[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2057 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 2057

  To reauthorize the Merit Systems Protection Board and the Office of 
    Special Counsel, to modify the procedures of the Merit Systems 
   Protection Board and the Office of Special Counsel, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 17, 2007

   Mr. Akaka introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
  To reauthorize the Merit Systems Protection Board and the Office of 
    Special Counsel, to modify the procedures of the Merit Systems 
   Protection Board and 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. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Federal Merit 
System Reauthorization Act of 2007''.
    (b) Table of Contents.--The table of contents is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Authorization of appropriations.
Sec. 3. Allegations of wrongdoing against Special Counsel or Deputy 
                            Special Counsel.
Sec. 4. Discrimination on the basis of sexual orientation prohibited.
Sec. 5. Procedures of the Merit Systems Protection Board.
Sec. 6. Procedures of the Office of Special Counsel.
Sec. 7. Reporting requirements.

SEC. 2. 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 ``2003, 2004, 2005, 2006, and 2007'' and inserting ``2008, 
2009, and 2010''.
    (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 ``2003, 2004, 2005, 2006, and 2007'' and inserting ``2008, 
2009, and 2010''.
    (c) Effective Date.--This section shall take effect as of October 
1, 2007.

SEC. 3. ALLEGATIONS OF WRONGDOING AGAINST SPECIAL COUNSEL OR DEPUTY 
              SPECIAL COUNSEL.

    (a) Definitions.--In this section--
            (1) the term ``Special Counsel'' refers to the Special 
        Counsel appointed under section 1211(b) of title 5, United 
        States Code;
            (2) the term ``Integrity Committee'' refers to the 
        Integrity Committee described in Executive Order 12993 
        (relating to administrative allegations against inspectors 
        general) or its successor in function (as identified by the 
        President); and
            (3) the terms ``wrongdoing'' and ``Inspector General'' have 
        the same respective meanings as under the Executive order cited 
        in paragraph (2).
    (b) Authority of Integrity Committee.--
            (1) In general.--An allegation of wrongdoing against the 
        Special Counsel (or the Deputy Special Counsel) may be 
        received, reviewed, and referred for investigation by the 
        Integrity Committee to the same extent and in the same manner 
        as in the case of an allegation against an Inspector General 
        (or a member of the staff of an Office of Inspector General), 
        subject to the requirement that the Special Counsel recuse 
        himself or herself from the consideration of any allegation 
        brought under this subsection.
            (2) Coordination with existing provisions of law.--This 
        section does not eliminate access to the Merit Systems 
        Protection Board for review under section 7701 of title 5, 
        United States Code. To the extent that an allegation brought 
        under this subsection involves section 2302(b)(8) of such 
        title, a failure to obtain corrective action within 120 days 
        after the date on which that allegation is received by the 
        Integrity Committee shall, for purposes of section 1221 of such 
        title, be considered to satisfy section 1214(a)(3)(B) of such 
        title.
    (c) Regulations.--The Integrity Committee may prescribe any rules 
or regulations necessary to carry out this section, subject to such 
consultation or other requirements as might otherwise apply.

SEC. 4. DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION PROHIBITED.

    (a) Repudiation.--In order to dispel any public confusion, Congress 
repudiates any assertion that Federal employees are not protected from 
discrimination on the basis of sexual orientation.
    (b) Affirmation.--It is the sense of Congress that, in the absence 
of the amendment made by subsection (c), discrimination against Federal 
employees and applicants for Federal employment on the basis of sexual 
orientation is prohibited by section 2302(b)(10) of title 5, United 
States Code.
    (c) Discrimination Based on Sexual Orientation Prohibited.--Section 
2302(b)(1) of title 5, United States Code, is amended--
            (1) in subparagraph (D), by striking ``or'' at the end;
            (2) in subparagraph (E), by inserting ``or'' at the end; 
        and
            (3) by adding at the end the following:
                    ``(F) on the basis of sexual orientation;''.

SEC. 5. PROCEDURES OF THE MERIT SYSTEMS PROTECTION BOARD.

