The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S7745-S7747 on July 31, 2002.
The publication is reproduced in full below:
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. NICKLES (for himself and Mr. INHOFE):
S. 2828. A bill to redesignate the facility of the United States Postal Service located at 6910 South Yorktown Avenue in Tulsa, Oklahoma, as the ``Robert Wayne Jenkins Station''; to the Committee on Governmental Affairs.
Mr. NICKLES. Mr. President, I rise today to honor the memory of Robert Wayne Jenkins, a U.S. Postal Service letter carrier who was tragically killed while serving the Tulsa community and to introduce legislation that would redesignate the Southside Station Postal Service facility in Tulsa, Oklahoma, as the ``Robert Wayne Jenkins Station''.
On December 21, 2001, Robert Wayne Jenkins said goodbye to his wife Amber and daughter Caitlyn and left home for work. Arriving with his usual friendly and positive attitude, Robert prepared for his mail route. Before leaving the office to deliver the mail on his route, Robert gave his customary message to a fellow letter carrier: ``be safe''. That afternoon, Robert was senselessly gunned down while on his route, dying instantly.
Robert Wayne Jenkins was in his ninth year of dedicated service in a job he truly loved. His co-workers respected his dedication and professionalism, and Robert was also greatly admired for his love and devotion to his wife and daughter. The spirit and vitality with which Robert served the U.S. Postal Service and his community will live on in the hearts of those who were privileged to know him.
Rededicating the southside station in Tulsas as the Robert Wayne Jenkins Station is an honor most appropriate for an American who asked for so little but who gave so much to his family, his friends, the United States Postal Service, and the Tulsa community.
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. 2828
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. DESIGNATION OF ROBERT WAYNE JENKINS STATION.
(a) Designation.--The facility of the United States Postal Service located at 6910 South Yorktown Avenue in Tulsa, Oklahoma, and known as the ``Southside Station'', shall be known and designated as the ``Robert Wayne Jenkins Station''.
(b) References.--Any reference in a law, map, regulation, document, paper, or other record of the United States to the facility referred to in subsection (a) shall be deemed to be a reference to the Robert Wayne Jenkins Station.
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By Mr. AKAKA:
S. 2829. A bill to authorize appropriations for the Merit Systems Protection Board and the Office of Special Counsel, to provide for the protection of certain disclosures of information by Federal employees, and for other purposes; to the Committee on Governmental Affairs.
Mr. AKAKA. Mr. President. Today I rise to introduce legislation reauthorizing the Office of Special Counsel, OSC, and the Merit Systems Protection Board, MSPB. These two agencies safeguard the merit system principles and protect Federal employees who step forward to disclose government waste, fraud, and abuse.
The Office of Special Counsel protects Federal employees and applicants from reprisal for whistleblowing and other prohibited personnel practices. OSC serves as a safe and secure channel for Federal workers who wish to disclose violations of law, gross mismanagement or waste of funds, abuse of authority, and a specific danger to the public health and safety. In addition, OSC enforces and provides advisory opinions regarding the Hatch Act, which restricts the political activities of Federal employees. It also protects the rights of Federal employee, military veterans and reservists under the Uniformed Services Employment and Reemployment Rights Act of 1994.
The Merit Systems Protection Board monitors the Federal Government's merit-based system of employment by hearing and deciding appeals from Federal employees regarding job removal and other major personnel actions. The Board also decides other types of civil service cases, reviews regulations of the Office of Personnel Management, and conducts studies of the merit systems. Together, OSC and MSPB act as stalwarts of justice for the dedicated men and women who serve the public.
In addition to reauthorizing these two important agencies, my bill would restore congressional intent regarding who is entitled to relief under the Whistleblower Protection Act, WPA. On several occasions, Congress has had to revisit the WPA to close loopholes in the law. Congress has been forced to specify that ``any'' disclosure truly means
``any'' disclosure. This is regardless of the setting of the disclosure, the form of the disclosure, or the person to whom the disclosure is made.
Since Congress amended the WPA in 1994, the Federal Circuit Court of Appeals, which has sole jurisdiction over the WPA, has continued to disregard clear statutory language that the Act covers disclosures such as those made to supervisors, to possible wrongdoers, or as part of an employee's job duties.
In order to protect the statute's foundation that `any' lawful disclosure that an employee or applicant reasonably believes is credible evidence of waste, fraud, abuse, or gross mismanagement is covered by the WPA, language in this bill codifies the repeated and unconditional statements of congressional intent and legislative history. It specifically covers any disclosure of information without restriction to time, place, form, motive, or 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 any violation of any law, rule, or regulation, or other misconduct specified.
