Congressional Record: July 8, 2004 (Senate)
Page S7839-S7842
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By 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):
S. 2628. 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; to the Committee on
Governmental Affairs.
Mr. AKAKA. Mr. President, today I rise to introduce the Federal
Employee's Protection of Disclosures Act. Last year I introduced
similar legislation, S. 1358, to amend employee safeguards for
disclosing government waste, fraud, and abuse with the support of
Senators Grassley, Levin, Leahy, Durbin, Dayton, Pryor, Johnson, and
Lautenberg.
Today, I am pleased that we can introduce a strong bipartisan version
of this legislation with the additional support of Senators Collins,
Lieberman, Fitzgerald, and Voinovich. Thanks to the work of the bill's
cosponsors, we have developed legislation that strikes the right
balance between the protection of Federal whistleblowers and our
national security.
As my colleagues know, the events of September 11, 2001, have brought
renewed attention to the security lapses at our Nation's airports,
nuclear facilities, borders, and law enforcement agencies. However, in
many cases, the current whistleblower system fails to protect those who
would disclose information that could ensure the safety and welfare of
the American people. As of May 2004, Federal whistleblowers have
prevailed on the merits of their claims before the Federal Circuit
Court of Appeals only once since 1994. This record sends the wrong
message. How can we expect civil servants to protect and defend the
United States when we permit agencies to retaliate against them for
doing their job?
I know the Department of Justice (DOJ) has objected to previous
legislation concerning this problem. This comes as no surprise as the
Department has an institutional conflict of interest with restoring
whistleblower rights as it is charged with defending agencies charged
with retaliating against the whistleblower. Nonetheless, I have worked
with my colleagues on the Governmental Affairs Committee to address
some the concerns raised by the Justice Department while still
protecting federal employees.
One of the most significant changes in the bill relates to the
protection of employees who find their security clearances stripped as
a means of retaliation for blowing the whistle. Current law does not
permit the whistleblower to have his or her case heard by an
independent adjudicator when this type of retaliation occurs.
Under our bill, the whistleblower would be able to bring a case
before the Merit Systems Protection Board (MSPB) on an expedited basis
when the employing agency revokes, suspends, denies, or makes another
determination in relation to an employee's security clearance or access
to classified materials. However, the employing agency need only prove
by a preponderance of the evidence that it would have taken the action
against the employee irrespective the whistleblower's disclosure. By
lowering the burden of proof for the employing agency from clear and
convincing, as is the standard with other whistleblower cases, to
preponderance of the evidence, our legislation strikes a balance
between having an open and transparent process for whistleblowers and
the need to make security clearance or access determinations in the
interests of national security.
The Department of Justice was also concerned with a provision in the
prior bill, S. 1358, which granted independent litigating authority to
the Special Counsel. In testimony before the Governmental Affairs
Committee last November, the Department claimed that extending this
authority to the Special Counsel would usurp DOJ's traditional unifying
role as the Executive Branch's representative in court. The Department
also claimed that the provision would undermine a number of important
policy goals, including the presentation of uniform positions on
significant legal issues and the objective litigation of cases by
attorneys unaffected by concerns of a single agency that may be
inimical to the interests of the Government as a whole.
However, many agencies have independent litigating authority,
including the Equal Employment Opportunity Commission, the MSPB, the
Environmental Protection Agency, and the Federal Labor Relations
Authority. Moreover, interagency disputes are not unique. It is
inappropriate for the Office of Special Counsel (OSC), the agency
charged with protecting the Whistleblower Protection Act (WPA), to seek
approval from DOJ, the agency charged with protecting agencies alleged
to have retaliated against whistleblowers, in order to carry out its
mission. Nonetheless, our bill would not provide the Special Counsel
with independent litigating authority but rather provide it with
independent authority to file amicus briefs with federal courts. This
authority will allow the Special Counsel to protect the WPA while
addressing concerns raised by the Justice Department.
In addition, our compromise measure would still provide protection to
whistleblowers subject to retaliatory investigations, but not for
routine or non-discretionary investigations of the employee and codify
the definition of reasonable belief an employee must have in order to
determine when an employee has made a protected disclosure. I am
pleased that our new bill, among other things, retains language
restoring congressional intent regarding the definition of a protected
disclosure, codifying the anti-gag provision that has been in every
appropriations law since 1988, and establishing a more reasonable test
for determining government mismanagement instead of irrefragable proof.
According to the Federal Circuit, in order to determine that the
federal government has engaged in gross mismanagement, the
whistleblower must have irrefragable proof, meaning proof impossible to
refute.
