59–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 114–521 

THOROUGHLY INVESTIGATING RETALIATION AGAINST 

WHISTLEBLOWERS ACT 

APRIL 25, 2016.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. CHAFFETZ, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

[To accompany H.R. 4639] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (H.R. 4639) to reauthorize the Office of Special 

Counsel, to amend title 5, United States Code, to provide modifications to authorities relating to the Office of Special Counsel, and 

for other purposes, having considered the same, report favorably 

thereon with an amendment and recommend that the bill as 

amended do pass. 

CONTENTS 

Page 

Committee Statement and Views ........................................................................... 2 

Section-by-Section .................................................................................................... 6 

Explanation of Amendments ................................................................................... 8 

Committee Consideration ........................................................................................ 8 

Roll Call Votes ......................................................................................................... 8 

Application of Law to the Legislative Branch ....................................................... 8 

Statement of Oversight Findings and Recommendations of the Committee ...... 8 

Statement of General Performance Goals and Objectives .................................... 8 

Duplication of Federal Programs ............................................................................ 9 

Disclosure of Directed Rule Makings ..................................................................... 9 

Federal Advisory Committee Act ............................................................................ 9 

Unfunded Mandate Statement ............................................................................... 9 

Earmark Identification ............................................................................................ 9 

Committee Estimate ................................................................................................ 9 

Budget Authority and Congressional Budget Office Cost Estimate .................... 9 

Changes in Existing Law Made by the Bill, as Reported ..................................... 11 

The amendment is as follows: 

At the end of the bill, add the following: 


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1 U.S. Office of Special Counsel, Fiscal Year 2014 Annual Report to Congress, at 10, available at https://osc.gov/Resources/OSC%20Annual%20Report%20to%20Congress%20FY%202014.pdf 

[hereinafter OSC FY 2014 Annual Report]. 2 Id. at 10. 3 Id. 

4 Id. at 11. 5 U.S. Office of Special Counsel, Fiscal Year 2016 Congressional Budget Justification and Performance Budget Goals, at pp. 3 and 12, available at https://osc.gov/Resources/CBJ%20- 

%20FY16-Final%20Website%20Version.pdf [hereinafter OSC FY 2016 Cong. Budget Justification]. 6 Biography of Special Counsel Carolyn Lerner, available at https://osc.gov/Pages/aboutbio.aspx?ID=1. 7https://www.congress.gov/nomination/114th-congress/896. 

8OSC FY 2017 Cong. Budget Justification at 3. 9 Id. 

SEC. 9. REGULATIONS. 

Not later than two years after the date of enactment of this Act, the Special Counsel shall prescribe such regulations as may be necessary to perform the functions 

of the Special Counsel under subchapter II of chapter 12 of title 5, United States 

Code, including regulations necessary to carry out sections 1213, 1214, and 1215 of 

such title, and any functions required due to the amendments made by this Act. 

Such regulations shall be published in the Federal Register. 

COMMITTEE STATEMENT AND VIEWS

PURPOSE AND SUMMARY

H.R. 4639, the Thoroughly Investigating Retaliation Against 

Whistleblowers Act, would reauthorize the U.S. Office of Special 

Counsel (OSC) and make changes to improve the efficiency and effectiveness of OSC operations. 

BACKGROUND AND NEED FOR LEGISLATION

The Civil Service Reform Act of 1978 (CSRA) established the 

U.S. Office of Special Counsel (OSC) as a separate investigative 

and prosecutorial section of the Merit Systems Protection Board 

(MSPB).1 With the enactment of the Whistleblower Protection Act 

of 1989, OSC became an independent agency in the executive 

branch.2 OSC’s authorities come from four federal statutes: CSRA, 

the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment and Reemployment Rights Act of 

1994 (USERRA).3

OSC’s mission is to: (1) safeguard the merit system by protecting 

federal employees from prohibited personnel practices, especially 

reprisal from whistleblowing; (2) provide employees a mechanism 

for disclosing wrongdoing in government agencies; (3) enforce and 

provide advice on the Hatch Act, which restricts political activity 

by government employees; and (4) enforce employment rights 

under USERRA for federal employees who serve or have served in 

the uniformed services.4

OSC’s staff primarily consists of 140 personnel management specialists, investigators, and attorneys located in Washington, D.C. 

and three field offices.5 OSC is headed by Carolyn Lerner, Special 

Counsel, who was appointed by the President and confirmed by the 

Senate for a five-year term (which began in June 2011).6 In October 2015, Special Counsel Lerner was nominated for another fiveyear term.7 In FY2016, OSC received appropriations of $24.1 million.8 For FY2017, OSC requested a funding level of $26.5 million 

to sustain its current workforce and increase staff size from 140 to 

155 full-time employees.9


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10OSC FY 2016 Cong. Budget Justification at 3. 11 U.S. Office of Special Counsel, Fiscal Year 2015, Performance and Accountability Report, at 

4, available at https://osc.gov/Resources/FY%202015%20PAR-16Nov2015%20Final.pdf [hereinafter, OSC FY 2015 PAR]. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 5 U.S.C. 5509 note. 19OSC FY 2017 Cong. Budget Justification at 4. 20 5 U.S.C. § 1214(a)(1)(B). 21 5 U.S.C. § 1213(b). 

In FY2014 and FY2015, OSC achieved settlements in numerous 

cases on behalf of Department of Veterans Affairs (VA) employees 

that suffered retaliation after disclosing problems with the care of 

patients at various VA facilities.10 OSC also achieved an increase 

in favorable results in prohibited personnel practice cases, mediated settlements, and whistleblower disclosures.11 For cases involving violations of the Hatch Act, OSC obtained more disciplinary actions than any other similar period.12 OSC also worked with whistleblowers and leadership at the VA to identify quality of care 

issues and improper scheduling practices at VA.13 OSC has assisted service members and reservists returning to civilian life, 

achieving numerous favorable results under USERRA.14

Finally, in FY2014 and FY2015, whistleblowers made disclosures 

to OSC about the abuse of ‘‘administratively uncontrollable overtime’’ in the U.S. Department of Homeland Security (DHS).15 As a 

result, the DHS prohibited employees from earning improper overtime payments, saving approximately $83.7 million.16 In December 

2014, Congress passed legislation implementing a new pay system, 

which CBO estimates will save $100 million every year.17

OSC was last reauthorized in 2002 for the period of 2003 to 

2007.18 Since that time, OSC has experienced significant growth in 

its case load. In the past five years, OSC’s caseload has risen by 

58 percent.19

H.R. 4639 reauthorizes the agency for the years 2016 to 2020. 

