103D CONGRESS

2D SESSION H. R. 2970

AN ACT

To reauthorize the Office of Special Counsel, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. REAUTHORIZATIONS.

4 Section 8(a) of the Whistleblower Protection Act of

5 1989 (5 U.S.C. 5509 note) is amended by striking ‘‘fiscal

6 years’’ through ‘‘such sums’’ each place it appears and

7 inserting ‘‘fiscal years 1993–1997, such sums’’.
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1 SEC. 2. OFFICE OF SPECIAL COUNSEL.

2 (a) AUTHORITY TO CONTINUE SERVING PENDING

3 THE APPOINTMENT OF A SUCCESSOR.—Section 1211(b)

4 of title 5, United States Code, is amended by inserting

5 after the third sentence the following: ‘‘The Special Coun6 sel may continue to serve after the expiration of the Spe7 cial Counsel’s term until a successor has qualified, but for

8 not longer than 1 year.’’.

9 (b) LIMITATIONS ON DISCLOSURES.—

10 (1) IN GENERAL.—Section 1212(g) of title 5,

11 United States Code, is amended to read as follows:

12 ‘‘(g)(1) The Special Counsel may not respond to any

13 inquiry or provide information concerning either any per14 son making an allegation under section 1214(a) or any

15 allegation so made, except in accordance with the provi16 sions of section 552a or as required by any other applica17 ble law.

18 ‘‘(2) If, or to the extent that, the allegation involves

19 a prohibited personnel practice described in paragraph (2),

20 (8), or (9) of section 2302(b), no disclosure described in

21 paragraph (1) may be made unless—

22 ‘‘(A) either of the exceptions permitting disclo23 sure under paragraph (1) is met; and

24 ‘‘(B)(i) the consent of the person who made

25 such allegation is obtained in advance; or
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1 ‘‘(ii) the information is being sought by an

2 agency which requires such information in order to

3 make a determination concerning access, for the per4 son referred to in paragraph (1), to information the

5 unauthorized disclosure of which could be expected

6 to cause exceptionally grave damage to national se7 curity.’’.

8 (2) CONFORMING AMENDMENTS.—Section

9 7121(a)(1) of title 5, United States Code, is amend10 ed—

11 (A) by inserting ‘‘administrative’’ after

12 ‘‘exclusive’’; and

13 (B) by striking ‘‘(d) and (e)’’ and inserting

14 ‘‘(d), (e), and (g)’’.

15 (c) STANDARD APPLICABLE WITH RESPECT TO CER16 TAIN AGENCY FINDINGS.—Section 1213(e)(2)(A) of title

17 5, United States Code, is amended to read as follows:

18 ‘‘(A) the findings of the agency head are sup19 ported by clear and convincing evidence; and’’.

20 (d) TECHNICAL CLARIFICATION.—The first sentence

21 of section 1213(g)(1) of title 5, United States Code, is

22 amended to read as follows: ‘‘If the Special Counsel re23 ceives information from an individual other than an indi24 vidual described in subparagraph (A) or (B) of subsection

25 (c)(2) which, if such individual were an individual de-
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1 scribed in either of such subparagraphs, would be consid2 ered information of a type described in subsection (a), the

3 Special Counsel may transmit the information to the head

4 of the agency which the information concerns.’’.

5 (e) INVESTIGATIONS.—Section 1214(a)(1) of title 5,

6 United States Code, is amended—

7 (1) in subparagraph (B) by striking ‘‘practice

8 under paragraph (1),’’ and inserting ‘‘practice,’’;

9 and

10 (2) by striking subparagraph (C) and inserting

11 the following:

12 ‘‘(C) Unless an investigation under this section is ter13 minated, the Special Counsel shall, within 60 days after

14 notice is provided under subparagraph (B) with respect

15 to a particular allegation, and at least every 60 days there16 after, notify the person who made such allegation as to

17 the status of the investigation and any action which has

18 been taken by the Office of Special Counsel since notice

19 was last given under this subsection.