The bill also retains language, subject to a five-year sunset,
providing whistleblowers the opportunity to have their cases heard by
federal courts other than the Federal Circuit Court of Appeals. These
provisions are necessary to facilitate disclosures of government
mismanagement in order for Congress to do its job and make informed
decisions when carrying out its legislative, appropriation, and
oversight functions for the protection the American people.
Our government is responsible for services and programs that touch
all
[[Page S7840]]
Americans. The Federal employees who carry out these responsibilities
on behalf of the American people must be able to communicate with
Congress without fear of losing their jobs when reporting threats to
public health and safety and government mismanagement. We must have a
credible and functioning WPA. I urge my colleagues to support this
bipartisan bill and ensure real protection for Federal whistleblowers.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2628
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION
BY FEDERAL EMPLOYEES.
(a) Short Title.--This Act may be cited as the ``Federal
Employee Protection of Disclosures Act''.
(b) 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 applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, that the employee or applicant reasonably
believes is evidence 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 applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, 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 violation of this
section)''; and
(3) by adding at the end the following:
``(C) any disclosure that--
``(i) is made by an employee or applicant of information
required by law or Executive order to be kept secret in the
interest of national defense or the conduct of foreign
affairs that the employee or applicant reasonably believes is
direct and specific evidence of--
``(I) any violation of any law, rule, or regulation;
``(II) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety; or
``(III) a false statement to Congress on an issue of
material fact; and
``(ii) is made to--
``(I) a member of a committee of Congress having a primary
responsibility for oversight of a department, agency, or
element of the Federal Government to which the disclosed
information relates and who is authorized to receive
information of the type disclosed;
``(II) any other Member of Congress who is authorized to
receive information 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.''.
(c) Covered Disclosures.--Section 2302(a)(2) of title 5,
United States Code, is amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal communication
or transmission, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the employee providing the
disclosure reasonably believes that the disclosure
evidences--
``(i) any violation of any law, rule, or regulation; or
``(ii) gross management, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety.''.
(d) Rebuttable Presumption.--Section 2302(b) of title 5,
United States Code, is amended by amending the matter
following paragraph (12) to read as follows:
``This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses
information to Congress, except that an employee or applicant
may be disciplined for the disclosure of information
described in paragraph (8)(C)(i) to a Member or employee of
Congress who is not authorized to receive such information.
For purposes 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 evidence. For
purposes of paragraph (8), a determination as to whether an
employee or applicant reasonably believes that they have
disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety shall be made by
determining whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by
the employee would reasonably conclude that the actions of
the Government evidence such violations, mismanagement,
waste, abuse, or danger.''.
(e) Nondisclosure Policies, Forms, and Agreements; Security
Clearances; and Retaliatory Investigations.--
(1) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (x), by striking ``and'' after the semicolon;
and
(B) 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 determination
relating to a security clearance or any other access
determination by a covered agency;
``(xiii) an investigation, other than any ministerial or
nondiscretionary fact finding activities necessary for the
agency to perform its mission, of an employee or applicant
for employment because of any activity protected under this
section; and''.
(2) Prohibited personnel practice.--Section 2302(b) of
title 5, United States Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
a semicolon; and
(C) by inserting after paragraph (12) the following:
``(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 liabilities created by Executive
Order No. 12958; section 7211 of title 5, United States Code
(governing disclosures to Congress); 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 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 created by such Executive order
and such statutory provisions are incorporated into this
agreement and are controlling.'; or
``(14) conduct, or cause to be conducted, an investigation,
other than any ministerial or nondiscretionary fact finding
activities necessary for the agency to perform its mission,
of an employee or applicant for employment because of any
activity protected under this section.''.
(3) Board and court review of actions relating to security
clearances.--
(A) In general.--Chapter 77 of title 5, United States Code,
is amended by inserting after section 7702 the following:
``Sec. 7702a. Actions relating to security clearances
``(a) In any appeal relating to the suspension, revocation,
or other determination relating to a security clearance or
access determination, the Merit Systems Protection Board or
any reviewing court--
``(1) shall determine whether paragraph (8) or (9) of
section 2302(b) was violated;
``(2) may not order the President or the designee of the
President to restore a security clearance or otherwise
reverse a determination of clearance status or reverse an
access determination; and
``(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
``(b)(1) If, in any final judgment, the Board or court
declares that any suspension, revocation, or other
determination with regards to a security clearance or access
determination was made in violation of paragraph (8) or (9)
of section 2302(b), the affected agency shall conduct a
review of that suspension, revocation, access determination,
or other determination, giving great weight to the Board or
court judgment.
