violations of law, gross mismanagement, and 
certain other matters); the Intelligence Identi-
ties Protection Act of 1982 (50 U.S.C. 421 et 
seq.) (relating to disclosures that could expose 
confidential Government agents); and the stat-
utes which protect against disclosures that 
could compromise national security, including 
sections 641, 793, 794, 798, and 952 of title 
18, United States Code, and section 4(b) of the 
Subversive Activities Control Act of 1950 (50 
U.S.C. 783(b)). The definitions, requirements,
obligations, rights, sanctions, and liabilities cre-
ated by such Executive order and such statu-
tory provisions are incorporated into this agree-
ment and are controlling.’; or 
‘‘(14) conduct, or cause to be conducted, an in-
vestigation of an employee or applicant for employ-
ment because of any activity protected under this 
section.’’. 
(c) BOARD AND COURT REVIEW OF ACTIONS RELAT-
ING TO SECURITY CLEARANCES.—
(1) IN GENERAL.—Chapter 77 of title 5, United 
States Code, is amended by inserting after section 
7702 the following: 
‘‘§ 7702a. Actions relating to security clearances 
‘‘(a) In any appeal relating to the suspension, revoca-
tion, or other determination relating to a security clear-
ance, the Merit Systems Protection Board or any review-
ing court—
‘‘(1) shall determine whether section 2302 was 
violated; 
‘‘(2) may not order the President to restore a 
security clearance; and 
‘‘(3) subject to paragraph (2), may issue declar-
atory relief and any other appropriate relief.
‘‘(b)(1) If, in any final judgment, the Board or court 
declares that any suspension, revocation, or other deter-
mination with regard to a security clearance was made in 
violation of section 2302, the affected agency shall conduct 
a review of that suspension, revocation, or other deter-
mination, giving great weight to the Board or court judg-
ment. 
‘‘(2) Not later than 30 days after any Board or court 
judgment declaring that a security clearance suspension, 
revocation, or other determination was made in violation 
of section 2302, the affected agency shall issue an unclas-
sified report to the congressional committees of jurisdic-
tion (with a classified annex if necessary), detailing the 
circumstances of the agency’s security clearance suspen-
sion, revocation, or other determination. A report under 
this paragraph shall include any proposed agency action 
with regard to the security clearance. 
‘‘(c) An allegation that a security clearance was re-
voked or suspended in retaliation for a protected disclo-
sure shall receive expedited review by the Office of Special 
Counsel, the Merit Systems Protection Board, and any re-
viewing court.’’. 
(2) CLERICAL AMENDMENT.—The table of sec-
tions for chapter 77 of title 5, United States Code,
is amended by inserting after the item relating to 
section 7702 the following:
‘‘7702a. Actions relating to security clearances.’’.
SEC. 6. EXCLUSION OF AGENCIES BY THE PRESIDENT. 
Section 2302(a)(2)(C) of title 5, United States Code, 
is amended by striking clause (ii) and inserting the fol-
lowing: 
‘‘(ii)(I) the Federal Bureau of Inves-
tigation, the Central Intelligence Agency, 
the Defense Intelligence Agency, the Na-
tional Imagery and Mapping Agency, and 
the National Security Agency; and 
‘‘(II) as determined by the President, 
any Executive agency or unit thereof the 
principal function of which is the conduct 
of foreign intelligence or counterintel-
ligence activities, if the determination (as 
that determination relates to a personnel 
action) is made before that personnel ac-
tion; or’’. 
SEC. 7. ATTORNEY FEES. 
Section 1204(m)(1) of title 5, United States Code, 
is amended by striking ‘‘agency involved’’ and inserting 
‘‘agency with which the prevailing party is employed or 
has applied for employment’’.
less that employee demonstrates, by a preponderance of 
the evidence, that the employee would have taken, failed 
to take, or threatened to take or fail to take the same 
personnel action, in the absence of such protected activ-
ity.’’. 
SEC. 10. DISCLOSURES TO CONGRESS. 