20 ‘‘(D)(i) Except as provided in clause (ii), no later

21 than 120 days after the date of receiving an allegation

22 of a prohibited personnel practice, the Special Counsel

23 shall determine whether there are reasonable grounds to

24 believe that a prohibited personnel practice has occurred,

25 exists, or is to be taken.
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1 ‘‘(ii) The deadline under clause (i) may be extended

2 by written agreement between the Special Counsel and the

3 person who made the allegation involved.

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

5 this paragraph shall not be admissible in any judicial or

6 administrative proceeding except in the same cir7 cumstances as would apply under paragraph (2)(B) with

8 respect to a written statement under paragraph (2)(A).’’.

9 (f) CLARIFICATION RELATING TO BURDEN OF

10 PROOF.—Sections 1214(b)(4)(B)(i) and 1221(e)(1) (as

11 amended by section 3(b)) are further amended by striking

12 the period at the end and inserting ‘‘, notwithstanding the

13 provisions of section 7701(c)(1).’’.

14 (g) ADDITIONAL INFORMATION TO BE INCLUDED IN

15 ANNUAL REPORTS.—Section 1218 of title 5, United

16 States Code, is amended by inserting ‘‘the number of in17 stances in which it did not make a timely determination

18 under section 1214(a)(1),’’ after ‘‘investigations con19 ducted by it,’’.

20 (h) EFFECTIVE DATE.—The amendments made by

21 subsection (e) shall apply with respect to any allegation

22 first received by the Office of Special Counsel on or after

23 the effective date of this Act.
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1 SEC. 3. INDIVIDUAL RIGHT OF ACTION RELATING TO THE

2 MERIT SYSTEMS PROTECTION BOARD.

3 (a) SUBPOENAS.—Section 1221(d)(1) of title 5,

4 United States Code, is amended to read as follows:

5 ‘‘(d)(1) At the request of an employee, former em6 ployee, or applicant for employment seeking corrective ac7 tion under subsection (a), the Board shall issue a sub8 poena for the attendance and testimony of any person or

9 the production of documentary or other evidence from any

10 person if the Board finds that the matter requested—

11 ‘‘(A) is not unduly burdensome;

12 ‘‘(B) is not privileged or otherwise protected

13 from disclosure by law, rule, or regulation; and

14 ‘‘(C) is relevant to the subject matter involved

15 in the pending action or appears reasonably cal16 culated to lead to the discovery of admissible evi17 dence.’’.

18 (b) BURDEN OF PROOF.—

19 (1) IN GENERAL.—Section 1221(e) of title 5,

20 United States Code, is amended to read as follows:

21 ‘‘(e)(1) Subject to paragraph (2), in any case involv22 ing an alleged prohibited personnel practice as described

23 in paragraph (8) or (9) of section 2302(b), the Board shall

24 order such corrective action as the Board considers appro25 priate if the employee, former employee, or applicant for

26 employment has demonstrated that protected conduct
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1 under such paragraph (8) or (9) (as defined in paragraph

2 (3)(A) or (B), as applicable) was a contributing factor in

3 the personnel action which was taken or is to be taken

4 against such employee, former employee, or applicant.

5 ‘‘(2) Corrective action under paragraph (1) may not

6 be ordered if the agency demonstrates by clear and con7 vincing evidence that it would have taken the same person8 nel action in the absence of the protected conduct involved.

9 ‘‘(3) For the purpose of this subsection, the term

10 ‘protected conduct’ means—

11 ‘‘(A) with respect to paragraph (8) of section

12 2302(b), any disclosure described in subparagraph

13 (A) or (B) of such paragraph; and

14 ‘‘(B) with respect to paragraph (9) of section

15 2302(b), any conduct described in subparagraph

16 (A), (B), (C), or (D) of such paragraph.’’.

