U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

19–010

" SENATE ! 107TH CONGRESS

2d Session 

REPORT

2002

107–349

Calendar No. 771

TO AUTHORIZE APPROPRIATIONS FOR THE 

MERIT SYSTEMS PROTECTION BOARD AND 

THE OFFICE OF SPECIAL COUNSEL, AND 

FOR OTHER PURPOSES

R E P O R T

OF THE

COMMITTEE ON GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

TO ACCOMPANY

S. 3070

TO AUTHORIZE APPROPRIATIONS FOR THE MERIT SYSTEMS PROTECTION BOARD AND THE OFFICE OF SPECIAL COUNSEL, AND 

FOR OTHER PURPOSES

NOVEMBER 19, 2002.—Ordered to be printed 


E:\Seals\Congress.#13
(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

RICHARD J. DURBIN, Illinois 

ROBERT G. TORRICELLI, New Jersey 

MAX CLELAND, Georgia 

THOMAS R. CARPER, Delaware 

JEAN CARNAHAN, Missouri 

MARK DAYTON, Minnesota 

FRED THOMPSON, Tennessee 

TED STEVENS, Alaska 

SUSAN M. COLLINS, Maine 

GEORGE V. VOINOVICH, Ohio 

THAD COCHRAN, Mississippi 

ROBERT F. BENNETT, Utah 

JIM BUNNING, Kentucky 

PETER G. FITZGERALD, Illinois 

JOYCE A. RECHTSCHAFFEN, Staff Director and Counsel 

LAWRENCE B. NOVEY, Counsel 

NANCI E. LANGLEY, Deputy Staff Director, Subcommittee on 

International Security, Proliferation and Federal Services 

JENNIFER L. TYREE, Counsel, Subcommittee on International Security, 

Proliferation and Federal Services 

RICHARD A. HERTLING, Minority Staff Director 

ALISON E. BEAN, Minority Professional Staff Member 

ANN C. FISHER, Minority Professional Staff Member, 

Subcommittee on International Security, Proliferation and Federal Services 

DARLA D. CASSELL, Chief Clerk 

(III)

C O N T E N T S 

Page 

I. Purpose and Summary .................................................................................. 1

II. Background and Need for the Legislation ................................................... 2

III. Legislative History ......................................................................................... 27

IV. Regulatory Impact Statement ....................................................................... 27

V. Congressional Budget Office Cost Estimate ................................................ 27

VI. Section-by-Section Analysis and Discussion ................................................ 29

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 33

1Senator Leahy was added as a cosponsor of both S. 3070 and S. 995, and Senator Durbin 

and Senator Bob Smith were added as cosponsors of S. 995. 

Calendar No. 771

107TH CONGRESS REPORT " SENATE ! 2d Session 107–349

TO AUTHORIZE APPROPRIATIONS FOR THE MERIT SYSTEMS PROTECTION BOARD AND THE OFFICE OF SPECIAL 

COUNSEL, AND FOR OTHER PURPOSES

NOVEMBER 19, 2002.—Ordered to be printed 

Mr. LIEBERMAN, from the Committee on Governmental Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 3070]

The Committee on Governmental Affairs, to which was referred 

the bill (S. 3070) to authorize appropriations for the Merit Systems 

Protection Board and the Office of Special Counsel, and for other 

purposes, having considered the same, reports favorably thereon 

without amendment and recommends that the bill do pass. 

I. PURPOSE AND SUMMARY

The purposes of S. 3070 are to reauthorize appropriations for the 

Office of Special Counsel (OSC) and the Merit Systems Protection 

Board (MSPB) for five years, and to make clarifications and 

changes to strengthen the Whistleblower Protection Act (WPA). S. 

3070 was introduced on October 9, 2002, by Senators Akaka and 

Levin, building on earlier versions, S. 2829, introduced by Senator 

Akaka, and S. 995, introduced by Senators Akaka, Levin, and 

Grassley.1

The OSC and MSPB administer programs and procedures to 

safeguard the federal government’s merit-based system of employment and protect federal employees against improper personnel 

practices, particularly those federal employees who step forward to 

disclose government waste, fraud, and abuse. The OSC’s responsibilities include receiving and seeking resolution of allegations by 

employees of wrongdoing in federal agencies; investigating claims 

of improper personnel actions, including reprisal against whistleVerDate 0ct 31 2002 22:15 Nov 22, 2002 Jkt 019118 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR349.XXX SR349
2

2 2147 Cong. Rec. S5970–S5975 (daily ed. June 7, 2001) (Statements of Senators Akaka, Levin, 

and Grassley) and 148 Cong. Rec. S7746 (daily ed. July 31, 2002) (Statement of Senator Akaka). 3 3148 Cong. Rec. S7746 (daily ed. July 31, 2002) (Statement of Senator Akaka). 

4 4147 Cong. Rec. S5970 (daily ed. June 7, 2001) (Statement of Senator Akaka). 

5 5147 Cong. Rec. S5973 (daily ed. June 7, 2001) (Statement of Senator Levin). 

6This description of the history of OSC and the developments since OSC’s last reauthorization 

is based largely on briefings and documents provided by OSC to the Committee. 7 43 F.R. 36037, 92 Stat. 3783, § 204 (June 19, 1978) (5 U.S.C. App.). 

blowers; and applying to the MSPB for appropriate remedies for 

improper personnel actions. The MSPB’s responsibilities include 

hearing and deciding appeals brought by federal employees from 

agency personnel actions, hearing and deciding cases brought by 

the OSC, and conducting studies and oversight of the civil service 

system. 

The sponsors, in introducing the predecessor bills, summarized 

the purposes of this legislation.2 As to reauthorizing appropriations 

for the OSC and MSPB, Senator Akaka explained: ‘‘These two 

agencies safeguard the merit system principles and protect Federal 

employees who step forward to disclose government waste, fraud, 

and abuse. * * * Together, OSC and MSPB act as stalwarts of justice for the dedicated men and women who serve the public.’’ 3

Senator Akaka also explained why provisions clarifying and 

strengthening the WPA are needed: ‘‘The right of federal employees 

to be free from workplace retaliation * * * has been diminished by 

a pattern of court rulings that have narrowly defined who qualifies 

as a whistleblower under the WPA, and what statements are considered protected disclosures. These rulings are inconsistent with 

congressional intent. * * * The bill we introduce today will restore 

congressional intent regarding who is entitled to relief under the 

WPA, and what disclosures are protected.’’ 4

Senator Levin also emphasized the role of Congress in whistleblower protection: ‘‘We want Federal employees to identify problems in our programs so we can fix them, and if they fear reprisal 

for doing so, then we are not only failing to protect the whistleblower, but we are also failing to protect the taxpayer.’’ He explained how the bill would clarify the law to prevent future misinterpretation, and also noted that the bill ‘‘adds a provision to the 

Whistleblower Protection Act that provides specific protection to a 

whistleblower who discloses evidence of fraud, waste, and abuse involving classified information if that disclosure is made to the appropriate committee of Congress * * *’’ 5

S. 3070 would strengthen the WPA by, among other things, clarifying the unrestricted meaning of ‘‘any’’ disclosure covered by the 

WPA, codifying an anti-gag provision to allow employees to come 

forward with disclosures of illegality, providing independent litigating authority for the OSC, and allowing whistleblower cases to 

be heard by all United States Courts of Appeals for a period of five 

years. 

II. BACKGROUND AND NEED FOR THE LEGISLATION

A. BACKGROUND ON THE OFFICE OF SPECIAL COUNSEL 6

History and purpose 

The position of Special Counsel was established on January 1, 

1979, by Reorganization Plan Number 2 of 1978.7 The Civil Service 

Reform Act (CSRA) of 1978, effective on January 11, 1979, enlarged 

3

8Pub. L. No. 95–454, 92 Stat. 1111 (1978). 9Pub. L. No. 101–12, 103 Stat. 16 (1989). 10Pub. L. No. 103–424, 108 Stat. 4361 (1994). 11See 5 U.S.C. § 2302(c). 

its functions and powers.8 The Special Counsel operated as the autonomous investigative and prosecutorial arm of the Merit Systems 

Protection Board (MSPB) until 1989, enforcing the laws concerning 

prohibited personnel practices, as well as the restrictions on the political activity of federal employees as governed by the Hatch Act. 

In March of 1989, Congress enacted the Whistleblower Protection 

Act (WPA) of 1989.9 The WPA established the Office of Special 

Counsel (OSC) as an independent agency within the Executive 

Branch, separate from the MSPB. Under the WPA, OSC kept its 

basic investigative and prosecutorial functions and its role in litigating cases before the MSPB. The WPA also substantially amended the CSRA to enhance protections against retaliation for those 

employees who disclose wrongdoing in the federal government and 

to improve the ability of OSC to enforce those protections. 

Five years after passage of the WPA, Congress enacted the Office 

of Special Counsel Reauthorization Act of 1994.10 In response to 

widespread criticism concerning inordinate delays in the processing 

of complaints by OSC, Congress imposed a 240-day time limit on 

agency action, within which OSC is required to determine whether 

there are reasonable grounds for believing that a prohibited personnel practice has been committed. The 1994 legislation also 

added approximately 160,000 employees of the Veterans Administration and certain government corporations to coverage under the 

statutes administered by OSC and significantly broadened the definitions of the types of personnel actions covered under these statutes. Lastly, the 1994 legislation made federal agencies explicitly 

responsible for informing their employees of available rights and 

remedies under the WPA, and directed that OSC play a consultative role in that process.11

The mission of OSC is to protect federal employees and applicants, especially whistleblowers, from prohibited employment practices; to promote compliance by government employees with legal 

restrictions on political activity; and to facilitate disclosures of 

wrongdoing in the federal government. OSC carries out this mission by: 

• Investigating complaints of prohibited employment practices, especially reprisal for whistleblowing and pursuing remedies for violations; 

• Operating an independent and secure channel for disclosure and investigation of wrongdoing in federal agencies; 

• Providing advisory opinions on and enforcing the Hatch 

Act; 

• Protecting the reemployment rights of veterans under the 

Uniformed Services Employment and Reemployment Rights 

Act (USERRA) by investigating alleged violations of the Act by 

federal executive agencies and prosecuting meritorious claims 

before the MSPB on behalf of the aggrieved person; and 

4

12 U.S. Office of Special Counsel, FY 2001 Annual Report, at 4. 

• Promoting greater understanding of the rights and responsibilities of government employees under the statutes enforced 

by OSC through public outreach and education programs.12

OSC maintains its headquarters in Washington, DC and has 

field offices in Texas and California. The Special Counsel and the 

Immediate Office of the Special Counsel (IOSC) are responsible for 

policy making and overall management of the agency. IOSC responsibilities include congressional relations, public affairs, and 

outreach. The outreach program director develops and coordinates 

proactive educational efforts by OSC and promotes compliance by 

federal agencies with the employee information requirement at 

§ 2302(c), as amended. Until June 2001, OSC was organized into 

four operating divisions: Complaint and Disclosure Analysis, Investigation, Prosecution, and Planning and Advice. A restructuring in 

early June of that year led to the consolidation of OSC’s investigative and prosecutorial functions and the creation of three parallel 

Investigation and Prosecution Divisions. Since that reorganization, 

agency functions are organized as follows: 

• The Complaints and Disclosure Analysis Division consists of 

OSC’s two intake units for new matters received by the agency—

the Complaints Examining Unit (CEU) and the Disclosure Unit 

(DU).

The CEU serves as the intake point for all complaints alleging 

prohibited personnel practices and other violations of civil service 

law, rule, or regulation. The attorneys and personnel management 

specialists in CEU conduct an initial review of complaints to determine whether they are within OSC’s jurisdiction and whether further investigation is warranted. CEU refers any such matter to one 

of the Investigation and Prosecution Divisions. 

The DU is responsible for reviewing information submitted by 

federal whistleblowers and for advising the Special Counsel on the 

appropriate disposition of the matter (including possible referral to 

the head of the relevant agency for investigation and a report to 

OSC, referral to the agency Inspector General, or closure). DU attorneys also analyze agency reports of investigation to determine 

whether they appear reasonable and meet statutory requirements 

before the Special Counsel sends them to the President and appropriate congressional oversight committees. 

• The Investigation and Prosecution Divisions (IPDs) consist of 

three parallel investigative and prosecutorial units—IPD I, II, and 

III. These divisions investigate complaints referred after a preliminary inquiry by CEU. Each unit conducts investigations to review 

pertinent records and to interview complainants and witnesses 

with knowledge of the matters alleged. Matters not resolved during 

the investigative phase undergo legal review and analysis to determine whether the matter warrants corrective action, disciplinary 

action, or both. If a negotiated resolution with the agency involved 

cannot be reached, division attorneys conduct the litigation of any 

enforcement proceedings filed by OSC with the U.S. Merit Systems 

Protection Board. They also represent the Special Counsel when 

OSC intervenes or otherwise participates in other proceedings before the MSPB. 

5

13 U.S. Office of Special Counsel, FY 2001 Annual Performance Report, at 2–4. 14 5 U.S.C. § 1214(b)(2)(A)(i). 

• The Hatch Act Unit (HAU), located in IPD I, is responsible for 

enforcing Hatch Act restrictions on the political activities of federal 

and certain state and local government employees. HAU attorneys 

receive and review complaints alleging Hatch Act violations and, 

when warranted, prosecute violations before the MSPB. The unit 

also issues advisory opinions to individuals seeking information 

about the provisions of the Act. 