Section 2302 of title 5, United States Code, is 
amended by adding at the end the following: 
‘‘(f) Each agency shall establish a process that pro-
vides confidential advice to employees on making a lawful 
disclosure to Congress of information that is specifically 
required by law or Executive order to be kept secret in 
the interest of national defense or the conduct of foreign 
affairs.’’. 
SEC. 11. AUTHORITY OF SPECIAL COUNSEL RELATING TO 
CIVIL ACTIONS. 
(a) REPRESENTATION OF SPECIAL COUNSEL.—Sec-
tion 1212 of title 5, United States Code, is amended by 
adding at the end the following: 
‘‘(h) Except as provided in section 518 of title 28, 
relating to litigation before the Supreme Court, attorneys 
designated by the Special Counsel may appear for the Spe-
cial Counsel and represent the Special Counsel in any civil 
action brought in connection with section 2302(b)(8) or
subchapter III of chapter 73, or as otherwise authorized 
by law.’’. 
(b) JUDICIAL REVIEW OF MERIT SYSTEMS PROTEC-
TION BOARD DECISIONS.—Section 7703 of title 5, United 
States Code, is amended by adding at the end the fol-
lowing: 
‘‘(e)(1) Except as provided in paragraph (2), this 
paragraph shall apply to any review obtained by the Spe-
cial Counsel. The Special Counsel may obtain review of 
any final order or decision of the Board by filing a petition 
for judicial review in the United States Court of Appeals 
for the Federal Circuit if the Special Counsel determines, 
in the discretion of the Special Counsel, that the Board 
erred in deciding a case arising under section 2302(b)(8) 
or subchapter III of chapter 73 and that the Board’s deci-
sion will have a substantial impact on the enforcement of 
section 2302(b)(8) or subchapter III of chapter 73. If the 
Special Counsel was not a party or did not intervene in 
a matter before the Board, the Special Counsel may not 
petition for review of a Board decision under this section 
unless the Special Counsel first petitions the Board for 
reconsideration of its decision, and such petition is denied. 
In addition to the named respondent, the Board and all 
other parties to the proceedings before the Board shall 
have the right to appear in the proceedings before the
Court of Appeals. The granting of the petition for judicial 
review shall be at the discretion of the Court of Appeals. 
‘‘(2) During the 5-year period beginning on the effec-
tive date of the Whistleblower Protection Enhancement 
Act, this paragraph shall apply to any review obtained by 
the Special Counsel. The Special Counsel may obtain re-
view of any final order or decision of the Board by filing 
a petition for judicial review in the United States Court 
of Appeals for the Federal Circuit or any court of appeals 
of competent jurisdiction as provided under subsection 
(b)(2) if the Special Counsel determines, in the discretion 
of the Special Counsel, that the Board erred in deciding 
a case arising under section 2302(b)(8) or subchapter III 
of chapter 73 and that the Board’s decision will have a 
substantial impact on the enforcement of section 
2302(b)(8) or subchapter III of chapter 73. If the Special 
Counsel was not a party or did not intervene in a matter 
before the Board, the Special Counsel may not petition 
for review of a Board decision under this section unless 
the Special Counsel first petitions the Board for reconsid-
eration of its decision, and such petition is denied. In addi-
tion to the named respondent, the Board and all other 
parties to the proceedings before the Board shall have the 
right to appear in the proceedings before the court of ap-
peals. The granting of the petition for judicial review shall 
be at the discretion of the court of appeals.’’. 
SEC. 12. JUDICIAL REVIEW. 
(a) IN GENERAL.—Section 7703(b) of title 5, United 
States Code, is amended by striking the matter before 
paragraph (2) and inserting the following: 
‘‘(b)(1)(A) Except as provided in subparagraph (B) 
and paragraph (2), a petition to review a final order or 
final decision of the Board shall be filed in the United 
States Court of Appeals for the Federal Circuit. Notwith-
standing any other provision of law, any petition for re-
view must be filed within 60 days after the date the peti-
tioner received notice of the final order or decision of the 
Board. 