17 (2) SAME STANDARD IF RELIEF IS SOUGHT

18 THROUGH OFFICE OF SPECIAL COUNSEL.—

19 (A) IN GENERAL.—Subparagraph (B) of

20 section 1214(b)(4) of title 5, United States

21 Code, is amended to read as follows:

22 ‘‘(B)(i) Subject to the provisions of clause (ii), in any

23 case involving an alleged prohibited personnel practice as

24 described in paragraph (8) or (9) of section 2302(b), the

25 Board shall order such corrective action as the Board con-
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1 siders appropriate if the employee, former employee, or

2 applicant for employment has demonstrated that protected

3 conduct under such paragraph (8) or (9) (as defined in

4 clause (iii)(I) or (II), as applicable) was a contributing fac5 tor in the personnel action which was taken or is to be

6 taken against such employee, former employee, or

7 applicant.

8 ‘‘(ii) Corrective action under clause (i) may not be

9 ordered if the agency demonstrates by clear and convinc10 ing evidence that it would have taken the same personnel

11 action in the absence of the protected conduct involved.

12 ‘‘(iii) For the purpose of this subparagraph, the term

13 ‘protected conduct’ means—

14 ‘‘(I) with respect to paragraph (8) of section

15 2302(b), any disclosure described in subparagraph

16 (A) or (B) of such paragraph; and

17 ‘‘(II) with respect to paragraph (9) of section

18 2302(b), any conduct described in subparagraph

19 (A), (B), (C), or (D) of such paragraph.’’.

20 (B) CONFORMING AMENDMENT.—Section

21 1214(b)(4)(A) is amended by striking ‘‘section

22 2302(b)(8),’’ and inserting ‘‘paragraph (8) or

23 (9) of section 2302(b),’’.

24 (3) SAME STANDARD IF RELIEF IS SOUGHT

25 THROUGH BINDING ARBITRATION.—Section 7121(b)
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1 of title 5, United States Code, as amended by sec2 tion 5(d), is further amended by adding at the end

3 the following:

4 ‘‘(3) The provisions of a negotiated grievance proce5 dure providing for binding arbitration in accordance with

6 paragraph (1)(C)(iii) shall, if or to the extent that an al7 leged prohibited personnel practice described in paragraph

8 (8) or (9) of section 2302(b) is involved, require that the

9 arbitrator apply the same standard as would apply under

10 section 1221(e).’’.

11 (4) SAME STANDARD IF RELIEF IS SOUGHT BY

12 AN APPEAL UNDER SECTION 7701.—Section 7701(c)

13 of title 5, United States Code, is amended—

14 (A) in paragraph (1) by striking ‘‘Subject

15 to paragraph (2)’’ and inserting ‘‘Subject to

16 paragraphs (2) and (3)’’; and

17 (B) by adding at the end the following:

18 ‘‘(3) To the extent that an appeal involves an alleged

19 prohibited personnel practice described in paragraph (8)

20 or (9) of section 2302(b), the standard under section

21 1221(e) shall be applied.’’.

22 (c) REFERRALS FOR POSSIBLE DISCIPLINARY AC23 TION.—Section 1221(f) of title 5, United States Code, is

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

2 section, the Merit Systems Protection Board determines

3 that there is reason to believe that a current employee may

4 have committed a prohibited personnel practice, the Board

5 shall refer the matter to the Special Counsel for investiga6 tion and appropriate action under section 1215.’’.

7 SEC. 4. PROHIBITED PERSONNEL PRACTICES.

8 (a) PERSONNEL ACTIONS.—

9 (1) IN GENERAL.—Section 2302(a)(2)(A) of

10 title 5, United States Code, is amended—

11 (A) in clause (ix) by striking ‘‘and’’ after

12 the semicolon; and

13 (B) by redesignating clause (x) as clause

14 (xii) and inserting before such clause the

15 following:

16 ‘‘(x) a decision to require psychiatric test17 ing or examination;

18 ‘‘(xi) a denial, revocation, or other deter19 mination relating to a security clearance; and’’.

