H. R. 2970

One Hundred Third Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday,

the twenty-fifth day of January, one thousand nine hundred and ninety-four

An Act

To reauthorize the Office of Special Counsel, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. AUTHORIZATION OF APPROPRIATIONS.

(a) MERIT SYSTEMS PROTECTION BOARD.—Section 8(a)(1) of the

Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note; Public

Law 101–12; 103 Stat. 34) is amended by striking out ‘‘1989, 1990,

1991, 1992, 1993, and 1994’’ and inserting in lieu thereof ‘‘1993,

1994, 1995, 1996, and 1997’’.

(b) OFFICE OF SPECIAL COUNSEL.—Section 8(a)(2) of the

Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note; Public

Law 101–12; 103 Stat. 34) is amended by striking out ‘‘1989, 1990,

1991, and 1992’’ and inserting in lieu thereof ‘‘1993, 1994, 1995,

1996, and 1997’’.

SEC. 2. REASONABLE ATTORNEY FEES IN CERTAIN CASES.

Section 1204 of title 5, United States Code, is amended by

adding at the end thereof the following new subsection:

‘‘(m)(1) Except as provided in paragraph (2) of this subsection,

the Board, or an administrative law judge or other employee of

the Board designated to hear a case arising under section 1215,

may require payment by the agency involved of reasonable attorney

fees incurred by an employee or applicant for employment if the

employee or applicant is the prevailing party and the Board,

administrative law judge, or other employee (as the case may be)

determines that payment by the agency is warranted in the interest

of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency’s

action was clearly without merit. ‘‘(2) If an employee or applicant for employment is the prevailing party of a case arising under section 1215 and the decision

is based on a finding of discrimination prohibited under section

2302(b)(1) of this title, the payment of attorney fees shall be in

accordance with the standards prescribed under section 706(k) of

the Civil Rights Act of 1964 (42 U.S.C. 2000e–5(k)).’’.

SEC. 3. OFFICE OF SPECIAL COUNSEL.

(a) SUCCESSION.—Section 1211(b) of title 5, United States Code,

is amended by inserting after the first sentence: ‘‘The Special Counsel may continue to serve beyond the expiration of the term until

a successor is appointed and has qualified, except that the Special

Counsel may not continue to serve for more than one year after
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the date on which the term of the Special Counsel would otherwise

expire under this subsection.’’.

(b) LIMITATIONS ON DISCLOSURES.—Section 1212(g) of title 5,

United States Code, is amended—

(1) in paragraph (1), by striking out ‘‘provide information

concerning’’ and inserting in lieu thereof ‘‘disclose any information from or about’’; and

(2) in paragraph (2), by striking out ‘‘a matter described

in subparagraph (A) or (B) of section 2302(b)(2) in connection

with a’’ and inserting in lieu thereof ‘‘an evaluation of the

work performance, ability, aptitude, general qualifications,

character, loyalty, or suitability for any personnel action of

any’’.

(c) STATUS REPORT BEFORE TERMINATION OF INVESTIGATION.—

Section 1214(a) of title 5, United States Code, is amended—

(1) in paragraph (1) by adding at the end thereof the

following new subparagraph:

‘‘(D) No later than 10 days before the Special Counsel terminates any investigation of a prohibited personnel practice, the Special Counsel shall provide a written status report to the person

who made the allegation of the proposed findings of fact and legal

conclusions. The person may submit written comments about the

report to the Special Counsel. The Special Counsel shall not be

required to provide a subsequent written status report under this

subparagraph after the submission of such written comments.’’;

and

(2) in paragraph (2)(A)—

(A) in clause (ii) by striking out ‘‘and’’ after the semicolon;

(B) in clause (iii) by striking out the period and inserting in lieu thereof a semicolon and ‘‘and’’; and

(C) by adding at the end thereof the following new

clause:

‘‘(iv) a response to any comments submitted under paragraph (1)(D).’’.

(d) DETERMINATIONS.—Section 1214(b)(2) of title 5, United

States Code, is amended—

(1) by redesignating subparagraphs (A), (B) and (C) as

subparagraphs (B), (C) and (D), respectively;

(2) by inserting before subparagraph (B) (as redesignated

by paragraph (1) of this subsection) the following:

‘‘(A)(i) Except as provided under clause (ii), no later

than 240 days after the date of receiving an allegation

of a prohibited personnel practice under paragraph (1),

the Special Counsel shall make a determination whether

there are reasonable grounds to believe that a prohibited

personnel practice has occurred, exists, or is to be taken.

