[Congressional Record Volume 140, Number 141 (Monday, October 3, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     OFFICE OF SPECIAL COUNSEL AND MERIT SYSTEMS PROTECTION BOARD 
                           AUTHORIZATION ACT

  Mr. FORD. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 599, S. 622, a 
bill to reauthorize the Office of Special Counsel and the Merit Systems 
Protection Board.
  The PRESIDING OFFICER. The bill will be stated by title.
  The bill clerk read as follows:
       A bill (S. 622) to authorize appropriations for the U.S. 
     Office of Special Counsel, the Merit Systems Protection 
     Board, and for other purposes.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on Governmental Affairs, 
with an amendment to strike out all after the enacting clause and 
inserting in lieu thereof the following:

     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, and 1995''.
       (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, and 1995''.

     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) 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 may not be admissible as evidence in any judicial 
     or administrative proceeding, without the consent of the 
     person submitting the allegation of a prohibited personnel 
     practice.''.
       (d) 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 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.''.
       (d) Attorneys' Fees.--Section 1221(g) of title 5, United 
     States Code, is amended--
       (1) in paragraph (1), by striking out ``and any other 
     reasonable costs incurred'' and inserting in lieu thereof 
     ``and any other reasonable costs incurred directly or 
     indirectly by the employee, former employee, or applicant.''; 
     and
       (2) in paragraph (2), by striking out ``and any other 
     reasonable costs incurred,'' and inserting in lieu thereof 
     ``and any other reasonable costs incurred directly or 
     indirectly by the employee, former employee, or applicant,''.

     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 redesignating clause (x) as clause (xi) and 
     inserting before such clause the following:
       ``(x) a decision to order psychiatric testing or 
     examination; and''; and
       (3) in the matter following designated clause (xi) (as 
     redesignated 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.''.
       (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) Discrimination and Retaliation.--Section 2302(b)(8) of 
     title 5, United States Code, is amended by inserting ``or 
     otherwise discriminate or retaliate against,'' after ``a 
     personnel action''.
       (e) 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. 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. 10. 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. 11. 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.


                           amendment no. 2610

    (Purpose: To clarify certain provisions relating to prohibited 
 personnel practices, Merit Systems Protection Board proceedings, and 
                          for other purposes)

  Mr. FORD. Mr. President, on behalf of Senators Pryor and Levin, I 
send an amendment to the desk and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the amendment by number.
  The assistant legislative clerk read as follows:

       The Senator from Kentucky [Mr. Ford] for Mr. Pryor,  for 
     himself, and Mr. Levin, proposes an amendment numbered 2610.

  Mr. FORD. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 12, beginning with line 24, strike out all through 
     line 4 on page 13 and insert in lieu thereof the following:
       ``(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.''.
       On page 14, line 10, insert ``contributing'' before 
     ``factor''.
       On page 14, beginning with line 22, strike out all through 
     line 8 on page 15.
       On page 15, strike out lines 14 through 17 and insert in 
     lieu thereof the following:
       (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
       On page 15, line 19, strike out ``redesignated'' and insert 
     in lieu thereof ``added''.
       On page 16, strike out lines 21 through 24.
       On page 17, line 1, strike out ``(e)'' and insert in lieu 
     thereof ``(d)''.
       On page 19, insert between lines 6 and 7 the following new 
     section:

     SEC. 9. 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:
       ``(8) in 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 section 8347(d) and 8461(e) of this 
     title.''.

     SEC. 10. 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.
       On page 19, line 7, strike out ``SEC. 9.'' and insert in 
     lieu thereof ``SEC. 11.''.
       Page 20, line 8, strike out ``SEC. 10.'' and insert in lieu 
     thereof ``SEC. 12.''.
       On page 21, line 1, strike out ``SEC. 11.'' and insert in 
     lieu thereof ``SEC. 13.''.

  Mr. PRYOR. Mr. President, the amendment that I am offering, along 
with Senator Levin, makes minor changes to S. 622, a bill to 
reauthorize the Office of Special Counsel [OSC] and the Merit Systems 
Protection Board [MSPB].
  The amendment does the following:
  Clarifies vague statutory language; this new language bars the 
submission of OSC's determinations in support of motions or in any 
proceeding other than a trial, in addition to use as evidence in a 
trial, at the discretion of the whistleblower. This language was 
suggested by the Department of Justice [DOJ]. It is used in DOJ 
settlement memoranda.
  Eliminates section 4(d). The MSPB has already overturned the case 
this section addressed.
  Eliminates section 5(d) and replaces the language with ``any other 
significant change in duties, responsibilities, or working 
conditions.'' This change is intended to clarify the purpose of section 
5(d).
  Gives the MSPB statutory authorization to receive reimbursement, 
subject to congressional limitations, from the Civil Service Retirement 
and Disability Fund. Congress has been appropriating funds to MSPB for 
this purpose, however, there has never been authorization for such 
appropriations. This language addresses that situation.
  Requires RTC employees who have whistleblower protection available to 
them under title 12 and title 5 to choose one route at the time such 
employee chooses to exercise his/her rights.
  Mr. President, I am pleased to be a cosponsor, along with Senators 
Levin  and Cohen, of S. 622. The Senate passed similar legislation last 
Congress; however, the House did not act on the bill. The Office of 
Special Counsel [OSC], therefore, has been operating without 
authorization since 1993.
  S. 622 would authorize OSC for 3 years. It puts the OSC and the Merit 
Systems Protection Board on the same authorization schedule. It 
clarifies the rules governing OSC's disclosure of information about 
whistleblowers, requires the OSC to provide detailed information to 
employees when their cases are terminated, establishes a 240-day time 
limit for OSC to make a determination regarding whistleblower cases, 
and requires agencies to inform Federal employees of the rights and 
remedies available to them under the Whistleblower Protection Act.
  Mr. President, as you well know, Congress relies on whistleblowers to 
bring to our attention information on problems within the Government 
that otherwise we would never find. Whistleblowers often act at their 
peril and we should do all that we can to ensure that whistleblowers 
are not punished for their actions. This bill makes some improvements 
to the Whistleblower Protection Act to make their situation somewhat 
easier. I urge the Senate to approve S. 622.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 2610) was agreed to.
  Mr. FORD. Mr. President, I move to reconsider the vote and I move to 
lay that motion on the table.
  The motion to lay on the table was agreed to.


                          amendement no. 2611

 (Purpose: To provide that the Special Counsel shall provide a status 
 report of an allegation before terminating an investigation, and for 
                            other purposes)

  Mr. FORD. Mr. President, on behalf of Senator Dorgan, I send an 
amendment to the desk and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the amendment by number.
  The assistant legislative clerk read as follows:

       The Senator from Kentucky [Mr. Ford] for Mr. Dorgan 
     proposes an amendment numbered 2611.

  Mr. FORD. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 11, insert between lines 21 and 22 the following 
     new subsection;
       (c) Status Report Before Termination of Investigation.--
     Section 1214(a) of title 5, United States Code, is amended--
       (1) in paragraph (1)--
       (A) 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,''; 
     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).''.
       On page 11, line 22, strike out ``(c)'' and insert in lieu 
     thereof ``(d)''.
       On page 13, line 5, strike out ``(d)'' and insert in lieu 
     thereof ``(e)''.
       On page 16, line 15, strike out the first period and insert 
     in lieu thereof a semicolon and ``and''.

  Mr. FORD. Mr. President, I ask that the amendment be agreed to.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 2611) was agreed to.
  Mr. FORD. Mr. President, I move to reconsider the vote, and I move to 
lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________