• The Alternative Dispute Resolution (ADR) Unit was established by the Special Counsel in FY 2000. It is located in IPD III 

and operates OSC’s Mediation Program. In selected cases that have 

been referred for further investigation, it contacts the complainant 

and the employing agency to invite their participation in voluntary 

mediation. If both parties agree, OSC conducts a mediation session, 

led by OSC staff who have extensive training in mediation and experience in federal personnel law. When mediation resolves the 

complaint, the parties execute a written and binding settlement 

agreement. If mediation does not result in a resolution, the case is 

referred for further investigation, as it would have been had the 

parties not tried mediation. 

• The Planning and Advice Division provides legal advice and 

support on general management and administrative matters; engages in planning and policy development; conducts the statutorily 

required annual survey program; and manages the agency’s Freedom of Information/Privacy Act and ethics programs. OSC also has 

two administrative support units: the Human and Administrative 

Resources Management Branch and the Information Systems 

Branch. Their functions include administrative operations, personnel, procurement, information technology, and records management services.13

OSC developments 

For years, the backlog of prohibited personnel practice cases has 

been a significant problem for the OSC. To address this problem, 

Congress amended the WPA in 1994 to set a 240-day deadline for 

OSC to make a determination as to whether a prohibited personnel 

practice occurred.14 To meet this statutory requirement, OSC has 

sought and Congress has granted the agency additional resources. 

During FY 2000 and 2001, Congress appropriated funds for 15 additional full-time employees. OSC also redirected two full-timeequivalents (FTEs) to program functions as a result of internal reforms. The provision of additional resources seemed to help. On 

June 1, 2001, there were 477 prohibited personnel cases more than 

240 days old. Just one year later, the number of cases was reduced 

nearly 53 percent with only 226 cases more than 240 days old. 

In addition to the increase in staff, OSC implemented its most 

significant reorganization in over 15 years by merging investigative 

and prosecutorial functions that had been housed in two separate 

divisions. The reorganization joined investigators and attorneys in 

three teams (IPDs—Investigation and Prosecution Divisions), each 

of which reports to a single Associate Special Counsel. The reorganization eliminated several layers of management review to which 

cases referred for investigation had previously been subject. It also 

6

15 U.S. Office of Special Counsel, supra note 13 at 8. 16See OPM Merit System Principles Questionnaire, FY 2002 Governmentwide Results. 17 U.S. Office of Special Counsel, FY 2000 Annual Report, at 26. 18Summary of Findings from 2000 OSC Survey on Implementation of 5 U.S.C. § 2302(c). 19 U.S. Office of Special Counsel, supra note 17. 

permits closer, more effective, and more efficient coordination of 

strategy between investigators and attorneys. This enhanced coordination is expected to reduce case processing times, permit OSC 

to make better decisions about allocation of investigative resources, 

and improve the quality of OSC’s investigative and legal work.15

As a result of the FY 2001 reorganization, the number of cases 

pending at the end of the fiscal year was 733, down substantially 

from the 1,114 cases that were pending at the end of FY 2000. 

There were also significant gains in the number of cases referred 

for investigation that OSC resolved. Thus, in FY 2001, OSC resolved 410 cases that were referred for investigation, which represented a 79 percent increase over FY 2000’s 228 cases resolved. 

Productivity also increased at OSC by 38 percent as a result of the 

reorganization.

In addition to the backlog problem, OSC continues to face a public information problem as many employees in the federal government are unaware of the role of the OSC and the laws it enforces.16

To address this problem, the Special Counsel hired an Outreach 

Specialist and has established an outreach and training program. 

The Outreach Program was established to assist agencies in meeting their statutory mandate under 5 U.S.C. § 2302(c), which Congress imposed in 1994. Under that provision, federal agencies are 

responsible ‘‘for ensuring (in consultation with the Office of Special 

Counsel) that agency employees are informed of the rights and 

remedies available to them’’ under chapters 12 and 23 of title 5. 

Because of this clear statutory mandate, OSC considers outreach to 

federal managers and employees to be an essential part of its mission.17

A chief focus of the Outreach Program is to work proactively with 

federal agencies to design employee education programs. A significant step towards achieving that goal came in FY 2000 with an 

OSC survey of federal agency efforts to comply with § 2302(c). The 

results of that survey found that the majority of federal agencies 

do not comprehensively inform or educate their employees regarding prohibited personnel practices or whistleblower retaliation. 

Half of the responding agencies did not provide any type of in person training on prohibited personnel practices.18 However, the survey caused many agencies to implement stepped-up measures to inform their employees of their rights.19

During FY 2000, OSC also established its Alternative Dispute 

Resolution Unit, which directs OSC’s Mediation Program. As the 

program matured during the second half of FY 2001, two significant program design modifications were implemented. First, the 

scope of cases in which OSC offers mediation was substantially 

broadened. Among the factors that determine ‘‘mediation-appropriate’’ cases are the relationship of the parties, the complexity of 

the issues, and the relief sought by the complainant. Consequently, 

the rate at which OSC offers mediation to parties doubled from 15 

percent in FY 2000 to 30 percent in FY 2001.

7

20FY 2002 information not yet available from OSC. 21This description of the history of MSPB and the developments since MSPB’s last reauthorization is based largely on briefings and documents provided by MSPB to the Committee. 22Pub. L. No. 95–454, 92 Stat. 1111 (1978). 

SUMMARY OF OSC ACTION FOR 1997–2001 20

1997 1998 1999 2000 2001

Prohibited personnel practices: 

Favorable actions ................................................................................. 56 42 52 75 74

Negotiated stays .................................................................................. 12 8 12 7 13 

Litigated stays ..................................................................................... 0 8 3 2 1 

Hatch Act: 

Advisory opinions issued ...................................................................... 1,700 2,124 2,063 2,810 2,806 

Warning letters issued ......................................................................... 24 20 21 21 59 

Enforcement actions filed .................................................................... 3 0 3 4 8 

Disciplinary actions obtained .............................................................. 3 5 1 2 8 

Disclosure Unit: 

Matters referred to agency head for investigation ............................. 14 2 15 8 15 

Matters referred to IGs for investigation ............................................. 72 65 71 106 119

BUDGET AND STAFFING 

FY 1997 FY 1998 FY 1999 FY 2000 FY 2001 FY 2002

Budget .............................. $8,116,000 $8,450,000 $8,720,000 $9,740,000 $11,147,000 $11,891,000 

FTEs .................................. 83.5 87.17 87.80 90.86 104.66 105.5

B. BACKGROUND ON THE MERIT SYSTEMS PROTECTION BOARD 21

History and purpose 

The U.S. Merit Systems Protection Board is an independent, 

quasi-judicial agency in the Executive Branch that serves as the 

guardian of Federal merit system principles. The MSPB was established by Reorganization Plan No. 2 of 1978, which was codified by 

the Civil Service Reform Act of 1978 (CSRA).22 The CSRA, which 

became effective January 11, 1979, replaced the Civil Service Commission with three new independent agencies: the Office of Personnel Management (OPM), which manages the federal work force; 

the Federal Labor Relations Authority, which oversees Federal 

labor-management relations; and the MSPB. 

The Board assumed the employee appeals function of the Civil 

Service Commission and was given the new responsibilities to perform merit systems studies and to review the significant actions of 

OPM. The MSPB carries out its statutory mission principally by: • Adjudicating employee appeals of personnel actions over 

which the Board has jurisdiction, such as removals, suspensions, furloughs, and demotions; • Adjudicating employee complaints filed under the Whistleblower Protection Act, the Uniformed Services Employment & 

Reemployment Rights Act (USERRA), and the Veterans Employment Opportunities Act; • Adjudicating cases brought by the Special Counsel, principally complaints of prohibited personnel practices and Hatch 

Act violations; • Adjudicating requests to review regulations of the Office of 

Personnel Management (OPM) that are alleged to require or 

result in the commission of a prohibited personnel practice or 

reviewing such regulations on the Board’s own motion; 

8

23 U.S. Merit Systems Protection Board, FY 2001 Annual Performance Report, at 5. 

• Ordering compliance with final Board orders where appropriate; and • Conducting studies of the federal civil service and other 

merit systems in the Executive Branch to determine whether 

they are free from prohibited personnel practices.23

The Board is composed of a Chairman, Vice Chairman, and 

Member who adjudicate the cases brought to the Board. The Chairman, by statute, is the chief executive and administrative officer of 

the Board. Office heads report to the Chairman through the Chief 

of Staff. The MSPB consists of the following offices: • The Office of Regional Operations oversees the five MSPB regional offices (including five field offices), which receive and process 

initial appeals and related cases. Administrative judges in the regional and field offices are responsible for adjudicating assigned 

cases and for issuing fair and well-reasoned initial decisions. • The Office of the Administrative Law Judge adjudicates and 

issues initial decisions in Hatch Act cases, corrective and disciplinary action complaints brought by the Special Counsel, proposed 

agency actions against administrative law judges, MSPB employee 

appeals, and other cases assigned by the Board. • The Office of Appeals Counsel conducts legal research and prepares proposed decisions for the Board in cases where a party petitions for review of a judge’s initial decision and in all other cases 

decided by the three-member Board, except for those cases assigned 

to the Office of the General Counsel. The office also conducts the 

Board’s petition for review settlement program, processes interlocutory appeals of rulings made by judges, makes recommendations on 

reopening cases on the Board’s own motion, and provides research 

and policy memoranda to the Board on legal issues. • The Office of the Clerk of the Board receives and processes 

cases filed at Board headquarters, rules on certain procedural matters, and issues the Board’s Opinions and Orders. The office serves 

as the Board’s public information center, coordinates media relations, produces public information publications, operates the 

Board’s library and on-line information services, and administers 

the Freedom of Information Act and Privacy Act programs. The office also certifies official records to the courts and federal administrative agencies, and manages the Board’s records and directives 

system, legal research programs, and the Government in the Sunshine Act program. 

• The Office of the General Counsel, as legal counsel to the 

Board, provides advice to the Board and MSPB offices on matters 

of law arising in day-to-day operations. The office represents the 

Board in litigation, prepares proposed decisions for the Board on 

assigned cases, and coordinates the Board’s legislative policy and 

congressional relations functions. The office also conducts the 

Board’s ethics program and plans and directs audits and investigations. 

• The Office of Policy and Evaluation carries out the Board’s 

statutory responsibility to conduct special studies of the civil service and other merit systems. Reports of these studies are directed 

to the President and the Congress and are distributed to a national 

audience. The office also conducts an outreach program and reVerDate 0ct 31 2002 22:15 Nov 22, 2002 Jkt 019118 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR349.XXX SR349
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24 Interim rule at 65 Fed. Reg. 5410, February 4, 2000; final rule at 65 Fed. Reg. 49895, August 16, 2000; conforming amendment to 5 CFR Part 1201 at 65 Fed. Reg. 5409, February 4, 

2000. 25 65 Fed. Reg. 24381, April 26, 2000. 26 65 Fed. Reg. 25623, May 3, 2000. 27 65 Fed. Reg. 19293, April 11, 2000. 28 65 Fed. Reg. 48885–48886, August 10, 2000. 29 65 Fed. Reg. 57939, September 27, 2000. 

sponds to requests from federal agencies for information, advice, 

and assistance on issues that have been the subject of Board studies. • The Office of Equal Employment Opportunity plans, implements, and evaluates the Board’s equal employment opportunity 

(EEO) programs. It processes complaints of alleged discrimination 

and furnishes advice and assistance on affirmative action initiatives to the Board’s managers and supervisors. • The Office of Financial and Administrative Management administers the budget, procurement, property management, physical 

security, and general services functions of the Board. It develops 

and coordinates internal management programs and projects, including review of internal controls agency-wide. It also administers 

the agency’s cross-servicing arrangements with the U.S. Department of Agriculture’s National Finance Center (NFC) for accounting and payroll services and with ABS (APHIS Business Services) 

for human resources management services. • The Office of Information Resources Management develops, implements, and maintains the Board’s automated information systems in order to help the Board manage its caseload efficiently and 

carry out its administrative and research responsibilities. 

MSPB developments 

Over the past five years, the Board made a number of amendments to its regulations governing the processing of cases, most of 

them aimed at assisting parties in pursuing their cases before the 

Board. Perhaps the most significant was the issuance of a new Part 

1208 of 5 CFR, setting forth the requirements for processing 

USERRA and Veterans Employment Opportunities Act (VEOA) appeals.24 The Board also finalized two proposed rules it had issued 

in 1999. To assist appellants in obtaining adequate legal representation, it amended its regulations on an award of attorney fees to 

permit reimbursement at the attorney’s customary billing rate in 

the community where the attorney normally practices.25 In order 

to assist appellants in understanding the consequences of an election between appealing to MSPB or filing a grievance, the Board 

amended its requirements for the notice an agency must give when 

it takes an appealable action against an employee who has both a 

right to appeal to MSPB and a right to grieve the matter under a 

negotiated grievance procedure.26

Other amendments to the regulations in FY 2000 clarified the 

procedures for obtaining copies of hearing tapes and transcripts,27

made address changes to reflect the relocation of the MSPB headquarters office,28 and corrected a citation in the rules governing the 

Board’s review of regulations of the Office of Personnel Management.29

In FY 2001, the Board also launched two pilot projects aimed at 

improving case processing. In November 1999, the Board impleVerDate 0ct 31 2002 22:15 Nov 22, 2002 Jkt 019118 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR349.XXX SR349
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30 U.S. Merit Systems Protection Board, FY 2001 Annual Report, at 3. 31 Id.

mented its suspended case pilot project, which allows appellants 

and agencies up to 60 days additional time to pursue discovery and 

settlement efforts in their pending appeals. If the parties mutually 

request a 30-day suspension, the presiding administrative judge 

will grant it, without requiring the parties to provide evidence and 

argument to support the request. A second 30-day suspension will 

be granted if the parties agree that further time is necessary. By 

the end of FY 2000, judges had granted 319 initial 30-day suspensions and 98 additional 30-day suspensions.30

In June 2000, the Board also launched an expanded pilot program at headquarters to expedite the processing of certain petitions for review (PFRs) of administrative judges’ initial decisions. 

