[Congressional Record Volume 140, Number 145 (Friday, October 7, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 7, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
              REAUTHORIZING THE OFFICE OF SPECIAL COUNSEL

  Mr. McCLOSKEY. Mr. Speaker, I ask unanimous consent to take from the 
Speaker's table the bill (H.R. 2970) to reauthorize the Office of 
Special Counsel, and for other purposes, with a Senate Counsel, and for 
other purposes, with a Senate amendment thereto, and concur in the 
Senate amendment.
  The Clerk read the title of the bill.
  The Clerk read the Senate amendment, as follows:

       Senate amendment: Strike out all after the enacting clause 
     and insert:

     SECTION 1. AUTHORIZATION OF APPROPRIATIONS.

       (a) Merit Systems Protection Board.--Section 8(a)(1) of the 
     Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note: 
     Public Law 101-12: 103 Stat. 34) is amended by striking out 
     ``1989, 1990, 1991, 1992, 1993, and 1994'' and inserting in 
     lieu thereof ``1993, 1994, 1995, 1996, and 1997.''
       (b) Office of Special Counsel.--Section 8(a)(2) of the 
     Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note: 
     Public Law 101-12; 103 Stat. 34) is amended by striking out 
     ``1989, 1990, 1991, and 1992'' and inserting in lieu thereof 
     ``1993, 1994, 1995, 1996, and 1997''.

     SEC. 2. REASONABLE ATTORNEY FEES IN CERTAIN CASES.

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

     SEC. 3. OFFICE OF SPECIAL COUNSEL.

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

     SEC. 4. INDEPENDENT RIGHT OF ACTION.

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

     SEC. 5. PROHIBITED PERSONNEL PRACTICES.

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

     SEC. 6. PERFORMANCE APPRAISALS.

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

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

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

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

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

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

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

     SEC. 10. EXPENSES RELATED TO FEDERAL RETIREMENT APPEALS.

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

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

       (a) Election of Provisions of Title 5, United States 
     Code.--If an individual who believes he has been discharged 
     or discriminated against in violation of section 21a(q)(1) of 
     the Federal Home Loan Bank Act (12 U.S.C. 144a(g)(1)) seeks 
     an administrative corrective action or judicial remedy for 
     such violation under the provisions of chapters 12 and 23 of 
     title 5, United States Code, the provisions of section 21a(q) 
     of such Act shall not apply to such alleged violation.
       (b) Election of Provisions of Federal Home Loan Bank Act.--
     If an individual files a civil action under section 21a(q)(2) 
     of the Federal Home Loan Bank Act (12 U.S.C. 1441a(q)(2)), 
     the provisions of chapters 12 and 23 of title 5, United 
     States Code, shall not apply to any alleged violation of 
     section 21a(q)(1) of such Act.

     SEC. 12. IMPLEMENTATION.

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

     SEC. 13. ANNUAL SURVEY OF INDIVIDUALS SEEKING ASSISTANCE.

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

     SEC. 14. EFFECTIVE DATE.