20 (2) CONFORMING AMENDMENT.—Section

21 2303(a) of title 5, United States Code, is amended

22 by striking ‘‘clauses (i) through (x)’’ and inserting

23 ‘‘clauses (i) through (xii)’’.

24 (b) COVERED POSITIONS.—Section 2302(a)(2)(B) of

25 title 5, United States Code, is amended to read as follows:
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1 ‘‘(B) ‘covered position’, as used with respect to

2 an employee or applicant for employment, means

3 any position in the competitive service, a career ap4 pointee position in the Senior Executive Service, a

5 position in the excepted service, or a position covered

6 by chapter 74 of title 38, but does not include any

7 position which, as of the date on which the employee

8 began serving in the position or the applicant ap9 plied for such position (as the case may be), was—

10 ‘‘(i) excepted from the competitive service

11 because of its confidential, policy-determining,

12 policy-making, or policy-advocating character;

13 or

14 ‘‘(ii) excluded from the coverage of this

15 section by the President based on a determina16 tion by the President that it is necessary and

17 warranted by conditions of good administra18 tion.’’.

19 (c) AGENCIES.—

20 (1) IN GENERAL.—Section 2302(a)(2)(C) of

21 title 5, United States Code, is amended—

22 (A) by striking clause (i); and

23 (B) by redesignating clauses (ii) and (iii)

24 as clauses (i) and (ii), respectively.
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1 (2) COORDINATION WITH CERTAIN OTHER PRO2 VISIONS OF LAW.—Section 2305 of title 5, United

3 States Code, is amended—

4 (A) by striking ‘‘No’’ and inserting ‘‘(a)

5 No’’; and

6 (B) by adding at the end the following:

7 ‘‘(b)(1) This subsection applies with respect to a pro8 hibited personnel practice described in section 2302(b)(8)

9 for which a remedy is also available under section 33 of

10 the Federal Deposit Insurance Act or section 21A(q) of

11 the Federal Home Loan Bank Act.

12 ‘‘(2) An employee or former employee affected by a

13 prohibited personnel practice described in paragraph (1)

14 may raise the matter under (A) section 33 of the Federal

15 Deposit Insurance Act or section 21A(q) of the Federal

16 Home Loan Bank Act, as the case may be, or (B) a proce17 dure available under this title, but not both.

18 ‘‘(3) A determination as to if or when an employee

19 or former employee has made a choice under this sub20 section shall be made in a manner similar to that set forth

21 in section 7121(g).’’.

22 (d) INFORMATION.—Section 2302(c) of title 5,

23 United States Code, is amended in the first sentence by

24 striking ‘‘management.’’ and inserting ‘‘management, and

25 for ensuring (in consultation with the Office of Special
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1 Counsel) that employees of such agency are informed of

2 the rights and remedies available to them under this chap3 ter and chapter 12.’’.

4 SEC. 5. ADDITIONAL AMENDMENTS RELATING TO PROCE5 DURES UNDER WHICH INDIVIDUALS MAY

6 SEEK RELIEF FROM PROHIBITED PERSON7 NEL PRACTICES.

8 (a) INDIVIDUAL RIGHT OF ACTION BEFORE MSPB

9 AVAILABLE FOR PROHIBITED PERSONNEL PRACTICES

10 GENERALLY.—

11 (1) IN GENERAL.—Section 1221(a) of title 5,

12 United States Code, is amended by striking ‘‘prac13 tice described in section 2302(b)(8),’’ and inserting

14 ‘‘practice,’’.

15 (2) EXCEPTION.—Subsection (b) of section

16 1221 of title 5, United States Code, is amended by

17 redesignating such subsection as subsection (b)(1),

18 and by adding at the end the following:

19 ‘‘(2) Nothing in this subchapter shall be considered

20 to create any right to seek corrective action with respect

21 to a prohibited personnel practice described in section

22 2302(b)(1).

