I

103D CONGRESS

1ST SESSION H. R. 2970

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

IN THE HOUSE OF REPRESENTATIVES

AUGUST 6, 1993

Mr. MCCLOSKEY introduced the following bill; which was referred to the

Committee on Post Office and Civil Service

A BILL

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. REAUTHORIZATION.

4 Section 8(a)(2) of the Whistleblower Protection Act

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

6 ‘‘1989, 1990, 1991, and 1992’’ and inserting ‘‘1994 and

7 1995’’.

8 SEC. 2. OFFICE OF SPECIAL COUNSEL.

9 (a) AUTHORITY TO CONTINUE SERVING PENDING

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

11 of title 5, United States Code, is amended by inserting
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1 after the third sentence the following: ‘‘The Special Coun2 sel may continue to serve after the expiration of the Spe3 cial Counsel’s term until a successor has qualified, but for

4 not longer than 1 year.’’.

5 (b) LIMITATIONS ON DISCLOSURES.—Section

6 1212(g) of title 5, United States Code, is amended to read

7 as follows:

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

9 inquiry or provide information concerning either any per10 son making an allegation under section 1214(a) or any

11 allegation so made, except in accordance with the provi12 sions of section 552a or as required by any other applica13 ble law.

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

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

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

17 paragraph (1) may be made unless—

18 ‘‘(A) either of the exceptions permitting disclo19 sure under paragraph (1) is met; and

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

21 such allegation is obtained in advance; or

22 ‘‘(ii) the information is being sought by an

23 agency which requires such information in order to

24 make a determination concerning access, for the per25 son referred to in paragraph (1), to information the
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1 unauthorized disclosure of which could be expected

2 to cause exceptionally grave damage to the national

3 security.’’

4 (c) STANDARD APPLICABLE WITH RESPECT TO CER5 TAIN AGENCY FINDINGS.—Section 1213(e)(2)(A) of title

6 5, United States Code, is amended to read as follows:

7 ‘‘(A) the findings of the agency head are sup8 ported by clear and convincing evidence; and’’.

9 (d) TECHNICAL CLARIFICATION.—The first sentence

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

11 amended to read as follows: ‘‘If the Special Counsel re12 ceives information from an individual other than an indi13 vidual described in subparagraph (A) or (B) of subsection

14 (c)(2) which, if such individual were an individual de15 scribed in either of such subparagraphs, would be consid16 ered information of a type described in subsection (a), the

17 Special Counsel may transmit the information to the head

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

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

20 United States Code, is amended—

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

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

23 and

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

25 the following:
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1 ‘‘(C) Unless an investigation under this section is ter2 minated, the Special Counsel shall, within 60 days after

3 notice is provided under subparagraph (B) with respect

4 to a particular allegation, and at least every 60 days there5 after, notify the person who made such allegation as to

6 the status of the investigation and any action which has

7 been taken by the Office of Special Counsel since notice

8 was last given under this subsection.

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

10 than 120 days after the date of receiving an allegation

11 of a prohibited personnel practice, the Special Counsel

12 shall determine whether there are reasonable grounds to

13 believe that a prohibited personnel practice has occurred,

14 exists, or is to be taken.

15 ‘‘(ii) The deadline under clause (i) may be extended

16 by written agreement between the Special Counsel and the

17 person who made the allegation involved.

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

19 this paragraph shall not be admissible in any judicial or

20 administrative proceeding except in the same cir21 cumstances as would apply under paragraph (2)(B) with

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

23 (f) CLARIFICATION RELATING TO BURDEN OF

24 PROOF.—Section 1214(b)(4)(B)(i) is amended, and

25 1221(e)(1) (as amended by section 3(b)) is further amend-
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1 ed, by striking the period at the end and inserting ‘‘, not2 withstanding the provisions of section 7701(c)(1).’’.

3 (g) ADDITIONAL INFORMATION TO BE INCLUDED IN

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

5 States Code, is amended by inserting ‘‘the number of in6 stances in which it did not make a timely determination

7 under section 1214(a)(1),’’ after ‘‘investigations con8 ducted by it,’’.

