[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2970 Engrossed Amendment Senate (EAS)]

103d CONGRESS

  2d Session

                               H. R. 2970

_______________________________________________________________________

                               AMENDMENT
                  In the Senate of the United States,

                       October 7 (legislative day, September 12), 1994.
      Resolved, That the bill from the House of Representatives (H.R. 
2970) entitled ``An Act to reauthorize the Office of Special Counsel, 
and for other purposes'', do pass with the following

                               AMENDMENT:

            Strike out all after the enacting clause and insert:

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; Public Law 
101-12; 103 Stat. 34) is amended by striking out ``1989, 1990, 1991, 
1992, 1993, and 1994'' and inserting in lieu thereof ``1993, 1994, 
1995, 1996, and 1997''.
    (b) Office of Special Counsel.--Section 8(a)(2) of the 
Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note; Public Law 
101-12; 103 Stat. 34) is amended by striking out ``1989, 1990, 1991, 
and 1992'' and inserting in lieu thereof ``1993, 1994, 1995, 1996, and 
1997''.

SEC. 2. REASONABLE ATTORNEY FEES IN CERTAIN CASES.

    Section 1204 of title 5, United States Code, is amended by adding 
at the end thereof the following new subsection:
    ``(m)(1) Except as provided in paragraph (2) of this subsection, 
the Board, or an administrative law judge or other employee of the 
Board designated to hear a case arising under section 1215, may require 
payment by the agency involved of reasonable attorney fees incurred by 
an employee or applicant for employment if the employee or applicant is 
the prevailing party and the Board, administrative law judge, or other 
employee (as the case may be) determines that payment by the agency is 
warranted in the interest of justice, including any case in which a 
prohibited personnel practice was engaged in by the agency or any case 
in which the agency's action was clearly without merit.
    ``(2) If an employee or applicant for employment is the prevailing 
party of a case arising under section 1215 and the decision is based on 
a finding of discrimination prohibited under section 2302(b)(1) of this 
title, the payment of attorney fees shall be in accordance with the 
standards prescribed under section 706(k) of the Civil Rights Act of 
1964 (42 U.S.C. 2000e-5(k)).''.

SEC. 3. OFFICE OF SPECIAL COUNSEL.

    (a) Succession.--Section 1211(b) of title 5, United States Code, is 
amended by inserting after the first sentence: ``The Special Counsel 
may continue to serve beyond the expiration of the term until a 
successor is appointed and has qualified, except that the Special 
Counsel may not continue to serve for more than one year after the date 
on which the term of the Special Counsel would otherwise expire under 
this subsection.''.
    (b) Limitations on Disclosures.--Section 1212(g) of title 5, United 
States Code, is amended--
            (1) in paragraph (1), by striking out ``provide information 
        concerning'' and inserting in lieu thereof ``disclose any 
        information from or about''; and
            (2) in paragraph (2), by striking out ``a matter described 
        in subparagraph (A) or (B) of section 2302(b)(2) in connection 
        with a'' and inserting in lieu thereof ``an evaluation of the 
        work performance, ability, aptitude, general qualifications, 
        character, loyalty, or suitability for any personnel action of 
        any''.
    (c) Status Report Before Termination of Investigation.--Section 
1214(a) of title 5, United States Code, is amended--
            (1) in paragraph (1) by adding at the end thereof the 
        following new subparagraph:
    ``(D) No later than 10 days before the Special Counsel terminates 
any investigation of a prohibited personnel practice, the Special 
Counsel shall provide a written status report to the person who made 
the allegation of the proposed findings of fact and legal conclusions. 
The person may submit written comments about the report to the Special 
Counsel. The Special Counsel shall not be required to provide a 
subsequent written status report under this subparagraph after the 
submission of such written comments.''; and
            (2) in paragraph (2)(A)--
                    (A) in clause (ii) by striking out ``and'' after 
                the semicolon;
                    (B) in clause (iii) by striking out the period and 
                inserting in lieu thereof a semicolon and ``and''; and
                    (C) by adding at the end thereof the following new 
                clause:
            ``(iv) a response to any comments submitted under paragraph 
        (1)(D).''.
    (d) Determinations.--Section 1214(b)(2) of title 5, United States 
Code, is amended--
            (1) by redesignating subparagraphs (A), (B) and (C) as 
        subparagraphs (B), (C) and (D), respectively;
            (2) by inserting before subparagraph (B) (as redesignated 
        by paragraph (1) of this subsection) the following:
                    ``(A)(i) Except as provided under clause (ii), no 
                later than 240 days after the date of receiving an 
                allegation of a prohibited personnel practice under 
                paragraph (1), the Special Counsel shall make a 
                determination whether there are reasonable grounds to 
                believe that a prohibited personnel practice has 
                occurred, exists, or is to be taken.
                    ``(ii) If the Special Counsel is unable to make the 
                required determination within the 240-day period 
                specified under clause (i) and the person submitting 
                the allegation of a prohibited personnel practice 
                agrees to an extension of time, the determination shall 
                be made within such additional period of time as shall 
                be agreed upon between the Special Counsel and the 
                person submitting the allegation.''; and
            (3) by inserting after subparagraph (D) (as redesignated by 
        paragraph (1) of this subsection) the following new 
        subparagraph:
                    ``(E) A determination by the Special Counsel under 
                this paragraph shall not be cited or referred to in any 
                proceeding under this paragraph or any other 
                administrative or judicial proceeding for any purpose, 
                without the consent of the person submitting the 
                allegation of a prohibited personnel practice.''.
    (e) Reports.--Section 1218 of title 5, United States Code, is 
amended by inserting ``cases in which it did not make a determination 
whether there are reasonable grounds to believe that a prohibited 
personnel practice has occurred, exists, or is to be taken within the 
240-day period specified in section 1214(b)(2)(A)(i),'' after 
``investigations conducted by it,''.