23 ‘‘(3) For purposes of subsection (a), the term ‘per24 sonnel action’, if taken or proposed to be taken as a result
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1 of a prohibited personnel practice other than one described

2 in paragraph (1) or (8) of section 2302(b), means—

3 ‘‘(A) an action under subchapter II of chapter

4 75;

5 ‘‘(B) a detail, transfer, or reassignment; and

6 ‘‘(C) a reduction in grade or removal under sec7 tion 4303.’’.

8 (3) TECHNICAL CORRECTION.—Section 1221(a)

9 is amended by striking ‘‘subsection 1214(a)(3)’’ and

10 inserting ‘‘section 1214(a)(3)’’.

11 (b) AMENDMENTS RELATING TO THE ‘‘PASS12 THROUGH’’ REQUIREMENT.—Section 1214(a)(3) of title

13 5, United States Code, is amended—

14 (1) by adding at the end the following:

15 ‘‘This paragraph shall not apply with respect to a prohib16 ited personnel practice described in section 2302(b)(8).’’;

17 (2) by redesignating subparagraphs (A) and

18 (B) as subparagraphs (B) and (C), respectively; and

19 (3) by striking the matter before subparagraph

20 (B) (as so redesignated by paragraph (2)) and in21 serting the following:

22 ‘‘(3) Except as provided in the last sentence of this

23 paragraph, an employee, former employee, or applicant for

24 employment may not seek corrective action from the

25 Board under section 1221 unless—
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1 ‘‘(A) such employee, former employee, or appli2 cant has sought corrective action from the Special

3 Counsel under this subchapter;’’.

4 (c) CHOICE OF REMEDIES PROVISION INVOLVING

5 JUDICIAL REVIEW.—

6 (1) IN GENERAL.—Chapter 12 of title 5, United

7 States Code, is amended by adding at the end the

8 following:

9 ‘‘SUBCHAPTER IV—JUDICIAL REVIEW

10 ‘‘§ 1231. Judicial review

11 ‘‘(a) Subject to subsection (b) and section 1232, an

12 employee, former employee, or applicant for employment

13 may, with respect to a personnel action taken, or proposed

14 to be taken, against such employee, former employee, or

15 applicant for employment, as a result of a prohibited per16 sonnel practice described in section 2302(b)(8), bring a

17 civil action in the appropriate district court of the United

18 States for relief. For purposes of the preceding sentence,

19 the term ‘personnel action’ means—

20 ‘‘(1) an action under subchapter II of chapter

21 75;

22 ‘‘(2) a detail, transfer, or reassignment; and

23 ‘‘(3) a reduction in grade or removal under sec24 tion 4303.

25 ‘‘(b) An action under this section—
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1 ‘‘(1) shall be brought in the district court of the

2 United States for the judicial district in which the

3 prohibited personnel practice is alleged to have been

4 committed, in which the employment records rel5 evant to such practice are maintained and adminis6 tered, or in which the aggrieved person works or

7 would have worked but for the alleged prohibited

8 personnel practice; and

9 ‘‘(2) shall be brought within 120 days after the

10 prohibited personnel practice is alleged to have oc11 curred.

12 ‘‘(c) STANDARD OF REVIEW.—In any action brought

13 under this section, the court—

14 ‘‘(1) shall review the matter de novo; and

15 ‘‘(2) shall apply the same standard as would

16 the Merit Systems Protection Board under section

17 1214(b)(4)(B) or 1221(e).

18 ‘‘§ 1232. Choice of remedies

19 ‘‘(a) An action under section 1231—

20 ‘‘(1) if brought, shall be in lieu of any remedy

21 described in subsection (b); but

22 ‘‘(2) may not be brought if the aggrieved person

23 has elected to raise the same matter under any of

24 the remedies described in subsection (b).
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1 ‘‘(b) The remedies described in this subsection are

2 as follows:

3 ‘‘(1) An appeal to the Merit Systems Protection

4 Board under section 7701.

5 ‘‘(2) A negotiated grievance procedure under

6 section 7121.

7 ‘‘(3) Procedures for seeking corrective action

8 under subchapters II and III.

