Union Calendar No. 417

103D CONGRESS

2D SESSION H. R. 2970

[Report No. 103–769]

A BILL

To reauthorize the Office of Special Counsel, and

S

for other purposes.

EPTEMBER 30, 1994

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union, and
IB

Union Calendar No. 417

103D CONGRESS

2D SESSION H. R. 2970

[Report No. 103–769]

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

SEPTEMBER 30, 1994

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on August 6, 1993]

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. REAUTHORIZATIONS.

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

5 1989 (5 U.S.C. 5509 note) is amended by striking ‘‘fiscal
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1 years’’ through ‘‘such sums’’ each place it appears and in2 serting ‘‘fiscal years 1993–1997, such sums’’.

3 SEC. 2. OFFICE OF SPECIAL COUNSEL.

4 (a) AUTHORITY TO CONTINUE SERVING PENDING THE

5 APPOINTMENT OF A SUCCESSOR.—Section 1211(b) of title

6 5, United States Code, is amended by inserting after the

7 third sentence the following: ‘‘The Special Counsel may con8 tinue to serve after the expiration of the Special Counsel’s

9 term until a successor has qualified, but for not longer than

10 1 year.’’.

11 (b) LIMITATIONS ON DISCLOSURES.—Section 1212(g)

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

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

14 inquiry or provide information concerning either any per15 son making an allegation under section 1214(a) or any alle16 gation so made, except in accordance with the provisions

17 of section 552a or as required by any other applicable 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 such

25 allegation is obtained in advance; or
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1 ‘‘(ii) the information is being sought by an agen2 cy which requires such information in order to make

3 a determination concerning access, for the person re4 ferred to in paragraph (1), to information the unau5 thorized disclosure of which could be expected to cause

6 exceptionally grave damage to national security.’’.

7 (c) STANDARD APPLICABLE WITH RESPECT TO CER8 TAIN AGENCY FINDINGS.—Section 1213(e)(2)(A) of title 5,

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

10 ‘‘(A) the findings of the agency head are sup11 ported by clear and convincing evidence; and’’.

12 (d) TECHNICAL CLARIFICATION.—The first sentence of

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

14 to read as follows: ‘‘If the Special Counsel receives informa15 tion from an individual other than an individual described

16 in subparagraph (A) or (B) of subsection (c)(2) which, if

17 such individual were an individual described in either of

18 such subparagraphs, would be considered information of a

19 type described in subsection (a), the Special Counsel may

20 transmit the information to the head of the agency which

21 the information concerns.’’.

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

23 United States Code, is amended—

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

25 under paragraph (1),’’ and inserting ‘‘practice,’’; and
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1 (2) by striking subparagraph (C) and inserting

2 the following:

3 ‘‘(C) Unless an investigation under this section is ter4 minated, the Special Counsel shall, within 60 days after

5 notice is provided under subparagraph (B) with respect to

6 a particular allegation, and at least every 60 days there7 after, notify the person who made such allegation as to the

8 status of the investigation and any action which has been

9 taken by the Office of Special Counsel since notice was last

10 given under this subsection.

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

12 120 days after the date of receiving an allegation of a pro13 hibited personnel practice, the Special Counsel shall deter14 mine whether there are reasonable grounds to believe that

15 a prohibited personnel practice has occurred, exists, or is

16 to be taken.

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

18 by written agreement between the Special Counsel and the

19 person who made the allegation involved.

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

21 this paragraph shall not be admissible in any judicial or

22 administrative proceeding except in the same circumstances

23 as would apply under paragraph (2)(B) with respect to a

24 written statement under paragraph (2)(A).’’.
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1 (f) CLARIFICATION RELATING TO BURDEN OF

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

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

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

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

6 (g) ADDITIONAL INFORMATION TO BE INCLUDED IN

7 ANNUAL REPORTS.—Section 1218 of title 5, United States

8 Code, is amended by inserting ‘‘the number of instances in

9 which it did not make a timely determination under section

10 1214(a)(1),’’ after ‘‘investigations conducted by it,’’.

11 (h) EFFECTIVE DATE.—The amendments made by sub12 section (e) shall apply with respect to any allegation first

13 received by the Office of Special Counsel on or after the

14 effective date of this Act.