    (a) Proof of Exhaustion for Individual Right of Action.--Section 
1221(a) of title 5, United States Code, is amended--
            (1) by striking ``(a)'' and inserting ``(a)(1)''; and
            (2) by adding at the end the following:
    ``(2) For purposes of paragraph (1), an employee, former employee, 
or applicant for employment may demonstrate compliance with section 
1214(a)(3)(B) by--
            ``(A) submitting a copy of the complaint or other pleading 
        pursuant to which such employee, former employee, or applicant 
        sought corrective action from the Special Counsel with respect 
        to the personnel action involved; and
            ``(B) certifying that the Special Counsel did not provide 
        notice of intent to seek such corrective action to such 
        employee, former employee, or applicant within the 120-day 
        period described in such section 1214(a)(3)(B).''.
    (b) Individual Requests for Stays.--Section 1221(c) of title 5, 
United States Code, is amended by striking paragraph (2) and inserting 
the following:
    ``(2) Any stay requested under paragraph (1) shall be granted 
within 10 calendar days (excluding Saturdays, Sundays, and legal 
holidays) after the date the request is made, if the Board determines 
that the employee, former employee, or applicant has demonstrated that 
protected activity described under section 2302(b)(8) was a 
contributing factor to the personnel action involved. If the stay 
request is denied, the employee, former employee, or applicant may 
submit an interlocutory appeal for expedited review by the Board.''.
    (c) Joining Subsequent and Related Claims With Pending 
Litigation.--
            (1) In general.--Section 1221 of title 5, United States 
        Code, is amended--
                    (A) by redesignating subsections (h), (i), and (j) 
                as subsections (i), (j), and (k), respectively; and
                    (B) inserting after subsection (g) the following:
    ``(h) During a pending proceeding, subsequent personnel actions may 
be joined if the employee, former employee, or applicant for employment 
demonstrates that retaliation for protected activity at issue in the 
pending proceeding was a contributing factor to subsequent alleged 
prohibited personnel practices.''.
            (2) Conforming amendment.--Section 1222 of title 5, United 
        States Code, is amended by striking ``section 1221(i)'' and 
        inserting ``section 1221(j)''.
    (d) Procedural Due Process.--Section 1204(b)(1) of title 5, United 
States Code, is amended by inserting ``in accordance with regulations 
consistent with the Federal Rules of Civil Procedure, so far as 
practicable'' before the period.
    (e) Attorney Fees.--Section 7701(g)(1) of title 5, United States 
Code, is amended by striking ``if the employee or applicant is the 
prevailing party and'' and inserting ``if the claim or claims raised by 
the employee or applicant were not frivolous, unreasonable, or 
groundless; the case was a substantial or significant factor in the 
agency's action providing some relief or benefit to the employee or 
applicant; and''.

SEC. 6. PROCEDURES OF THE OFFICE OF SPECIAL COUNSEL.

    (a) Investigations of Alleged Prohibited Personnel Practices.--
Section 1212(e) of title 5, United States Code, is amended by striking 
``may prescribe such regulations as may be necessary to perform the 
functions'' and inserting ``shall prescribe such regulations as may be 
necessary to carry out subsection (a)(2) and may prescribe any 
regulations necessary to carry out any of the other functions''.
    (b) Mandatory Communications With Complainants.--
            (1) Contact information.--Section 1214(a)(1)(B) of title 5, 
        United States Code, is amended by striking clause (ii) and 
        inserting the following:
            ``(ii) shall include the name and contact information of a 
        person at the Office of Special Counsel who--
                    ``(I) shall be responsible for interviewing the 
                complainant and making recommendations to the Special 
                Counsel regarding the allegations of the complainant; 
                and
                    ``(II) shall be available to respond to reasonable 
                questions from the complainant regarding the 
                investigation or review conducted by the Special 
                Counsel, the relevant facts ascertained by the Special 
                Counsel, and the law applicable to the allegations of 
                the complainant.''.
            (2) Statement after termination of investigation.--Section 
        1214(a)(2)(A)(iv) of title 5, United States Code, is amended by 
        striking ``a response'' and inserting ``specific responses''.
    (c) Qualifications of Special Counsel.--The third sentence of 
section 1211(b) of title 5, United States Code, is amended by striking 
``position.'' and inserting ``position and has professional experience 
that demonstrates an understanding of and a commitment to protecting 
the merit based civil service.''.
    (d) Alternative Dispute Resolution Program of the Office of Special 
Counsel.--Section 1212 of title 5, United States Code, is amended by 
adding at the end the following:
    ``(h) The Office of Special Counsel shall by regulation provide for 
one or more alternative methods for settling matters subject to the 
jurisdiction of the Office which shall be applicable at the election of 
an employee, former employee, or applicant for employment or at the 
direction of the Special Counsel with the consent of the employee, 
former employee, or applicant concerned. In order to carry out this 
subsection, the Special Counsel shall provide for appropriate offices 
in the District of Columbia and other appropriate locations.''.
    (e) Substantial Likelihood Determinations.--Section 1213 of title 
5, United States Code, is amended--
            (1) in subsection (b), by striking ``15 days'' and 
        inserting ``45 days''; and
            (2) in subsection (c)(1), by inserting ``, after consulting 
        with the person who made the disclosure on how to characterize 
        the issues,'' after ``appropriate agency head''.
    (f) Determination of Statutory Requirements Met.--Section 1213(e) 
of title 5, United States Code, is amended--
            (1) in paragraph (3), by striking ``subsection (e)(1)'' and 
        inserting ``paragraph (1)'';
            (2) by redesignating paragraphs (3) and (4) as paragraphs 
        (4) and (5), respectively; and
            (3) by inserting after paragraph (2) the following:
    ``(3) Upon receipt of any report of the head of an agency required 
under subsection (c), if the Special Counsel is unable to make a 
determination under paragraph (2)(A) or (B), the Special Counsel shall 
require the agency head to submit any additional information necessary 
for the Special Counsel to make such determinations before any 
information is transmitted under paragraph (4).''.
    (g) Public and Internet Access for Agency Investigations.--Section 
1219 of title 5, United States Code, is amended by striking subsections 
(a) and (b) and inserting the following:
    ``(a) The Special Counsel shall maintain and make available to the 
public (including on the website of the Office of Special Counsel)--
            ``(1) a list of noncriminal matters referred to heads of 
        agencies under subsection (c) of section 1213, together with--
                    ``(A) reports from heads of agencies under 
                subsection (c)(1)(B) of such section relating to such 
                matters;
                    ``(B) comments submitted under subsection (e)(1) of 
                such section relating to such matters, if the person 
                making the disclosure consents; and
                    ``(C) comments or recommendations by the Special 
                Counsel under subsection (e)(4) of such section 
                relating to such matters;
            ``(2) a list of matters referred to heads of agencies under 
        section 1215(c)(2);
            ``(3) a list of matters referred to heads of agencies under 
        subsection (e) of section 1214, together with certifications 
        from heads of agencies under such subsection; and
            ``(4) reports from heads of agencies under section 
        1213(g)(1).
    ``(b) The Special Counsel shall take steps to ensure that any list 
or report made available to the public or placed on the website of the 
Office of Special Counsel under this section does not contain any 
information the disclosure of which is prohibited by law or by 
Executive order requiring that information be kept secret in the 
interest of national defense or the conduct of foreign affairs.''.

