[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2970 Reported in House (RH)]

                                                 Union Calendar No. 417

103d CONGRESS

  2d Session

                               H. R. 2970

                          [Report No. 103-769]

_______________________________________________________________________

                                 A BILL

 To reauthorize the Office of Special Counsel, and for other purposes.

_______________________________________________________________________

                           September 30, 1994

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed





                                                 Union Calendar No. 417
103d CONGRESS
  2d Session
                                H. R. 2970

                          [Report No. 103-769]

 To reauthorize the Office of Special Counsel, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             August 6, 1993

Mr. McCloskey introduced the following bill; which was referred to the 
               Committee on Post Office and Civil Service

                           September 30, 1994

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
[For text of introduced bill, see copy of bill as introduced on August 
                                6, 1993]

_______________________________________________________________________

                                 A BILL


 
 To reauthorize the Office of 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. REAUTHORIZATIONS.

    Section 8(a) of the Whistleblower Protection Act of 1989 (5 U.S.C. 
5509 note) is amended by striking ``fiscal years'' through ``such 
sums'' each place it appears and inserting ``fiscal years 1993-1997, 
such sums''.

SEC. 2. OFFICE OF SPECIAL COUNSEL.

    (a) Authority To Continue Serving Pending the Appointment of a 
Successor.--Section 1211(b) of title 5, United States Code, is amended 
by inserting after the third sentence the following: ``The Special 
Counsel may continue to serve after the expiration of the Special 
Counsel's term until a successor has qualified, but for not longer than 
1 year.''.
    (b) Limitations on Disclosures.--Section 1212(g) of title 5, United 
States Code, is amended to read as follows:
    ``(g)(1) The Special Counsel may not respond to any inquiry or 
provide information concerning either any person making an allegation 
under section 1214(a) or any allegation so made, except in accordance 
with the provisions of section 552a or as required by any other 
applicable law.
    ``(2) If, or to the extent that, the allegation involves a 
prohibited personnel practice described in paragraph (2), (8), or (9) 
of section 2302(b), no disclosure described in paragraph (1) may be 
made unless--
            ``(A) either of the exceptions permitting disclosure under 
        paragraph (1) is met; and
            ``(B)(i) the consent of the person who made such allegation 
        is obtained in advance; or
            ``(ii) the information is being sought by an agency which 
        requires such information in order to make a determination 
        concerning access, for the person referred to in paragraph (1), 
        to information the unauthorized disclosure of which could be 
        expected to cause exceptionally grave damage to national 
        security.''.
    (c) Standard Applicable With Respect to Certain Agency Findings.--
Section 1213(e)(2)(A) of title 5, United States Code, is amended to 
read as follows:
            ``(A) the findings of the agency head are supported by 
        clear and convincing evidence; and''.
    (d) Technical Clarification.--The first sentence of section 
1213(g)(1) of title 5, United States Code, is amended to read as 
follows: ``If the Special Counsel receives information from an 
individual other than an individual described in subparagraph (A) or 
(B) of subsection (c)(2) which, if such individual were an individual 
described in either of such subparagraphs, would be considered 
information of a type described in subsection (a), the Special Counsel 
may transmit the information to the head of the agency which the 
information concerns.''.
    (e) Investigations.--Section 1214(a)(1) of title 5, United States 
Code, is amended--
            (1) in subparagraph (B) by striking ``practice under 
        paragraph (1),'' and inserting ``practice,''; and
            (2) by striking subparagraph (C) and inserting the 
        following:
    ``(C) Unless an investigation under this section is terminated, the 
Special Counsel shall, within 60 days after notice is provided under 
subparagraph (B) with respect to a particular allegation, and at least 
every 60 days thereafter, notify the person who made such allegation as 
to the status of the investigation and any action which has been taken 
by the Office of Special Counsel since notice was last given under this 
subsection.
    ``(D)(i) Except as provided in clause (ii), no later than 120 days 
after the date of receiving an allegation of a prohibited personnel 
practice, the Special Counsel shall determine whether there are 
reasonable grounds to believe that a prohibited personnel practice has 
occurred, exists, or is to be taken.
    ``(ii) The deadline under clause (i) may be extended by written 
agreement between the Special Counsel and the person who made the 
allegation involved.
    ``(E) A determination by the Special Counsel under this paragraph 
shall not be admissible in any judicial or administrative proceeding 
except in the same circumstances as would apply under paragraph (2)(B) 
with respect to a written statement under paragraph (2)(A).''.
    (f) Clarification Relating to Burden of Proof.--Sections 
1214(b)(4)(B)(i) and 1221(e)(1) (as amended by section 3(b)) are 
further amended by striking the period at the end and inserting ``, 
notwithstanding the provisions of section 7701(c)(1).''.
    (g) Additional Information To Be Included in Annual Reports.--
Section 1218 of title 5, United States Code, is amended by inserting 
``the number of instances in which it did not make a timely 
determination under section 1214(a)(1),'' after ``investigations 
conducted by it,''.
    (h) Effective Date.--The amendments made by subsection (e) shall 
apply with respect to any allegation first received by the Office of 
Special Counsel on or after the effective date of this Act.