The bill also makes several changes to assist OSC in meeting its 

vital mission, including protecting whistleblowers and guarding the 

merit system principles. H.R. 4639 strengthens OSC’s ability to 

hold agencies and individuals accountable, and codifies best practices that have recently been developed and implemented by OSC. 

The bill codifies OSC’s current practice of providing key metrics in 

its annual reports to Congress, and requires additional metrics to 

support Congressional oversight of OSC’s effectiveness. 

Once OSC receives a prohibited personnel practice complaint, 

OSC is required within fifteen days to provide a written acknowledgement of receipt and the name of the OSC staff member who 

will be the point of contact.20 For whistleblower disclosures, however, OSC is currently required within fifteen days to make a more 

substantive determination of whether there is a substantial likelihood that the information discloses a violation of any law, rule, or 

regulation, or gross mismanagement, gross waste of funds, abuse 

of authority, or substantial and specific danger to public health and 

safety.21 H.R. 4639 extends this timeframe for whistleblower disclosures from fifteen to forty-five days. Given the volume of cases OSC 


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22For example, private citizens, Postal Service employees, employees at agencies listed in 5 

U.S.C. § 2302(a)(2)(C)(ii), etc. 23See Section 13, P.L. 103–424. 24 5 U.S.C. § 1213(c)(1)(B); 5 U.S.C. § 1213(d). 

receives, this is a more realistic timeframe for OSC to make an assessment of the substance of the complaint. 

H.R. 4639 codifies several changes to improve OSC’s effectiveness. Under current law, OSC closes, without investigation, three 

categories of prohibited personnel practice complaints: (1) cases 

which have previously been made by the same person with the 

same set of facts and circumstances and investigated by OSC; (2) 

cases with the same facts and circumstances which have previously 

been filed by the same person with the MSPB; and (3) cases which 

come from federal agencies over which OSC does not have investigative jurisdiction.22 Closure of these complaints requires OSC to 

give written notice of the proposed findings of fact and legal conclusions, allow an opportunity for written comments from the complainant, and then provide a final written status report. H.R. 4639 

would provide OSC discretionary authority to close these cases 

under simplified procedures, providing a written notification of the 

grounds for closure of the case within 30 days of OSC’s decision. 

Since 1994, OSC has been required to conduct an annual survey 

of federal employees who contact OSC for assistance.23 The survey 

yields a low response rate, and provides little insight into what 

OSC might be able to do to improve its processes. For 2014, only 

10 percent of recipients responded. H.R. 4639 eliminates the requirement for OSC to conduct an annual survey and instead provides OSC discretionary authority to pilot a new survey in FY2017 

and FY2018. The resulting survey would be designed to gather information and improve customer service at various stages of the review or investigative process. 

H.R. 4639 would also establish a three-year statute of limitations. Importantly, this statute of limitations is not a prohibition 

barring OSC from considering cases older than three years. Rather, 

it is a permissive authority allowing OSC to retain the ability to 

review any claim regardless of its age. 

Additionally, H.R. 4639 makes several changes intended to 

strengthen OSC’s ability to hold agencies and individuals accountable. With regard to whistleblower disclosures, OSC is required by 

statute to rely on agencies both to investigate allegations and take 

corrective action, reporting their findings back to OSC upon completion of their investigation. Such reports are required to include 

a list of any violation or apparent violation of any law, rule, or regulation, as well as a description of what corrective action the agency has taken or plans to take as a result of the investigation.24

H.R. 4639 would require that if an agency substantiates a whistleblower disclosure from OSC in whole or in part, yet fails to take 

any corrective action, the agency’s report must provide a detailed 

explanation of such failure. This change is intended to help ensure 

that agencies take action to both prevent problems in the future 

and correct substantiated claims of misconduct, such as by imposing discipline and holding employees accountable. 

Additionally, if an agency report states that the agency plans to 

take certain action in the future, H.R. 4639 would require that the 

agency submit a supplemental report no later than 180 days after 


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25Given the current requirements of 5 U.S.C. § 1219(b), it is not believed that this will endanger whistleblowers by making any personally identifiable information public. 26 5 U.S.C. § 1219. 27 5 C.F.R. § 5.4. 28 Id. 29P.L. 112–230. 

the initial report which states whether the proposed action has 

been taken and explains any failure to take the proposed action. Finally, H.R. 4639 would require OSC to make public its initial 

transmittal of the whistleblower disclosure to the agency,25 in addition to the agency’s report.26 The bill would also codify OSC’s current practice of posting comments on the agency reports from the 

Special Counsel and, in some circumstances, from the whistleblower who submitted the initial disclosure. 

The legislation also would address a number of problems OSC 

faces regarding access to agency personnel and documents during 

investigations. The current Office of Personnel Management Civil 

Service Rule 5.4 states that when required by the Special Counsel 

or their authorized representative, agencies shall make employees 

available to testify, on official time, ‘‘in regard to matters inquired 

of under the civil service laws, rules, and regulations,’’ as well as 

make available ‘‘all records pertinent to these matters.’’ 27 It continues: ‘‘All such employees, and all applicants or eligibles for positions covered by these rules, shall give to . . . the Special Counsel, 

or to their authorized representatives, all information, testimony, 

documents, and material in regard to the above matters, the disclosure of which is not otherwise prohibited by law or regulation.’’ 28

Notwithstanding the unambiguous language of both provisions, 

OSC has historically faced a range of obstacles from agencies, including nonresponses, incomplete responses, untimely responses, 

and refusals to comply. In particular, refusals to comply have arisen from agencies stretching the interpretation of ‘‘not otherwise 

prohibited by law or regulation’’ to justify invoking common law 

privileges, such as attorney-client privilege, to prevent OSC from 

obtaining access to information. For example, the Committee on 

Oversight and Government Reform has heard concerns from the 

current Special Counsel regarding blanket assertions of attorneyclient privilege by the Chemical Safety Board. 

While the Committee does not believe that legislative clarification should be necessary to make clear that OSC’s access to information overrides internal agency regulations and common law 

privileges, this bill is intended to settle once and for all that in carrying out its work, OSC is authorized to have access to any information from agencies under its jurisdiction. H.R. 4639 makes clear 

that OSC is authorized to have access to any record or other information of any agency under its jurisdiction in investigating allegations of prohibited personnel practices or Hatch Act violations. 