The purpose of the program is to identify non-meritorious PFRs 

that can be disposed of quickly so that the three-member Board can 

focus its resources on complex and precedential cases.31 If a PFR 

meets one of the eight criteria established for expedited processing 

(e.g., clearly not within the Board’s purview, no attempt to meet 

the criteria for Board review), the Office of the Clerk prepares a 

proposed decision and forwards it to the Board, rather than transferring the case to the Office of Appeals Counsel for preparation of 

a decision. A senior attorney detailed from the Office of Appeals 

Counsel to the Office of the Clerk of the Board conducts the reviews. In the first six months of the expedited PFR pilot program, 

approximately eight percent of the 724 PFRs reviewed were expedited. The average time for processing the expedited cases—from 

receipt of the PFR to issuance of the decision—was 60 days. 

In a further effort to improve case processing times at headquarters, the Board targeted its enforcement cases during the latter half of FY 2000. These cases arise after the Board issues a final 

order in a case and a party subsequently petitions the Board to enforce its order. If the judge to whom the petition for enforcement 

is assigned determines that there is noncompliance with the 

Board’s order, the case is referred to the 3-member Board for enforcement. Because enforcement cases cannot be closed until compliance is achieved, they frequently take longer to complete than 

other cases. By focusing on enforcement cases that had been pending at headquarters for more than 300 days, the Board was able 

to reduce the number of such cases substantially. One of the methods employed to reduce the processing time was to hold meetings 

with agencies that process the payment of judgments, such as the 

Defense Finance & Accounting Service (DFAS), the National Finance Center, and the U.S. Postal Service, to develop mutually 

beneficial systems for achieving full compliance with Board orders 

in a timely manner. One of the impediments identified was that responsible agency managers and personnel officials thought they 

had taken the steps necessary to comply with a Board order, but 

the payroll office lacked all the information necessary to process 

payments required by the order. As a result of those meetings, the 

agencies have developed checklists and other tools that advise 

agencies and appellants of the information required to process payments agreed upon in settlements or as ordered by the Board. The 

11

32 5 U.S.C. § 1204(a)(3). 33Merit Systems Protection Board (visited Nov. 4, 2002) <http://www.mspb.gov/studies/studies.html>. 34Merit Systems Protection Board (visited Nov. 4, 2002) <http://www.mspb.gov/offices/famd/

2001lbudget.html>.

DFAS and NFC checklists are available on the MSPB Web site. 

The USPS is developing a compliance handbook. 

In addition, the MSPB has accomplished the following over the 

past five years: • Made Office of Policy and Evaluation study reports available on the Internet; • Began a major initiative to design and develop an integrated document management and workflow system that will 

include support and maintenance of imaged and electronic case 

records; • Saved money through the significant increase in the number of video conferences used for hearings, settlements and 

conferences related to cases before MSPB, focus groups and related studies activities, and for other activities related to 

MSPB business; and • Developed an Alternative Dispute Resolution (ADR) Working Group. 

The Civil Service Reform Act also authorized the Board to conduct studies of the civil service and other merit systems in the Executive Branch and report to the President and Congress on whether the public interest in a civil service free of prohibited personnel 

practices is being adequately protected.32 Since 1997, the Board 

has published 15 reports by the Office of Program and Evaluation 

(OPE) staff as well as 20 editions of the Issues of Merit newsletter.33

The OPE staff also serves as a valuable resource for the Board 

in meeting internal agency research needs. For example, during FY 

2001, OPE conducted a survey of appellants and their representatives, agency representatives, and MSPB administrative judges 

who participated in the pilot projects testing the use of video conferencing for hearings and the issuance of bench decisions by 

MSPB judges. The subsequent report of the survey results provided 

information that the Board and senior managers can use to evaluate these projects. 

In addition, as the following two tables show, the Board has 

issued an average of 9,000 decisions (regions and headquarters) annually for the past five years while maintaining an average case 

processing time of less than 100 days. The percentage of Board decisions affirmed or otherwise left unchanged by the Court of Appeals for the Federal Circuit, which has sole jurisdiction over 

MSPB appeals, has exceeded 90 percent.34

CASES DECIDED 

Fiscal year Regional & field 

offices 

HQ appellate jurisdiction HQ original jurisdiction Total 

1997 ............................................................................... 8,314 1,740 100 10,154

1998 ............................................................................... 8,442 1,887 47 10,376 

1999 ............................................................................... 7,670 2,037 106 9,813 

2000 ............................................................................... 7,489 1,827 58 9,374 

2001 ............................................................................... 7,174 1,357 28 8,559 

12

35Id. 36Merit Systems Protection Board, FY 2001 Performance Report, <http://www.mspb.gov/foia/

forms-pubs/2001lperformance-rpt.html>. 37 Civil Service Reform Act, Pub. L. No. 95–454, 92 Stat. 1111 § 903 (1978) (stating ‘‘There 

are authorized to be appropriated, out of any moneys in the Treasury not otherwise appropriated, such sums as may be necessary to carry out the provisions of this Act.’’). 38Pub. L. No. 101–12, 103 Stat. 16 (1989). 39S. Rep. No. 100–413, at 36 (1988). 40See Whistleblower Protection Act of 1987: Hearing on S. 508 before the Subcomm. on Federal Services, Post Office and Civil Service of the Senate Comm. on Governmental Affairs, 100th 

Cong., at 234–35, 260–64 (1987); Hearings on Whistleblower Protection Act of 1986 Before the 

House Subcomm. on Civil Service of the House Comm. on Post Office and Civil Service, 99th 

Cong 151 (1986). 41Pub. L. No. 103–424 (1994). 

SELECTED CASE PROCESSING STATISTICS 35

Fiscal year 

Percent of final 

decisions left 

unchanged upon 

review 

Average processing time for 

initial decisions 

Average processing time for 

petitions for review 

Average processing time for 

enforcement 

cases in the OGC 

1997 ............................................................................... 96 108 183 202 

1998 ............................................................................... 92 108 205 163 

1999 ............................................................................... 92 100 222 206 

2000 ............................................................................... 96 89 176 206 

2001 ............................................................................... 96 92 214 224 

The time for case processing has been an issue at the MSPB. 

While the case processing time for initial decisions has decreased 

over the past five years, the processing time for decisions on petitions for review issued by the Board has once again increased. In 

addition, the processing time for enforcement cases in the Office of 

General Counsel has increased. From 1995 to 2000, the average 

processing time for enforcement cases in OGC ranged from 163 

days to 206 days, with results at the high end of that range in both 

FY 1999 and FY 2000. MSPB explains that the increase from 206 

to 224 reflects a significant achievement by OGC in closing a substantial number of overage enforcement cases during the fiscal 

year.36

BUDGET AND STAFFING 

FY 1997 FY 1998 FY 1999 FY 2000 FY 2001 FY 2002

Budget .............................. $23,923,000 $27,720,000 $25,780,000 $27,481,000 $29,372,000 $33,075,000 

FTE .................................... 259 238 237 226 222 228 

C. PAST REAUTHORIZATIONS FOR OSC AND MSPB

When the Civil Service Reform Act created the MSPB and the 

OSC in 1979, the MSPB, of which OSC was a part, was granted 

a permanent authorization of appropriations.37 With enactment of 

the WPA in 1989, appropriations for the OSC and the MSPB were 

for the first time authorized for a limited time period. MSPB was 

authorized for the fiscal years 1989–1994, while the OSC was authorized for fiscal years 1989–1992.38 According to the Senate committee report, this was done to require Congress to take affirmative 

action to continue funding for the two agencies.39 Legislative history on the Act suggests that the shorter authorization for OSC resulted from the negative perception many in Congress had of the 

agency.40

The OSC was reauthorized for fiscal years 1993–1997 with enactment of the Office of Special Counsel Reauthorization Act 41 on OcVerDate 0ct 31 2002 01:48 Nov 23, 2002 Jkt 019010 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\SR349.XXX SR349
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42S. Rep. No. 103–358 (1994). 43Pub. L. No. 104–208 (1996). 44S. Rep. No. 95–969, at 8 (1978).

tober 29, 1994—two years after the agency’s authorization had expired. At the same time, the MSPB was reauthorized through 1997. 

A 1994 committee report stated that the change was necessary to 

place the two agencies on the same authorization cycle and to 

maintain close congressional oversight over OSC and the MSPB 

and ensure that improvements in the operations of both agencies 

in fact take place.42 The Omnibus Consolidated Appropriations Act 

for FY 1997 extended the authorization of appropriations for the 

OSC and the MSPB through FY 2002.43 (Although the conference 

report stated that Congress intended to extend the authorization of 

appropriations for both MSPB and OSC, a drafting error caused 

the OSC’s reauthorization not to be actually enacted into statute.) 

As the authorization for these two agencies expired on October 1, 

2002, S. 3070 reauthorizes OSC and MSPB for five additional 

years, through the end of the 2007 fiscal year. 

D. AMENDMENTS TO CLARIFY AND STRENGTHEN THE WHISTLEBLOWER

PROTECTION ACT

Background 

The Civil Service Reform Act of 1978 (CSRA) created statutory 

protections for federal employees to encourage disclosure of government illegality, waste, fraud, and abuse. As stated in the Senate 

Report concerning the whistleblowing provisions of the civil service 

reform legislation:

Often, the whistleblower’s reward for dedication to the 

highest moral principles is harassment and abuse. Whistleblowers frequently encounter severe damage to their careers and substantial economic loss. Protecting employees 

who disclose government illegality, waste, and corruption 

is a major step toward a more effective civil service. In the 

vast federal bureaucracy it is not difficult to conceal 

wrongdoing provided that no one summons the courage to 

disclose the truth. Whenever misdeeds take place in a federal agency, there are employees who know that it has occurred, and who are outraged by it. What is needed is a 

means to assure them that they will not suffer if they help 

uncover and correct administrative abuses. What is needed 

is a means to protect the Pentagon employee who discloses 

billions of dollars in cost overruns, the GSA employee who 

discloses widespread fraud, and the nuclear engineer who 

questions the safety of certain nuclear plants. These conscientious civil servants deserve statutory protection rather than bureaucratic harassment and intimidation.44

The CSRA established the Office of Special Counsel to investigate and prosecute allegations of prohibited personnel practices or 

other violations of the merit system and the Merit Systems Protection Board to adjudicate such cases. However, in 1984, the MSPB 

reported that in practice the Act had no effect on the number of 

whistleblowers and that federal employees continued to fear reprisals. The Senate Governmental Affairs Committee subsequently reVerDate 0ct 31 2002 22:15 Nov 22, 2002 Jkt 019118 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\SR349.XXX SR349
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45S. Rep. No. 100–413, at 6–16 (1988). 46Whistleblower Protection Act of 1989 § 2(b), Pub. L. No. 101–12, 103 Stat. 16 (1989). 47S. Rep. No. 103–358 (1994), at 10 (quoting S. Rep. No. 100–413, at 13 (1988)).

ported that employees felt that OSC engaged in apathetic and 

sometimes detrimental practices toward employees seeking its assistance. The Committee also found that restrictive MSPB and federal court decisions had hindered the ability of whistleblowers to 

win redress.45

In response, Congress in 1989 unanimously passed the Whistleblower Protection Act, Public Law No. 101–12. The stated congressional intent of the WPA was to strengthen and improve protection 

for the rights of federal employees, to prevent reprisals, and to help 

eliminate wrongdoing within the government by (1) mandating that 

employees should not suffer adverse consequences as a result of 

prohibited personnel practices; and (2) establishing that while disciplining those who commit prohibited personnel practices may be 

used as a means to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration.46

Congress substantially amended the WPA in 1994, as part of legislation to reauthorize OSC and MSPB. The amendment was designed, in part, to address a series of actions by the OSC and decisions by the MSPB and the Federal Circuit that were found to be 

inconsistent with congressional intent of the 1989 Act. Both the 

House and Senate committee reports accompanying the 1994 

amendments specifically criticized these decisions, particularly 

those limiting the types of disclosures covered by the WPA. 

Specifically, this Committee explained that the 1994 amendments were intended to reaffirm its long-held view that the plain 

meaning language of the Whistleblower Protection Act covers any 

disclosure:

The Committee * * * reaffirms the plain language of 

the Whistleblower Protection Act, which covers, by its 

terms, ‘‘any disclosure’’, of violations of law, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or 

safety. The Committee stands by that language, as it explained in its 1988 report on the Whistleblower Protection 

Act. That report states: ‘‘The Committee intends that disclosures be encouraged. The OSC, the Board and the 

courts should not erect barriers to disclosures which will 

limit the necessary flow of information from employees 

who have knowledge of government wrongdoing. For example, it is inappropriate for disclosures to be protected only 

if they are made for certain purposes or to certain employees or only if the employee is the first to raise the issue’’ *** 47

Similarly, the House stated:

Perhaps the most troubling precedents involve the 

Board’s inability to understand that ‘‘any’’ means ‘‘any.’’ The WPA protects ‘‘any’’ disclosure evidencing a reasonable belief of specified misconduct, a cornerstone to which 

the MSPB remains blind. The only restrictions are for classified information or material the release of which is speVerDate 0ct 31 2002 22:15 Nov 22, 2002 Jkt 019118 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\SR349.XXX SR349
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48 H. Rep. No. 103–769, at 18 (1994). 49 Horton v. Dept. of Navy, 66 F. 3d 279 (Fed. Cir. 1995). 50Willis v. Dept. of Agriculture, 141 F. 3d 1139 (Fed. Cir. 1998). 51Meuwissen v. Dept. of Interior, 234 F. 3d 9 (Fed. Cir. 2000). 52 147 Cong. Rec. S5973 (daily ed. June 7, 2001) (Statement of Senator Levin upon introduction of S. 995). 53Lachance v. White, 174 F. 3d 1378 (Fed. Cir. 1999). 

cifically prohibited by statute. Employees must disclose 

that type of information through confidential channels to 

maintain protection; otherwise there are no exceptions.48

Clarification of what constitutes protected disclosure under the WPA 

Despite the clearly stated intent of the 1994 amendments, it is 

necessary once again to state legislatively what constitutes protected disclosure under the WPA, because the Federal Circuit has 

continued to misinterpret the law, creating new hurdles for whistleblowers along the way. For example, in Horton v. Department of 

the Navy,49 the Federal Circuit ruled that disclosures to co-workers 

or to the wrong-doer, or disclosures to a supervisor are not protected by the Act. In Willis v. Department of Agriculture,50 the 

court ruled that disclosures to officials in the agency chain of command or those made in the course of normal job duties are not protected. And in Meuwissen v. Department of Interior,51 the Federal 

Circuit held that disclosures of information previously known do 

not qualify as ‘‘disclosures’’ under the WPA. 