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

  Mr. McCLOSKEY (during the reading). Mr. Speaker, I ask unanimous 
consent that the Senate amendment be considered as read and printed in 
the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Indiana?
  There was no objection.
  The SPEAKER pro tempore. Is there objection to the initial request of 
the gentleman from Indiana?
  Mr. MYERS of Indiana. Mr. Speaker, reserving the right to object, I 
do so to yield to my friend, my longtime friend from Indiana, Mr. 
McCloskey, and a former constituent of mine, in fact.
  I yield to the gentleman.
  Mr. McCLOSKEY. I thank the gentleman for yielding.
  Mr. Speaker, H.R. 2970 reauthorizes and reforms the Office of Special 
Counsel and the Merit Systems Protection Board. I would note that there 
was one amendment in the Senate deleting the provision in the House 
allowing an action de novo in a Federal court in dealing with 
complaints going through the OSC. Much of our legislation is intact 
still. Particularly, one of the things I am most concerned about is 
that there are protections against abusive practices, such as ordering 
psychiatric examinations arbitrarily, arbitrarily suspending or 
terminating security clearances. And as I said to the gentleman's 
esteemed colleague, the gentleman from Wisconsin [Mr. Sensenbrenner], 
earlier, there is nothing in the Senate amendment that affects any of 
this legislation that is nongermane.
  Mr. MYERS of Indiana. I thank my colleague. That is a question that I 
have. Through the years as we close out these sessions, often things 
are crowded into a bill that none of us knows what is in there.
  I think we all fear when we do not see the legislation.
  It is necessary in the closing hours of the session that we do put 
things in the legislation, but there is nothing that is not germane to 
the House rules in that compromise. Is that right?
  Mr. McCLOSKEY. That is correct.
  Mr. MYERS of Indiana. And there is nothing substantively changed in 
the House-passed bill.
  Mr. McCLOSKEY. Except for the deletion as to a right to a particular 
form of legal action.
  Mr. MYERS of Indiana. Other than that, no substantive changes in the 
House-passed legislation.
  Mr. McCLOSKEY. That is correct.
  Today, the House will consider H.R. 2970 which reauthorizes and 
reforms the Office of Special Counsel [OSC] and the Merit Systems 
Protection Board [MSPB].
  Earlier this week, the House approved H.R. 2970 which the Senate has 
amended. Although this legislation which we are now considering is far 
less comprehensive than the House's earlier efforts, I urge the House 
to approve this bill.
  This legislation will reauthorize the OSC and the MSPB through fiscal 
year 1997.
  The bill allows prevailing parties to require payment of reasonable 
attorney fees incurred by the employee or applicant in pursuing his or 
her case.
  The expanded provisions for consequential damages and attorney fees 
are intended to provide a realistic expectation that employees who 
prevail will recover their costs, the same as if a merit system 
reprisal had not occurred. Too many employees who win their cases find 
their victories to be pyrrhic. Further, if an employee with a pending 
case wins substantial relief, the agency's motives for providing it are 
not relevant grounds to deny fees. There is no requirement for an 
employee who substantially prevails under this act under any available 
procedure, including before the Office of Special Counsel, whether 
formally through negotiated settlement or through unilateral agency 
action rendering the dispute moot, to demonstrate a nexus between the 
relief and the proceeding. The special counsel, agency chiefs, and the 
Board retain the authority to award fees in any case where an employee 
earns substantial relief through a no-fault settlement.
  This legislation establishes further limitations on the information 
the OSC may disclose about an individual who comes seeking redress. The 
special counsel's final status report with proposed findings of fact 
and legal conclusions may not be admitted into any administrative or 
judicial forum without the complainant's consent.
  The bill tightens the language for a key WPA provision that the OSC 
has obeyed as the exception, rather than the rule--the prohibition on 
disclosing the evidence on an employee's case to the employer allegedly 
engaged in retaliation: 59 percent of OSC complainants reported to GAO 
that the special counsel undercut their rights by leaking information 
about their cases back to their employers. This can impose a fatal 
handicap on the employee in a subsequent MSPB appeal or individual 
right of action. It also flatly violates section 3 of the joint 
explanatory statement for the WPA that individuals may allege 
prohibited personnel practices to the OSC ``without any fear that the 
information they provide or the investigation their disclosure triggers 
is used against them.'' The bill reaffirms this and associated 
legislative history in the 1989 WPA. Of course, some information must 
be released in order ot obtain further evidence necessary for 
investigative finding supporting an employee. But the decision on what 
risks to take is the complainant's alone. The complainant controls the 
information the same way a client seeking private counsel is the 
privilege holder under the attorney-client privilege, even if the 
lawyer chooses not to take the case. The restriction exists as soon as 
the OSC obtains the information, and lasts as long as it is in the 
special counsel's possession. Without the complainant's consent, an OSC 
employee is acting outside the scope of his or her Government 
authority. The OSC's policy statement in section 12 on disclosures 
shall implement these instructions.

  New timelines for OSC action are established and the OSC must provide 
a written status report to the complainant and allow for response 10 
days before terminating any investigation.
  During an independent right of action before the MSPB, H.R. 2970 
establishes new subpoena authority for the complainant. The Senate 
amendment also establishes that an employee may demonstrate that a 
protected disclosure was a contributing factor in the personnel action 
through more favorable evidentiary standards.
  The bill also overturns the Federal circuit court of appeals decision 
in Clark versus Department of Army by codifying that among the 
circumstantial evidence factors to establish a prima facie case of 
whistleblowing prohibited personnel practice is when a challenged 
personnel action occurred within a period of time that a reasonable 
person could conclude a protected disclosure was a contributing factor 
in the personnel action. A personnel action taken during the pendency 
of a performance appraisal period meets this standard, which was 
specified in legislative history for the Whistleblower Protection Act 
of 1989 but must be codified, because it has not been honored by the 
Federal circuit or the Board.
  Also contrary to the Federal circuit's decision in Clark, an agency's 
ability to demonstrate it could have taken the personnel action, that 
is, that it can sustain its normal personnel burden of proof under 
section 7701(c) to support a proposed personnel action, is irrelevant. 
The prohibited personnel practice affirmative defense is legally 
independent from the merits of an agency action. There is no need to 
further revise statutory language. That standard already was codified 
clearly in the Whistleblower Protection Act by sections 1214 and 1221.