Finally, H.R. 4639 would make a technical amendment to the 

penalties added by the Hatch Act Modernization Act of 2012.29

That Act provided for a range of penalties for violations of the 

Hatch Act. The same year, a provision in the Whistleblower Protection Enhancement Act of 2012 provided that the MSPB could impose a ‘‘combination’’ of penalties for prohibited personnel practice 


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30P.L. 112–199. 

violations.30 H.R. 4639 would amend the Hatch Act penalties to 

clarify that a range of penalties could be imposed for violations. 

LEGISLATIVE HISTORY

H.R. 4639, the Thoroughly Investigating Retaliation Against 

Whistleblowers Act, was introduced on February 26, 2016 by Congressman Rod Blum (R–IA) and referred to the Committee on 

Oversight and Government Reform. On March 1, 2016, the Committee on Oversight and Government Reform ordered H.R. 4639 reported, as amended, by voice vote. 

SECTION-BY-SECTION

Section 1. Short title 

Designates the short title of the bill as the ‘‘Thoroughly Investigating Retaliation Against Whistleblowers Act.’’ 

Section 2. Reauthorization of the Office of Special Counsel 

This bill reauthorizes OSC for a five-year period, for fiscal years 

2016 through 2020. 

Section 3. Access to agency information 

Amends 5 U.S.C. § 1212(b) by adding a subsection (5). The new 

section clarifies that OSC is authorized to have access to any 

record or other information (such as reports, audits, recommendations, etc.) that is available to an agency within its jurisdiction. 

Similarly, it allows OSC to require any agency employee to provide 

relevant information during its investigations. 

Section 4. Whistleblower provisions 

Amends 5 U.S.C. § 1213, which concerns substantive disclosures 

of waste, fraud, and abuse. It extends from 15 to 45 days the timeframe in which OSC must determine if there is any merit to substantive disclosures. 

Once a disclosure is sent to an agency for response, if the agency 

substantiates the allegations in the disclosure and yet fails to take 

any action on the allegations (such as changing their rules or practices, restoring any aggrieved employee, disciplining any employee 

misconduct, etc.), the head of the agency’s response to OSC, per 

§ 1213(d), must include a detailed description of why the agency 

has failed to take any action. 

Finally, this section requires that if an agency head states in 

their response that they propose to take certain action, within 180 

days the head of the agency shall submit a supplemental report 

stating whether the action has been taken, and a reason if the action has not been taken. 

Section 5. Termination of certain OSC investigations 

Amends 5 U.S.C. § 1214, which concerns OSC’s investigation of 

prohibited personnel practices. It would add a new subsection to 

§ 1214(a) stating that, without its typical detailed description and 

opportunity to respond, OSC may within 30 days of receipt terminate any investigation which: 


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(i) Constitutes the same allegations, from the same individual, which have previously been investigated by OSC if they 

concern the same set of facts and circumstances; 

(ii) Constitutes the same allegations, from the same individual, which have previously been filed with MSPB if they 

concern the same set of facts and circumstances; or 

(iii) Comes from a federal employee over which OSC does not 

have jurisdiction, such as FBI or intelligence community employees. 

This section also includes a statute of limitations in a fourth category which may, at the discretion of the Special Counsel, be closed 

out with the simplified process. This category applies to investigations which: 

(iv) Concern allegations of a prohibited personnel practice 

which the complainant knew or should have known about over 

three years prior to filing with OSC. 

For any investigation from any of the four categories above, OSC 

must provide written notice within 30 days of termination that the 

case is being closed and providing the reason. 

Section 6. Reporting requirements 

Amends 5 U.S.C. § 1218 to require that OSC’s annual report to 

Congress include a wider number of reporting metrics, including 

the number of stays or disciplinary actions negotiated by OSC with 

agencies; the number of stays and stay extensions obtained from 

the MSPB; the number of prohibited personnel practice complaints 

that result in favorable actions, and the number that result in favorable outcomes, both for whistleblowers and for all prohibited 

personnel practice cases; and the cost per case resolved. 

With regard to substantive disclosures, this section also amends 

5 U.S.C. § 1219(a)(1) to expand the list of items that OSC should 

make publicly available to include: 

(i) The transmission of a matter to an agency head; 

(ii) Any report from the agency head; 

(iii) Comments from the complainant, if they give consent; 

and 

(iv) OSC’s comments or recommendations. 

This section would also require that OSC include additional 

items in its annual report to Congress. 

Section 7. Establishment of survey pilot program 

Suspends, for FY2017 and FY2018, the current annual survey requirement, implemented by Congress in 1994 (P.L. 103–424) and 

instead gives OSC flexibility to implement a pilot program which 

would survey individuals at various stages of its process. 

Section 8. Penalties under the Hatch Act 

Amends 5 U.S.C. § 7326, to clarify that anyone who violates 

§ 7323 (political activity generally) or § 7324 (political activity on 

duty or with official resources) of the Hatch Act may be subject to 

not just one of the penalties in § 7326, but to a combination of 

them. Those penalties, added in 2012 by the Hatch Act Modernization Act, include removal, reduction in grade, debarment from federal employment for up to five years, suspension, reprimand, or up 

to a $1000 civil penalty. 


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Section 9. Regulations 

Requires that, not later than two years after the date of enactment of the Act, OSC adopt regulations concerning: 5 U.S.C. 

§ 1213, which relates to whistleblower disclosures; § 1214, which relates to the investigation of prohibited personnel practices and the 

imposition of disciplinary action; and § 1215, which relates to disciplinary action. The OSC is required to publish the regulations in 

the Federal Register. 

EXPLANATION OF AMENDMENTS

During Full Committee consideration of the bill, Congressman 

Mark Meadows (R–NC) offered an amendment to require OSC to 

adopt regulations within two years of the bill’s passage, including 

regulations to carry out: 5 U.S.C. § 1213, which relates to whistleblower disclosures; § 1214, which relates to the investigation of prohibited personnel practices and the imposition of disciplinary action; and § 1215, which relates to disciplinary action. The Meadows 

amendment was adopted by voice vote. 

COMMITTEE CONSIDERATION

On March 1, 2016 the Committee met in open session and ordered reported favorably the bill, H.R. 4639, as amended, by voice 

vote, a quorum being present. 

ROLL CALL VOTES

No roll call votes were requested or conducted during Full Committee consideration of H.R. 4639. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch where the bill 

relates to the terms and conditions of employment or access to public services and accommodations. This bill reauthorizes the Office 

of Special Counsel, amends title 5, United States Code, and provides modifications to authorities relating to the Office of Special 

Counsel. As such this bill does not relate to employment or access 

to public services and accommodations. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goal or objective is to reauthorize the Office of Special Counsel, to amend 

title 5, United States Code, and to provide modifications to authorities relating to the Office of Special Counsel. 