As both House and Senate reports explicitly noted, the plain language of the WPA extends to retaliation for ‘‘any disclosure,’’ regardless of the setting of the disclosure, the form of the disclosure, 

or the person to whom the disclosure is made. S. 3070 would further clarify the definition of ‘‘any disclosure.’’ The bill amends the 

WPA to cover any disclosure of information ‘‘without restriction to 

time, place, form, motive or context, or prior disclosure made to any 

person by an employee or applicant, including a disclosure made in 

the ordinary course of an employee’s duties.’’ It is also necessary to clarify the test that must be met to show 

that a Federal employee reasonably believed that his or her disclosure was evidence of wrongdoing. Under the WPA, an employee or 

applicant is protected for disclosures of information he or she reasonably believes evidences a violation of law, rule, or regulation, or 

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. 

However, Senator Levin explained:

[T]he Federal Circuit * * * impose[d] a clearly erroneous and excessive standard on the employee in proving 

‘‘reasonable belief,’’ requiring ‘‘irrefragable’’ proof that 

there was gross mismanagement. * * * The employee, 

under the clear language of the statute, need only have ‘‘a 

reasonable belief’’ that there is fraud, waste or abuse occurring before making a protected disclosure. This bill will 

clarify the law so this misinterpretation will not happen 

again.52

This case that Senator Levin referenced was Lachance v. White,53

in which the Office of Personnel Management (OPM) sought review 

of an MSPB order that found that White made protected disclosures resulting in a downgrade in position. OPM argued that 

16

54 Id. at 1381. 55 Id. at 1381 (quoting Alaska Airlines, Inc. v. Johnson, 8 F. 3d 791, 795 (Fed. Cir. 1993)). 56Merriam-Webster’s Collegiate Dictionary (10th ed. 1999). 57Richardson v. Perales, 402 U.S. 389, 401 (1971). 58 Hays v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990) (quoting Laws v. Celebrezze, 368 F. 

2d 640, 642 (4th Cir. 1966)). 59Public Law No. 95–454, § 205, 92 Stat. 1143 (Oct. 13, 1978) (adding 5 U.S.C. § 7703). 60Public Law No. 97–164, § 144 (April 2, 1982). 61 5 U.S.C. §§ 7702, 7703(b)(2). 

White’s belief that he uncovered gross mismanagement (an allegedly wasteful Air Force education program) was inadequate to support a violation of the WPA without an independent review of the 

reasonableness of the belief by MSPB. The Federal Circuit agreed 

and stated that MSPB must look for evidence that it was reasonable to believe that the disclosures revealed misbehavior by the Air 

Force described by 5 U.S.C. § 2302(b)(8). The court said that the 

test is: ‘‘Could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee 

reasonably conclude that the actions of the government evidence 

gross mismanagement? A purely subjective perspective of an employee is not sufficient even if shared by other employees.’’ 54

However, the court went further in holding that the reasonableness review must begin with the—

presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law 

and governing regulations. * * * And this presumption 

stands unless there is ‘‘irrefragable proof’’ to the contrary.55

By definition, irrefragable means impossible to refute.56 This imposes an impossible evidentiary burden on whistleblowers, and 

there is nothing in the law or legislative history that even suggests 

such a standard under the WPA. 

To assure this misinterpretation does not happen again, S. 3070 

provides that any presumption that a public employee (i.e., the official whose misconduct the whistleblower is disclosing) acted in 

good faith may be rebutted by ‘‘substantial evidence.’’ Substantial 

evidence has been defined by the Supreme Court as ‘‘such relevant 

evidence as a reasonable mind might accept as adequate to support 

a conclusion.’’ 57 It consists of ‘‘more than a mere scintilla of evidence but may be somewhat less than a preponderance.’’ 58 By establishing a substantial evidence test, the Committee intends to 

provide a standard that is consistent with the legislative history of 

the Act and will protect whistleblowers instead of creating a higher 

bar to protection as the Federal Circuit did in Lachance v. White. 

All-circuit review 

When the Civil Service Reform Act of 1978 was enacted, it gave 

employees an option of where to appeal final orders of the MSPB. 

The 1978 Act allowed a petition to be filed in either the Court of 

Claims, the U.S. Court of Appeals for the circuit where the petitioner resided, or the U.S. Court of Appeals for the D.C. Circuit.59

In 1982, when the Federal Circuit was created, Congress established that petitions for review of an MSPB order could be filed 

with the Federal Circuit only.60 (An exception applies to cases of 

discrimination before the MSPB, which are filed in district court 

under the applicable anti-discrimination law.61) 

17

62 5 U.S.C. § 7123. 63 5 U.S.C. §1508. 64 31 U.S.C. § 3730(h). 65 12 U.S.C. § 1441a(q). 66 12 U.S.C. § 1790b(b). 67 42 U.S.C. § 5851(c). 68 42 U.S.C. § 7622(c). 69 49 U.S.C. § 42121(b)(4). 

Subject to a five year sunset, S. 3070 suspends the Federal Circuit’s exclusive jurisdiction over whistleblower appeals. The 

Lachance v. White case is one in a long series of cases decided by 

the Federal Circuit that have misinterpreted the provisions of the 

WPA. Also, this bill represents the third time Congress has had to 

clarify the language of the WPA to overturn these misinterpretations. The five year period will allow Congress to evaluate whether 

decisions of other appellate courts in whistleblower cases are consistent with the Federal Circuit’s interpretation of WPA protections 

and guide Congressional efforts to clarify the law if necessary. 

A number of Federal statutes already allow cases involving 

rights and protections of Federal employees, or involving whistleblowers, to be subject to multi-circuit review, i.e., they may be appealed to Courts of Appeals across the country. Decisions of the 

Federal Labor Relations Authority (FLRA) may be appealed to 

Court of Appeals for the Circuit where the petitioner resides or to 

the D.C. Circuit.62 In addition, in cases involving allegations of discrimination, cases decided by the MSPB may be brought in the 

United States District Courts. State or local government employees 

affected by the MSPB’s Hatch Act decisions may also obtain review 

in the U.S. District Courts.63 Appeal from decisions of the District 

Courts in these cases may then be brought in the appropriate 

Court of Appeals for the appropriate Circuit. 

Moreover, a multi-circuit appellate review process of whistleblower claims already exists in many cases. • Under the False Claims Act, as amended in 1986, whistleblowers who disclose fraud in government contracts can file a case 

in District Court and appeal to the appropriate Federal Court of 

Appeals.64

• Congress passed the Resolution Trust Corporation Completion 

Act in 1993, which provided employees of banking related agencies 

the right to go to District Court and have regular avenues of appeal.65

• In 1991, Congress passed the Federal Deposit Insurance Corporation Improvement Act which provides district court review 

with regular avenues of appeal for whistleblowers in federal credit 

unions.66

• Department of Labor corporate whistleblower laws passed as 

part of the Energy Reorganization Act, as amended in 1992,67 and 

the Clean Air Act, as amended in 1977,68 allow whistleblowers to 

obtain review of orders issued in the Department of Labor administrative process in the appropriate Federal Court of Appeals. 

• The Wendell H. Ford Aviation Investment and Reform Act for 

the 21st Century (AIR 21),69 passed in 2000, allows whistleblowers 

to obtain review of their cases in the appropriate Federal Court of 

Appeals. 

Accordingly, subject to the five year sunset, the bill amends 5 

U.S.C. § 7703 to provide that a petition to review a final order or 

18

70 147 Cong. Rec. S5971 (daily ed. June 7, 2001) (Statement of Senator Akaka upon introduction of S. 995). 71 5 U.S.C. § 1211(b). 72 5 U.S.C. § 1214(b)(2)(C). 

final decision of the MSPB may be filed in the United States Court 

of Appeals for the Federal Circuit or the U.S. Court of Appeals for 

the circuit where the petitioner resides. 

Office of Special Counsel—Litigating authority and right to seek review 

The bill would grant OSC authority to represent itself in court 

through its own lawyers and to seek judicial review of MSPB decisions in certain situations if the case will have an impact on the 

enforcement of the whistleblower statute. Senator Akaka explained:

The measure also provides the Special Counsel with 

greater litigating authority for merit system principles 

that the office is responsible to protect. Under current law, 

the OSC plays a central role as public prosecutor in cases 

before the MSPB, but cannot choose to defend the merit 

system in court. Our legislation recognizes that providing 

the Special Counsel this authority to seek such review, in 

precedential cases, is crucial to ensuring the promotion of 

the public interest furthered by these statutes.70

The OSC, initially established in 1979 as the investigative and 

prosecutorial arm of the MSPB, became an independent agency 

within the Executive Branch, separate from the MSPB, with passage of the WPA in 1989. The Special Counsel does not serve at 

the President’s pleasure, but ‘‘may be removed by the President 

only for inefficiency, neglect of duty, or malfeasance in office.’’ 71

The primary mission of OSC is to protect federal employees and applicants from prohibited employment practices, with a particular 

focus on protecting whistleblowers from retaliation. OSC accomplishes this mission by investigating complaints filed by federal 

employees and applicants that allege that federal officials have 

committed prohibited personnel practices. 

When such a claim is filed by a federal employee, OSC investigates the allegation to determine whether there are reasonable 

grounds to believe that a prohibited personnel practice has occurred. If the Special Counsel determines there are reasonable 

grounds to believe that a prohibited personnel practice has occurred, a report is sent to the head of the employing agency, outlining OSC’s findings and requesting that the agency remedy the 

illegal action. In the majority of cases in which the Special Counsel 

has found a violation, the agencies voluntarily take corrective action. If an agency does not do so, OSC is authorized to file a petition for corrective action with the MSPB.72

If the OSC does not send the whistleblower’s disclosures to an 

agency head, it returns the information and any accompanying documents to the whistleblower explaining why the Special Counsel 

did not refer the information. In such a situation, the whistleblower may file a request for corrective action with the MSPB. This 

procedure is commonly known as an individual right of action 

(IRA). At proceedings before the MSPB, OSC is represented by its 

19

73S. 955—Whistleblower Protection Act Amendments: Hearing on S. 995 Before the Subcommittee on International Security, Proliferation, and Federal Services of the Committee on 

Governmental Affairs, S. Hrg. 107–160 (2001). 

own attorneys while the employing agency is represented by the 

agency’s counsel. In IRAs, OSC may not intervene unless it has the 

consent of the whistleblower. 

Under this system, however, OSC’s ability to effectively enforce 

and defend whistleblower laws is limited. For example, the law 

provides the OSC with no authority to request that the MSPB reconsider its decision or to seek review of an MSPB decision by the 

Federal Circuit. Even when another party with authority to petition for a review of a MSPB decision does so, OSC has historically 

been denied the right to participate in those proceedings. Further, 

OPM, which typically is not a party to the case, can request that 

the MSPB reconsider its rulings, while OSC cannot. The problem 

with OSC’s effectiveness is exacerbated since the majority of the 

MSPB’s decisions arise in IRA cases where OSC is not a party. S. 

3070 would remedy this situation by providing explicit authority 

for OSC to participate in such matters. 

Furthermore, the Department of Justice (DOJ) has recognized 

OSC’s right to appear as an intervenor only in those few cases 

where OSC was a party before the Board and the case reaches the 

court of appeals on another party’s petition for review. These cases 

usually involve agency officials’ efforts to reverse Board decisions 

that have granted a petition by OSC to impose discipline for retaliating against a whistleblower. Because OSC lacks independent litigating authority, it must be represented by the Justice Department, rather than its own attorneys in such cases. DOJ’s representation of an independent agency like OSC is a significant impediment to the effective enforcement of the WPA because DOJ routinely represents employing agencies and their officers or OPM on 

appeal in IRA cases. Indeed, DOJ itself could be the respondent in 

such cases. 

On July 25, 2001, the Subcommittee on International Security, 

Proliferation and Federal Services held a hearing on S. 995. DOJ 

submitted testimony opposing provisions that would grant OSC the 

authority to represent itself in litigation and to prosecute appeals. 

