[Congressional Record Volume 140, Number 145 (Friday, October 7, 1994)]
[Senate]
[Page S]
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]

 
       THE OFFICE OF SPECIAL COUNSEL REAUTHORIZATION ACT OF 1994

                                 ______


                  LEVIN (AND PRYOR) AMENDMENT NO. 2641

  Mr. BREAUX (for Mr. Levin, for himself, and Mr. Pryor) proposed an 
amendment to the bill (H.R. 2970) to reauthorize the Office of Special 
Counsel, and for other purposes; as follows.

         Strike out all after the enacting clause and insert 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, 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)(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) 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.--Seciton 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.--Seciton 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 2303(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 
     cost as provided for under paragraphs (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. 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.

     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 
     they 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.

                          ____________________