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DUPLICATION OF FEDERAL PROGRAMS

No provision of this bill establishes or reauthorizes a program of 

the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

This bill requires that within two years of the date of enactment, 

OSC prescribe regulations necessary to perform the functions of the 

Special Counsel under subchapter II of chapter 12 of title 5 of the 

United States Code, including regulations necessary to carry out 

sections 1213, 1214, and 1215 of such title, and any functions required due to the amendments made by this act. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or 

authorize the establishment of an advisory committee within the 

definition of 5 U.S.C. App., Section 5(b). 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement as to whether 

the provisions of the reported include unfunded mandates. In compliance with this requirement the Committee has received a letter 

from the Congressional Budget Office included herein. 

EARMARK IDENTIFICATION

This bill does not include any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of Rule 

XXI. 

COMMITTEE ESTIMATE

Clause 3(d)(1) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs that would be incurred in carrying out this bill. 

However, clause 3(d)(2)(B) of that rule provides that this requirement does not apply when the Committee has included in its report 

a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the 

Congressional Budget Act of 1974. 

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the 


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Committee has received the following cost estimate for this bill 

from the Director of Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, April 11, 2016. 

Hon. JASON CHAFFETZ, 

Chairman, Committee on Oversight and Government Reform, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4639, the Thoroughly Investigating Retaliation Against Whistleblowers Act. 

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

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

Sincerely, 

KEITH HALL. 

Enclosure. 

H.R. 4639—Thoroughly Investigating Retaliation Against Whistleblowers Act 

Summary: H.R. 4639 would authorize appropriations for the Office of Special Counsel (OSC) for fiscal years 2016 through 2020. 

The bill also would amend several of the laws governing the OSC. 

Finally, the bill would change how penalties could be applied to 

federal workers who violate the Hatch Act. (The Hatch Act prohibits most employees of the Executive branch from engaging in 

certain forms of political activity.) 

CBO estimates that implementing this legislation would cost 

$106 million over the 2017–2021 period, assuming appropriation of 

the estimated amounts. Because enacting H.R. 4639 could affect 

the amount of revenues collected from civil fines imposed on federal 

employees who violate the Hatch Act, pay-as-you-go procedures 

apply. However, CBO expects that any change in revenues collected 

would not be significant in any year. Enacting the bill would not 

affect direct spending. 

CBO estimates that enacting H.R. 4639 would not increase net 

direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2027. 

H.R. 4639 contains no intergovernmental or private-sector 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 effects of H.R. 4639 are shown in the following table. The 

costs of this legislation fall within budget function 800 (general 

government). 

By fiscal year, in millions of dollars 

2017 2018 2019 2020 2021 2017– 

2021 

CHANGES IN SPENDING SUBJECT TO APPROPRIATIONa

Estimated Authorization Level ...................................................... 25 26 27 28 0 106 

Estimated Outlays ........................................................................ 23 26 27 28 2 106 

a In fiscal year 2016, OSC received an appropriation of $24 million. 


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Basis of estimate: For this estimate, CBO assumes that H.R. 

4639 will be enacted by the end of fiscal year 2016 and the 

amounts provided in 2016 for the OSC will be appropriated for 

each fiscal year through 2020 with adjustments for anticipated inflation. For fiscal year 2016, the OSC received an appropriation of 

$24 million. Estimated outlays are based on historical spending 

patterns for the agency. 

Pay-As-You-Go considerations: The Statutory Pay-As-You-Go Act 

of 2010 establishes budget-reporting and enforcement procedures 

for legislation affecting direct spending or revenues. Enacting H.R. 

4639 could affect the amount of revenue collected from civil fines 

imposed on federal employees who violate the Hatch Act. Under 

the bill employees who participate in unauthorized political activities could be penalized through workplace disciplinary actions (reprimand, suspension, removal, debarment) and civil penalties. 

Under current law only one of those sanctions may be used. CBO 

estimates that any change in revenue collections under the bill 

would not be significant. Enacting the bill would not affect direct 

spending. 

Increase in long-term direct spending and deficits: CBO estimates that enacting H.R. 4639 would not increase net direct spending or on-budget deficits in any of the four consecutive 10-year periods beginning in 2027. 

Intergovernmental and private-sector impact: H.R. 4639 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: Jon Sperl; Impact on the 

private-sector: Paige Piper/Bach. 

Estimate approved by: H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, 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 italic, 

and existing law in which no change is proposed is shown in 

roman): 

WHISTLEBLOWER PROTECTION ACT OF 1989 

* * * * * * * 

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 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 ø2003, 2004, 2005, 2006, and 

2007¿ 2016, 2017, 2018, 2019, and 2020 such sums as necVerDate Sep 11 2014 06:53 Apr 28, 2016 Jkt 059006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6601 E:\HR\OC\HR521.XXX HR521

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essary to carry out subchapter I1 of chapter 12 of title 5, 

United States Code (as amended by this Act). 

(b) RESTRICTION RELATING TO APPROPRIATIONS UNDER THE CIVIL

SERVICE REFORM ACT OF 1978.—No funds may be appropriated to 

the Merit Systems Protection Board or the Office of Special Counsel pursuant to section 903 of the Civil Service Reform Act of 1978 

(5 U.S.C. 5509 note). 

(c) TRANSFER OF FUNDS.—The personnel, assets, liabilities, contracts, property, records, and unexpended balances of appropriations, authorizations, allocations, and other funds employed, held, 

used, arising from, available or to be made available to the Special 

Counsel of the Merit Systems Protection Board are, subject to section 1531 of title 31, United States Code, transferred to the Special 

Counsel referred to in section 1211 of title 5, United States Code 

(as added by section 3(a) of this Act), for appropriate allocation. 