‘‘(ii) If the Special Counsel is unable to make the

required determination within the 240-day period specified

under clause (i) and the person submitting the allegation

of a prohibited personnel practice agrees to an extension

of time, the determination shall be made within such additional period of time as shall be agreed upon between

the Special Counsel and the person submitting the allegation.’’; and
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(3) by inserting after subparagraph (D) (as redesignated

by paragraph (1) of this subsection) the following new subparagraph:

‘‘(E) A determination by the Special Counsel under

this paragraph shall not be cited or referred to in any

proceeding under this paragraph or any other administrative or judicial proceeding for any purpose, without the

consent of the person submitting the allegation of a prohibited personnel practice.’’.

(e) REPORTS.—Section 1218 of title 5, United States Code, is

amended by inserting ‘‘cases in which it did not make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken within

the 240-day period specified in section 1214(b)(2)(A)(i),’’ after ‘‘investigations conducted by it,’’.

SEC. 4. INDEPENDENT RIGHT OF ACTION.

(a) SUBPOENAS.—Section 1221(d) of title 5, United States Code,

is amended by striking out paragraph (1) and inserting in lieu

thereof the following:

‘‘(1) At the request of an employee, former employee, or

applicant for employment seeking corrective action under subsection (a), the Board shall issue a subpoena for the attendance

and testimony of any person or the production of documentary

or other evidence from any person if the Board finds that

the testimony or production requested is not unduly burdensome and appears reasonably calculated to lead to the discovery

of admissible evidence.’’.

(b) CORRECTIVE ACTIONS.—Section 1221(e)(1) is amended by

adding after the last sentence: ‘‘The employee may demonstrate

that the disclosure was a contributing factor in the personnel action

through circumstantial evidence, such as evidence that— ‘‘(A) the official taking the personnel action knew of the

disclosure; and

‘‘(B) the personnel action occurred within a period of time

such that a reasonable person could conclude that the disclosure

was a contributing factor in the personnel action.’’.

(c) REFERRALS.—Section 1221(f) of title 5, United States Code,

is amended by adding after paragraph (2) the following new paragraph: ‘‘(3) If, based on evidence presented to it under this section,

the Merit Systems Protection Board determines that there is

reason to believe that a current employee may have committed

a prohibited personnel practice, the Board shall refer the matter

to the Special Counsel to investigate and take appropriate

action under section 1215.’’.

SEC. 5. PROHIBITED PERSONNEL PRACTICES.

(a) PERSONNEL ACTIONS.—Section 2302(a)(2)(A) of title 5,

United States Code, is amended—

(1) in clause (ix) by striking out ‘‘and’’ after the semicolon;

(2) by striking out clause (x) and inserting in lieu thereof

the following:

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

‘‘(xi) any other significant change in duties, responsibilities, or working conditions;’’; and
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(3) in the matter following designated clause (xi) (as added

by paragraph (2) of this subsection) by inserting before the

semicolon the following: ‘‘, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an

employee or applicant for employment in a Government corporation as defined in section 9101 of title 31’’.

(b) COVERED POSITIONS.—Section 2302(a)(2)(B) of title 5, United

States Code, is amended to read as follows:

‘‘(B) ‘covered position’ means, with respect to any personnel

action, any position in the competitive service, a career

appointee position in the Senior Executive Service, or a position

in the excepted service, but does not include any position which

is, prior to the personnel action—

‘‘(i) excepted from the competitive service because of

its confidential, policy-determining, policy-making, or policy-advocating character; or

‘‘(ii) excluded from the coverage of this section by the

President based on a determination by the President that

it is necessary and warranted by conditions of good

administration; and’’.

(c) AGENCIES.—Section 2302(a)(2)(C) of title 5, United States

Code, is amended in clause (i) by inserting before the semicolon:

‘‘, except in the case of an alleged prohibited personnel practice

described under subsection (b)(8)’’.

(d) INFORMATIONAL PROGRAM.—Section 2302(c) of title 5, United

States Code, is amended in the first sentence by inserting before

the period ‘‘, and for ensuring (in consultation with the Office

of Special Counsel) that agency employees are informed of the

rights and remedies available to them under this chapter and

chapter 12 of this title’’.

SEC. 6. PERFORMANCE APPRAISALS.