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

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

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

12 the effective date of this Act.

13 SEC. 3. INDIVIDUAL RIGHT OF ACTION RELATING TO THE

14 MERIT SYSTEMS PROTECTION BOARD.

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

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

17 ‘‘(d)(1) At the request of an employee, former em18 ployee, or applicant for employment seeking corrective ac19 tion under subsection (a), the Board shall issue a sub20 poena for the attendance and testimony of any person or

21 the production of documentary or other evidence from any

22 person if the Board finds that the matter requested—

23 ‘‘(A) is not unduly burdensome;

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

25 from disclosure by law, rule, or regulation; and
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1 ‘‘(C) is relevant to the subject matter involved

2 in the pending action or appears reasonably cal3 culated to lead to the discovery of admissible evi4 dence.’’.

5 (b) BURDEN OF PROOF.—Section 1221(e) of title 5,

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

7 ‘‘(e)(1) Subject to paragraph (2), in any case involv8 ing an allegation of a prohibited personnel practice de9 scribed in paragraph (8) or (9) of section 2302(b), the

10 Board shall order such corrective action as the Board con11 siders appropriate if the employee, former employee, or

12 applicant for employment has demonstrated that protected

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

14 paragraph (3)(A) or (B), as applicable) was a contributing

15 factor in the personnel action which was taken or is to

16 be taken against such employee, former employee, or

17 applicant.

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

19 be ordered if the agency demonstrates by clear and con20 vincing evidence that it would have taken the same person21 nel action in the absence of the protected conduct involved.

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

23 ‘protected conduct’ means—
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1 ‘‘(A) with respect to paragraph (8) of section

2 2302(b), any disclosure described in subparagraph

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

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

5 2302(b), any conduct described in subparagraph

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

7 (c) REFERRALS FOR POSSIBLE DISCIPLINARY AC8 TION.—Section 1221(f) of title 5, United States Code, is

9 amended by adding after paragraph (2) the following:

10 ‘‘(3) If, based on evidence presented to it under this

11 section, the Merit Systems Protection Board determines

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

13 have committed a prohibited personnel practice, the Board

14 shall refer the matter to the Special Counsel for investiga15 tion and appropriate action under section 1215.’’.

16 SEC. 4. PROHIBITED PERSONNEL PRACTICES.

17 (a) PERSONNEL ACTIONS.—

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

19 title 5, United States Code, is amended—

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

21 the semicolon; and

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

23 (xiv) and inserting before such clause the

24 following:
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1 ‘‘(x) a decision to require psychiatric testing or

2 examination;

3 ‘‘(xi) a denial, revocation, or other determina4 tion relating to a security clearance;

5 ‘‘(xii) a removal (other than a removal which is

6 covered by clause (iii) or which is based on perform7 ance);

8 ‘‘(xiii) a decision to commence a formal inves9 tigation that may result in criminal prosecution or

10 an adverse personnel action (as defined by any other

11 clause of this subparagraph); and’’.

12 (2) CONFORMING AMENDMENT.—Section

13 2302(a) of title 5, United States Code, is amended

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

15 ‘‘clauses (i) through (xiv)’’.

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

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

18 ‘‘(B) ‘covered position’, as used with respect to

19 an employee or applicant for employment, means

20 any position in the competitive service, a career ap21 pointee position in the Senior Executive Service, a

22 position in the excepted service, or a position covered

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

24 position which, as of the date on which the employee
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1 began serving in the position or the applicant ap2 plied for such position (as the case may be), was—

3 ‘‘(i) excepted from the competitive service

4 because of its confidential, policy-determining,

5 policy-making, or policy-advocating character;

6 or

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

8 section by the President based on a determina9 tion by the President that it is necessary and

10 warranted by conditions of good administra11 tion.’’.