* * * * * * * 

TITLE 5, UNITED STATES CODE 

* * * * * * * 

PART II—CIVIL SERVICE FUNCTIONS AND 

RESPONSIBILITIES 

* * * * * * * 

CHAPTER 12—MERIT SYSTEMS PROTECTION BOARD, 

OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT 

OF ACTION 

* * * * * * * 

SUBCHAPTER II—OFFICE OF SPECIAL COUNSEL 

* * * * * * * 

§ 1212. Powers and functions of the Office of Special Counsel 

(a) The Office of Special Counsel shall— 

(1) in accordance with section 1214(a) and other applicable 

provisions of this subchapter, protect employees, former employees, and applicants for employment from prohibited personnel practices; 

(2) receive and investigate allegations of prohibited personnel practices, and, where appropriate— 

(A) bring petitions for stays, and petitions for corrective 

action, under section 1214; and 

(B) file a complaint or make recommendations for disciplinary action under section 1215; 

(3) receive, review, and, where appropriate, forward to the 

Attorney General or an agency head under section 1213, disclosures of violations of any 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 or safety; 

(4) review rules and regulations issued by the Director of the 

Office of Personnel Management in carrying out functions 


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under section 1103 and, where the Special Counsel finds that 

any such rule or regulation would, on its face or as implemented, require the commission of a prohibited personnel practice, file a written complaint with the Board; and 

(5) investigate and, where appropriate, bring actions concerning allegations of violations of other laws within the jurisdiction of the Office of Special Counsel (as referred to in section 1216). 

(b)(1) The Special Counsel and any employee of the Office of Special Counsel designated by the Special Counsel may administer 

oaths, examine witnesses, take depositions, and receive evidence. 

(2) The Special Counsel may— 

(A) issue subpoenas; and 

(B) order the taking of depositions and order responses to 

written interrogatories; 

in the same manner as provided under section 1204. 

(3)(A) In the case of contumacy or failure to obey a subpoena 

issued under paragraph (2)(A), the Special Counsel may apply to 

the Merit Systems Protection Board to enforce the subpoena in 

court pursuant to section 1204(c). 

(B) A subpoena under paragraph (2)(A) may, in the case of any 

individual outside the territorial jurisdiction of any court of the 

United States, be served in the manner referred to in subsection 

(d) of section 1204, and the United States District Court for the 

District of Columbia may, with respect to any such individual, compel compliance in accordance with such subsection. 

(4) Witnesses (whether appearing voluntarily or under subpoena) 

shall be paid the same fee and mileage allowances which are paid 

subpoenaed witnesses in the courts of the United States. 

(5)(A) In carrying out this subchapter, the Special Counsel is authorized to— 

(i) have access to any record or other information (including 

a report, audit, review, document, recommendation, or other 

material) of any agency under the jurisdiction of the Office of 

Special Counsel; and 

(ii) require any employee of such an agency to provide to the 

Office any record or other information during an investigation, 

review, or inquiry of any agency under the jurisdiction of the 

Office. 

(B) With respect to any record or other information made available by an agency under this subchapter, the Office shall apply a 

level of confidentiality to such record or information at the level of 

confidentiality applied to the record by the agency. 

(c)(1) Except as provided in paragraph (2), the Special Counsel 

may as a matter of right intervene or otherwise participate in any 

proceeding before the Merit Systems Protection Board, except that 

the Special Counsel shall comply with the rules of the Board. 

(2) The Special Counsel may not intervene in an action brought 

by an individual under section 1221, or in an appeal brought by an 

individual under section 7701, without the consent of such individual. 

(d)(1) The Special Counsel may appoint the legal, administrative, 

and support personnel necessary to perform the functions of the 

Special Counsel. 


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(2) Any appointment made under this subsection shall be made 

in accordance with the provisions of this title, except that such appointment shall not be subject to the approval or supervision of the 

Office of Personnel Management or the Executive Office of the 

President (other than approval required under section 3324 or subchapter VIII of chapter 33). 

(e) The Special Counsel may prescribe such regulations as may 

be necessary to perform the functions of the Special Counsel. Such 

regulations shall be published in the Federal Register. 

(f) The Special Counsel may not issue any advisory opinion concerning any law, rule, or regulation (other than an advisory opinion 

concerning chapter 15 or subchapter III of chapter 73). 

(g)(1) The Special Counsel may not respond to any inquiry or disclose any information from or about any person making an allegation under section 1214(a), except in accordance with the provisions 

of section 552a of title 5, United States Code, or as required by any 

other applicable Federal law. 

(2) Notwithstanding the exception under paragraph (1), the Special Counsel may not respond to any inquiry concerning an evaluation of the work performance, ability, aptitude, general qualifications, character, loyalty, or suitability for any personnel action of 

any person described in paragraph (1)— 

(A) unless the consent of the individual as to whom the information pertains is obtained in advance; or 

(B) except upon request of an agency which requires such information in order to make a determination concerning an individual’s having access to the information unauthorized disclosure of which could be expected to cause exceptionally grave 

damage to the national security. 

(h)(1) The Special Counsel is authorized to appear as amicus curiae in any action brought in a court of the United States related 

to section 2302(b) (8) or (9), or as otherwise authorized by law. In 

any such action, the Special Counsel is authorized to present the 

views of the Special Counsel with respect to compliance with section 2302(b) (8) or (9) and the impact court decisions would have 

on the enforcement of such provisions of law. 

(2) A court of the United States shall grant the application of the 

Special Counsel to appear in any such action for the purposes described under subsection (a). 

§ 1213. Provisions relating to disclosures of violations of law, 

gross mismanagement, and certain other matters 

(a) This section applies with respect to— 

(1) any disclosure of information by an employee, former employee, or applicant for employment which the employee, 

former employee, or applicant reasonably believes evidences— 

(A) a violation of any law, rule, or regulation; or 

(B) 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; and 


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(2) any disclosure by an employee, former employee, or applicant for employment 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 

which the employee, former employee, or applicant reasonably 

believes evidences— 

(A) a violation of any law, rule, or regulation; or 

(B) gross mismanagement, a gross waste of funds, an 

abuse of authority, or a substantial and specific danger to 

public health or safety. 

(b) Whenever the Special Counsel receives information of a type 

described in subsection (a) of this section, the Special Counsel shall 

review such information and, within ø15 days¿ 45 days after receiving the information, determine whether there is a substantial 

likelihood that the information discloses a violation of any law, 

rule, or regulation, or gross mismanagement, gross waste of funds, 

abuse of authority, or substantial and specific danger to public 

health and safety. 

(c)(1) Subject to paragraph (2), if the Special Counsel makes a 

positive determination under subsection (b) of this section, the Special Counsel shall promptly transmit the information with respect 

to which the determination was made to the appropriate agency 

head and require that the agency head— 

(A) conduct an investigation with respect to the information 

and any related matters transmitted by the Special Counsel to 

the agency head; and 

(B) submit a written report setting forth the findings of the 

agency head within 60 days after the date on which the information is transmitted to the agency head or within any longer 

period of time agreed to in writing by the Special Counsel. 