Section 4313(5) of title 5, United States Code, is amended

to read as follows:

‘‘(5) meeting affirmative action goals, achievement of equal

employment opportunity requirements, and compliance with

the merit systems principles set forth under section 2301 of

this title.’’.

SEC. 7. MERIT SYSTEMS APPLICATION TO CERTAIN VETERANS

AFFAIRS PERSONNEL.

Section 2105 of title 5, United States Code, is amended by

adding at the end thereof the following new subsection: ‘‘(f) For purposes of sections 1212, 1213, 1214, 1215, 1216,

1221, 1222, 2302, and 7701, employees appointed under chapter

73 or 74 of title 38 shall be employees.’’.

SEC. 8. CORRECTIVE ACTIONS ORDERED BY THE MERIT SYSTEMS

PROTECTION BOARD.

(a) IN GENERAL.—Section 1214 of title 5, United States Code,

is amended by adding at the end thereof the following new subsection:

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

such corrective action may include—

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

in the position the individual would have been in had the

prohibited personnel practice not occurred; and
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‘‘(2) reimbursement for attorney’s fees, back pay and related

benefits, medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages.’’.

(b) CERTAIN REPRISAL CASES.—Section 1221(g) of title 5, United

States Code (as amended by section 4(d) of this Act), is further

amended—

(1) by redesignating paragraphs (1) and (2) as paragraphs

(2) and (3), respectively; and

(2) by inserting before paragraph (2) (as redesignated by

paragraph (1) of this subsection) the following new paragraph:

‘‘(1)(A) If the Board orders corrective action under this

section, such corrective action may include—

‘‘(i) that the individual be placed, as nearly as possible,

in the position the individual would have been in had

the prohibited personnel practice not occurred; and

‘‘(ii) back pay and related benefits, medical costs

incurred, travel expenses, and any other reasonable and

foreseeable consequential changes.

‘‘(B) Corrective action shall include attorney’s fees and costs

as provided for under paragraphs (2) and (3).’’.

SEC. 9. AUTHORITIES RELATING TO ARBITRATORS AND CHOICE OF

REMEDIES NOT INVOLVING JUDICIAL REVIEW.

(a) AUTHORITIES WHICH MAY BE EXTENDED TO ARBITRATORS.—

Section 7121(b) of title 5, United States Code, is amended—

(1) by redesignating subparagraphs (A) through (C) of paragraph (3) as clauses (i) through (iii), respectively;

(2) by redesignating paragraphs (1) through (3) as subpara- graphs (A) through (C), respectively; (3) by striking ‘‘(b)’’ and inserting ‘‘(b)(1)’’; and

(4) by adding at the end the following: ‘‘(2)(A) The provisions of a negotiated grievance procedure

providing for binding arbitration in accordance with paragraph

(1)(C)(iii) shall, if or to the extent that an alleged prohibited personnel practice is involved, allow the arbitrator to order—

‘‘(i) a stay of any personnel action in a manner similar to the manner described in section 1221(c) with respect to

the Merit Systems Protection Board; and ‘‘(ii) the taking, by an agency, of any disciplinary action identified under section 1215(a)(3) that is otherwise within

the authority of such agency to take.

‘‘(B) Any employee who is the subject of any disciplinary action ordered under subparagraph (A)(ii) may appeal such action to the

same extent and in the same manner as if the agency had taken

the disciplinary action absent arbitration.’’.

(b) CHOICE OF REMEDIES PROVISION NOT INVOLVING JUDICIAL

REVIEW.—Section 7121 of title 5, United States Code, is amended

by adding at the end the following:

‘‘(g)(1) This subsection applies with respect to a prohibited

personnel practice other than a prohibited personnel practice to

which subsection (d) applies.

‘‘(2) An aggrieved employee affected by a prohibited personnel

practice described in paragraph (1) may elect not more than one

of the remedies described in paragraph (3) with respect thereto.

For purposes of the preceding sentence, a determination as to

whether a particular remedy has been elected shall be made as

set forth under paragraph (4).
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‘‘(3) The remedies described in this paragraph are as follows: ‘‘(A) An appeal to the Merit Systems Protection Board under section 7701.

‘‘(B) A negotiated grievance procedure under this section.

‘‘(C) Procedures for seeking corrective action under sub- chapters II and III of chapter 12.

