To amend title 5, United States Code, to clarify which disclosures of information are protected from prohibited personnel practices; to require a statement in nondisclosure policies, forms, and agreements to the effect that such policies, forms, and agreements are consistent with certain disclosure protections; to provide certain authority to the Special Counsel; and for other purposes.

October 8, 2003

Mr. PLATTS (for himself, Mr. WOLF, Mr. WAXMAN, Mr. MCHUGH, Mr. SHAYS, Mr. RUPPERSBERGER, Ms. SCHAKOWSKY, and Mr. TIERNEY) introduced the following bill; which was referred to the Committee on Government Reform

To amend title 5, United States Code, to clarify which disclosures of information are protected from prohibited personnel practices; to require a statement in nondisclosure policies, forms, and agreements to the effect that such policies, forms, and agreements are consistent with certain disclosure protections; to provide certain authority to the Special Counsel; and for other purposes.

Be it enacted by the Senate and House of Representatives 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 information.

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 applicant reasonably believes evidences' and inserting `, without restriction as 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 as 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, 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 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.'.

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 following:

`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 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.'.

SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS; SECURITY CLEARANCES; AND RETALIATORY 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 determination relating to a security clearance;

`(xiii) an investigation of an employee or applicant for employment because of any activity 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 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 (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 personnel 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 Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (relating to 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 of an employee or applicant for employment because of any activity protected under this section.'.

(c) BOARD AND COURT REVIEW OF ACTIONS RELATING TO SECURITY CLEARANCES-

(1) 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, the Merit Systems Protection Board or any reviewing 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 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 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 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, or other determination was made in violation of section 2302, 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, 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 revoked or suspended in retaliation for a protected disclosure shall receive expedited review by the Office of Special Counsel, the Merit Systems Protection Board, and any reviewing court.'.

(2) CLERICAL 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.'.

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 following:

`(ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National 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 counterintelligence activities, if the determination (as that determination relates to a personnel action) is made before that personnel action; 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'.

SEC. 8. COMPENSATORY DAMAGES.

Section 1214(g)(2) of title 5, United States Code, is amended by inserting `compensatory or' after `foreseeable'.

SEC. 9. DISCIPLINARY ACTION.

Section 1215(a) of title 5, United States Code, is amended by striking paragraph (3) and inserting the following:

`(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 in clause (i) and an assessment described in clause (ii).

`(B) In any case in which the Board finds that an employee has committed a prohibited personnel practice under section 2302(b) (8) or (9), the Board shall impose disciplinary action if the Board finds that the activity protected under section 2302(b) (8) or (9) 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 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 activity.'.

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 provides 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- Section 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 Special 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 PROTECTION BOARD DECISIONS- Section 7703 of title 5, United States Code, is amended by adding at the end the following:

`(e)(1) Except as provided in paragraph (2), this paragraph shall apply to any review obtained by the Special 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 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 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 effective date of the Whistleblower Protection Enhancement Act, this paragraph shall apply to any review obtained by the Special 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 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 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.'.

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. 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 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 Appeals 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 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 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 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 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.'.

SEC. 13. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

(a) IN GENERAL-

(1) 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.'

(2) ENFORCEABILITY- Any nondisclosure policy, form, or agreement described in paragraph (1) that does not contain the statement required under paragraph (1) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.

(b) PERSONS OTHER THAN GOVERNMENT EMPLOYEES- Notwithstanding subsection (a), 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.

SEC. 14. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL INFRASTRUCTURE INFORMATION.

Section 214(c) of the Homeland Security Act of 2002 (Public Law 107-296; 6 U.S.C. 133(c)) 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.'.

SEC. 15. EFFECTIVE DATE.

This Act shall take effect 30 days after the date of the enactment of this Act.

END