(2) The Special Counsel may require an agency head to conduct 

an investigation and submit a written report under paragraph (1) 

only if the information was transmitted to the Special Counsel by— 

(A) an employee, former employee, or applicant for employment in the agency which the information concerns; or 

(B) an employee who obtained the information in connection 

with the performance of the employee’s duties and responsibilities. 

(d) Any report required under subsection (c) shall be reviewed 

and signed by the head of the agency and shall include— 

(1) a summary of the information with respect to which the 

investigation was initiated; 

(2) a description of the conduct of the investigation; 

(3) a summary of any evidence obtained from the investigation; 

(4) a listing of any violation or apparent violation of any law, 

rule, or regulation; øand¿ 

(5) a description of any action taken or planned as a result 

of the investigation, øsuch as¿ including— 

(A) changes in agency rules, regulations, or practices; 

(B) the restoration of any aggrieved employee; 

(C) disciplinary action against any employee; and 

(D) referral to the Attorney General of any evidence of 

a criminal violationø.¿; and 


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(6) if any disclosure referred to an agency head under subsection (c) is substantiated in whole or in part by the agency 

head, a detailed explanation of the failure to take any action 

described under paragraph (5). 

(e)(1) Any such report shall be submitted to the Special Counsel, 

and the Special Counsel shall transmit a copy to the complainant, 

except as provided under subsection (f) of this section. The complainant may submit comments to the Special Counsel on the agency report within 15 days of having received a copy of the report. 

(2) Upon receipt of any report of the head of an agency required 

under subsection (c) of this section, the Special Counsel shall review the report and determine whether— 

(A) the findings of the head of the agency appear reasonable; 

and 

(B) the report of the agency under subsection (c)(1) of this 

section contains the information required under subsection (d) 

of this section. 

(3) The Special Counsel shall transmit any agency report received pursuant to subsection (c) of this section, any comments provided by the complainant pursuant to subsection (e)(1), and any appropriate comments or recommendations by the Special Counsel to 

the President and the congressional committees with jurisdiction 

over the agency which the disclosure involves. 

(4) Whenever the Special Counsel does not receive the report of 

the agency within the time prescribed in subsection (c)(2) of this 

section, the Special Counsel shall transmit a copy of the information which was transmitted to the agency head to the President 

and the congressional committees with jurisdiction over the agency 

which the disclosure involves together with a statement noting the 

failure of the head of the agency to file the required report. 

(5) If an agency head submits a report to the Special Counsel 

under subsection (d) that includes a description of any agency action proposed to be taken as a result of the investigation, the agency 

head shall, not later than 180 days after the date of such submission, submit a supplemental report to the Special Counsel stating 

whether any proposed action has been taken, and if the action has 

not been taken, the reason why it has not been taken. 

(f) In any case in which evidence of a criminal violation obtained 

by an agency in an investigation under subsection (c) of this section 

is referred to the Attorney General— 

(1) the report shall not be transmitted to the complainant; 

and 

(2) the agency shall notify the Office of Personnel Management and the Office of Management and Budget of the referral. 

(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. 


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(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. 

(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. 

(h) The identity of any individual who makes a disclosure described in subsection (a) may not be disclosed by the Special Counsel without such individual’s consent unless the Special Counsel determines that the disclosure of the individual’s identity is necessary 

because of an imminent danger to public health or safety or imminent violation of any criminal law. 

(i) Except as specifically authorized under this section, the provisions of this section shall not be considered to authorize disclosure 

of any information by any agency or any person which is— 

(1) specifically prohibited from disclosure by any other provision of law; or 

(2) specifically required by Executive order to be kept secret 

in the interest of national defense or the conduct of foreign affairs. 

(j) With respect to any disclosure of information described in subsection (a) which involves foreign intelligence or counterintelligence 

information, if the disclosure is specifically prohibited by law or by 

Executive order, the Special Counsel shall transmit such information to the National Security Advisor, the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate. 

§ 1214. Investigation of prohibited personnel practices; corrective action 

(a)(1)(A) øThe Special Counsel¿ Except as provided in paragraph 

(6), the Special Counsel shall receive any allegation of a prohibited 

personnel practice and shall investigate the allegation to the extent 

necessary to determine whether there are reasonable grounds to 

believe that a prohibited personnel practice has occurred, exists, or 

is to be taken. 

(B) Within 15 days after the date of receiving an allegation of a 

prohibited personnel practice under paragraph (1), the Special 

Counsel shall provide written notice to the person who made the 

allegation that— 

(i) the allegation has been received by the Special Counsel; 

and 


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(ii) shall include the name of a person at the Office of Special 

Counsel who shall serve as a contact with the person making 

the allegation. 

(C) Unless an investigation is terminated under paragraph (2) or 

paragraph (6) , the Special Counsel shall— 

(i) within 90 days after notice is provided under subparagraph (B), notify the person who made the allegation of the 

status of the investigation and any action taken by the Office 

of the Special Counsel since the filing of the allegation; 

(ii) notify such person of the status of the investigation and 

any action taken by the Office of the Special Counsel since the 

last notice, at least every 60 days after notice is given under 

clause (i); and 

(iii) notify such person of the status of the investigation and 

any action taken by the Special Counsel at such time as determined appropriate by the Special Counsel. 

(D) No later than 10 days before the Special Counsel terminates 

any investigation of a prohibited personnel practice, the Special 

Counsel shall provide a written status report to the person who 

made the allegation of the proposed findings of fact and legal conclusions. The person may submit written comments about the report to the Special Counsel. The Special Counsel shall not be required to provide a subsequent written status report under this 

subparagraph after the submission of such written comments. 

(2)(A) If the Special Counsel terminates any investigation under 

paragraph (1), the Special Counsel shall prepare and transmit to 

any person on whose allegation the investigation was initiated a 

written statement notifying the person of— 

(i) the termination of the investigation; 

(ii) a summary of relevant facts ascertained by the Special 

Counsel, including the facts that support, and the facts that do 

not support, the allegations of such person; 

(iii) the reasons for terminating the investigation; and 

(iv) a response to any comments submitted under paragraph 

(1)(D). 

(B) A written statement under subparagraph (A) may not be admissible as evidence in any judicial or administrative proceeding, 

without the consent of the person who received such statement 

under subparagraph (A). 