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

13 United States Code, is amended—

14 (i) in clause (i) by striking ‘‘corporation;’’ and

15 inserting ‘‘corporation (except for purposes of sub16 section (b)(8) and any other provision of this section

17 if, or to the extent that, it relates to subsection

18 (b)(8));’’; and

19 (ii) in clause (ii) by striking ‘‘activities; or’’ and

20 inserting ‘‘activities (except for the same purposes as

21 set forth parenthetically in clause (i)); or’’.

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 (e) SENSE OF CONGRESS.—It is the sense of the Con5 gress that a Federal employee or applicant for Federal

6 employment who makes a disclosure described in section

7 2302(b)(8) of title 5, United States Code, should not be

8 prosecuted, or threatened with prosecution, under section

9 205 of title 18, United States Code, for such disclosure.

10 SEC. 5. ADDITIONAL AMENDMENTS RELATING TO PROCE11 DURES UNDER WHICH INDIVIDUALS MAY

12 SEEK RELIEF FROM PROHIBITED PERSON13 NEL PRACTICES.

14 (a) INDIVIDUAL RIGHT OF ACTION BEFORE MSPB

15 AVAILABLE FOR PROHIBITED PERSONNEL PRACTICES

16 GENERALLY.—

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

18 United States Code, is amended by striking ‘‘prac19 tice described in section 2302(b)(8),’’ and inserting

20 ‘‘practice,’’.

21 (2) EXCEPTION.—Section 1221(b) of title 5,

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

23 ‘‘(b) Nothing in this subchapter shall be considered

24 to create any right to seek corrective action with respect
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1 to a prohibited personnel practice described in section

2 2302(b)(1).’’.

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

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

5 inserting ‘‘section 1214(a)(3)’’.

6 (b) REVIEW BY THE UNITED STATES COURT OF AP7 PEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.—

8 (1) IN GENERAL.—Sections 1214(c)(2) and

9 1221(h)(2) of title 5, United States Code, are each

10 amended to read as follows:

11 ‘‘(2)(A) A petition for review under this subsection

12 shall be filed with the United States Court of Appeals for

13 the District of Columbia Circuit within 30 days after the

14 date the petitioner receives notice of the final order or de15 cision of the Board.

16 ‘‘(B) The provisions of section 706 shall govern any

17 such review, notwithstanding any provision of section

18 7703(b)(1).

19 ‘‘(C) For purposes of applying the provisions of sec20 tion 7703(d) with respect to any matter as to which judi21 cial review is sought under this subsection, the reference

22 in such provisions to the ‘United States Court of Appeals

23 for the Federal Circuit’ shall be deemed to be a reference

24 to the ‘United States Court of Appeals for the District

25 of Columbia Circuit’.’’.
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1 (2) CONFORMING AMENDMENT.—Section

2 7703(b)(1) of title 5, United States Code, is amend3 ed by striking ‘‘subsection,’’ and inserting ‘‘sub4 section or section 1214(c)(2) or 1221(h)(2),’’.

5 (c) AMENDMENTS RELATING TO THE ‘‘PASS6 THROUGH’’ REQUIREMENT.—Section 1214(a)(3) of title

7 5, United States Code, is amended—

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

9 ‘‘This paragraph shall not apply with respect to a prohib10 ited personnel practice described in section 2302(b)(8).’’;

11 (2) by redesignating subparagraphs (A) and

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

13 (3) by striking the matter before subparagraph

14 (B) (as so redesignated by paragraph (2)) and in15 serting the following:

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

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

18 employment may not seek corrective action from the

19 Board under section 1221 unless—

20 ‘‘(A) such employee, former employee, or appli21 cant has sought corrective action from the Special

22 Counsel under this subchapter;’’.

23 (d) CHOICE OF REMEDIES.—
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1 (1) IN GENERAL.—Chapter 12 of title 5, United

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

3 following:

4 ‘‘SUBCHAPTER IV—JUDICIAL REVIEW

5 ‘‘§ 1231. Judicial review

6 ‘‘(a) Subject to section 1232, any employee, former

7 employee, or applicant for employment may, with respect

8 to any personnel action taken, or proposed to be taken,

9 against such employee, former employee, or applicant for

10 employment, as a result of a prohibited personnel practice

11 (other than a prohibited personnel practice described in

12 section 2302(b)(1)), bring a civil action in the appropriate

13 district court of the United States.