‘‘(B) During the 5-year period beginning on the effec-
tive date of the Whistleblower Protection Enhancement 
Act, a petition to review a final order or final decision of 
the Board shall be filed in the United States Court of Ap-
peals for the Federal Circuit or any court of appeals of 
competent jurisdiction as provided under subsection 
(b)(2). Notwithstanding any other provision of law, any 
petition for review must be filed within 60 days after the 
date the petitioner received notice of the final order or 
decision of the Board.’’.
(b) REVIEW OBTAINED BY OFFICE OF PERSONNEL 
MANAGEMENT.—Section 7703 of title 5, United States 
Code, is amended by striking subsection (d) and inserting 
the following: 
‘‘(d)(1) Except as provided in paragraph (2), this 
paragraph shall apply to any review obtained by the Direc-
tor of the Office of Personnel Management. The Director 
of the Office of Personnel Management may obtain review 
of any final order or decision of the Board by filing, within 
60 days after the date the Director received notice of the 
final order or decision of the Board, a petition for judicial 
review in the United States Court of Appeals for the Fed-
eral Circuit if the Director determines, in his discretion, 
that the Board erred in interpreting a civil service law, 
rule, or regulation affecting personnel management and 
that the Board’s decision will have a substantial impact 
on a civil service law, rule, regulation, or policy directive. 
If the Director did not intervene in a matter before the 
Board, the Director may not petition for review of a Board 
decision under this section unless the Director first peti-
tions the Board for a reconsideration of its decision, and 
such petition is denied. In addition to the named respond-
ent, the Board and all other parties to the proceedings 
before the Board shall have the right to appear in the pro-
ceeding before the Court of Appeals. The granting of the
petition for judicial review shall be at the discretion of the 
Court of Appeals. 
‘‘(2) During the 5-year period beginning on the effec-
tive date of the Whistleblower Protection Enhancement 
Act, this paragraph shall apply to any review obtained by 
the Director of the Office of Personnel Management. The 
Director of the Office of Personnel Management may ob-
tain review of any final order or decision of the Board 
by filing, within 60 days after the date the Director re-
ceived notice of the final order or decision of the Board, 
a petition for judicial review in the United States Court 
of Appeals for the Federal Circuit or any court of appeals 
of competent jurisdiction as provided under subsection 
(b)(2) if the Director determines, in his discretion, that 
the Board erred in interpreting a civil service law, rule, 
or regulation affecting personnel management and that 
the Board’s decision will have a substantial impact on a 
civil service law, rule, regulation, or policy directive. If the 
Director did not intervene in a matter before the Board, 
the Director may not petition for review of a Board deci-
sion under this section unless the Director first petitions 
the Board for a reconsideration of its decision, and such 
petition is denied. In addition to the named respondent, 
the Board and all other parties to the proceedings before 
the Board shall have the right to appear in the proceeding
before the court of appeals. The granting of the petition 
for judicial review shall be at the discretion of the Court 
of Appeals.’’. 
SEC. 13. NONDISCLOSURE POLICIES, FORMS, AND AGREE-
MENTS. 
(a) IN GENERAL.—
(1) REQUIREMENT.—Each agreement in Stand-
ard Forms 312 and 4414 of the Government and 
any other nondisclosure policy, form, or agreement 
of the Government shall contain the following state-
ment: ‘‘These restrictions are consistent with and do 
not supersede, conflict with, or otherwise alter the 
employee obligations, rights, or liabilities created by 
Executive Order No. 12958; section 7211 of title 5, 
United States Code (governing disclosures to Con-
gress); section 1034 of title 10, United States Code 
(governing disclosure to Congress by members of the 
military); section 2302(b)(8) of title 5, United 
States Code (governing disclosures of illegality, 
waste, fraud, abuse or public health or safety 
threats); the Intelligence Identities Protection Act of 
1982 (50 U.S.C. 421 et seq.) (governing disclosures 
that could expose confidential Government agents); 
and the statutes which protect against disclosure 
that may compromise the national security, includ-