(3) Except in a case in which an employee, former employee, or 

applicant for employment has the right to appeal directly to the 

Merit Systems Protection Board under any law, rule, or regulation, 

any such employee, former employee, or applicant shall seek corrective action from the Special Counsel before seeking corrective action from the Board. An employee, former employee, or applicant 

for employment may seek corrective action from the Board under 

section 1221, if such employee, former employee, or applicant seeks 

corrective action for a prohibited personnel practice described in 

section 2302(b)(8) or section 2302(b)(9) (A)(i), (B), (C), or (D) from 

the Special Counsel and— 

(A)(i) the Special Counsel notifies such employee, former employee, or applicant that an investigation concerning such employee, former employee, or applicant has been terminated; 

and 


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(ii) no more than 60 days have elapsed since notification was 

provided to such employee, former employee, or applicant for 

employment that such investigation was terminated; or 

(B) 120 days after seeking corrective action from the Special 

Counsel, such employee, former employee, or applicant has not 

been notified by the Special Counsel that the Special Counsel 

shall seek corrective action on behalf of such employee, former 

employee, or applicant. 

(4) If an employee, former employee, or applicant seeks a corrective action from the Board under section 1221, pursuant to the provisions of paragraph (3)(B), the Special Counsel may continue to 

seek corrective action personal to such employee, former employee, 

or applicant only with the consent of such employee, former employee, or applicant. 

(5) In addition to any authority granted under paragraph (1), the 

Special Counsel may, in the absence of an allegation, conduct an 

investigation for the purpose of determining whether there are reasonable grounds to believe that a prohibited personnel practice (or 

a pattern of prohibited personnel practices) has occurred, exists, or 

is to be taken. 

(6)(A) Within 30 days of receiving an allegation from a person 

under paragraph (1), the Special Counsel may terminate an investigation under such paragraph with respect to the allegation, without further inquiry or an opportunity for the person to respond, if 

the Special Counsel determines that— 

(i) the same allegation, based on the same set of facts and circumstances— 

(I) had previously been made by the person and previously investigated by the Special Counsel; or 

(II) had previously been filed by the person with the 

Merit Systems Protection Board; 

(ii) the Office of Special Counsel does not have jurisdiction to 

investigate the allegation; or 

(iii) the person knew or should have known of the alleged prohibited personnel practice earlier than the date that is 3 years 

before the date Special Counsel received the allegation. 

(B) If the Special Counsel terminates an investigation under subparagraph (A), not later than 30 days after the date of such termination the Special Counsel shall provide a written notification stating the basis for the termination to the person who made the allegation. Paragraph (1)(D) shall not apply to any termination under 

such subparagraph. 

(b)(1)(A)(i) The Special Counsel may request any member of the 

Merit Systems Protection Board to order a stay of any personnel 

action for 45 days if the Special Counsel determines that there are 

reasonable grounds to believe that the personnel action was taken, 

or is to be taken, as a result of a prohibited personnel practice. 

(ii) Any member of the Board requested by the Special Counsel 

to order a stay under clause (i) shall order such stay unless the 

member determines that, under the facts and circumstances involved, such a stay would not be appropriate. 

(iii) Unless denied under clause (ii), any stay under this subparagraph shall be granted within 3 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date of the request for 

the stay by the Special Counsel. 


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(B) The Board may extend the period of any stay granted under 

subparagraph (A) for any period which the Board considers appropriate. 

(C) The Board shall allow any agency which is the subject of a 

stay to comment to the Board on any extension of stay proposed 

under subparagraph (B). 

(D) A stay may be terminated by the Board at any time, except 

that a stay may not be terminated by the Board— 

(i) on its own motion or on the motion of an agency, unless 

notice and opportunity for oral or written comments are first 

provided to the Special Counsel and the individual on whose 

behalf the stay was ordered; or 

(ii) on motion of the Special Counsel, unless notice and opportunity for oral or written comments are first provided to the 

individual on whose behalf the stay was ordered. 

(2)(A)(i) Except as provided under clause (ii), no later than 240 

days after the date of receiving an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel shall 

make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or 

is to be taken. 

(ii) If the Special Counsel is unable to make the required determination within the 240-day period specified under clause (i) and 

the person submitting the allegation of a prohibited personnel practice agrees to an extension of time, the determination shall be 

made within such additional period of time as shall be agreed upon 

between the Special Counsel and the person submitting the allegation. 

(B) If, in connection with any investigation, the Special Counsel 

determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken 

which requires corrective action, the Special Counsel shall report 

the determination together with any findings or recommendations 

to the Board, the agency involved and to the Office of Personnel 

Management, and may report such determination, findings and recommendations to the President. The Special Counsel may include 

in the report recommendations for corrective action to be taken. 

(C) If, after a reasonable period of time, the agency does not act 

to correct the prohibited personnel practice, the Special Counsel 

may petition the Board for corrective action. 

(D) If the Special Counsel finds, in consultation with the individual subject to the prohibited personnel practice, that the agency 

has acted to correct the prohibited personnel practice, the Special 

Counsel shall file such finding with the Board, together with any 

written comments which the individual may provide. 

(E) A determination by the Special Counsel under this paragraph 

shall not be cited or referred to in any proceeding under this paragraph or any other administrative or judicial proceeding for any 

purpose, without the consent of the person submitting the allegation of a prohibited personnel practice. 

(3) Whenever the Special Counsel petitions the Board for corrective action, the Board shall provide an opportunity for— 

(A) oral or written comments by the Special Counsel, the 

agency involved, and the Office of Personnel Management; and 


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(B) written comments by any individual who alleges to be 

the subject of the prohibited personnel practice. 

(4)(A) The Board shall order such corrective action as the Board 

considers appropriate, if the Board determines that the Special 

Counsel has demonstrated that a prohibited personnel practice, 

other than one described in section 2302(b)(8) or section 2302(b)(9) 

(A)(i), (B), (C), or (D), has occurred, exists, or is to be taken. 

(B)(i) Subject to the provisions of clause (ii), in any case involving 

an alleged prohibited personnel practice as described under section 

2302(b)(8) or section 2302(b)(9) (A)(i), (B), (C), or (D), the Board 

shall order such corrective action as the Board considers appropriate if the Special Counsel has demonstrated that a disclosure or 

protected activity described under section 2302(b)(8) or section 

2302(b)(9) (A)(i), (B), (C), or (D) was a contributing factor in the 

personnel action which was taken or is to be taken against the individual. 

(ii) Corrective action under clause (i) may not be ordered if, after 

a finding that a protected disclosure was a contributing factor, the 

agency demonstrates by clear and convincing evidence that it 

would have taken the same personnel action in the absence of such 

disclosure. 

(c)(1) Judicial review of any final order or decision of the Board 

under this section may be obtained by any employee, former employee, or applicant for employment adversely affected by such 

order or decision. 