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

16 MERIT SYSTEMS PROTECTION BOARD.

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

18 States Code, is amended to read as follows:

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

20 or applicant for employment seeking corrective action under

21 subsection (a), the Board shall issue a subpoena for the at22 tendance and testimony of any person or the production

23 of documentary or other evidence from any person if the

24 Board finds that the matter requested—

25 ‘‘(A) is not unduly burdensome;
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1 ‘‘(B) is not privileged or otherwise protected

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

3 ‘‘(C) is relevant to the subject matter involved in

4 the pending action or appears reasonably calculated

5 to lead to the discovery of admissible evidence.’’.

6 (b) BURDEN OF PROOF.—

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

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

9 ‘‘(e)(1) Subject to paragraph (2), in any case involving

10 an alleged prohibited personnel practice as described in

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

12 order such corrective action as the Board considers appro13 priate if the employee, former employee, or applicant for

14 employment has demonstrated that protected conduct under

15 such paragraph (8) or (9) (as defined in paragraph (3)(A)

16 or (B), as applicable) was a contributing factor in the per17 sonnel action which was taken or is to be taken against

18 such employee, former employee, or applicant.

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

20 be ordered if the agency demonstrates by clear and convinc21 ing evidence that it would have taken the same personnel

22 action in the absence of the protected conduct involved.

23 ‘‘(3) For the purpose of this subsection, the term ‘pro24 tected 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 (A),

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

7 (2) SAME STANDARD IF RELIEF IS SOUGHT

8 THROUGH OFFICE OF SPECIAL COUNSEL.—

9 (A) IN GENERAL.—Subparagraph (B) of

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

11 is amended to read as follows:

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

13 case involving an alleged prohibited personnel practice as

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

15 Board shall order such corrective action as the Board con16 siders appropriate if the employee, former employee, or ap17 plicant for employment has demonstrated that protected

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

19 clause (iii)(I) or (II), as applicable) was a contributing fac20 tor in the personnel action which was taken or is to be taken

21 against such employee, former employee, or applicant.

22 ‘‘(ii) Corrective action under clause (i) may not be or23 dered if the agency demonstrates by clear and convincing

24 evidence that it would have taken the same personnel action

25 in the absence of the protected conduct involved.
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1 ‘‘(iii) For the purpose of this subparagraph, the term

2 ‘protected conduct’ means—

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

4 2302(b), any disclosure described in subparagraph

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

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

7 2302(b), any conduct described in subparagraph (A),

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

9 (B) CONFORMING AMENDMENT.—Section

10 1214(b)(4)(A) is amended by striking ‘‘section

11 2302(b)(8),’’ and inserting ‘‘paragraph (8) or (9)

12 of section 2302(b),’’.

13 (3) SAME STANDARD IF RELIEF IS SOUGHT

14 THROUGH BINDING ARBITRATION.—Section 7121(b) of

15 title 5, United States Code, as amended by section

16 5(e), is further amended by adding at the end the fol17 lowing:

18 ‘‘(3) The provisions of a negotiated grievance proce19 dure providing for binding arbitration in accordance with

20 paragraph (1)(C)(iii) shall, if or to the extent that an al21 leged prohibited personnel practice described in paragraph

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

23 arbitrator apply the same standard as would apply under

24 section 1221(e).’’.
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1 (4) SAME STANDARD IF RELIEF IS SOUGHT BY

2 AN APPEAL UNDER SECTION 7701.—Section 7701(c) of

3 title 5, United States Code, is amended—

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

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

6 paragraphs (2) and (3)’’; and

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

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

9 prohibited personnel practice described in paragraph (8) or

10 (9) of section 2302(b), the standard under section 1221(e)

11 shall be applied.’’.

12 (c) REFERRALS FOR POSSIBLE DISCIPLINARY AC13 TION.—Section 1221(f) of title 5, United States Code, is

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

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

16 section, the Merit Systems Protection Board determines that

17 there is reason to believe that a current employee may have

18 committed a prohibited personnel practice, the Board shall

19 refer the matter to the Special Counsel for investigation and

20 appropriate action under section 1215.’’.

21 SEC. 4. PROHIBITED PERSONNEL PRACTICES.

22 (a) PERSONNEL ACTIONS.—

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

24 5, United States Code, is amended—
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1 (A) in clause (ix) by striking ‘‘and’’ after

2 the semicolon; and

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

4 (xii) and inserting before such clause the

5 following:

6 ‘‘(x) a decision to require psychiatric test7 ing or examination;

8 ‘‘(xi) a denial, revocation, or other deter9 mination relating to a security clearance; and’’.

