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


[Congressional Record: October 3, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
              REAUTHORIZING THE OFFICE OF SPECIAL COUNSEL

  Mr. McCLOSKEY. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 2970) to reauthorize the Office of Special Counsel, and for 
other purposes, as amended.
  The Clerk read as follows:

                               H.R. 2970

       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.--
       (1) In general.--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.''.
       (2) Conforming amendments.--Section 7121(a)(1) of title 5, 
     United States Code, is amended--
       (A) by inserting ``administrative'' after ``exclusive''; 
     and
       (B) by striking ``(d) and (e)'' and inserting ``(d), (e), 
     and (g)''.
       (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(d), 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.--
       (1) In general.--Section 2302(a)(2)(C) of title 5, United 
     States Code, is amended--
       (A) by striking clause (i); and
       (B) by redesignating clauses (ii) and (iii) as clauses (i) 
     and (ii), respectively.
       (2) Coordination with certain other provisions of law.--
     Section 2305 of title 5, United States Code, is amended--
       (A) by striking ``No'' and inserting ``(a) No''; and
       (B) by adding at the end the following:
       ``(b)(1) This subsection applies with respect to a 
     prohibited personnel practice described in section 2302(b)(8) 
     for which a remedy is also available under section 33 of the 
     Federal Deposit Insurance Act or section 21A(q) of the 
     Federal Home Loan Bank Act.
       ``(2) An employee or former employee affected by a 
     prohibited personnel practice described in paragraph (1) may 
     raise the matter under (A) section 33 of the Federal Deposit 
     Insurance Act or section 21A(q) of the Federal Home Loan Bank 
     Act, as the case may be, or (B) a procedure available under 
     this title, but not both.
       ``(3) A determination as to if or when an employee or 
     former employee has made a choice under this subsection shall 
     be made in a manner similar to that set forth in section 
     7121(g).''.
       (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.''.

     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) 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;''.
       (c) 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 (b) 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) 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.
       ``(c) Standard of 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.

     ``Sec. 1233. Appeals

       ``Any party aggrieved by a final decision under section 
     1231 may appeal such decision only to the United States Court 
     of Appeals for the Federal Circuit.''.
       (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.
``1233. Appeals.''.
       (d) 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.''.
       (e) 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.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Indiana [Mr. McCloskey] will be recognized for 20 minutes, and the 
gentleman from New York [Mr. Gilman] will be recognized for 20 minutes.
  The Chair recognizes the gentleman from Indiana [Mr. McCloskey].
  Mr. McCLOSKEY. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, the history and rationale for the OSC is quite simple: 
to provide legal protections for Federal employees who blow the whistle 
on fraud, waste, abuse, or criminal activity in the workplace and to 
investigate prohibited personnel practices.
  Prohibited personnel practices are serious career-threatening or 
career ending moves like demotion, removal, reassignment, or other 
significant change in duties on prohibited grounds such as racial 
discrimination, political coercion, reprisal against whistle blowing, 
or in response to the employee's valid exercise of legal rights.
  The Subcommittee on Civil Service has had several hearings on this 
issue, and has heard testimony from the office of special counsel on 
two occasions, from Ben Erdreich, the Chairman of the Merit Systems 
Protections Board [MSPB], Federal employee unions, Government 
Accountability Project [GAP], and individual whistleblowers.
  Our findings have generally tracked the conclusions of the MSPB and 
the GAO in reports released last year: Agencies still need to improve 
their attitudes when it comes to whistleblowers.
  Clearly agencies must do a better job of educating their employees of 
their rights and remedies under the WPA, but they must also communicate 
to managers and supervisors that retaliation against whistleblowers is 
not acceptable and will not be tolerated.
  Considerable consultation has been done with the administration, 
other committees, and virtually all interested parties.
  I have an amendment in the nature of a substitute which closely 
tracks the original structure of H.R. 2970 while seeking to address the 
concerns of the Banking Committee and the Judiciary Committee.
  The amendment reauthorizes the Office of Special Counsel and the MSPB 
for 4 years, and makes amendments to the Whistleblower Protection Act 
of 1989 which add further protection to Federal employees who blow the 
whistle.
  The bill also expands the choices Federal employees would have when 
seeking corrective action for any reprisal taken against them.
  The bill requires agencies to educate and inform their employees of 
their rights and remedies under the WPA, expands coverage to hundreds 
of thousands of Federal employees who are not currently covered, 
expands the definition of personnel actions to include several 
practices that are not currently covered, but that can have a 
debilitating effect on an employee's career, and attempts to level the 
playing field for employees in these always difficult cases.
  In response to concerns raised by the Judiciary Committee, the 
amendment deletes the provision of H.R. 2970 which expanded appellate 
jurisdiction from the Federal circuit and gave the employee the option 
of choosing the circuit in which the employee resides.
  The amendment also provides that employees of the FDIC and RTC who 
have separate whistleblower protection provisions as a result of the 
savings and local bailout legislation must choose to either follow 
those procedures in title 39 or the ones established title 5.
  I urge all of my colleagues to support this measure.
  Mr. Speaker, I reserve the balance of my time.
  Mr. GILMAN. Mr. Speaker, I yield myself such time as I may consume.
  (Mr. GILMAN asked and was given permission to revise and extend his 
remarks.)
  Mr. GILMAN. Mr. Speaker, I am pleased to rise in support of H.R. 
2970, a bill introduced by the distinguished gentleman from Indiana 
[Mr. McCloskey] reauthorizing the Office of Special Counsel and the 
Merit Systems Protection Board through 1997. The legislation also 
expands upon the 1989 Whistleblower Protection Act by providing 
additional safeguards for Federal employees who expose waste, fraud, or 
abuse within the Federal Government.
  The legislation was the subject of three Civil Service subcommittee 
hearings and was reported out of the Committee on Post Office and Civil 
Service by voice vote. Mr. Speaker, the minority has no objections to 
consideration of this measure under suspension of the rules. 
Accordingly, I urge my colleagues to support passage of this measure.
  Mr. LEWIS of California. Mr. Speaker, will the gentleman yield?
  Mr. GILMAN. Mr. Speaker, I yield to the gentleman from California.
  Mr. LEWIS of California. Mr. Speaker, we had an issue on the floor 
earlier that related to the reauthorization of an agency, and the 
question was raised relative to those provisions that would have 
prevented the downsizing of these agencies. Are those provisions a part 
of this measure?
  Mr. McCLOSKEY. Mr. Speaker, will the gentleman yield?
  Mr. GILMAN. I yield to the gentleman from Indiana.
  Mr. McCLOSKEY. Mr. Speaker, I say to the gentleman, ``There are no 
provisions related to downsizing in this legislation.
  Mr. LEWIS of California. Mr. Speaker, I thank the gentleman from 
Indiana.

                              {time}  1940

  Mr. McCLOSKEY. Mr. Speaker, I thank the distinguished gentleman from 
New York for his cooperation and leadership on this and numerous other 
items of legislation.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. DeFazio). The question is on the motion 
offered by the gentleman from Indiana [Mr. McCloskey] that the House 
suspend the rules and pass the bill, H.R. 2970, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed
  A motion to reconsider was laid on the table.

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