9 ‘‘(c) For the purpose of this section, a person shall

10 be considered to have elected—

11 ‘‘(1) the remedy described in subsection (b)(1)

12 if such person has timely filed a notice of appeal

13 under the applicable appellate procedures;

14 ‘‘(2) the remedy described in subsection (b)(2)

15 if such person has timely filed a grievance in writ16 ing, in accordance with the provisions of the parties’

17 negotiated procedure; or

18 ‘‘(3) the remedy described in subsection (b)(3)

19 if such person has sought corrective action from the

20 Office of Special Counsel by making an allegation

21 under section 1214(a)(1).

22 ‘‘(d) For purposes of subsection (a)(1), a person shall

23 be considered to have elected the remedy under section

24 1231 if such person has timely commenced an action in
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1 an appropriate court, in accordance with applicable proce2 dures.

3 ‘‘§ 1233. Appeals

4 ‘‘Any party aggrieved by a final decision under sec5 tion 1231 may appeal such decision only to the United

6 States Court of Appeals for the Federal Circuit.’’.

7 (2) CHAPTER ANALYSIS.—The analysis for

8 chapter 12 of title 5, United States Code, is amend9 ed by striking ‘‘Sec.’’ each place it appears, by in10 serting ‘‘Sec.’’ as a flush left item after the item re11 lating to subchapter I, and by adding at the end the

12 following:

‘‘SUBCHAPTER IV—JUDICIAL REVIEW

‘‘1231. Judicial review.

‘‘1232. Choice of remedies.

‘‘1233. Appeals.’’.

13 (d) AUTHORITIES WHICH MAY BE EXTENDED TO

14 ARBITRATORS.—Section 7121(b) of title 5, United States

15 Code, is amended—

16 (1) by redesignating subparagraphs (A) through

17 (C) of paragraph (3) as clauses (i) through (iii), re18 spectively;

19 (2) by redesignating paragraphs (1) through

20 (3) as subparagraphs (A) through (C), respectively;

21 (3) by striking ‘‘(b)’’ and inserting ‘‘(b)(1)’’;

22 and

23 (4) by adding at the end the following:
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1 ‘‘(2)(A) The provisions of a negotiated grievance pro2 cedure providing for binding arbitration in accordance

3 with paragraph (1)(C)(iii) shall, if or to the extent that

4 an alleged prohibited personnel practice is involved, allow

5 the arbitrator to order—

6 ‘‘(i) a stay of any personnel action in a manner

7 similar to the manner described in section 1221(c)

8 with respect to the Merit Systems Protection Board;

9 and

10 ‘‘(ii) the taking, by an agency, of any discipli11 nary action identified under section 1215(a)(3) that

12 is otherwise within the authority of such agency to

13 take.

14 ‘‘(B) Any employee who is the subject of any discipli15 nary action ordered under subparagraph (A)(ii) may ap16 peal such action to the same extent and in the same man17 ner as if the agency had taken the disciplinary action ab18 sent arbitration.’’.

19 (e) CHOICE OF REMEDIES PROVISION NOT INVOLV20 ING JUDICIAL REVIEW.—Section 7121 of title 5, United

21 States Code, is amended by adding at the end the follow22 ing:

23 ‘‘(g)(1) This subsection applies with respect to a pro24 hibited personnel practice other than a prohibited person25 nel practice to which subsection (d) applies.
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1 ‘‘(2) An aggrieved employee affected by a prohibited

2 personnel practice described in paragraph (1) may elect

3 not more than one of the remedies described in paragraph

4 (3) with respect thereto. For purposes of the preceding

5 sentence, a determination as to whether a particular rem6 edy has been elected shall be made in the same way as

7 set forth in section 1232(c).

8 ‘‘(3) The remedies described in this paragraph are

9 as follows:

10 ‘‘(A) An appeal to the Merit Systems Protection

11 Board under section 7701.

12 ‘‘(B) A negotiated grievance procedure under

13 this section.

14 ‘‘(C) Procedures for seeking corrective action

15 under subchapters II and III of chapter 12.’’.