  It also is not possible to further clarify the clear statutory 
language in section 2302(b)(8)(A) that protection for ``any'' 
whistleblowing disclosure evidencing a reasonable belief of specified 
misconduct truly means ``any.'' A protected disclosure may be made as 
part of an employee's job duties, may concern policy or individual 
misconduct, and may be oral or written and to any audience inside or 
outside the agency, without restriction to time, place, motive, or 
context. In 1989, Congress explicitly changed the language in section 
2302(b)(8) from protecting ``a'' disclosure to protecting ``any'' 
disclosure, specifically to prohibit those type exceptions. If 
information is classified or its release is specifically prohibited by 
statute, employees must disclose it through specified confidentiality 
channels to maintain protection. Otherwise there are no exceptions.
  H.R. 2970 expands the definition of prohibited personnel practices to 
include the decision to order psychiatric examination and any other 
significant change in duties, responsibilities, or working conditions.
  Consistent with the Whistleblower Protection Act's remedial purpose, 
the provision adding ``any other significant change in duties, 
responsibilities, or working conditions'' to listed personnel actions 
should be interpreted broadly. This personnel action is intended to 
include any harassment or discrimination that could have a chilling 
effect on whistleblowing or otherwise undermine the merit system, and 
should be determined on a case-by-case basis. Examples include denial, 
revocation, or suspension of a security clearance; issuing, denying, or 
removing an employee from specific assignments; changes in duty 
station; removal of support staff; and any analogous actions taken 
because of protected activity.
  Similarly, the prohibition against threats in sections 2302(b)(8) and 
(b)(9) should be broadly construed even if not formal changes in 
duties, responsibilities, or working conditions, the Board should 
consider whether other common forms of harassment represent prohibited 
threats, because they are a prelude or precondition to listed forms of 
personnel actions. The techniques to harass a whistleblower are limited 
only by the imagination. Illustrative examples, however, include 
retaliatory investigations, threat of or referral for prosecution, 
defunding, reductions in force and denial or workers compensation 
benefits. In evaluating whether harassment constitutes a threatened 
personnel action, among factors the board should consider is whether 
the activity is discriminatory, or could have a chilling effect on 
merit system duties and responsibilities.

  The House Report on H.R. 2970 lists 14 examples of decisions where 
the Merit Systems Protection Board or the Federal circuit court of 
appeals have ruled contrary to the clear mandate of the Whistleblower 
Protection Act of 1989. A new example, Costin v. Department of Health 
and Human Services (No. AT-12221-93-0670-W-1), may be the most 
significant, by requiring whistleblowers to identify the precise 
personnel actions at issue in their initial complaint to the Office of 
Special Counsel.
  First this burden forces employees without counsel to fashion their 
complaints in legally technical language. Second, it is unrealistic, 
because often the full scope of reprisals is not exposed until the 
complaint is investigated or otherwise pursued. Third, OSC closeout 
letters do not always list all the reprisals alleged by whistleblowers. 
This burden would eliminate the guaranteed right of all whistleblowers 
to a due process hearing before the board.
  There should not be any confusion. To exhaust the OSC administrative 
remedy and qualify for an individual right of action, an employee or 
applicant only must allege a violation of section 2302(b)(8). The 
examples of alleged reprisals listed in the OSC complaint, and the 
scope of the evidence that a whistleblower presents to the OSC, are 
completely irrelevant to establish jurisdiction for an IRA.
  Today, the House expands the number of Federal employees covered by 
whistleblower protections and includes employees in the Department of 
Veterans Affairs, Federal Deposit Insurance Corporation, and the 
Resolution Trust Corporation.
  In response to concerns first raised by the Banking Committee, the 
bill also provides that employees of the FDIC and the RTC who have 
separate whistleblower protection provisions as a result of the savings 
and loan bailout legislation must choose to either follow those 
procedures in title 39 or the ones established in title 5.
  H.R. 2970, as amended by the Senate, includes provisions in the 
House-passed bill to expand the authority of arbitrators to order a 
stay of any personnel action and any disciplinary action allowable 
under section 1215. Judicial review shall be allowed in any 
disciplinary action case in the same manner as it could be obtained if 
the order had been issued by the employee's agency The legal burdens of 
proof for whistleblower cases in arbitration shall be the same as with 
cases before the MSPB.

  Consistent with the WPA's intent that whistleblower reprisal may not 
play any factor in a personnel action, the provision requiring Board 
referrals for OSC disciplinary investigation is triggered by a prima 
facie case that section 2302(b)(8) is violated. A final determination 
of prohibited personnel practice creates an inference that disciplinary 
sanctions are warranted and that the critical element for the relevant 
agency manager(s) to comply with merit system and equal opportunity 
laws has not been met.
  As detailed in the House report on H.R. 2970, Congress is 
dissatisfied with the OSC's recent non-track record on referring for 
agency investigation and aggressively evaluating subsequent agency 
reports on whistleblowing disclosures under section 1213. It is the 
legislate intent that when in doubt, the OSC should refer whistleblower 
charges for investigation. Most significant, the OSC should reevaluate 
agency reports with a ``strict scrutiny'' or ``clear and convincing 
evidence'' standard.
  Finally, the legislation provides for reporting and survey 
requirements for the OSC.
  I urge all of my colleagues to support this measure.
  Mr. MYERS of Indiana. Mr. Speaker, I withdraw my reservation of 
objection.
  The SPEAKER pro tempore. Is there objection to the initial request of 
the gentleman from Indiana?
  There was no objection.
  A motion to reconsider was laid on the table.

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