SEC. 4. INDEPENDENT RIGHT OF ACTION.

    (a) Subpoenas.--Section 1221(d) of title 5, United States Code, is 
amended by striking out paragraph (1) and inserting in lieu thereof the 
following:
            ``(1) At the request of an employee, former employee, or 
        applicant for employment seeking corrective action under 
        subsection (a), the Board shall issue a subpoena for the 
        attendance and testimony of any person or the production of 
        documentary or other evidence from any person if the Board 
        finds that the testimony or production requested is not unduly 
        burdensome and appears reasonably calculated to lead to the 
        discovery of admissible evidence.''.
    (b) Corrective Actions.--Section 1221(e)(1) is amended by adding 
after the last sentence: ``The employee may demonstrate that the 
disclosure was a contributing factor in the personnel action through 
circumstantial evidence, such as evidence that--
            ``(A) the official taking the personnel action knew of the 
        disclosure; and
            ``(B) the personnel action occurred within a period of time 
        such that a reasonable person could conclude that the 
        disclosure was a contributing factor in the personnel 
        action.''.
    (c) Referrals.--Section 1221(f) of title 5, United States Code, is 
amended by adding after paragraph (2) the following new paragraph:
            ``(3) If, based on evidence presented to it under this 
        section, the Merit Systems Protection Board determines that 
        there is reason to believe that a current employee may have 
        committed a prohibited personnel practice, the Board shall 
        refer the matter to the Special Counsel to investigate and take 
        appropriate action under section 1215.''.

SEC. 5. PROHIBITED PERSONNEL PRACTICES.

    (a) Personnel Actions.--Section 2302(a)(2)(A) of title 5, United 
States Code, is amended--
            (1) in clause (ix) by striking out ``and'' after the 
        semicolon;
            (2) by striking out clause (x) and inserting in lieu 
        thereof the following:
                            ``(x) a decision to order psychiatric 
                        testing or examination; and
                            ``(xi) any other significant change in 
                        duties, responsibilities, or working 
                        conditions;''; and
            (3) in the matter following designated clause (xi) (as 
        added by paragraph (2) of this subsection) by inserting before 
        the semicolon the following: ``, and in the case of an alleged 
        prohibited personnel practice described in subsection (b)(8), 
        an employee or applicant for employment in a Government 
        corporation as defined in section 9101 of title 31''.
    (b) Covered Positions.--Section 2302(a)(2)(B) of title 5, United 
States Code, is amended to read as follows:
            ``(B) `covered position' means, with respect to any 
        personnel action, any position in the competitive service, a 
        career appointee position in the Senior Executive Service, or a 
        position in the excepted service, but does not include any 
        position which is, prior to the personnel action--
                    ``(i) excepted from the competitive service because 
                of its confidential, policy-determining, policy-making, 
                or policy-advocating character; or
                    ``(ii) excluded from the coverage of this section 
                by the President based on a determination by the 
                President that it is necessary and warranted by 
                conditions of good administration; and''.
    (c) Agencies.--Section 2302(a)(2)(C) of title 5, United States 
Code, is amended in clause (i) by inserting before the semicolon: ``, 
except in the case of an alleged prohibited personnel practice 
described under subsection (b)(8)''.
    (d) Informational Program.--Section 2302(c) of title 5, United 
States Code, is amended in the first sentence by inserting before the 
period ``, and for ensuring (in consultation with the Office of Special 
Counsel) that agency employees are informed of the rights and remedies 
available to them under this chapter and chapter 12 of this title''.