16 SEC. 6. PERFORMANCE APPRAISALS.

17 Paragraph (5) of section 4313 of title 5, United

18 States Code, is amended to read as follows:

19 ‘‘(5) meeting affirmative action goals, achieve20 ment of equal employment opportunity requirements,

21 and compliance with the merit systems principles set

22 forth in section 2301.’’.

23 SEC. 7. IMPLEMENTATION.

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

25 after the date of the enactment of this Act, the Special
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1 Counsel shall issue a policy statement regarding the imple2 mentation of the amendments made by the Whistleblower

3 Protection Act of 1989. Such policy statement shall be

4 made available to each person alleging a prohibited per5 sonnel practice described in section 2302(b) of title 5,

6 United States Code, and shall include detailed guidelines

7 identifying specific categories of information that may (or

8 may not) be communicated to agency officials for an inves9 tigative purpose, or for the purpose of obtaining corrective

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

11 or disciplinary action under section 1215 of such title, the

12 circumstances under which such information is likely to

13 be disclosed, and whether or not the consent of any person

14 is required in advance of any such communication.

15 (b) TERMINATION STATEMENT.—The Special Coun16 sel shall include in any written statement under section

17 1214(a)(2)(A) of title 5, United States Code, the name

18 and telephone number of an employee of the Office of Spe19 cial Counsel who shall be available to respond to reason20 able questions from the person regarding the investigation

21 involved, the relevant facts ascertained by the Special

22 Counsel, and the law applicable to the person’s allegations.

23 SEC. 8. AMENDMENTS RELATING TO ATTORNEY’S FEES.

24 (a) CHAPTER 12.—Section 1221(g) of title 5, United

25 States Code, is amended by striking ‘‘attorney’s fees’’ each
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1 place it appears and inserting ‘‘fees for legal representa2 tion’’.

3 (b) CHAPTER 77.—Section 7701(g) of title 5, United

4 States Code, is amended—

5 (1) by striking ‘‘attorney fees’’ each place it ap6 pears and inserting ‘‘fees for legal representation’’;

7 and

8 (2) in paragraph (1)—

9 (A) by inserting ‘‘substantially’’ before

10 ‘‘prevailing’’; and

11 (B) by striking ‘‘agency or any case in

12 which the agency’s action was clearly without

13 merit.’’ and inserting ‘‘agency, in which the

14 agency’s action was clearly without merit, or

15 which is settled or otherwise similarly re16 solved.’’.

17 SEC. 9. MSPB RETIREMENT APPEALS EXPENSE AUTHORIZA18 TION.

19 (a) IN GENERAL.—Section 8348(a) of title 5, United

20 States Code, is amended by striking ‘‘and’’ at the end of

21 paragraph (1), by striking the period at the end of para22 graph (2) and inserting ‘‘; and’’, and by adding at the

23 end the following:

24 ‘‘(3) is made available, subject to such annual

25 limitation as the Congress may prescribe, for any ex-
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1 penses incurred by the Merit Systems Protection

2 Board in connection with the administration of ap3 peals authorized under section 8347(d) or 8461(e).’’.

4 (b) EFFECTIVE DATE.—The amendments made by

5 subsection (a) shall take effect on October 1, 1995.

6 SEC. 10. EFFECTIVE DATE.

7 (a) IN GENERAL.—Except as provided in section 9,

8 this Act and the amendments made by this Act shall take

9 effect 120 days after the date of the enactment of this

10 Act.

11 (b) SAVINGS PROVISION.—No provision of this Act

12 shall affect any administrative proceeding pending at the

13 time such provision takes effect. Orders shall be issued

14 in such proceedings and appeals shall be taken therefrom

15 as if this Act had not been enacted.

Passed the House of Representatives October 3,

1994.

Attest:

Clerk.
103D CONGRESS

2D SESSION H. R. 2970

AN ACT

To reauthorize the Office of Special Counsel, and

for other purposes.