The bill also addresses another burden created by the Federal Circuit not found in the Whistleblower Protection Act. In interpreting the meaning of `reasonable belief,' the Federal Circuit held that the reasonableness of the whistleblower's belief that the government violated the law or engaged in gross mismanagement must first begin with a presumption that public officers performed their duties correctly, fairly, in good faith, and in accordance with the law. However, this presumption can only be overcome by ``irrefragable proof'' to the contrary. The irrefragable standard is impossible to overcome and has a chilling effect on those who would disclose government wrongdoing. As such, this new provision states that any presumption that a public officer has performed their duties in good faith must be overcome by substantial evidence.
My bill also codifies an ``anti-gag'' provision that Congress has passed annually since 1988 as part of its appropriations process. The yearly appropriations language bars agencies from implementing or enforcing any nondisclosure policy, form, or agreement that does not contain specified language preserving open government statutes such as the WPA, the Military Whistleblower Protection Act, and the Lloyd Lafollette Act, which prohibits discrimination against government employees who communicate with Congress. Moreover, Congress unanimously has supported the concept that Federal employees should not be subject to restraint nor suffer retaliation for disclosing wrongdoing.
Now more than ever, Federal employees must feel comfortable coming forward with information concerning violations of law or actions that could cause substantial harm to public safety. We must support the brave men and women who come forward to report wrongdoing. We must ensure that such acts of bravery are not rewarded with retaliation.
Protection of Federal whistleblowers is a bipartisan effort. Enactment of the original bill in 1989 and the 1994 amendments enjoyed unanimous bicameral and bipartisan support. More recently, Senators Levin and Grassley joined me in introducing S. 995, which makes many of the same amendments to the WPA as this bill. I urge my colleagues to join with me in clarifying the WPA and supporting the reauthorization of two very important agencies.
At this time I ask unanimous consent that the text of the legislation be printed in the Record.
There being no objection, the bill was ordered to be printed in the Record, as follows:
S. 2829
SECTION 1. AUTHORIZATION OF APPROPRIATIONS.
(a) Merit Systems Protection Board.--Section 8(a)(1) of the Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is amended by striking ``1998, 1999, 2000, 2001 and 2002'' and inserting ``2003, 2004, 2005, 2006, and 2007''.
(b) Office of Special Counsel.--Section 8(a)(2) of the Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is amended by striking ``1993, 1994, 1995, 1996, and 1997,'' and inserting ``2003, 2004, 2005, 2006, and 2007''.
(c) Effective Date.--This section shall take effect on October 1, 2002.
SEC. 2. DISCLOSURE OF VIOLATIONS OF LAW; RETURN OF DOCUMENTS.
Section 1213(g) of title 5, United States Code, is amended--
(1) in paragraph (1), by striking the last sentence; and
(2) by striking paragraph (3) and inserting the following:
``(3) If the Special Counsel does not transmit the information to the head of the agency under paragraph (2), the Special Counsel shall inform the individual of--
``(A) the reasons why the disclosure may not be further acted on under this chapter; and
``(B) other offices available for receiving disclosures, should the individual wish to pursue the matter further.''.
SEC. 3. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY
FEDERAL EMPLOYEES.
(a) 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 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''; and
(3) by adding at the end the following:
``(C) a 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 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;
``(II) any other Member of Congress who is authorized to receive information of the type disclosed; or
``(III) an employee of the executive branch or Congress who has the appropriate security clearance for access to the information disclosed.''.
(b) 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.''.
(c) Rebuttable Presumption.--Section 2308(b) of title 5, United States Code, is amended by adding after the matter following paragraph (12) (as amended by subsection (b) of this section) the following:
``For purposes of paragraph (8), any presumption relating to the performance of a duty by an employee may be rebutted by substantial evidence.''.
(d) Nondisclosure Policies, Forms, and Agreements.--
(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 (xii) and inserting after clause (x) the following:
``(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and''.
(e) Authority of Special Counsel Relating to Civil Actions.--
(1) 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.''.
(2) Judicial review or merit systems protection board decisions.--Section 7703 of title 5, United States Code, is amended by adding at the end the following:
``(e) 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.''.
SEC. 4. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.
(a) In General.--Each agreement in Standard Forms, 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement 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.''
Any nondisclosure policy, form, or agreement that does not contain the above statement may not be implemented or enforced to the extent that it conflicts with language in the above statement.
(b) Persons Other Than Federal 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.
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