SEC. 3. INDIVIDUAL RIGHT OF ACTION RELATING TO THE MERIT SYSTEMS 
              PROTECTION BOARD.

    (a) Subpoenas.--Section 1221(d)(1) of title 5, United States Code, 
is amended to read as follows:
    ``(d)(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 matter requested--
            ``(A) is not unduly burdensome;
            ``(B) is not privileged or otherwise protected from 
        disclosure by law, rule, or regulation; and
            ``(C) is relevant to the subject matter involved in the 
        pending action or appears reasonably calculated to lead to the 
        discovery of admissible evidence.''.
    (b) Burden of Proof.--
            (1) In general.--Section 1221(e) of title 5, United States 
        Code, is amended to read as follows:
    ``(e)(1) Subject to paragraph (2), in any case involving an alleged 
prohibited personnel practice as described in paragraph (8) or (9) of 
section 2302(b), the Board shall order such corrective action as the 
Board considers appropriate if the employee, former employee, or 
applicant for employment has demonstrated that protected conduct under 
such paragraph (8) or (9) (as defined in paragraph (3)(A) or (B), as 
applicable) was a contributing factor in the personnel action which was 
taken or is to be taken against such employee, former employee, or 
applicant.
    ``(2) Corrective action under paragraph (1) may not be ordered if 
the agency demonstrates by clear and convincing evidence that it would 
have taken the same personnel action in the absence of the protected 
conduct involved.
    ``(3) For the purpose of this subsection, the term `protected 
conduct' means--
            ``(A) with respect to paragraph (8) of section 2302(b), any 
        disclosure described in subparagraph (A) or (B) of such 
        paragraph; and
            ``(B) with respect to paragraph (9) of section 2302(b), any 
        conduct described in subparagraph (A), (B), (C), or (D) of such 
        paragraph.''.
            (2) Same standard if relief is sought through office of 
        special counsel.--
                    (A) In general.--Subparagraph (B) of section 
                1214(b)(4) of title 5, United States Code, is amended 
                to read as follows:
    ``(B)(i) Subject to the provisions of clause (ii), in any case 
involving an alleged prohibited personnel practice as described in 
paragraph (8) or (9) of section 2302(b), the Board shall order such 
corrective action as the Board considers appropriate if the employee, 
former employee, or applicant for employment has demonstrated that 
protected conduct under such paragraph (8) or (9) (as defined in clause 
(iii)(I) or (II), as applicable) was a contributing factor in the 
personnel action which was taken or is to be taken against such 
employee, former employee, or applicant.
    ``(ii) Corrective action under clause (i) may not be ordered if the 
agency demonstrates by clear and convincing evidence that it would have 
taken the same personnel action in the absence of the protected conduct 
involved.
    ``(iii) For the purpose of this subparagraph, the term `protected 
conduct' means--
            ``(I) with respect to paragraph (8) of section 2302(b), any 
        disclosure described in subparagraph (A) or (B) of such 
        paragraph; and
            ``(II) with respect to paragraph (9) of section 2302(b), 
        any conduct described in subparagraph (A), (B), (C), or (D) of 
        such paragraph.''.
                    (B) Conforming amendment.--Section 1214(b)(4)(A) is 
                amended by striking ``section 2302(b)(8),'' and 
                inserting ``paragraph (8) or (9) of section 2302(b),''.
            (3) Same standard if relief is sought through binding 
        arbitration.--Section 7121(b) of title 5, United States Code, 
        as amended by section 5(e), is further amended by adding at the 
        end the following:
    ``(3) 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 
described in paragraph (8) or (9) of section 2302(b) is involved, 
require that the arbitrator apply the same standard as would apply 
under section 1221(e).''.
            (4) Same standard if relief is sought by an appeal under 
        section 7701.--Section 7701(c) of title 5, United States Code, 
        is amended--
                    (A) in paragraph (1) by striking ``Subject to 
                paragraph (2)'' and inserting ``Subject to paragraphs 
                (2) and (3)''; and
                    (B) by adding at the end the following:
    ``(3) To the extent that an appeal involves an alleged prohibited 
personnel practice described in paragraph (8) or (9) of section 
2302(b), the standard under section 1221(e) shall be applied.''.
    (c) Referrals for Possible Disciplinary Action.--Section 1221(f) of 
title 5, United States Code, is amended by adding after paragraph (2) 
the following:
    ``(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 for investigation and appropriate action under section 1215.''.