‘‘(4) For the purpose of this subsection, a person shall be considered to have elected—

‘‘(A) the remedy described in paragraph (3)(A) if such per- son has timely filed a notice of appeal under the applicable

appellate procedures; ‘‘(B) the remedy described in paragraph (3)(B) if such per- son has timely filed a grievance in writing, in accordance with

the provisions of the parties’ negotiated procedure; or ‘‘(C) the remedy described in paragraph (3)(C) if such per- son has sought corrective action from the Office of Special

Counsel by making an allegation under section 1214(a)(1).’’.

(c) TECHNICAL AND CONFORMING AMENDMENTS.—Section

7121(a)(1) of title 5, United States Code, is amended—

(1) by striking ‘‘(d) and (e)’’ and inserting ‘‘(d), (e), and (g)’’; and

(2) by inserting ‘‘administrative’’ after ‘‘exclusive’’.

SEC. 10. EXPENSES RELATED TO FEDERAL RETIREMENT APPEALS.

Section 8348(a) of title 5, United States Code, is amended—

(1) in paragraph (1)(B) by striking out ‘‘and’’ at the end

thereof;

(2) in paragraph (2) by striking out the period and inserting

in lieu thereof a semicolon and ‘‘and’’; and

(3) by adding at the end thereof the following new paragraph: ‘‘(3) is made available, subject to such annual limitation

as the Congress may prescribe, for any expenses incurred by

the Merit Systems Protection Board in the administration of

appeals authorized under sections 8347(d) and 8461(e) of this

title.’’.

SEC. 11. ELECTION OF APPLICATION OF LAWS BY EMPLOYEES OF THE

RESOLUTION TRUST CORPORATION AND THRIFT DEPOSITOR PROTECTION OVERSIGHT BOARD.

(a) ELECTION OF PROVISIONS OF TITLE 5, UNITED STATES

CODE.—If an individual who believes he has been discharged or

discriminated against in violation of section 21a(q)(1) of the Federal

Home Loan Bank Act (12 U.S.C. 1441a(q)(1)) seeks an administrative corrective action or judicial remedy for such violation under

the provisions of chapters 12 and 23 of title 5, United States

Code, the provisions of section 21a(q) of such Act shall not apply

to such alleged violation.

(b) ELECTION OF PROVISIONS OF FEDERAL HOME LOAN BANK

ACT.—If an individual files a civil action under section 21a(q)(2)

of the Federal Home Loan Bank Act (12 U.S.C. 1441a(q)(2)), the

provisions of chapters 12 and 23 of title 5, United States Code,

shall not apply to any alleged violation of section 21a(q)(1) of

such Act.

SEC. 12. IMPLEMENTATION.

(a) POLICY STATEMENT.—No later than 6 months after the

date of enactment of this Act, the Special Counsel shall issue
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a policy statement regarding the implementation of the Whistleblower Protection Act of 1989. Such policy statement shall be made

available to each person alleging a prohibited personnel practice

described under section 2302(b)(8) of title 5, United States Code,

and shall include detailed guidelines identifying specific categories

of information that may (or may not) be communicated to agency

officials for an investigative purpose, or for the purpose of obtaining

corrective action under section 1214 of title 5, United States Code,

or disciplinary action under section 1215 of such title, the circumstances under which such information is likely to be disclosed,

and whether or not the consent of any person is required in advance

of any such communication.

(b) TERMINATION STATEMENT.—The Special Counsel shall

include in any letter terminating an investigation under section

1214(a)(2) of title 5, United States Code, the name and telephone

number of an employee of the Special Counsel who is available

to respond to reasonable questions from the person regarding the

investigation or review conducted by the Special Counsel, the relevant facts ascertained by the Special Counsel, and the law

applicable to the person’s allegations.

SEC. 13. ANNUAL SURVEY OF INDIVIDUALS SEEKING ASSISTANCE.

(a) IN GENERAL.—The Office of Special Counsel shall, after

consulting with the Office of Policy and Evaluation of the Merit

Systems Protection Board, conduct an annual survey of all individuals who contact the Office of Special Counsel for assistance. The

survey shall—

(1) determine if the individual seeking assistance was fully

apprised of their rights;

(2) determine whether the individual was successful either

at the Office of Special Counsel or the Merit Systems Protection

Board; and

(3) determine if the individual, whether successful or not,

was satisfied with the treatment received from the Office of

Special Counsel.

(b) REPORT.—The results of the survey conducted under subsection (a) shall be published in the annual report of the Office

of Special Counsel.
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SEC. 14. EFFECTIVE DATE.

The provisions of this Act and the amendments made by this

Act shall be effective on and after the date of the enactment of

this Act.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.