SEC. 6. PERFORMANCE APPRAISALS.

    Section 4313(5) of title 5, United States Code, is amended to read 
as follows:
            ``(5) meeting affirmative action goals, achievement of 
        equal employment opportunity requirements, and compliance with 
        the merit systems principles set forth under section 2301 of 
        this title.''.

SEC. 7. MERIT SYSTEMS APPLICATION TO CERTAIN VETERANS AFFAIRS 
              PERSONNEL.

    Section 2105 of title 5, United States Code, is amended by adding 
at the end thereof the following new subsection:
    ``(f) For purposes of sections 1212, 1213, 1214, 1215, 1216, 1221, 
1222, 2302, and 7701, employees appointed under chapter 73 or 74 of 
title 38 shall be employees.''.

SEC. 8. CORRECTIVE ACTIONS ORDERED BY THE MERIT SYSTEMS PROTECTION 
              BOARD.

    (a) In General.--Section 1214 of title 5, United States Code, is 
amended by adding at the end thereof the following new subsection:
    ``(g) If the Board orders corrective action under this section, 
such corrective action may include--
            ``(1) that the individual be placed, as nearly as possible, 
        in the position the individual would have been in had the 
        prohibited personnel practice not occurred; and
            ``(2) reimbursement for attorney's fees, back pay and 
        related benefits, medical costs incurred, travel expenses, and 
        any other reasonable and foreseeable consequential damages.''.
    (b) Certain Reprisal Cases.--Section 1221(g) of title 5, United 
States Code (as amended by section 4(d) of this Act) is further 
amended--
            (1) by redesignating paragraphs (1) and (2) as paragraphs 
        (2) and (3), respectively; and
            (2) by inserting before paragraph (2) (as redesignated by 
        paragraph (1) of this subsection) the following new paragraph:
            ``(1)(A) If the Board orders corrective action under this 
        section, such corrective action may include--
                    ``(i) that the individual be placed, as nearly as 
                possible, in the position the individual would have 
                been in had the prohibited personnel practice not 
                occurred; and
                    ``(ii) back pay and related benefits, medical costs 
                incurred, travel expenses, and any other reasonable and 
                foreseeable consequential changes.
            ``(B) Corrective action shall include attorney's fees and 
        costs as provided for under paragraphs (2) and (3).''.

SEC. 9. AUTHORITIES RELATING TO ARBITRATORS AND CHOICE OF REMEDIES NOT 
              INVOLVING JUDICIAL REVIEW.

    (a) Authorities Which May Be Extended to Arbitrators.--Section 
7121(b) of title 5, United States Code, is amended--
            (1) by redesignating subparagraphs (A) through (C) of 
        paragraph (3) as clauses (i) through (iii), respectively;
            (2) by redesignating paragraphs (1) through (3) as 
        subparagraphs (A) through (C), respectively;
            (3) by striking ``(b)'' and inserting ``(b)(1)''; and
            (4) by adding at the end the following:
    ``(2)(A) The provisions of a negotiated grievance procedure 
providing for binding arbitration in accordance with paragraph 
(1)(C)(iii) shall, if or to the extent that an alleged prohibited 
personnel practice is involved, allow the arbitrator to order--
            ``(i) a stay of any personnel action in a manner similar to 
        the manner described in section 1221(c) with respect to the 
        Merit Systems Protection Board; and
            ``(ii) the taking, by an agency, of any disciplinary action 
        identified under section 1215(a)(3) that is otherwise within 
        the authority of such agency to take.
    ``(B) Any employee who is the subject of any disciplinary action 
ordered under subparagraph (A)(ii) may appeal such action to the same 
extent and in the same manner as if the agency had taken the 
disciplinary action absent arbitration.''.
    (b) Choice of Remedies Provision Not Involving Judicial Review.--
Section 7121 of title 5, United States Code, is amended by adding at 
the end the following:
    ``(g)(1) This subsection applies with respect to a prohibited 
personnel practice other than a prohibited personnel practice to which 
subsection (d) applies.
    ``(2) An aggrieved employee affected by a prohibited personnel 
practice described in paragraph (1) may elect not more than one of the 
remedies described in paragraph (3) with respect thereto. For purposes 
of the preceding sentence, a determination as to whether a particular 
remedy has been elected shall be made as set forth under paragraph (4).
    ``(3) The remedies described in this paragraph are as follows:
            ``(A) An appeal to the Merit Systems Protection Board under 
        section 7701.
            ``(B) A negotiated grievance procedure under this section.
            ``(C) Procedures for seeking corrective action under 
        subchapters II and III of chapter 12.
    ``(4) For the purpose of this subsection, a person shall be 
considered to have elected--
            ``(A) the remedy described in paragraph (3)(A) if such 
        person has timely filed a notice of appeal under the applicable 
        appellate procedures;
            ``(B) the remedy described in paragraph (3)(B) if such 
        person has timely filed a grievance in writing, in accordance 
        with the provisions of the parties' negotiated procedure; or
            ``(C) the remedy described in paragraph (3)(C) if such 
        person has sought corrective action from the Office of Special 
        Counsel by making an allegation under section 1214(a)(1).''.
    (c) Technical and Conforming Amendments.--Section 7121(a)(1) of 
title 5, United States Code, is amended--
            (1) by striking ``(d) and (e)'' and inserting ``(d), (e), 
        and (g)''; and
            (2) by inserting ``administrative'' after ``exclusive''.