SEC. 4. PROHIBITED PERSONNEL PRACTICES.

    (a) Personnel Actions.--
            (1) In general.--Section 2302(a)(2)(A) of title 5, United 
        States Code, is amended--
                    (A) in clause (ix) by striking ``and'' after the 
                semicolon; and
                    (B) by redesignating clause (x) as clause (xii) and 
                inserting before such clause the following:
                    ``(x) a decision to require psychiatric testing or 
                examination;
                    ``(xi) a denial, revocation, or other determination 
                relating to a security clearance; and''.
            (2) Conforming amendment.--Section 2303(a) of title 5, 
        United States Code, is amended by striking ``clauses (i) 
        through (x)'' and inserting ``clauses (i) through (xii)''.
    (b) Covered Positions.--Section 2302(a)(2)(B) of title 5, United 
States Code, is amended to read as follows:
            ``(B) `covered position', as used with respect to an 
        employee or applicant for employment, means any position in the 
        competitive service, a career appointee position in the Senior 
        Executive Service, a position in the excepted service, or a 
        position covered by chapter 74 of title 38, but does not 
        include any position which, as of the date on which the 
        employee began serving in the position or the applicant applied 
        for such position (as the case may be), was--
                    ``(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.''.
    (c) Agencies.--Section 2302(a)(2)(C) of title 5, United States 
Code, is amended--
            (1) by striking clause (i); and
            (2) by redesignating clauses (ii) and (iii) as clauses (i) 
        and (ii), respectively.
    (d) Information.--Section 2302(c) of title 5, United States Code, 
is amended in the first sentence by striking ``management.'' and 
inserting ``management, and for ensuring (in consultation with the 
Office of Special Counsel) that employees of such agency are informed 
of the rights and remedies available to them under this chapter and 
chapter 12.''.
    (e) Sense of Congress.--It is the sense of the Congress that a 
Federal employee or applicant for Federal employment who makes a 
disclosure described in section 2302(b) of title 5, United States Code, 
should not be prosecuted, or threatened with prosecution, under section 
205 of title 18, United States Code, for such disclosure.

SEC. 5. ADDITIONAL AMENDMENTS RELATING TO PROCEDURES UNDER WHICH 
              INDIVIDUALS MAY SEEK RELIEF FROM PROHIBITED PERSONNEL 
              PRACTICES.