SEC. 7. REPORTING REQUIREMENTS.

    (a) Merit Systems Protection Board.--Each annual report submitted 
by the Merit Systems Protection Board under section 1206 of title 5, 
United States Code, shall, with respect to the period covered by such 
report, include--
            (1) the number of cases and alleged violations of section 
        2302 of such title 5 filed with the Board for each agency, 
        itemized for each prohibited personnel practice;
            (2) the number of cases and alleged violations of section 
        2302 of such title 5 that the Board determines for each agency, 
        itemized for each prohibited personnel practice and compared to 
        the total number of cases and allegations filed with the Board 
        for each, both with respect to the initial decisions by 
        administrative judges and final Board decisions;
            (3) the number of cases and allegations in which corrective 
        action was provided, compared to the total number of cases and 
        allegations filed with the Board for each, itemized separately 
        for settlements and final Board decisions; and
            (4) with respect to paragraphs (8) and (9) of section 2302 
        (b) of such title 5, the number of cases in which the Board has 
        ruled in favor of the employee on the merits of the claim 
        compared to the total number of cases and allegations filed 
        with the Board for each, where findings of fact and conclusions 
        of law were issued on whether those provisions were violated, 
        independent from cases disposed by procedural determinations, 
        including a separate itemization of both initial decisions by 
        administrative judges and final Board decisions for each 
        category.
    (b) Office of Special Counsel.--Each annual report submitted under 
section 1218 of title 5, United States Code, by the Special Counsel or 
an employee designated by the Special Counsel shall, with respect to 
the period covered by such report, include--
            (1) the number of cases and allegations for each prohibited 
        personnel practice, delineated by type of prohibited personnel 
        practice;
            (2) for each type of prohibited personnel practice, the 
        number of cases and allegations as to which the Office of 
        Special Counsel found reasonable grounds to believe section 
        2302 of such title 5 had been violated;
            (3) for each type of prohibited personnel practice, the 
        number of cases and allegations as to which the Office of 
        Special Counsel referred the complaint for full field 
        investigation;
            (4) for each prohibited personnel practice, the number of 
        cases and allegations as to which the Office of Special Counsel 
        recommended corrective action;
            (5) for each prohibited personnel practice, the number of 
        cases and allegations as to which the Office of Special Counsel 
        conducted a mediation or other form of alternative dispute 
        resolution, with statistics and illustrative examples 
        describing the results with particularity;
            (6) the number of instances in which the Office of Special 
        Counsel referred disclosures submitted under section 1213 of 
        such title 5 to an agency head, without any finding under 
        subsection (c) or (g) of such section;
            (7) a statistical tabulation of results for each customer 
        satisfaction survey question, both with respect to allegations 
        of prohibited personnel practice submitted under section 1214 
        of such title 5 and disclosures submitted under section 1213 of 
        such title; and
            (8) for each provision under section 1216(a) (1) through 
        (5) and (c) of such title 5, the number of cases and 
        allegations, the number of field investigations opened, the 
        number of instances in which corrective action was sought, and 
        the number of instances in which corrective action was 
        obtained.
    (c) Annual Survey.--Section 13(a) of the Act entitled ``An Act to 
reauthorize the Office of Special Counsel, and for other purposes'', 
approved October 29, 1994 (5 U.S.C. 1212 note; Public Law 103-424) is 
amended in the first sentence by inserting ``, including individuals 
who disclose information to the Office of Special Counsel under section 
1213'' before the period.
                                 <all>