10 (2) CONFORMING AMENDMENT.—Section 2303(a)

11 of title 5, United States Code, is amended by striking

12 ‘‘clauses (i) through (x)’’ and inserting ‘‘clauses (i)

13 through (xii)’’.

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

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

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

17 an employee or applicant for employment, means any

18 position in the competitive service, a career appointee

19 position in the Senior Executive Service, a position

20 in the excepted service, or a position covered by chap21 ter 74 of title 38, but does not include any position

22 which, as of the date on which the employee began

23 serving in the position or the applicant applied for

24 such position (as the case may be), was—
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1 ‘‘(i) excepted from the competitive service

2 because of its confidential, policy-determining,

3 policy-making, or policy-advocating character; or

4 ‘‘(ii) excluded from the coverage of this sec5 tion by the President based on a determination

6 by the President that it is necessary and war7 ranted by conditions of good administration.’’.

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

9 United States Code, is amended—

10 (1) by striking clause (i); and

11 (2) by redesignating clauses (ii) and (iii) as

12 clauses (i) and (ii), respectively.

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

14 States Code, is amended in the first sentence by striking

15 ‘‘management.’’ and inserting ‘‘management, and for ensur16 ing (in consultation with the Office of Special Counsel) that

17 employees of such agency are informed of the rights and

18 remedies available to them under this chapter and chapter

19 12.’’.

20 (e) SENSE OF CONGRESS.—It is the sense of the Con21 gress that a Federal employee or applicant for Federal em22 ployment who makes a disclosure described in section

23 2302(b) of title 5, United States Code, should not be pros24 ecuted, or threatened with prosecution, under section 205

25 of title 18, United States Code, for such disclosure.
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1 SEC. 5. ADDITIONAL AMENDMENTS RELATING TO PROCE2 DURES UNDER WHICH INDIVIDUALS MAY

3 SEEK RELIEF FROM PROHIBITED PERSONNEL

4 PRACTICES.

5 (a) INDIVIDUAL RIGHT OF ACTION BEFORE MSPB

6 AVAILABLE FOR PROHIBITED PERSONNEL PRACTICES GEN7 ERALLY.—

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

9 United States Code, is amended by striking ‘‘practice

10 described in section 2302(b)(8),’’ and inserting ‘‘prac11 tice,’’.

12 (2) EXCEPTION.—Subsection (b) of section 1221

13 of title 5, United States Code, is amended by redesig14 nating such subsection as subsection (b)(1), and by

15 adding at the end the following:

16 ‘‘(2) Nothing in this subchapter shall be considered to

17 create any right to seek corrective action with respect to

18 a prohibited personnel practice described in section

19 2302(b)(1).

20 ‘‘(3) For purposes of subsection (a), the term ‘personnel

21 action’, if taken or proposed to be taken as a result of a

22 prohibited personnel practice other than one described in

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

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

25 75;

26 ‘‘(B) a detail, transfer, or reassignment; and
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1 ‘‘(C) a reduction in grade or removal under sec2 tion 4303.’’.

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) APPEALS.—

7 (1) IN GENERAL.—Section 7703 of title 5, Unit8 ed States Code, is amended—

9 (A) in subsection (b)(1) by striking ‘‘Cir10 cuit.’’ and inserting ‘‘Circuit or the United

11 States court of appeals for the circuit in which

12 the petitioner resides.’’;

13 (B) in subsection (c)—

14 (i) by striking ‘‘In any case filed in

15 the United States Court of Appeals for the

16 Federal Circuit,’’ and inserting ‘‘In any

17 case filed under subsection (b)(1),’’; and

18 (ii) by striking ‘‘evidence;’’ at the end

19 of paragraph (3) and inserting ‘‘evidence.’’,

20 and by striking ‘‘except that in’’ and insert21 ing ‘‘In’’; and

22 (C) by adding at the end of subsection (d)

23 the following: ‘‘If a proceeding under this sub24 section is transferred to another court of appeals,
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1 the Director shall have the right to appear in the

2 proceeding before such other court.’’.

3 (2) CONFORMING AMENDMENT.—Paragraph (9)

4 of section 1295(a) of title 28, United States Code, is

5 repealed.

6 (3) APPLICABILITY.—The amendments made by

7 this subsection shall apply to petitions filed on or

8 after the effective date of this Act.