DOJ argued that granting independent litigating authority would 

‘‘erode centralized control over personnel litigation.’’ According to 

DOJ’s testimony, such centralized control furthers the goals of enabling the government to present uniform legal positions, providing 

for ‘‘objective’’ litigation by attorneys unaffected by a single agency’s concerns, and ‘‘the facilitation of presidential supervision over 

Executive Branch policies.’’ Authorizing OSC to prosecute appeals, 

according to the testimony, ‘‘would disrupt this carefully crafted 

scheme’’ under which the various appeal rights, if any, of employees, agencies, the Office of Personnel Management, and OSC are 

carefully delineated. ‘‘Moreover,’’ argued the DOJ, granting independent litigating authority ‘‘could result in the Special Counsel 

litigating against other Executive Branch agencies.’’ 73

On balance, however, granting OSC these additional litigation 

authorities is justified. For example, in several kinds of cases that 

arise under the civil service laws, it is routine for there to be more 

20

74 5 U.S.C. §§ 1201–1206. 75 5 U.S.C. §§ 7104 and 7105(d)–(e). 76 42 U.S.C. §§ 2000e–4, 2000e–5(f)(2). 77 29 U.S.C. §§ 154(a) and 160(e). 78 38 U.S.C. § 4324(d)(2). 79Letter from Elaine Kaplan, Special Counsel, Office of Special Counsel, to Senator Carl 

Levin, (Sept. 11, 2002). 

than one government party in the federal courts. Both the MSPB 74

and the FLRA 75 possess the authority to represent themselves in 

the courts of appeals, often against other federal agencies that are 

represented by the Justice Department. 

Further, the OSC, like the MSPB and the FLRA, occupies a 

unique role in the Executive Branch because part of its job is to 

police other federal agencies’ compliance with the civil service laws. 

Even under current law, OSC’s mission routinely requires it to 

take positions adverse to other federal government agencies, albeit 

before an administrative agency, the MSPB. Denying OSC independent litigating authority in the context of the civil service 

scheme creates an exception to what is otherwise the rule, under 

which DOJ provides representation to employing agencies defending themselves against the independent litigating agencies (the 

FLRA, the MSPB) who are represented by their own counsel. 

Without independent litigating authority, OSC is blocked from 

participating in the forum in which the law is largely shaped: the 

U.S. Court of Appeals for the Federal Circuit (and, if this legislation were passed, the other Circuits). Should the OSC conclude 

that MSPB misinterprets one of the laws within OSC’s jurisdiction, 

the OSC has no right to appeal that decision, even if it was a party 

before the MSPB. The limitation undermines both OSC’s ability to 

protect whistleblowers and the integrity of the whistleblower law. 

Precedent exists for independent litigating authority for independent agencies. In the area of employment law, both the Equal 

Employment Opportunity Commission 76 and the National Labor 

Relations Board,77 in addition to the MSPB and the FLRA, have 

such authority. OSC itself has the authority to appear before the 

Court of Appeals and represent complainants alleging that the 

MSPB has wrongfully rejected their complaints under the Uniformed Services Employment Restoration Rights Act (USERRA).78

For these reasons, S. 3070 provides explicit authority for the Special Counsel to appear, through attorneys that he or she may designate, in any civil action brought in connection with the WPA. In 

addition, the bill provides OSC the authority to obtain court review 

of any MSPB order in a whistleblowing case if the OSC determines 

the Board erred and the case will have an impact on the enforcement of the whistleblower statute. According to Special Counsel 

Elaine Kaplan, these changes are ‘‘necessary, not only to ensure 

OSC’s effectiveness, but to address continuing concerns about the 

whittling away of the WPA’s protections by narrow judicial interpretations of the law.’’ 79

Burden of proof in OSC disciplinary actions 

Current law authorizes the OSC to pursue disciplinary action 

against managers who retaliate against whistleblowers. More generally, if the Special Counsel determines that disciplinary action 

should be taken against an employee for having committed a prohibited personnel practice or other misconduct within OSC’s purVerDate 0ct 31 2002 22:15 Nov 22, 2002 Jkt 019118 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\SR349.XXX SR349
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80 5 U.S.C. § 1215. 81Special Counsel v. Santella, 65 M.S.P.R. 452 (1994). 82 5 U.S.C. §§ 1214 and 1221. See also 135 Cong. Rec. 4509, 4517, 5033 (1989). 83Kaplan, supra note 79. 84Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). 

view, the Special Counsel shall present a written complaint to the 

MSPB, and then the Board may issue an order taking disciplinary 

action against the employee.80

However, under MSPB case law, OSC bears the burden of demonstrating that protected activity was the ‘‘but-for cause’’ of an adverse personnel action against a whistleblower—in other words, if 

the whistleblowing activity had not occurred, then that manager 

would not have taken the adverse personnel action.81 This is a 

heavy burden to meet. In 1989, Congress had lowered the burden 

of proof for whistleblowers to win corrective action when they were 

retaliated against. The 1989 Act eliminated the relevance of employer motives, eased the standard to establish a prima facie case 

(showing that the protected speech was a contributing factor in the 

action), and reversed the burden for agencies who must now provide independent justification for the personnel action at issue by 

clear and convincing evidence.82 However, the 1989 statutory language only established burdens for defending against retaliation. It 

failed to address disciplinary actions. As a result, the Board has on 

many occasions ruled that whistleblower reprisal had been proven 

for purposes of providing relief to the employees, but rejected OSC’s 

claim for disciplinary action against the managers in the same 

case. 

The Special Counsel has written that MSPB case law relating to 

OSC’s disciplinary authority should be overturned. She explained: ‘‘change is necessary in order to ensure that the burden of proof in 

these [disciplinary] cases is not so onerous as to make it virtually 

impossible to secure disciplinary action against retaliators.’’ 83

The bill addresses the burden of proof problem in OSC disciplinary action cases by employing the same burden-of-proof as was set 

forth by the Supreme Court in Mt. Healthy v. Doyle.84 Under the 

Mt. Healthy test, if it were made applicable in a disciplinary case, 

OSC would have to show that protected whistleblowing was a 

‘‘significant, motivating factor’’ in the decision to take or threaten 

to take a personnel action. If OSC made such a showing, the MSPB 

would order appropriate discipline unless the official showed, ‘‘by 

a preponderance of evidence,’’ that he or she would have taken or 

threatened to take the same personnel action even if there had 

been no protected whistleblower disclosure. 

Other provisions 

Anti-gag provisions 

In 1988, Senator Grassley attached an appropriations rider to 

the Treasury, Postal and General Government bill, which has been 

referred to as the ‘‘anti-gag’’ provision. This provision has been included in spending legislation every year since then. The annual 

anti-gag provision states that no appropriated funds may be used 

to implement or enforce agency non-disclosure policies or agreements unless there is a specific, express statement informing employees that the disclosure restrictions do not override their right 

to disclose waste, fraud, and abuse under the WPA, to commuVerDate 0ct 31 2002 22:15 Nov 22, 2002 Jkt 019118 PO 00000 Frm 00025 Fmt 6659 Sfmt 6602 E:\HR\OC\SR349.XXX SR349
22

85 Hearing, supra note 73. 86 Hesse v. State, 217 F. 3d 1372 (Fed. Cir. 2000). 

nicate with Congress under the Lloyd Lafollette Act, and to make 

appropriate disclosures under other particular laws specified in the 

addendum. This bill would institutionalize the anti-gag provision 

by codifying it and making it enforceable. 

Specifically, S. 3070 would require that every ‘‘nondisclosure policy, form, or agreement of the Government shall contain’’ the specific addendum set forth in the legislation informing employees of 

their rights. A nondisclosure policy, form or agreement that does 

not contain the required statement ‘‘may not be implemented or enforced to the extent * * * inconsistent with that statement.’’

Furthermore, the bill makes it a prohibited personnel practice for 

any manager to ‘‘implement or enforce any nondisclosure policy, 

form, or agreement’’ that does not contain the specific statement 

mandated in the bill. Making it a prohibited personnel practice 

means that the anti-gag requirement is enforceable by the OSC 

and the MSPB, and any employee can seek protection from these 

agencies against a personnel action taken in violation of the antigag requirement. 

Board review of actions relating to security clearance 

At the Subcommittee’s hearing on S. 955, Senator Grassley testified about his concern that a whistleblower’s security clearance can 

be used as a means of retaliation. He stated:

I am aware of several instances where a whistleblower’s 

security clearance has been pulled as a means of retaliation. The pulling of a security clearance effectively fires 

employees. A whistleblower does not have rights to a 

third-party proceeding in these instances. I think this matter needs to be reviewed and it should be possible to find 

a balance between the legitimate security concerns of the 

government and ensuring that pulling a security clearance 

is not used as a back door to get whistleblowers.85

In 2000, the Federal Circuit held that the MSPB lacks jurisdiction over an employee’s claim that his security clearance was revoked in retaliation for whistleblowing.86 It held that the MSPB 

may neither review a security clearance determination nor require 

the grant or reinstatement of a clearance, and that the denial or 

revocation of a clearance is not a personnel action. 

As a result of this decision, an employee’s security clearance can 

be suspended or revoked in retaliation for making protected disclosures, the employee with a suspended or revoked clearance can be 

terminated from his or her federal government job, and MSPB may 

not review the revocation. According to the OSC, revocation of a security clearance is a way to camouflage retaliation. At the hearing 

on S. 955, Senator Levin asked the Special Counsel about ‘‘a situation where a federal employee can blow the whistle on waste, fraud 

or abuse, and then, in retaliation for so doing, have his or her security clearance withdrawn and then be fired because he or she no 

longer has a security clearance.’’ The Special Counsel, as part of 

her response, said:

23

87 Hearing, supra note 73, at 24 (testimony of Hon. Elaine Kaplan). 88Dept. of Navy v. Egan, 484 U.S. 518, 530 (1988) (citations omitted). 

It is sort of Kafkaesque. If you are complaining about 

being fired, and then one can go back and say, ‘‘Well, you 

are fired because you do not have your security clearance 

and we cannot look at why you do not have your security 

clearance,’’ it can be a basis for camouflaging retaliation.87

To address this situation, S. 3070 makes it a prohibited personnel practice for a manager to suspend, revoke or take other action with respect to an employee’s security clearance in retaliation 

for the employee blowing the whistle. The bill specifies that the 

MSPB, or a reviewing court, may issue declaratory and other appropriate relief. But the legislation is clear that the MSPB or a reviewing court may not direct the President to restore a security 

clearance. 

Appropriate relief may include back pay, an order to reassign the 

employee, attorney fees, and any other relief the Board or court is 

authorized to provide for other prohibited personnel practices. In 

addition, if the Board finds the action illegal, it may bar the agency 

from directly or indirectly taking any other personnel action based 

on the illegal security clearance action. The bill also requires agencies to issue a report to Congress detailing the circumstances of the 

agency’s security clearance decision and provides for expedited review of whistleblower cases by the OSC, the MSPB and the reviewing court where a security clearance was revoked or suspended. 

The latter is important because a person whose clearance has been 

suspended or revoked, and whose job responsibilities require clearance, may be unable to work while his or her case is being considered. 

In drafting this provision, the Committee has worked with the 

Administration to produce a fair and balanced approach to solving 

this problem. Despite the Committee’s efforts, the Administration 

still has some concerns over this provision. In particular, the Administration asserts that this provision is a substantial intrusion 

into Executive Branch prerogatives to control national security information and those who have access to it. It is important to note, 

however, that in Department of Navy v. Egan, the Supreme Court, 

while expressing a reluctance to intrude on its own initiative upon 

military and national security affairs, explicitly acknowledged the 

role of the Congress in national security issues, stating that ‘‘unless 

Congress has specifically provided otherwise, courts traditionally 

have been reluctant to intrude upon the authority of the Executive 

in military and national security affairs.’’ 88

The Administration has also averred that inclusion of this protection would induce more employees to challenge and litigate security 

clearance determinations and, as a result, will deter managers 

from making their best judgments on these sensitive issues. 

The Committee, however, believes that the language in this provision strikes the right balance and would not chill a manager’s 

willingness to deny or revoke a clearance. It bears repeating that, 

under this bill, the Executive Branch retains the authority to ignore the MSPB’s recommendations—there is no authority under 

this bill to direct that a security clearance be restored. 