SEC. 10. EXPENSES RELATED TO FEDERAL RETIREMENT APPEALS.

    Section 8348(a) of title 5, United States Code, is amended--
            (1) in paragraph (1)(B) by striking out ``and'' at the end 
        thereof;
            (2) in paragraph (2) by striking out the period and 
        inserting in lieu thereof a semicolon and ``and''; and
            (3) by adding at the end thereof the following new 
        paragraph:
            ``(3) is made available, subject to such annual limitation 
        as the Congress may prescribe, for any expenses incurred by the 
        Merit Systems Protection Board in the administration of appeals 
        authorized under sections 8347(d) and 8461(e) of this title.''.

SEC. 11. ELECTION OF APPLICATION OF LAWS BY EMPLOYEES OF THE RESOLUTION 
              TRUST CORPORATION AND THRIFT DEPOSITOR PROTECTION 
              OVERSIGHT BOARD.

    (a) Election of Provisions of Title 5, United States Code.--If an 
individual who believes he has been discharged or discriminated against 
in violation of section 21a(q)(1) of the Federal Home Loan Bank Act (12 
U.S.C. 1441a(q)(1)) seeks an administrative corrective action or 
judicial remedy for such violation under the provisions of chapters 12 
and 23 of title 5, United States Code, the provisions of section 21a(q) 
of such Act shall not apply to such alleged violation.
    (b) Election of Provisions of Federal Home Loan Bank Act.--If an 
individual files a civil action under section 21a(q)(2) of the Federal 
Home Loan Bank Act (12 U.S.C. 1441a(q)(2)), the provisions of chapters 
12 and 23 of title 5, United States Code, shall not apply to any 
alleged violation of section 21a(q)(1) of such Act.

SEC. 12. IMPLEMENTATION.

    (a) Policy Statement.--No later than 6 months after the date of 
enactment of this Act, the Special Counsel shall issue a policy 
statement regarding the implementation of the Whistleblower Protection 
Act of 1989. Such policy statement shall be made available to each 
person alleging a prohibited personnel practice described under section 
2302(b)(8) of title 5, United States Code, and shall include detailed 
guidelines identifying specific categories of information that may (or 
may not) be communicated to agency officials for an investigative 
purpose, or for the purpose of obtaining corrective action under 
section 1214 of title 5, United States Code, or disciplinary action 
under section 1215 of such title, the circumstances under which such 
information is likely to be disclosed, and whether or not the consent 
of any person is required in advance of any such communication.
    (b) Termination Statement.--The Special Counsel shall include in 
any letter terminating an investigation under section 1214(a)(2) of 
title 5, United States Code, the name and telephone number of an 
employee of the Special Counsel who is available to respond to 
reasonable questions from the person regarding the investigation or 
review conducted by the Special Counsel, the relevant facts ascertained 
by the Special Counsel, and the law applicable to the person's 
allegations.

SEC. 13. ANNUAL SURVEY OF INDIVIDUALS SEEKING ASSISTANCE.

    (a) In General.--The Office of Special Counsel shall, after 
consulting with the Office of Policy and Evaluation of the Merit 
Systems Protection Board, conduct an annual survey of all individuals 
who contact the Office of Special Counsel for assistance. The survey 
shall--
            (1) determine if the individual seeking assistance was 
        fully apprised of their rights;
            (2) determine whether the individual was successful either 
        at the Office of Special Counsel or the Merit Systems 
        Protection Board; and
            (3) determine if the individual, whether successful or not, 
        was satisfied with the treatment received from the Office of 
        Special Counsel.
    (b) Report.--The results of the survey conducted under subsection 
(a) shall be published in the annual report of the Office of Special 
Counsel.

SEC. 14. EFFECTIVE DATE.

    The provisions of this Act and the amendments made by this Act 
shall be effective on and after the date of the enactment of this Act.

            Attest:






                                                             Secretary.

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