(2) A petition for review under this subsection shall be filed with 

such court, and within such time, as provided for under section 

7703(b). 

(d)(1) If, in connection with any investigation under this subchapter, the Special Counsel determines that there is reasonable 

cause to believe that a criminal violation has occurred, the Special 

Counsel shall report the determination to the Attorney General 

and to the head of the agency involved, and shall submit a copy 

of the report to the Director of the Office of Personnel Management 

and the Director of the Office of Management and Budget. 

(2) In any case in which the Special Counsel determines that 

there are reasonable grounds to believe that a prohibited personnel 

practice has occurred, exists, or is to be taken, the Special Counsel 

shall proceed with any investigation or proceeding unless— 

(A) the alleged violation has been reported to the Attorney 

General; and 

(B) the Attorney General is pursuing an investigation, in 

which case the Special Counsel, after consultation with the Attorney General, has discretion as to whether to proceed. 

(e) If, in connection with any investigation under this subchapter, 

the Special Counsel determines that there is reasonable cause to 

believe that any violation of any law, rule, or regulation has occurred other than one referred to in subsection (b) or (d), the Special Counsel shall report such violation to the head of the agency 

involved. The Special Counsel shall require, within 30 days after 

the receipt of the report by the agency, a certification by the head 

of the agency which states— 

(1) that the head of the agency has personally reviewed the 

report; and 


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(2) what action has been or is to be taken, and when the action will be completed. 

(f) During any investigation initiated under this subchapter, no 

disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel. 

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

corrective action may include— 

(1) that the individual be placed, as nearly as possible, in the 

position the individual would have been in had the prohibited 

personnel practice not occurred; and 

(2) reimbursement for attorney’s fees, back pay and related 

benefits, medical costs incurred, travel expenses, any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness 

fees, and costs). 

(h) Any corrective action ordered under this section to correct a 

prohibited personnel practice may include fees, costs, or damages 

reasonably incurred due to an agency investigation of the employee, if such investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that 

formed the basis of the corrective action. 

* * * * * * * 

ø§ 1218. Annual report 

øThe Special Counsel shall submit an annual report to the Congress on the activities of the Special Counsel, including the number, types, and disposition of allegations of prohibited personnel 

practices filed with it, investigations conducted by it, cases in 

which it did not make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken within the 240-day period specified 

in section 1214(b)(2)(A)(i), and actions initiated by it before the 

Merit Systems Protection Board, as well as a description of the recommendations and reports made by it to other agencies pursuant 

to this subchapter, and the actions taken by the agencies as a result of the reports or recommendations. The report required by this 

section shall include whatever recommendations for legislation or 

other action by Congress the Special Counsel may consider appropriate.¿ 

§ 1218. Annual report 

(a) The Special Counsel shall submit an annual report to Congress on the activities of the Special Counsel. Any such report shall 

include— 

(1) the number, types, and disposition of allegations of prohibited personnel practices filed with the Special Counsel, and 

the cost of allegations so disposed of; 

(2) the number of investigations conducted by the Special 

Counsel; 

(3) the number of stays or disciplinary actions negotiated by 

the Special Counsel with agencies; 

(4) the number of cases in which the Special Counsel did not 

make a determination whether there are reasonable grounds to 


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believe that a prohibited personnel practice has occurred, exists, 

or is to be taken within the 240-day period specified in section 

1214(b)(2)(A)(i); 

(5) a description of the recommendations and reports made by 

the Special Counsel to other agencies pursuant to this subchapter, and the actions taken by the agencies as a result of the 

reports or recommendations; 

(6) the number of— 

(A) actions initiated before the Merit Systems Protection 

Board, including the number of corrective action petitions 

and disciplinary action complaints so initiated; and 

(B) stays and stay extensions obtained from the Board; 

and 

(7) the number of prohibited personnel practice complaints 

that result in— 

(A) a favorable action for the complainant, categorized by 

actions with respect to whistleblower reprisal cases and all 

other cases; and 

(B) a favorable outcome for the complainant, categorized 

by outcomes with respect to whistleblower reprisal cases 

and all other cases. 

(b) The report required by subsection (a) shall include whatever 

recommendations for legislation or other action by Congress the 

Special Counsel may consider appropriate. 

§ 1219. Public information 

(a) The Special Counsel shall maintain and make available to the 

public— 

ø(1) a list of noncriminal matters referred to heads of agencies under subsection (c) of section 1213, together with reports 

from heads of agencies under subsection (c)(1)(B) of such section relating to such matters;¿ 

(1) a list of any noncriminal matter referred to an agency 

head under section 1213(c), together with— 

(A) the applicable transmittal of the matter to the agency 

head under section 1213(c)(1); 

(B) any report from agency head under section 

1213(c)(1)(B) relating to such matter; 

(C) if appropriate, not otherwise prohibited by law, and 

with the consent of the complainant, any comments from 

the complainant under section 1213(e)(1) relating to the 

matter; and 

(D) the Special Counsel’s comments or recommendations 

under section 1213(e)(3) or (4) relating to the matter; 

(2) a list of matters referred to heads of agencies under section 1215(c)(2); 

(3) a list of matters referred to heads of agencies under subsection (e) of section 1214, together with certifications from 

heads of agencies under such subsection; and 

(4) reports from heads of agencies under section 1213(g)(1). 

(b) The Special Counsel shall take steps to ensure that any list 

or report made available to the public under this section does not 

contain any information the disclosure of which is prohibited by 


emcdonald on DSK67QTVN1PROD with HEARING
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law or by Executive order requiring that information be kept secret 

in the interest of national defense or the conduct of foreign affairs. 

* * * * * * * 

PART III—EMPLOYEES 

* * * * * * * 

SUBPART F—LABOR-MANAGEMENT AND 

EMPLOYEE RELATIONS 

* * * * * * * 

CHAPTER 73—SUITABILITY, SECURITY, AND CONDUCT 

* * * * * * * 

SUBCHAPTER III—POLITICAL ACTIVITIES 

* * * * * * * 

ø§ 7326. Penalties 

øAn employee or individual who violates section 7323 or 7324 

shall be subject to 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.¿ 

§ 7326. Penalties 

An employee or individual who violates section 7323 or 7324 shall 

be subject to— 

(1) disciplinary action consisting of removal, reduction in 

grade, debarment from Federal employment for a period not to 

exceed 5 years, suspension, or reprimand; 

(2) an assessment of a civil penalty not to exceed $1,000; or 

(3) any combination of the penalties described in paragraph 

(1) or (2). 

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Æ 


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