9 (c) AMENDMENTS RELATING TO THE ‘‘PASS10 THROUGH’’ REQUIREMENT.—Section 1214(a)(3) of title 5,

11 United States Code, is amended—

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

13 ‘‘This paragraph shall not apply with respect to a prohib14 ited personnel practice described in section 2302(b)(8).’’;

15 (2) by redesignating subparagraphs (A) and (B)

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

17 (3) by striking the matter before subparagraph

18 (B) (as so redesignated by paragraph (2)) and insert19 ing the following:

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

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

22 employment may not seek corrective action from the Board

23 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 (d) CHOICE OF REMEDIES PROVISION INVOLVING JU5 DICIAL REVIEW.—

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

7 States Code, is amended by adding at the end the fol8 lowing:

9 ‘‘SUBCHAPTER IV—JUDICIAL REVIEW

10 ‘‘§ 1231. Judicial review

11 ‘‘(a) Subject to subsection (c) and section 1232, an em12 ployee, former employee, or applicant for employment may,

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

14 taken, against such employee, former employee, or appli15 cant for employment, as a result of a prohibited personnel

16 practice described in section 2302(b)(8), bring a civil action

17 in the appropriate district court of the United States for

18 relief. For purposes of the preceding sentence, the term ‘per19 sonnel 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.
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1 ‘‘(b) The district courts of the United States shall have

2 jurisdiction of actions brought under this section without

3 regard to the amount in controversy.

4 ‘‘(c) An action under this section—

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

6 United States for the judicial district in which the

7 prohibited personnel practice is alleged to have been

8 committed, in which the employment records relevant

9 to such practice are maintained and administered, or

10 in which the aggrieved person works or would have

11 worked but for the alleged prohibited personnel prac12 tice; and

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

14 prohibited personnel practice is alleged to have oc15 curred.

16 ‘‘(d) REVIEW.—In any action brought under this sec17 tion, the court—

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

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

20 Merit Systems Protection Board under section

21 1214(b)(4)(B) or 1221(e).

22 ‘‘§ 1232. Choice of remedies

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

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

25 described in subsection (b); but
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1 ‘‘(2) may not be brought if the aggrieved person

2 has elected to raise the same matter under any of the

3 remedies described in subsection (b).

4 ‘‘(b) The remedies described in this subsection are as

5 follows:

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

7 Board under section 7701.

8 ‘‘(2) A negotiated grievance procedure under sec9 tion 7121.

10 ‘‘(3) Procedures for seeking corrective action

11 under subchapters II and III.

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

13 considered to have elected—

14 ‘‘(1) the remedy described in subsection (b)(1) if

15 such person has timely filed a notice of appeal under

16 the applicable appellate procedures;

17 ‘‘(2) the remedy described in subsection (b)(2) if

18 such person has timely filed a grievance in writing,

19 in accordance with the provisions of the parties’ nego20 tiated procedure; or

21 ‘‘(3) the remedy described in subsection (b)(3) if

22 such person has sought corrective action from the Of23 fice of Special Counsel by making an allegation under

24 section 1214(a)(1).
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1 ‘‘(d) For purposes of subsection (a)(1), a person shall

2 be considered to have elected the remedy under section 1231

3 if such person has timely commenced an action in an ap4 propriate court, in accordance with applicable procedures.’’.

5 (2) CHAPTER ANALYSIS.—The analysis for chap6 ter 12 of title 5, United States Code, is amended by

7 striking ‘‘Sec.’’ each place it appears, by inserting

8 ‘‘Sec.’’ as a flush left item after the item relating to

9 subchapter I, and by adding at the end the following:

‘‘SUBCHAPTER IV—JUDICIAL REVIEW

‘‘1231. Judicial review.

‘‘1232. Choice of remedies.’’.

10 (e) AUTHORITIES WHICH MAY BE EXTENDED TO AR11 BITRATORS.—Section 7121(b) of title 5, United States Code,

12 is amended—

13 (1) by redesignating subparagraphs (A) through

14 (C) of paragraph (3) as clauses (i) through (iii), re15 spectively;

16 (2) by redesignating paragraphs (1) through (3)

17 as subparagraphs (A) through (C), respectively;

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

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

20 ‘‘(2)(A) The provisions of a negotiated grievance proce21 dure providing for binding arbitration in accordance with

22 paragraph (1)(C)(iii) shall, if or to the extent that an al-
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1 leged prohibited personnel practice is involved, allow the ar2 bitrator to order—

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

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

5 with respect to the Merit Systems Protection Board;

6 and

7 ‘‘(ii) the taking, by an agency, of any discipli8 nary action identified under section 1215(a)(3) that

9 is otherwise within the authority of such agency to

10 take.