    (a) Individual Right of Action Before MSPB Available for Prohibited 
Personnel Practices Generally.--
            (1) In general.--Section 1221(a) of title 5, United States 
        Code, is amended by striking ``practice described in section 
        2302(b)(8),'' and inserting ``practice,''.
            (2) Exception.--Subsection (b) of section 1221 of title 5, 
        United States Code, is amended by redesignating such subsection 
        as subsection (b)(1), and by adding at the end the following:
    ``(2) Nothing in this subchapter shall be considered to create any 
right to seek corrective action with respect to a prohibited personnel 
practice described in section 2302(b)(1).
    ``(3) For purposes of subsection (a), the term `personnel action', 
if taken or proposed to be taken as a result of a prohibited personnel 
practice other than one described in paragraph (1) or (8) of section 
2302(b), means--
            ``(A) an action under subchapter II of chapter 75;
            ``(B) a detail, transfer, or reassignment; and
            ``(C) a reduction in grade or removal under section 
        4303.''.
            (3) Technical correction.--Section 1221(a) is amended by 
        striking ``subsection 1214(a)(3)'' and inserting ``section 
        1214(a)(3)''.
    (b) Appeals.--
            (1) In general.--Section 7703 of title 5, United States 
        Code, is amended--
                    (A) in subsection (b)(1) by striking ``Circuit.'' 
                and inserting ``Circuit or the United States court of 
                appeals for the circuit in which the petitioner 
                resides.'';
                    (B) in subsection (c)--
                            (i) by striking ``In any case filed in the 
                        United States Court of Appeals for the Federal 
                        Circuit,'' and inserting ``In any case filed 
                        under subsection (b)(1),''; and
                            (ii) by striking ``evidence;'' at the end 
                        of paragraph (3) and inserting ``evidence.'', 
                        and by striking ``except that in'' and 
                        inserting ``In''; and
                    (C) by adding at the end of subsection (d) the 
                following: ``If a proceeding under this subsection is 
                transferred to another court of appeals, the Director 
                shall have the right to appear in the proceeding before 
                such other court.''.
            (2) Conforming amendment.--Paragraph (9) of section 1295(a) 
        of title 28, United States Code, is repealed.
            (3) Applicability.--The amendments made by this subsection 
        shall apply to petitions filed on or after the effective date 
        of this Act.
    (c) Amendments Relating to the ``Pass-Through'' Requirement.--
Section 1214(a)(3) of title 5, United States Code, is amended--
            (1) by adding at the end the following:
``This paragraph shall not apply with respect to a prohibited personnel 
practice described in section 2302(b)(8).'';
            (2) by redesignating subparagraphs (A) and (B) as 
        subparagraphs (B) and (C), respectively; and
            (3) by striking the matter before subparagraph (B) (as so 
        redesignated by paragraph (2)) and inserting the following:
    ``(3) Except as provided in the last sentence of this paragraph, an 
employee, former employee, or applicant for employment may not seek 
corrective action from the Board under section 1221 unless--
            ``(A) such employee, former employee, or applicant has 
        sought corrective action from the Special Counsel under this 
        subchapter;''.
    (d) Choice of Remedies Provision Involving Judicial Review.--
            (1) In general.--Chapter 12 of title 5, United States Code, 
        is amended by adding at the end the following:

                    ``SUBCHAPTER IV--JUDICIAL REVIEW

``Sec. 1231. Judicial review
    ``(a) Subject to subsection (c) and section 1232, an employee, 
former employee, or applicant for employment may, with respect to a 
personnel action taken, or proposed to be taken, against such employee, 
former employee, or applicant for employment, as a result of a 
prohibited personnel practice described in section 2302(b)(8), bring a 
civil action in the appropriate district court of the United States for 
relief. For purposes of the preceding sentence, the term `personnel 
action' means--
            ``(1) an action under subchapter II of chapter 75;
            ``(2) a detail, transfer, or reassignment; and
            ``(3) a reduction in grade or removal under section 4303.
    ``(b) The district courts of the United States shall have 
jurisdiction of actions brought under this section without regard to 
the amount in controversy.
    ``(c) An action under this section--
            ``(1) shall be brought in the district court of the United 
        States for the judicial district in which the prohibited 
        personnel practice is alleged to have been committed, in which 
        the employment records relevant to such practice are maintained 
        and administered, or in which the aggrieved person works or 
        would have worked but for the alleged prohibited personnel 
        practice; and
            ``(2) shall be brought within 120 days after the prohibited 
        personnel practice is alleged to have occurred.
    ``(d) Review.--In any action brought under this section, the 
court--
            ``(1) shall review the matter de novo; and
            ``(2) shall apply the same standard as would the Merit 
        Systems Protection Board under section 1214(b)(4)(B) or 
        1221(e).
``Sec. 1232. Choice of remedies
    ``(a) An action under section 1231--
            ``(1) if brought, shall be in lieu of any remedy described 
        in subsection (b); but
            ``(2) may not be brought if the aggrieved person has 
        elected to raise the same matter under any of the remedies 
        described in subsection (b).
    ``(b) The remedies described in this subsection are as follows:
            ``(1) An appeal to the Merit Systems Protection Board under 
        section 7701.
            ``(2) A negotiated grievance procedure under section 7121.
            ``(3) Procedures for seeking corrective action under 
        subchapters II and III.
    ``(c) For the purpose of this section, a person shall be considered 
to have elected--
            ``(1) the remedy described in subsection (b)(1) if such 
        person has timely filed a notice of appeal under the applicable 
        appellate procedures;
            ``(2) the remedy described in subsection (b)(2) if such 
        person has timely filed a grievance in writing, in accordance 
        with the provisions of the parties' negotiated procedure; or
            ``(3) the remedy described in subsection (b)(3) if such 
        person has sought corrective action from the Office of Special 
        Counsel by making an allegation under section 1214(a)(1).
    ``(d) For purposes of subsection (a)(1), a person shall be 
considered to have elected the remedy under section 1231 if such person 
has timely commenced an action in an appropriate court, in accordance 
with applicable procedures.''.
            (2) Chapter analysis.--The analysis for chapter 12 of title 
        5, United States Code, is amended by striking ``Sec.'' each 
        place it appears, by inserting ``Sec.'' as a flush left item 
        after the item relating to subchapter I, and by adding at the 
        end the following:

                    ``SUBCHAPTER IV--JUDICIAL REVIEW

``1231. Judicial review.
``1232. Choice of remedies.''.
    (e) 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.''.
    (f) 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 in the same way as set forth in 
section 1232(c).
    ``(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.''.

SEC. 6. PERFORMANCE APPRAISALS.

    Paragraph (5) of section 4313 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 in section 2301.''.

SEC. 7. IMPLEMENTATION.

    (a) Policy Statement.--No later than 6 months after the date of the 
enactment of this Act, the Special Counsel shall issue a policy 
statement regarding the implementation of the amendments made by the 
Whistleblower Protection Act of 1989. Such policy statement shall be 
made available to each person alleging a prohibited personnel practice 
described in section 2302(b) 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 written statement under section 1214(a)(2)(A) of title 5, United 
States Code, the name and telephone number of an employee of the Office 
of Special Counsel who shall be available to respond to reasonable 
questions from the person regarding the investigation involved, the 
relevant facts ascertained by the Special Counsel, and the law 
applicable to the person's allegations.

SEC. 8. AMENDMENTS RELATING TO ATTORNEY'S FEES.

    (a) Chapter 12.--Section 1221(g) of title 5, United States Code, is 
amended by striking ``attorney's fees'' each place it appears and 
inserting ``fees for legal representation''.
    (b) Chapter 77.--Section 7701(g) of title 5, United States Code, is 
amended--
            (1) by striking ``attorney fees'' each place it appears and 
        inserting ``fees for legal representation''; and
            (2) in paragraph (1)--
                    (A) by inserting ``substantially'' before 
                ``prevailing''; and
                    (B) by striking ``agency or any case in which the 
                agency's action was clearly without merit.'' and 
                inserting ``agency, in which the agency's action was 
                clearly without merit, or which is settled or otherwise 
                similarly resolved.''.

SEC. 9. MSPB RETIREMENT APPEALS EXPENSE AUTHORIZATION.

    (a) In General.--Section 8348(a) of title 5, United States Code, is 
amended by striking ``and'' at the end of paragraph (1), by striking 
the period at the end of paragraph (2) and inserting ``; and'', and by 
adding at the end the following:
            ``(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 connection with the 
        administration of appeals authorized under section 8347(d) or 
        8461(e).''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
take effect on October 1, 1995.

SEC. 10. EFFECTIVE DATE.

    (a) In General.--Except as provided in section 9, this Act and the 
amendments made by this Act shall take effect 120 days after the date 
of the enactment of this Act.
    (b) Savings Provision.--No provision of this Act shall affect any 
administrative proceeding pending at the time such provision takes 
effect. Orders shall be issued in such proceedings and appeals shall be 
taken therefrom as if this Act had not been enacted.
HR 2970 RH----2