24

89 Id. 90 5 U.S.C. § 1214(g). 91See, e.g., 42 U.S.C. § 1981a. 92S. Rep. No. 95–969, at 114–15 (1978), reprinted in 1978 USCCAN 2723, 2837. 93 In re Frazier, 1 M.S.P.R. 259, 268 and n.4 (1979) (stating ‘‘Clearly, the Board ultimately 

has the power under its broad corrective action authority to order a federal employee made 

whole if it is found on appeal that the employee has been subject to a prohibited personnel practice. See 5 U.S.C. § 1206(c)(1)(B)). 94See Bennett v. Dept of Navy, 699 F.2d 1140 (Fed. Cir. 1983); O’Donnell v. Dept. of Interior,

2 M.S.P.R. 445 (1980); and Wiatr v. Dept. of Air Force, 50 M.S.P.R. 441 (1991). 95 5 U.S.C. § 1221(g)(1)(A)(ii). 

The Administration has also claimed that MSPB has no expertise 

in making decisions on clearances. However, under this bill, the 

MSPB would not be making decisions relative to clearances. Rather, the decisions would relate to whether a disclosure is protected 

and whether there exists the proper nexus between the disclosure 

and the personnel action of denying or revoking a clearance. Such 

a determination is analogous to MSPB’s current duties and is 

squarely within its expertise. For this reason, the provision is also 

consistent with U.S. Supreme Court precedent in Department of 

Navy v. Egan, which held that the Board does not have statutory 

authority to review the substance of an underlying security-clearance determination in the course of reviewing an adverse action, 

and that such review cannot be presumed merely because the statute does not expressly preclude it.89

Compensatory damages 

When the Board imposes corrective action, the statute now expressly authorizes ‘‘reimbursement * * * for reasonable and foreseeable consequential damages,’’ but it does not make express reference to ‘‘compensatory damages.’’ 90 The 1978 Civil Service Reform Act gives the Board broad authority to impose appropriate 

corrective action, but the law does not specify traditional terms 

such as compensatory damages, which are explicit in equivalent 

civil rights remedial statutes providing ‘‘make whole’’ relief.91 This 

was not a particular problem, because the 1978 legislative history 

made clear the statute provides for a comprehensive ‘‘make whole’’ remedy: A prevailing employee is entitled ‘‘to be made whole for 

any of the losses found to have been suffered by the employee.’’ 92

The Board also reaffirmed its authority to order that an employee 

be ‘‘made whole’’ for any damages incurred as a result of a prohibited personnel practice.93

A dispute arose, however, concerning litigation costs for prevailing appellants. The Federal Circuit and Board permitted reimbursement for items like attorney time and photocopying, but not 

deposition transcript costs, printing costs and witness fees. In addition, reimbursement for telephone charges for witnesses depended 

on whether the attorney or the client made the call.94 In the 1994 

amendments, Congress sought to close remaining loopholes and 

provide relief for ‘‘back pay and related benefits, medical costs incurred, travel expenses, and any other reasonable and foreseeable 

consequential changes.’’ 95 The legislative history for this provision 

again stressed that employees are to be made whole. During debate 

over the 1994 amendments, Congressman Frank McCloskey said 

that ‘‘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 

25

96 140 Cong. Rec. H11421 (daily ed. Oct. 7, 1994). 97S. Rep. No. 103–358, at 11 (1994). 98Kinney v. Dept. of Agriculture, 82 M.S.P.R. 338 (1999). See also Bohac v. Dept. of Agriculture, No. 99–3306 (Fed. Cir. 2001). 99See the Civil Rights Act of 1991 42 U.S.C. § 1981a; Fitzgerald v. VA, 121 F.3d 203, 207 (5th 

Cir. 1997); Martin v. Department of Air Force, 73 M.S.P.R. 590, 594–96 (1997); Callagan v. Dept. 

of Agriculture, 74 M.S.P.R. 4, 6 (1997). 100See the Clean Air Act, 42 U.S.C. § 7622(b)(2)(B); Safe Drinking Water Act, 42 U.S.C. 

§ 300j–9(ii); and Toxic Substances Control Act, 15 U.S.C. § 2622(b)(2)(B). 101 Intelligence Authorization Act for FY 1999, Pub. L. No. 105–272, title VII (1998) 

(‘‘Intelligence Community Whistleblower Protection Act of 1998’’). 

system reprisal had not occurred. Too many employees who win 

their cases find their victories to be pyrrhic.’’ 96 In addition, the 

Senate Report accompanying the 1994 amendments stated that 

‘‘the Board [could] order corrective action [to] make, as nearly as 

possible, the individual whole.’’ 97 Despite Congressional intent, 

MSPB and the Federal Circuit have narrowed the scope of relief— finding that nonpecuniary damages, such as pain and suffering or 

emotional distress are not included.98 However, compensatory damages are already authorized for federal employees under the civil 

rights acts 99 and for environmental and nuclear whistleblowers, 

among others, under other federal statutes.100 Accordingly, the bill 

would clarify that whistleblowers are eligible to receive 

‘‘compensatory’’ damages, as well as the consequential damages 

that are already stated in the statute. 

Classified disclosures to Congress 

The bill amends 5 U.S.C. § 2302(b)(8) to provide whistleblower 

protections for certain disclosures of classified information to Congress. A whistleblower must limit the disclosure to a member of 

Congress who is authorized to receive the information disclosed or 

congressional staff who holds the appropriate security clearance 

and is authorized to receive the information disclosed. In order for 

a disclosure of classified information to be protected, the employee 

must possess a reasonable belief that the disclosure is direct and 

specific evidence of a violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, a substantial and specific danger to public health or safety, or a false 

statement to Congress on an issue of material fact. 

The language in this bill is very similar to a provision ordered 

reported by the Senate Armed Services Committee in 1997 as section 1068 of S. 924, the National Defense Authorization bill for FY 

1998. In 1998, another similar measure, containing provisions affecting the Intelligence Community, was reported by the Intelligence Committee and passed the Senate by a vote of 93 to 1, as 

section 501 of S. 2052, the Intelligence Authorization bill for FY 

1999. The Senate provision was not contained in the enacted legislation, which instead incorporated a modified version of provisions 

that passed the House. Those enacted provisions established a secure process by which a whistleblower in the Intelligence Community intending to disclose wrongdoing to Congress may initially report to the appropriate inspector general, and then, if the information is not transmitted to the Intelligence Committees through that 

process, may contact the Intelligence Committees directly.101 The 

conferees explained that this measure ‘‘establishes an additional

process to accommodate the disclosure of classified information of 

interest to Congress,’’ and emphasized that the new provision ‘‘is 

26

102 H.R. Rep. No. 105–760 (1998) (emphasis added). 103S. Rep. No. 105–165 (1998). 104 5 U.S.C. § 2302(a)(2)(B). 105 Id. 106 Id. 107See Czarkowski v. Dept. of Navy, Docket No. DC–1221–99–0547–B–1. The agency invoked 

the exemption after the Board rejected an earlier effort to avoid litigation on a different basis 

and ordered a hearing, Czarkowski v. Dept. of the Navy, 87 M.S.P.R. 107 (2000). 

not the exclusive process by which an Intelligence Community employee may make a report to Congress.’’ 102

The Senate Intelligence Committee had held hearings and reported out legislation in 1998 containing these same provisions, S. 

1668. In its report, the Intelligence Committee described its consideration of constitutional and other ramifications of the legislation. 

That Committee was persuaded that the regulation of national security information, while implicit in the command authority of the 

President, is equally implicit in the national security and foreign 

affairs authorities vested in Congress by the Constitution. The Intelligence Committee was further persuaded that the provision was 

constitutional because it did not prevent the President from accomplishing his constitutionally assigned functions, and because any 

intrusion upon his authority is justified by an overriding need to 

promote objectives within the constitutional authority of Congress.103

The provision in S. 3070 is intended to ensure that Congress receives the information necessary to fulfill its constitutional oversight responsibilities, while protecting employees from adverse actions based on what was considered an unauthorized disclosure to 

Congress, and also retaining appropriate security-related restrictions in defining the individuals to whom classified information 

may be disclosed. 

Ex post facto agency loophole amendment 

The WPA provides that certain employees and agencies are exempt from the Act. Employees excluded from the Act include those 

in positions exempted from the competitive service because of their 

confidential, policy-determining, policy-making, or policy advocating character and those employees excluded by the President if 

necessary and warranted by conditions of good administration.104

Certain agencies are also excluded from the Act. They include the 

General Accounting Office, the Federal Bureau of Investigation the 

Central Intelligence Agency, the National Security Agency, and 

other agencies determined by the President to have the principal 

function of conducting foreign intelligence or counterintelligence activities.105

In 1994 Congress amended the WPA to block agencies from designating particular positions as confidential policymaker exceptions 

after the employees filed prohibited personnel practice complaints. 

As a result, Congress restricted this jurisdictional loophole to positions designated as exceptions ‘‘prior to the personnel action.’’ 106

Unfortunately, a similar practice has occurred again, in a context 

with far broader consequences. An agency was exempted from the 

Act over a year into whistleblower litigation, and only after the 

Board had overturned an Administrative Judge’s decision to order 

a hearing.107 S. 3070 would close the loophole for agencies in the 

same manner as Congress did for positions in 1994, by specifying 

27

that an agency may be excluded under the Act only prior to the 

personnel action taking place. 

III. LEGISLATIVE HISTORY

S. 3070 was introduced by Senator Daniel Akaka and Senator 

Carl Levin on October 8, 2002, and was referred to the Committee 

on Governmental Affairs. The bill builds on provisions of S. 2829, 

which was introduced by Senator Akaka on July 31, 2002, to reauthorize appropriations for the MSPB and OSC and make changes 

to the WPA, and of S. 995, which was introduced by Senators 

Akaka, Levin, and Grassley on June 7, 2001, to make amendments 

to the WPA. S. 2829 and S. 995 were referred to the Subcommittee 

on International Security, Proliferation and Federal Services. A 

hearing on S. 995 was held before the Subcommittee on July 25, 

2001. The witnesses included Senator Grassley, Special Counsel 

Elaine Kaplan, Merit Systems Protection Board Chair Beth Slavet, 

and Thomas Devine of the Government Accountability Project. The 

Department of Justice was invited to testify, but declined. Written 

testimony was submitted by the Department. 

On September 23, 2002, representatives from the MSPB and 

OSC met with Governmental Affairs Committee staff to discuss the 

reauthorization of OSC and MSPB. Tim Hannapel, Deputy Special 

Counsel, and Jane McFarland, Director of Congressional and Public Affairs, represented the OSC. MSPB was represented by Chief 

of Staff Richard Banchoff, General Counsel Lynn Jennings, Legislative Counsel Rosalyn Wilcots, Budget Officer Doug Wade, and 

Steve Nelson, the Director of the Office of Policy and Evaluation. 

On October 8, 2002, the Subcommittee on International Security, 

Proliferation, and Federal Services favorably polled out the language of S. 3070. On October 9, 2002, the Committee met in open 

session and ordered favorably reported the bill, S. 3070, without 

amendment unanimously by rollcall vote. Present and voting in the 

affirmative were Senators Akaka, Levin, Durbin, Torricelli, 

Cleland, Carnahan, Carper, Dayton, and Lieberman. 

IV. REGULATORY IMPACT STATEMENT

Paragraph 11(b)(1) of rule XXVI of the Standing Rules of the 

Senate requires that each report accompanying a bill evaluate the 

‘‘regulatory impact which would be incurred in carrying out this 

bill.’’ The Committee has determined that the enactment of this 

legislation will not have significant regulatory impact. 

V. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and with section 403 of the Congressional 

Budget Act of 1974, 2 U.S.C. § 653, the Committee sets forth the 

following cost estimate with respect to S. 3070 submitted to the 

Committee by the Congressional Budget Office:

28

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, November 18, 2002. 

Hon. JOSEPH I. LIEBERMAN, 

Chairman, Committee on Governmental Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 3070, a bill to authorize appropriations for the Merit Systems Protection Board and the Office 

of Special Counsel, and for other purposes. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

BARRY B. ANDERSON

(For Dan L. Crippen, Director). 

Enclosure. 

S. 3070—A bill to authorize appropriations for the Merit Systems 

Protection Board and the Office of Special Counsel, and for 

other purposes 

Summary: S. 3070 would authorize appropriations for the Merit 

Systems Protection Board (MSPB) and the Office of Special Counsel (OSC) for fiscal years 2003 through 2007. The bill also would 

make several amendments to the laws governing the MSPB and 

the OSC and would clarify the employment protections and rules 

that apply to employees who disclose government waste, fraud, and 

abuse. 

Based on the amounts appropriated for these agencies in 2002 

and assuming adjustments for anticipated inflation, CBO estimates 

that implementing this legislation would cost $242 million over the 

2003–2007 period. Enacting S. 3070 would not affect direct spending or revenues. The bill contains no intergovernmental or privatesector mandates as defined in the Unfunded Mandates Reform Act 

(UMRA) and would not affect the budgets of state, local, or tribal 

governments. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 3070 is shown in the following table. The costs 

of this legislation fall within budget function 800 (general government).

By fiscal year, in millions of dollars—

2003 2004 2005 2006 2007

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 1

Merit Systems Protection Board: 

Estimated Authorization Level ............................................................. 32 33 34 34 37

Estimated Outlays ................................................................................ 31 31 33 34 36

Office of Special Counsel: 

Estimated Authorization Level ............................................................. 12 13 13 14 14

Estimated Outlays ................................................................................ 12 13 13 14 14

Compensatory Damage Awards: 

Estimated Authorization Level ............................................................. 1 2 2 2 2

Estimated Outlays ................................................................................ 1 2 2 2 2

Total Changes: 

Estimated Authorization Level ............................................................. 45 48 49 50 53

Estimated Outlays ................................................................................ 44 48 48 50 52

1 A full-year appropriation has not yet been enacted for the MSPB and the OSC. In fiscal year 2002, MSPB received an appropriation of 

$31 million and OSC received an appropriation of $12 million. 

29

Basis of Estimate: For this estimate, CBO assumes that the bill 

will be enacted in fiscal year 2003 and that the amounts necessary 

to operate the MSPB and OSC at the same level provided in 2002 

will be appropriated for each fiscal year, including adjustments for 

anticipated inflation. Outlay estimates are based on historical 

spending patterns for the agencies. 

When implementing corrective actions to settle an employment 

dispute between the federal government and its employees regarding prohibited personnel practices, federal agencies are required to 

spend appropriated funds to pay for an employee’s attorney’s fees, 

back pay, and any associated travel and medical costs. Under S. 

3070, federal employees would be authorized to receive additional 

compensatory damages, including pain and suffering, for employment disputes brought under the Whistleblower Protection Act. 

CBO cannot estimate the cost of compensatory damage awards 

in such cases because the amount awarded would depend on the 

particular circumstances of each case and the frequency of cases involving such damages. The OSC is involved in settling an average 

of 75 disputes under the Whistleblower Protection Act each year. 

Settlement amounts range from about $20,000 to $200,000. While 

it is uncertain how often compensatory damages would be awarded 

in such cases, the OSC expects such awards could more than double the cost of some settlements. Hence, CBO expects this provision 

would add a few million dollars each year to the cost of agency settlements, which are paid from individual agency appropriations. 

Intergovernmental and private-sector impact: The bill contains 

no intergovernmental or private-sector mandates as defined in 

UMRA and would not affect the budgets of state, local, or tribal 

governments. 