14 ‘‘(b) The district courts of the United States shall

15 have jurisdiction of actions brought under this subchapter

16 without regard to the amount in controversy.

17 ‘‘(c) An action under this subchapter—

18 ‘‘(1) shall be brought in the district court of the

19 United States for the judicial district in which the

20 prohibited personnel practice is alleged to have been

21 committed, in which the employment records rel22 evant to such practice are maintained and adminis23 tered, or in which the aggrieved person works or

24 would have worked but for the alleged prohibited

25 personnel practice; and
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1 ‘‘(2)(A) in the case of a prohibited personnel

2 practice described in section 2302(b)(8), shall be

3 brought within 120 days after the alleged prohibited

4 personnel practice occurred; or

5 ‘‘(B) in the case of a prohibited personnel prac6 tice other than a prohibited personnel practice de7 scribed in paragraph (1) or (8) of section 2302(b)—

8 ‘‘(i) may be brought only after such per9 son’s administrative remedies under section

10 1214 have been exhausted; and

11 ‘‘(ii) must be brought within 60 days after

12 the exhaustion requirement referred to in clause

13 (i) has first been met.

14 For purposes of paragraph (2)(B), a person’s administra15 tive remedies under section 1214 shall be considered to

16 have been exhausted once subparagraph (B) or (C) of sec17 tion 1214(a)(3) has been satisfied. Review of any matter

18 brought in accordance with paragraph (2)(B) shall be de

19 novo.

20 ‘‘§ 1232. Choice of remedies

21 ‘‘(a)(1) With respect to a prohibited personnel prac22 tice described in section 2302(b)(8), an aggrieved person

23 may raise the matter under not more than any 1 of the

24 following:

25 ‘‘(A) Subchapter II.
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1 ‘‘(B) Subchapter III.

2 ‘‘(C) A negotiated grievance procedure referred

3 to in section 7121 (if available).

4 ‘‘(D) Section 1231.

5 ‘‘(2) A person shall be considered to have exercised

6 such person’s option to raise a matter under any of the

7 alternatives listed under paragraph (1) at such time as

8 such person timely initiates an action under the applicable

9 statutory procedures or timely files a grievance in writing.

10 ‘‘(b)(1) With respect to a prohibited personnel prac11 tice other than a prohibited personnel practice described

12 in paragraph (1) or (8) of section 2302(b), an aggrieved

13 person may raise the matter under either of the following

14 (but not both):

15 ‘‘(A) The provisions of law referred to in sub16 section (a)(1)(B) (including any subsequent right of

17 action under section 1221 or 1231, but not both).

18 ‘‘(B) A negotiated grievance procedure referred

19 to in section 7121 (if available).

20 ‘‘(2) A person shall be considered to have exercised

21 such person’s option to raise a matter under either of the

22 alternatives listed under paragraph (1) (including, at the

23 appropriate point in time, and if applicable, the options

24 referred to parenthetically in paragraph (1)(A)) at such

25 time as the person timely initiates an action under the
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1 applicable statutory procedures or timely files a grievance

2 in writing.’’.

3 (2) TECHNICAL AND CONFORMING AMEND4 MENTS.—

5 (A) SECTION 1214.—Section 1214 of title

6 5, United States Code, is amended by adding at

7 the end the following:

8 ‘‘(g) For choice of remedies provisions relevant to this

9 section, see section 1232.’’.

10 (B) SECTION 1221.—Section 1221 of title

11 5, United States Code, is amended by adding at

12 the end the following:

13 ‘‘(k) For choice of remedies provisions relevant to this

14 section, see section 1232.’’.

15 (C) SECTION 7121.—Section 7121 of title

16 5, United States Code, is amended by adding at

17 the end the following:

18 ‘‘(g) For choice of remedies provisions relevant to this

19 section, see section 1232.’’.