``(2) Not later than 30 days after any Board or court
judgment declaring that a security clearance suspension,
revocation, access determination, or other determination was
made in violation of paragraph (8) or (9) of section 2302(b),
the affected agency shall issue an unclassified report to the
congressional committees of jurisdiction (with a classified
annex if necessary), detailing the circumstances of the
agency's security clearance suspension, revocation, other
determination, or access determination. A report under this
paragraph shall include any proposed agency action with
regards to the security clearance or access determination.
``(c) An allegation that a security clearance or access
determination was revoked or suspended in retaliation for a
protected disclosure shall receive expedited review by the
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Office of Special Counsel, the Merit Systems Protection
Board, and any reviewing court.
``(d) For purposes of this section, corrective action may
not be ordered if the agency demonstrates by a preponderance
of the evidence that it would have taken the same personnel
action in the absence of such disclosure.''.
(B) Technical and conforming amendment.--The table of
sections 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.''.
(f) 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 following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Imagery and Mapping Agency, 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 counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action; or''.
(g) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party is employed or
has applied for employment''.
(h) Disciplinary Action.--Section 1215(a)(3) of title 5,
United States Code, is amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case in which the Board finds that an employee
has committed a prohibited personnel practice under paragraph
(8) or (9) of section 2302(b), the Board shall impose
disciplinary action if the Board finds that the activity
protected under paragraph (8) or (9) of section 2302(b) was a
significant motivating factor, even if other factors also
motivated the decision, for the employee's decision to take,
fail to take, or threaten to take or fail to take a personnel
action, unless that employee demonstrates, by preponderance
of 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
activity.''.
(i) Special Counsel Amicus Curiae Appearance.--Section 1212
of title 5, United States Code, is amended by adding at the
end the following:
``(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to any civil action brought in connection with
section 2302(b)(8) or (9), or subchapter III of chapter 73,
or as otherwise authorized by law. In any such action, the
Special Counsel is authorized to present the views of the
Special Counsel with respect to compliance with section
2302(b) (8) or (9) or subchapter III of chapter 77 and the
impact court decisions would have on the enforcement of such
provisions of law.
``(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such
action for the purposes described in subsection (a).''.
(j) Judicial Review.--
(1) In general.--Section 7703(b)(1) of title 5, United
States Code, is amended to read as follows:
``(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. 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) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act, a
petition to review a final order or final decision of the
Board in a case alleging a violation of paragraph (8) or (9)
of section 2302(b) shall be filed 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).''.
(2) Review obtained by office of personnel management.--
Section 7703(d) of title 5, United States Code, is amended to
read as follows:
``(d)(1) Except as provided under paragraph (2), 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 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 Federal
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 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.
``(2) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act,
this paragraph shall apply to any review relating to
paragraph (8) or (9) of section 2302(b) obtained by the
Director 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 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
paragraph (8) or (9) of section 2302(b). 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 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.''.
(k) Nondisclosure Policies, Forms, and Agreements.--
(1) In general.--
(A) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``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 Congress); 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, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.''.
(B) Enforceability.--Any nondisclosure policy, form, or
agreement described under subparagraph (A) that does not
contain the statement required under subparagraph (A) may not
be implemented or enforced to the extent such policy, form,
or agreement is inconsistent with that statement.
(2) Persons other than government employees.--
Notwithstanding paragraph (1), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the United
States Government, may contain provisions appropriate to the
particular activity for which such document is to be used.
Such form or agreement shall, at a minimum, require that the
person will not disclose any classified information received
in the course of such activity unless specifically authorized
to do so by the United States Government. Such nondisclosure
forms shall also make it clear that such forms do not bar
disclosures to Congress or to an authorized official of an
executive agency or the Department of Justice that are
essential to reporting a substantial violation of law.
(l) Clarification of Whistleblower Rights for Critical
Infrastructure Information.--Section 214(c) of the Homeland
Security Act of 2002 (Public Law 107-296) is amended by
adding at the end the following: ``For purposes of this
section a permissible use of independently obtained
information includes the disclosure of such information under
section 2302(b)(8) of title 5, United States Code.''.
(m) Advising Employees of Rights.--Section 2302(c) of title
5, United States Code, is amended by inserting ``, including
how to make a lawful disclosure 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 to the Special Counsel, the Inspector General
of an agency, Congress, or other agency employee designated
to receive such disclosures'' after ``chapter 12 of this
title''.
(n) Scope of Due Process.--
(1) Special counsel.--Section 1214(b)(4)(B)(ii) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
[[Page S7842]]
(2) Individual action.--Section 1221(e)(2) of title 5,
United States Code, is amended by inserting ``, after a
finding that a protected disclosure was a contributing
factor,'' after ``ordered if''.
(o) Effective Date.--This Act shall take effect 30 days
after the date of enactment of this Act.
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