Estimate prepared by: Federal Costs: Matthew Pickford; Impact 

on State, Local, and Tribal Governments: Susan Sieg Tompkins; 

and Impact on the Private Sector: Paige Piper/Bach. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

VI. SECTION-BY-SECTION ANALYSIS AND DISCUSSION

SECTION 1

Reauthorizes appropriations for the Office of Special Counsel and 

the Merit Systems Protection Board through fiscal year 2007. 

SECTION 2

Removes the requirement for OSC to return all documents to the 

whistleblower in all disclosure cases that are closed without referral to an agency head. OSC currently devotes 85 hours of monthly 

full-time-equivalent employee time to meet this statutory requirement which could otherwise be devoted to processing. In addition, 

OSC spends almost $5,000 a year on paper and mailing costs associated with the requirement. Added to the salary costs, this provision would save more than $20,000 annually. OSC would still be 

required to return all documentation provided by the whistleblower, if requested, under the Freedom of Information Act. 

30

108Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999). 

SECTION 3

Clarification of disclosures covered 

The bill reaffirms and codifies the WPA’s fundamental principle 

that ‘‘any’’ lawful disclosure that the employee or applicant reasonably believes is credible evidence of waste, fraud, abuse, or gross 

mismanagement is covered by the WPA. The bill amends 5 U.S.C. 

§§ 2302(b)(8)(A) and 2302(b)(8)(B) to cover any disclosure of information ‘‘without restriction to time, place, form, motive or context, 

or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties that the employee or applicant reasonably believes 

is credible evidence of any violation of any law, rule, or regulation, 

or other misconduct specified in section 2302(b)(8).’’ This section also amends 5 U.S.C. § 2302(b)(8) to subject certain 

disclosures of classified information to whistleblower protections. In 

order for a disclosure of classified information to be protected, the 

employee must possess a reasonable belief that the disclosure is 

evidence of a violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, a substantial 

and specific danger to public health or safety, or a false statement 

to Congress on an issue of material fact. A whistleblower must also 

limit the disclosure to a member of Congress or staff holding the 

appropriate security clearance who is authorized to receive the information disclosed. 

Covered disclosures 

This section clarifies the meaning of ‘‘disclosure’’ to mean a formal or informal communication or transmission. 

Rebuttable presumption 

The U.S. Court of Appeals for the Federal Circuit has imposed 

a clearly erroneous standard on federal whistleblowers. Under the 

clear language of the statute, an employee need only have ‘‘a reasonable belief’’ that he or she is providing evidence of fraud, waste 

or abuse before making a protected disclosure. However, the Court 

of Appeals for the Federal Circuit ruled that reasonable belief was 

insufficient and held that ‘‘irrefragable proof’’ was needed for a 

whistleblower to overcome the ‘‘presumption that a public officer 

performed their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations.’’ 108 Irrefragable 

means ‘‘undeniable, incontestable, incontrovertible, incapable of 

being overthrown.’’ The irrefragable standard is nearly impossible 

to meet. Further, there is nothing in the law or the legislative history that suggests such a standard with respect to the WPA. The 

amendment to 2302(b) provides that a whistleblower can rebut the 

presumption with ‘‘substantial evidence.’’

Nondisclosure policies, security clearances, and retaliatory investigations 

Personnel actions 

This section amends 5 U.S.C. § 2302(a)(2)(A) to add three new 

personnel actions. The amendment makes—

31

the enforcement of any nondisclosure policy, form or agreement; the suspension, revocation, or other determination 

relating to a security clearance; and an investigation of an 

employee or applicant for employment—

illegal if taken because a whistleblower makes a protected disclosure. 

Prohibited personnel practice 

This section amends 2302(b), adding two prohibited personnel 

practices to the whistleblower law. Congress repeatedly has reaffirmed its intent that employees should not be forced to sign disclosure agreements or be subjected to nondisclosure rules or policies that supercede an employee’s rights under good government 

statutes. Moreover, Congress has consistently supported the concept that federal employees should not be subject to prior restraint 

from disclosing wrongdoing nor suffer retaliation for speaking out. 

This section first codifies an ‘‘anti-gag’’ provision that Congress has 

passed annually since 1988 as part of the appropriations process. 

It bans agencies from implementing or enforcing any nondisclosure 

policy, form or agreement that does not contain specified language 

preserving open government statutes such as the WPA, the Military Whistleblower Protection Act, and the Lloyd Lafollette Act, 

which prohibits discrimination against government employees who 

communicate with Congress. 

Second, this section makes it illegal for a manager to initiate an 

investigation of an employee or applicant for employment because 

they engaged in a protected activity (including whistleblowing) 

under the statute. 

Board and court review of actions relating to security clearance 

By adding ‘‘the suspension, revocation, or other determination relating to a security clearance’’ to the list of personnel actions in 

2302(a)(2)(A), the amendment makes it a prohibited personnel 

practice for a manager to suspend, revoke or take other action with 

respect to an employee’s security clearance in retaliation for the 

employee blowing the whistle. However, the amendment limits the 

relief that the MSPB and reviewing court can order if it is demonstrated that such retaliation has occurred. The amendment adds 

a new section after 5 U.S.C. §7702 stating that the MSPB or the 

reviewing court may issue declaratory and other appropriate relief, 

but may not direct the President to restore a security clearance. In 

cases where the MSPB or court declares that a security clearance 

decision was made in retaliation for an employee blowing the whistle, the agency must issue a report to Congress detailing the circumstances of the agency’s security clearance decision. The amendment also provides for expedited review of whistleblower cases 

where a security clearance was revoked or suspended. 

Exclusion of agencies by the President 

Certain employees are not covered by the WPA, including those 

who hold ‘‘confidential policy-making positions.’’ In 1994 Congress 

amended the WPA to stop agencies from designating employees 

confidential policymakers after the employees filed whistleblower 

complaints. Under the WPA, the President has the authority to 

32

designate agencies that are outside WPA protections. Section 

2302(a)(2)(C) allows the President to exclude from WPA jurisdiction 

‘‘any agency or unit thereof the principal function of which is the 

conduct of foreign intelligence or counterintelligence activities.’’ The 

amendment maintains that authority but clarifies that the designation must be made prior to a personnel action being taken against 

a whistleblower. This ensures that agencies cannot argue that an 

employee is exempt from whistleblower protections after the employee files a claim that they were retaliated against. 

Attorney fees 

The amendment would require the employing agency, not the 

OSC, to reimburse the prevailing party for attorney fees in a disciplinary proceeding brought by the OSC. 

Compensatory damages 

In the 1994 WPA amendments, Congress attempted to expand 

relief for whistleblowers by providing that whistleblowers could receive all direct or indirect consequential damages. Despite Congressional intent, the Board and the Federal Circuit have narrowed the 

scope of relief. The amendment would clarify 5 U.S.C. §1214(g)(2) 

to provide whistleblowers relief for ‘‘compensatory or consequential 

damages.’’

Disciplinary action 

The WPA authorizes the OSC to pursue disciplinary action 

against managers who retaliate against whistleblowers. This section establishes a reasonable burden of proof for such actions. It 

amends 5 U.S.C. §1215 to require the OSC to demonstrate in disciplinary cases that the whistleblower’s protected disclosure was a 

‘‘significant motivating factor’’ in the decision by a manager to take 

or threaten to take a personnel action against them. If OSC makes 

such a showing, appropriate disciplinary action could be ordered 

unless the official showed, by a preponderance of the evidence, that 

he or she would have taken, or threatened to take, the same personnel action even if there had been no disclosure. 

Disclosures to Congress 

This section amends 5 U.S.C. § 2302 to require agencies to establish a process to provide confidential advice to employees on how 

to lawfully make a protected disclosure of classified information to 

Congress. 

Authority of Special Counsel relating to civil actions 

Representation of Special Counsel 

Current law provides the Office of Special Counsel with no authority to request the MSPB to reconsider one of its decisions or 

to seek review of an MSPB decision by the U.S. Court of Appeals 

for the Federal Circuit. Even when another party with authority to 

petition for a review of a MSPB decision does so, OSC has historically been denied the right to participate in those proceedings. This 

section amends 5 U.S.C. §1212 to provide explicit authority for the 

Office of Special Counsel to appear in any civil action brought in 

connection with the whistleblower law. 

33

Judicial review of Merit Systems Protection Board decisions 

When the OSC believes that MSPB misinterprets one of the laws 

within OSC’s jurisdiction, the OSC has no right to appeal that decision, even if it was one of the parties before the MSPB. Under current law, while the OPM can request that the MSPB reconsider its 

rulings, OSC cannot. The limitation undermines both OSC’s ability 

to protect whistleblowers and the integrity of the whistleblower 

law. This section provides OSC with the authority to obtain review 

in the U.S. Court of Appeals for the Federal Circuit or a court of 

competent jurisdiction of any MSPB order in a whistleblowing case 

where the OSC determines the MSPB erred and the case will have 

an impact on the enforcement of the whistleblower statute. 

Judicial review

Subject to a five year sunset, this section suspends the exclusive 

jurisdiction of the U.S. Court of Appeals for the Federal Circuit 

over whistleblower appeals. It amends 5 U.S.C. §7703 to provide 

that a petition to review a final order or final decision of the MSPB 

may be filed in the U.S. Court of Appeals for the Federal Circuit 

or the United States Court of Appeals where the petitioner resides. 

NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS

This section requires agencies to include in their nondisclosure 

policies, forms and agreements a statement that informs employees 

of their statutory obligations and rights with regards to disclosing 

information. It also institutes a government-wide ban on agency 

implementation or enforcement of any nondisclosure policy, form or 

agreement that does not contain the specified language preserving 

open government statutes such as the WPA, the Military Whistleblower Protection Act, and the Lloyd Lafollette Act, which prohibit 

discrimination against government employees who communicate 

with Congress. The ban is limited to those instances where the implementation or enforcement conflicts with the enumerated open 

government statutes. This section also requires that nondisclosure 

agreements with persons who are not federal employees but who 

are connected with intelligence related activities must contain language barring the person from disclosing any classified information 

unless they are specifically authorized to do so by the United 

States Government. The nondisclosure agreements must also make 

it clear that the agreement does not bar disclosures of a substantial 

violation of law to Congress, an authorized executive agency, or the 

Department of Justice. 

VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 12 of rule XXVI of the Rules of the 

United States Senate, changes in existing law made by the bill, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new matter is printed in italics, existing law in which no change is proposed is shown in roman): 

WHISTLEBLOWER PROTECTION ACT OF 1989 

* * * * * * * 

34

(5 U.S.C. 5509 note, Public Law 101–12; 103 Stat. 34) 

* * * * * * * 

SEC. 8. AUTHORIZATION of APPROPRIATIONS; RESTRICTION RELATING TO APPROPRIATIONS UNDER THE CIVIL SERVICE REFORM ACT OF 1978; TRANSFER OF FUNDS 

(a) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to 

be appropriated, out of any moneys in the Treasury not otherwise 

appropriated— (1) for each of fiscal years ø1998, 1999, 2000, 2001, and 

2002¿ 2003, 2004, 2005, 2006, and 2007 such sums as necessary to carry out subchapter I of chapter 12 of title 5 United 

States Code (as amended by this Act); and 

(2) for each of fiscal years ø1993, 1994, 1995, 1996, and 

1997¿ 2003, 2004, 2005, 2006, and 2007 such sums as necessary to carry out subchapter II of chapter 12 of title 5, 

United States Code (as amended by this Act). 

* * * * * * * 

TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES 

PART II—CIVIL SERVICE FUNCTIONS AND 

RESPONSIBILITIES 

CHAPTER 12—MERIT SYSTEMS PROTECTION BOARD, 

OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT 

OF ACTION 

Subchapter I—Merit Systems Protection Board 

SEC. 1204. POWERS AND FUNCTIONS OF THE MERIT SYSTEMS PROTECTION BOARD. 

* * * * * * * 

(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 øagency involved¿ agency where the prevailing party is employed or has applied for employment 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. 

Subchapter II—Office of Special Counsel 

SEC. 1213. PROVISIONS RELATING TO DISCLOSURES OF VIOLATIONS 

OF LAW, GROSS MISMANAGEMENT, AND CERTAIN OTHER 

MATTERS. 

* * * * * * *

35

(g)(1) If the Special Counsel receives information of a type described in subsection (a) from an individual other than an individual described in subparagraph (A) or (B) of subsection (c)(2), the 

Special Counsel may transmit the information to the head of the 

agency which the information concerns. The head of such agency 

shall, within a reasonable time after the information is transmitted, inform the Special Counsel in writing of what action has 

been or is being taken and when such action shall be completed. 

The Special Counsel shall inform the individual of the report of the 

agency head. øIf the Special Counsel does not transmit the information to the head of the agency, the Special Counsel shall return 

any documents and other matter provided by the individual who 

made the disclosure.¿

(2) If the Special Counsel receives information of a type described 

in subsection (a) from an individual described in subparagraph (A) 

or (B) of subsection (c)(2), but does not make a positive determination under subsection (b), the Special Counsel may transmit the information to the head of the agency which the information concerns, except that the information may not be transmitted to the 

head of the agency without the consent of the individual. The head 

of such agency shall, within a reasonable time after the information is transmitted, inform the Special Counsel in writing of what 

action has been or is being taken and when such action will be 

completed. The Special Counsel shall inform the individual of the 

report of the agency head. 

