[Congressional Record Volume 153, Number 137 (Monday, September 17, 2007)]
[Senate]
[Pages S11593-S11596]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA:
  S. 2057. A bill to reauthorize the Merit Sytems Protection Board and 
the Office of Special Counsel, to modify the procedures of the Merit 
Systems Protection Board and the Office of Special Counsel, and for 
other purposes; to the Committee on Homeland Security and Governmental 
Affairs.
   Mr. AKAKA. Mr. President, today I rise to introduce the 
Federal Merit System Reauthorization Act of 2007 to reauthorize the 
Office of Special Counsel, OSC, and the Merit Systems Protection Board, 
MSPB, and make other changes to improve the performance of both 
agencies. I am pleased to note that Representative Danny Davis, 
Chairman of the House Federal Workforce Subcommittee, is introducing 
companion legislation today as well.
  Both MSPB and OSC were created by the Civil Service Reform Act of 
1978 to safeguard the merit system principles and to help ensure that 
federal employees are free from discriminatory, arbitrary, and 
retaliatory actions, especially against those who step forward to 
disclose government waste, fraud,

[[Page S11594]]

and abuse. These protections are essential so that employees can 
perform their duties in the best interests of the American public, 
which, in turn, helps ensure that the federal government is an employer 
of choice.
  MSPB is charged with monitoring the Federal Government's merit-based 
system of employment by hearing and deciding appeals from Federal 
employees regarding job removal and other major personnel actions. The 
board also reviews regulations of the Office of Personnel Management, 
OPM, and conducts studies of the merit systems.
  OSC is charged with protecting Federal employees and job applicants 
from reprisal for whistleblowing and other prohibited personnel 
practices. OSC is to serve as a safe and secure channel for Federal 
workers who wish to disclose violations of law, gross mismanagement or 
waste of funds, abuse of authority, and a specific danger to the public 
health and safety. In addition, OSC enforces the Hatch Act, which 
restricts the political activities of Federal employees, and the 
Uniformed Services Employment and Reemployment Rights Act of 1994.
  OSC and MSPB are to be the stalwarts of the merit system. However, 
both agencies have been criticized for failing to live up to their 
mission.
  For example, as the author of the Federal Employee Protection of 
Disclosures Act, S. 274, I am deeply concerned by the fact that no 
Federal whistleblower has won on the merits of their claim before the 
Board since 2003. At the Federal Circuit Court of Appeals, 
whistleblowers have won on the merits twice since October 1994, when 
Congress last strengthened the Whistleblower Protection Act.
  In addition, testimony provided at the House and Senate 
reauthorization hearings earlier this year raised several concerns 
about the structure of the MPSB and the rights and responsibilities of 
the Chairman of the MSPB compared to the other Members. This raises 
concerns about the structure of the MSPB and warrants a closer review.
  At OSC, the most recent Federal employee satisfaction survey shows 
that less than five percent of the respondents reported any degree of 
satisfaction with the results obtained by OSC while over 92 percent 
were dissatisfied. Moreover, in the past few years, OSC has become 
subject to numerous allegations by employees, good government groups, 
and employee unions who allege that OSC is acting counter to its 
mission by: ignoring whistleblower complaints, failing to protect 
employees subjected to sexual orientation discrimination, and 
retaliating against whistleblowers at OSC.
  If true, these practices violate OSC's legal responsibility to be the 
protector of civil service employees. Given the fact that OSC employees 
could not make their disclosure to the Special Counsel, the alleged 
individual who engaged in the wrongdoing and retaliated against them, 
the employees and stakeholders filed a complaint with the President's 
Council on Integrity and Efficiency, PCIE. Unfortunately, the 
investigation is still ongoing.
  As such, the Federal Merit System Reauthorization Act would 
reauthorize OSC and MSPB for a period of three years instead of the 5 
years requested by both agencies in order to give Congress a chance to 
take a closer review of the two agencies. The bill would also 
legislatively establish a process for OSC employees to bring 
allegations of retaliation against the Special Counsel or the Deputy 
Special Counsel to the PCIE and clarify that Federal employees are 
protected from discrimination based on their sexual orientation. 
Finally the bill would make procedural changes at OSC and MSPB to 
improve agency operations and customer service and impose new reporting 
requirements on both agencies.
  Both OSC and MSPB must be free from allegations of wrongdoing and the 
appearance of any activity that would question their independence. I 
believe that the provisions in this bill will make needed improvements 
in both agencies to build trust in the Federal workforce and the 
American people. I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2057

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

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

     SEC. 2. AUTHORIZATION OF APPROPRIATIONS.

       (a) Merit Systems Protection Board.--Section 8(a)(1) of the 
     Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is 
     amended by striking ``2003, 2004, 2005, 2006, and 2007'' and 
     inserting ``2008, 2009, and 2010''.
       (b) Office of Special Counsel.--Section 8(a)(2) of the 
     Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is 
     amended by striking ``2003, 2004, 2005, 2006, and 2007'' and 
     inserting ``2008, 2009, and 2010''.
       (c) Effective Date.--This section shall take effect as of 
     October 1, 2007.

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

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

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

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

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

       (a) Proof of Exhaustion for Individual Right of Action.--
     Section 1221(a) of title 5, United States Code, is amended--
       (1) by striking ``(a)'' and inserting ``(a)(1)''; and
       (2) by adding at the end the following:
       ``(2) For purposes of paragraph (1), an employee, former 
     employee, or applicant for employment may demonstrate 
     compliance with section 1214(a)(3)(B) by--
       ``(A) submitting a copy of the complaint or other pleading 
     pursuant to which such employee, former employee, or 
     applicant sought corrective action from the Special Counsel 
     with respect to the personnel action involved; and
       ``(B) certifying that the Special Counsel did not provide 
     notice of intent to seek such corrective action to such 
     employee, former employee, or applicant within the 120-day 
     period described in such section 1214(a)(3)(B).''.
       (b) Individual Requests for Stays.--Section 1221(c) of 
     title 5, United States Code, is amended by striking paragraph 
     (2) and inserting the following:

[[Page S11595]]

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

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

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

     SEC. 7. REPORTING REQUIREMENTS.

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

[[Page S11596]]

       (c) Annual Survey.--Section 13(a) of the Act entitled ``An 
     Act to reauthorize the Office of Special Counsel, and for 
     other purposes'', approved October 29, 1994 (5 U.S.C. 1212 
     note; Public Law 103-424) is amended in the first sentence by 
     inserting ``, including individuals who disclose information 
     to the Office of Special Counsel under section 1213'' before 
     the period.
                                 ______