11 ‘‘(B) Any employee who is the subject of any discipli12 nary action ordered under subparagraph (A)(ii) may ap13 peal such action to the same extent and in the same manner

14 as if the agency had taken the disciplinary action absent

15 arbitration.’’.

16 (f) CHOICE OF REMEDIES PROVISION NOT INVOLVING

17 JUDICIAL REVIEW.—Section 7121 of title 5, United States

18 Code, is amended by adding at the end the following:

19 ‘‘(g)(1) This subsection applies with respect to a pro20 hibited personnel practice other than a prohibited personnel

21 practice to which subsection (d) applies.

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

23 personnel practice described in paragraph (1) may elect not

24 more than one of the remedies described in paragraph (3)

25 with respect thereto. For purposes of the preceding sentence,
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1 a determination as to whether a particular remedy has been

2 elected shall be made in the same way as set forth in section

3 1232(c).

4 ‘‘(3) The remedies described in this paragraph are as

5 follows:

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

7 Board under section 7701.

8 ‘‘(B) A negotiated grievance procedure under this

9 section.

10 ‘‘(C) Procedures for seeking corrective action

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

12 SEC. 6. PERFORMANCE APPRAISALS.

13 Paragraph (5) of section 4313 of title 5, United States

14 Code, is amended to read as follows:

15 ‘‘(5) meeting affirmative action goals, achieve16 ment of equal employment opportunity requirements,

17 and compliance with the merit systems principles set

18 forth in section 2301.’’.

19 SEC. 7. IMPLEMENTATION.

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

21 after the date of the enactment of this Act, the Special Coun22 sel shall issue a policy statement regarding the implementa23 tion of the amendments made by the Whistleblower Protec24 tion Act of 1989. Such policy statement shall be made avail25 able to each person alleging a prohibited personnel practice
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1 described in section 2302(b) of title 5, United States Code,

2 and shall include detailed guidelines identifying specific

3 categories of information that may (or may not) be commu4 nicated to agency officials for an investigative purpose, or

5 for the purpose of obtaining corrective action under section

6 1214 of title 5, United States Code, or disciplinary action

7 under section 1215 of such title, the circumstances under

8 which such information is likely to be disclosed, and wheth9 er or not the consent of any person is required in advance

10 of any such communication.

11 (b) TERMINATION STATEMENT.—The Special Counsel

12 shall include in any written statement under section

13 1214(a)(2)(A) of title 5, United States Code, the name and

14 telephone number of an employee of the Office of Special

15 Counsel who shall be available to respond to reasonable

16 questions from the person regarding the investigation in17 volved, the relevant facts ascertained by the Special Counsel,

18 and the law applicable to the person’s allegations.

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

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

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

22 place it appears and inserting ‘‘fees for legal representa23 tion’’.

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

25 States Code, is amended—
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1 (1) by striking ‘‘attorney fees’’ each place it ap2 pears and inserting ‘‘fees for legal representation’’;

3 and

4 (2) in paragraph (1)—

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

6 ‘‘prevailing’’; and

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

8 which the agency’s action was clearly without

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

10 agency’s action was clearly without merit, or

11 which is settled or otherwise similarly resolved.’’.

12 SEC. 9. MSPB RETIREMENT APPEALS EXPENSE AUTHORIZA13 TION.

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

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

16 paragraph (1), by striking the period at the end of para17 graph (2) and inserting ‘‘; and’’, and by adding at the end

18 the following:

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

20 limitation as the Congress may prescribe, for any ex21 penses incurred by the Merit Systems Protection

22 Board in connection with the administration of ap23 peals authorized under section 8347(d) or 8461(e).’’.

24 (b) EFFECTIVE DATE.—The amendments made by sub25 section (a) shall take effect on October 1, 1995.
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1 SEC. 10. EFFECTIVE DATE.

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

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

4 effect 120 days after the date of the enactment of this Act.

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

6 shall affect any administrative proceeding pending at the

7 time such provision takes effect. Orders shall be issued in

8 such proceedings and appeals shall be taken therefrom as

9 if this Act had not been enacted.

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