ø(3) If the Special Counsel does not transmit the information to 

the head of the agency under paragraph (2), the Special Counsel 

shall—(A) return any documents and other matter provided by the 

individual who made the disclosure; and (B) inform the individual 

of—(i) the reasons why the disclosure may not be further acted on 

under this chapter; and (ii) other offices available for receiving disclosures, should the individual wish to pursue the matter further.¿

(3) If the Special Counsel does not transmit the information to the 

head of the agency under paragraph (2), the Special Counsel shall 

inform the individual of—

(A) the reasons why the disclosure may not be further acted 

on under this chapter; and 

(B) other offices available for receiving disclosures, should the 

individual wish to pursue the matter further. 

SEC. 1212. POWERS AND FUNCTIONS OF THE OFFICE OF SPECIAL 

COUNSEL. 

(a) The Office of Special Counsel shall—

* * * * * * * 

(h) Except as provided in section 518 of title 28, relating to litigation before the Supreme Court, attorneys designated by the Special 

Counsel may appear for the Special Counsel and represent the Special Counsel in any civil action brought in connection with section 

2302(b)(8) or subchapter III of chapter 73, or as otherwise authorized by law. 

SEC. 1214 INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; 

CORRECTIVE ACTION. 

* * * * * * * 

(g) If the Board orders corrective action under this section, such 

corrective action may include—

36

(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 compensatory or consequential 

damages. 

SEC. 1215. DISCIPLINARY ACTION. 

* * * * * * * 

ø(3) A final order of the Board may impose disciplinary action consisting of removal, reduction in grade, debarment from 

Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.¿

(3)(A) A final order of the Board may impose disciplinary action consisting of removal, reduction in grade, debarment from 

Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1000. 

(B) In any case in which the Board finds that an employee 

has committed a prohibited personnel practice under section 

2303(b) (8) or (9), the Board shall impose disciplinary action if 

the Board finds that protected activity was a significant motivating factor in the decision to take, fail to take, or threaten to 

take or fail to take a personnel action, unless that employee 

demonstrates, by preponderance of evidence, that the employee 

would have taken, failed to take, or threatened to take or fail 

to take the same personnel action, in the absence of such protected activity. 

PART III—EMPLOYEES 

Subpart A—General Provisions 

CHAPTER 23—MERIT SYSTEM PRINCIPLES 

SEC. 2302. PROHIBITED PERSONNEL PRACTICES. 

(a)(1) For the purpose of this title, ‘‘prohibited personnel practice’’

means any action described in subsection (b). 

(2) For the purpose of this section—

(A) ‘‘personnel action’’ means—

(i) an appointment; 

(ii) a promotion; 

(iii) an action under chapter 75 of this title or other disciplinary or corrective action; 

(iv) a detail, transfer, or reassignment;

(v) a reinstatement; 

(vi) a restoration; 

(vii) a reemployment; 

(viii) a performance evaluation under chapter 43 of this 

title; 

(ix) a decision concerning pay, benefits, or awards, concerning education or training if the education or training 

may reasonably be expected to lead to an appointment, 

37

promotion, performance evaluation, or other action described in this subparagraph; 

(x) a decision to order psychiatric testing or examination; 

øand¿

(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement;

(xii) a suspension, revocation, or determination relating 

to a security clearance;

(xiii) an investigation of an employee or applicant for employment because of any activity protected under this section; and

ø(xi)¿ (xiv) any other significant change in duties, responsibilities, or working conditions; with respect to an 

employee in, or applicant for, a covered position in an 

agency, 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; 

* * * * * * * 

(C) ‘‘agency’’ means an Executive agency and the Government Printing Office, but does not include—

(i) a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8); 

ø(ii) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the 

National Imagery and Mapping Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of 

which is the conduct of foreign intelligence or counterintelligence activities; or¿

(ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security 

Agency; and

(II) as determined by the President, any Executive agency 

or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, 

if the determination (as that determination relates to a personnel action) is made before that personnel action; or

(iii) the General Accounting Office. 

(b) Any employee who has authority to take, direct others to 

take, recommend, or approve any personnel action, shall not, with 

respect to such authority—

* * * * * * * 

(8) take or fail to take, or threaten to take or fail to take, 

a personnel action with respect to any employee or applicant 

for employment because of—

(A) any disclosure of information by an employee or 

øapplicant which the employee or applicant reasonably believes evidences,¿ without restriction to time, place, form, 

motive, context, or prior disclosure made to any person by 

an employee or applicant, including a disclosure made in 

38

the ordinary course of an employee’s duties, that the employee or applicant reasonably believes is evidence of—

(i) øa violation¿ any violation of any law, rule, or 

regulation, or 

(ii) gross mismanagement, a gross waste of funds, 

an abuse of authority, or a substantial and specific 

danger to public health or safety, if such disclosure is 

not specifically prohibited by law and if such information is not specifically required by Executive order to 

be kept secret in the interest of national defense or the 

conduct of foreign affairs; or 

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information øwhich the employee or applicant 

reasonably believes evidences,¿ without restriction to time, 

place, form motive, context, or prior disclosure made to any 

person by an employee or applicant, including a disclosure 

made in the ordinary course of an employee’s duties, to the 

Special Counsel, or to the Inspector General of an agency 

or another employee designated by the head of the agency 

to receive such disclosures, of information that the employee 

or applicant reasonably believes is evidence of—

(i) øa violation¿ any violation (other than a violation 

of this section) of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross waste of funds, 

an abuse of authority, or a substantial and specific 

danger to public health or safety; 

(C) a disclosure that— (i) is made by an employee or applicant of information required by law or Executive order to be kept secret in the interest of national defense or the conduct 

of foreign affairs that the employee or applicant reasonably believes is direct and specific evidence of— (I) any violation of any law, rule, or regulation;

(II) gross mismanagement, a gross waste of 

funds, an abuse of authority, or a substantial and 

specific danger to public health or safety; or

(III) a false statement to Congress on an issue of 

material fact; and

(ii) is made to— (I) a member of a committee of Congress having 

primary responsibility for oversight of a department, agency, or element of the Federal Government to which the disclosed information relates 

and who is authorized to receive information of the 

type disclosed; 

(II) any other Member of Congress who is authorized to received information of the type disclosed; or

(III) an employee of Congress who has the appropriate security clearance and is authorized to receive the information disclosed. 

* * * * * * *

39

(11)(A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or 

(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a 

veterans’ preference requirement; øor¿

(12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or 

regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this titleø.¿;

(13) implement or enforce any nondisclosure policy, form, or 

agreement, if such policy, form, or agreement does not contain 

the following statement: ‘‘These provisions are consistent with 

and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive 

Order No. 12958; section 7211 of title 5, United States Code 

(governing disclosures to Congress); section 1034 of title 10, 

United States Code (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5, United States 

Code (governing disclosures of illegality, waste, fraud, abuse, or 

public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and 

the statutes which protect against disclosures that could compromise national security, including sections 641, 793, 794, 798, 

and 952 of title 18, United States Code, and section 4(b) of the 

Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)). 

The definitions, requirements, obligations, rights, sanctions, 

and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are 

controlling.’’; or

(14) conduct, or cause to be conducted, an investigation of an 

employee or applicant for employment because of any activity 

protected under this section.

øThis subsection¿ This subsection shall not be construed to authorize the withholding of information from the Congress or the 

taking of any personnel action against an employee who discloses 

information to the Congress. In this subsection, the term 

‘‘disclosure’’ means a formal or informal communication or transmission.

For purposes of paragraph (8), any presumption relating to the 

performance of a duty by an employee who has authority to take, 

direct others to take, recommend, or approve any personnel action 

may be rebutted by substantial evidence.

* * * * * * * 

(f) Each agency shall establish a process that provides confidential advice to employees on making a lawful disclosure to Congress 

of information that is specifically required by law or Executive order 

to be kept secret in the interest of national defense or the conduct 

of foreign affairs.

40

Subpart F—Labor Management and Employee 

Relations 

CHAPTER 77—APPEALS 

* * * * * * *

SEC. 7702A. ACTIONS RELATING TO SECURITY CLEARANCES. 

(a) In any appeal relating to the suspension, revocation, or other 

determination relating to a security clearance, the Merit Systems 

Protection Board or a court— (1) shall determine whether section 2302 was violated;

(2) may not order the President to restore a security clearance; and

(3) subject to paragraph (2), may issue declaratory relief and 

any other appropriate relief.

(b)(1) If, in any final judgment, the Board or court declares that 

any suspension, revocation, or other determination with regards to 

a security clearance was made in violation of section 2302, the affected agency shall conduct a review of that suspension, revocation, 

or other determination, giving great weight to the Board or court 

judgment. 

(2) Not later than 30 days after any Board or court judgment declaring that a security clearance suspension, revocation, or other determination was made in violation of section 2302, the affected 

agency shall issue an unclassified report to the congressional committees of jurisdiction (with a classified annex if necessary), detailing the circumstances of the agency’s security clearance suspension, 

revocation, or other determination. A report under this paragraph 

shall include any proposed agency action with regards to the security clearance. 

(c) An allegation that a security clearance was revoked or suspended in retaliation for a protected disclosure shall receive expedited review by the Office of Special Counsel, the Merit Systems 

Protection Board, and any reviewing court.

SEC. 7703. JUDICIAL REVIEW OF DECISIONS OF THE MERIT SYSTEMS 

PROTECTION BOARD. 

(a)(1) Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or 

decision. 

* * * * * * * 

ø(b)(1) Except as provided in paragraph (2) of this subsection, a 

petition to review a final order or final decision of the Board shall 

be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for 

review must be filed within 60 days after the date the petitioner 

received notice of the final order or decision of the Board.¿

(b)(1)(A) Except as provided in subparagraph (B) and paragraph 

(2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision 

of law, any petition for review must be filed within 60 days after 

the date the petitioner received notice of the final order or decision 

of the Board. 

41

(B) During the 5-year period beginning on February 1, 2003, a petition to review a final order or final decision of the Board shall be 

filed in the United States Court of Appeals for the Federal Circuit 

or the United States Court of Appeals for the circuit in which the 

petitioner resides. Notwithstanding any other provision of law, any 

petition for review must be filed within 60 days after the date the 

petitioner received notice of the final order or decision of the Board. 

* * * * * * *

ø(d) The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, 

within 60 days after the date the Director received notice of the 

final order or decision of the Board, a petition for judicial review 

in the United States Court of Appeals for the Federal Circuit if the 

Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel 

management and that the Board’s decision will have a substantial 

impact on a civil service law, rule, regulation, or policy directive. 

If the Director did not intervene in a matter before the Board, the 

Director may not petition for review of a Board decision under this 

section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to 

the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition 

for judicial review shall be at the discretion of the Court of Appeals.¿

(d)(1) Except as provided under paragraph (2), this paragraph 

shall apply to any review obtained by the Director of the Office of 

Personnel Management. The Director of the Office of Personnel 

Management may obtain review of any final order or decision of the 

Board by filing, within 60 days after the date the Director received 

notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal 

Circuit if the Director determines, in his discretion, that the Board 

erred in interpreting a civil service law, rule, or regulation affecting 

personnel management and that the Board’s decision will have a 

substantial impact on a civil service law, rule, regulation, or policy 

directive. If the Director did not intervene in a matter before the 

Board, the Director may not petition for review of a Board decision 

under this section unless the Director first petitions the Board for 

a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to 

the proceedings before the Board shall have the right to appear in 

the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals. 

(2) During the 5-year period beginning on February 1, 2003, this 

paragraph shall apply to any review obtained by the Director of the 

Office of Personnel Management. The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, within 60 days after the date the Director received notice of the final order or decision of the Board, a petition for judicial review in any appellate court of competent jurisdiction as provided under subsection (b)(2) if the Director determines, 

in his discretion, that the Board erred in interpreting a civil service 

42

law, rule, or regulation affecting personnel management and that 

the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not 

intervene in a matter before the Board, the Director may not petition 

for review of a Board decision under this section unless the Director 

first petitions the Board for a reconsideration of its decision, and 

such petition is denied. In addition to the named respondent, the 

Board and all other parties to the proceedings before the Board 

shall have the right to appear in the proceeding before the court of 

appeals. The granting of the petition for judicial review shall be at 

the discretion of the Court of Appeals.

(e)(1) Except as provided under paragraph (2), this paragraph 

shall apply to any review obtained by the Special Counsel. The Special Counsel may obtain review of any final order or decision of the 

Board by filing a petition for judicial review in the United States 

Court of Appeals for the Federal Circuit if the Special Counsel determines, in the discretion of the Special Counsel, that the Board 

erred in deciding a case arising under section 2302(b)(8) or subchapter III of chapter 73 and that the Board’s decision will have a 

substantial impact on the enforcement of section 2302(b)(8) or subchapter III of chapter 73. If the Special Counsel was not a party or 

did not intervene in a matter before the Board, the Special Counsel 

may not petition for review of a Board decision under this section 

unless the Special Counsel first petitions the Board for reconsideration of its decision, and such petition is denied. In addition to the 

named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceedings before the Court of Appeals. The granting of the petition for 

judicial review shall be at the discretion of the Court of Appeals. 

(2) During the 5-year period beginning on February 1, 2003, this 

paragraph shall apply to any review obtained by the Special Counsel. The Special Counsel may obtain review of any final order or decision of the Board by filing a petition for judicial review in the 

United States Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction if the Special Counsel determines, in the discretion of the Special Counsel, that the Board erred 

in deciding a case arising under section 2302(b)(8) or subchapter III 

of chapter 73 and that the Board’s decision will have a substantial 

impact on the enforcement of section 2302(b)(8) or subchapter III of 

chapter 73. If the Special Counsel was not a party or did not intervene in a matter before the Board, the Special Counsel may not petition for review of a Board decision under this section unless the 

Special Counsel first petitions the Board for reconsideration of its 

decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before 

the Board shall have the right to appear in the proceedings before 

the court of appeals. The granting of the petition for judicial review 

shall be at the discretion of the court of appeals.

Æ