20 (3) CHAPTER ANALYSIS.—The analysis for

21 chapter 12 of title 5, United States Code, is amend22 ed by striking ‘‘Sec.’’ each place it appears, by in23 serting ‘‘Sec.’’ as a flush left item after the item re24 lating to subchapter I, and by adding at the end the

25 following:
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‘‘SUBCHAPTER IV—JUDICIAL REVIEW

‘‘1231. Judicial review.

‘‘1232. Choice of remedies.’’.

1 (e) AUTHORITIES WHICH MAY BE EXTENDED TO

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

3 Code, is amended—

4 (1) by redesignating subparagraphs (A) through

5 (C) as clauses (i) through (iii), respectively;

6 (2) by redesignating paragraphs (1) through

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

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

9 and

10 (4) by adding at the end the following:

11 ‘‘(2)(A) The provisions of a negotiated grievance pro12 cedure providing for binding arbitration in accordance

13 with paragraph (1)(C)(iii) may, if or to the extent that

14 an alleged prohibited personnel practice is involved, allow

15 the arbitrator to order—

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

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

18 with respect to the Merit Systems Protection Board;

19 and

20 ‘‘(ii) any disciplinary action allowable under

21 section 1215, consistent with the due process rights

22 afforded under such section.
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1 ‘‘(B) With respect to any disciplinary action imposed

2 by an arbitrator pursuant to subparagraph (A)(ii), judicial

3 review of the order imposing such disciplinary action may

4 be obtained in the same manner and on the same basis

5 as could be obtained under section 1215(a)(4) if such an

6 order had been issued by the Merit Systems Protection

7 Board.’’.

8 SEC. 6. PERFORMANCE APPRAISALS.

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

10 States Code, is amended to read as follows:

11 ‘‘(5) meeting affirmative action goals, achieve12 ment of equal employment opportunity requirements,

13 and compliance with the merit systems principles set

14 forth in section 2301.’’.

15 SEC. 7. IMPLEMENTATION.

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

17 after the date of the enactment of this Act, the Special

18 Counsel shall issue a policy statement regarding the imple19 mentation of the amendments made by the Whistleblower

20 Protection Act of 1989. Such policy statement shall be

21 made available to each person alleging a prohibited per22 sonnel practice described in section 2302(b)(8) of title 5,

23 United States Code, and shall include detailed guidelines

24 identifying specific categories of information that may (or

25 may not) be communicated to agency officials for an inves-
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1 tigative purpose, or for the purpose of obtaining corrective

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

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

4 circumstances under which such information is likely to

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

6 is required in advance of any such communication.

7 (b) TERMINATION STATEMENT.—The Special Coun8 sel shall include in any written statement under section

9 1214(a)(2)(A) of title 5, United States Code, the name

10 and telephone number of an employee of the Office of Spe11 cial Counsel who shall be available to respond to reason12 able questions from the person regarding the investigation

13 involved, the relevant facts ascertained by the Special

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

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

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

17 States Code, is amended by striking ‘‘attorney’s fees’’ each

18 place it appears and inserting ‘‘fees for legal representa19 tion’’.

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

21 States Code, is amended—

22 (1) by striking ‘‘attorney fees’’ each place it ap23 pears and inserting ‘‘fees for legal representation’’;

24 and

25 (2) in paragraph (1)—
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1 (A) by inserting ‘‘substantially’’ before

2 ‘‘prevailing’’; and

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

4 which the agency’s action was clearly without

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

6 agency’s action was clearly without merit, or

7 which is settled or otherwise similarly re8 solved.’’.

9 SEC. 9. EFFECTIVE DATE; SAVINGS PROVISION.

10 (a) IN GENERAL.—The provisions of this Act shall

11 take effect 120 days after the date of the enactment of

12 this Act.

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

14 shall affect any administrative proceeding pending at the

15 time such provisions take effect. Orders shall be issued

16 in such proceedings and appeals shall be taken therefrom

17 as if this Act had not been enacted.

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