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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2970 Introduced in House (IH)]

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.

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

SECTION 1. REAUTHORIZATION.

    Section 8(a)(2) of the Whistleblower Protection Act of 1989 (5 
U.S.C. 5509 note) is amended by striking ``1989, 1990, 1991, and 1992'' 
and inserting ``1994 and 1995''.

SEC. 2. OFFICE OF SPECIAL COUNSEL.

    (a) Authority to Continue Serving Pending the Appointment of a 
Successor.--Section 1211(b) of title 5, United States Code, is amended 
by inserting after the third sentence the following: ``The Special 
Counsel may continue to serve after the expiration of the Special 
Counsel's term until a successor has qualified, but for not longer than 
1 year.''.
    (b) Limitations on Disclosures.--Section 1212(g) of title 5, United 
States Code, is amended to read as follows:
    ``(g)(1) The Special Counsel may not respond to any inquiry or 
provide information concerning either any person making an allegation 
under section 1214(a) or any allegation so made, except in accordance 
with the provisions of section 552a or as required by any other 
applicable law.
    ``(2) If, or to the extent that, the allegation involves a 
prohibited personnel practice described in paragraph (2), (8), or (9) 
of section 2302(b), no disclosure described in paragraph (1) may be 
made unless--
            ``(A) either of the exceptions permitting disclosure under 
        paragraph (1) is met; and
            ``(B)(i) the consent of the person who made such allegation 
        is obtained in advance; or
            ``(ii) the information is being sought by an agency which 
        requires such information in order to make a determination 
        concerning access, for the person referred to in paragraph (1), 
        to information the unauthorized disclosure of which could be 
        expected to cause exceptionally grave damage to the national 
        security.''
    (c) Standard Applicable With Respect to Certain Agency Findings.--
Section 1213(e)(2)(A) of title 5, United States Code, is amended to 
read as follows:
            ``(A) the findings of the agency head are supported by 
        clear and convincing evidence; and''.
    (d) Technical Clarification.--The first sentence of section 
1213(g)(1) of title 5, United States Code, is amended to read as 
follows: ``If the Special Counsel receives information from an 
individual other than an individual described in subparagraph (A) or 
(B) of subsection (c)(2) which, if such individual were an individual 
described in either of such subparagraphs, would be considered 
information of a type described in subsection (a), the Special Counsel 
may transmit the information to the head of the agency which the 
information concerns.''.
    (e) Investigations.--Section 1214(a)(1) of title 5, United States 
Code, is amended--
            (1) in subparagraph (B) by striking ``practice under 
        paragraph (1),'' and inserting ``practice,''; and
            (2) by striking subparagraph (C) and inserting the 
        following:
    ``(C) Unless an investigation under this section is terminated, the 
Special Counsel shall, within 60 days after notice is provided under 
subparagraph (B) with respect to a particular allegation, and at least 
every 60 days thereafter, notify the person who made such allegation as 
to the status of the investigation and any action which has been taken 
by the Office of Special Counsel since notice was last given under this 
subsection.
    ``(D)(i) Except as provided in clause (ii), no later than 120 days 
after the date of receiving an allegation of a prohibited personnel 
practice, the Special Counsel shall determine whether there are 
reasonable grounds to believe that a prohibited personnel practice has 
occurred, exists, or is to be taken.
    ``(ii) The deadline under clause (i) may be extended by written 
agreement between the Special Counsel and the person who made the 
allegation involved.
    ``(E) A determination by the Special Counsel under this paragraph 
shall not be admissible in any judicial or administrative proceeding 
except in the same circumstances as would apply under paragraph (2)(B) 
with respect to a written statement under paragraph (2)(A).''.
    (f) Clarification Relating to Burden of Proof.--Section 
1214(b)(4)(B)(i) is amended, and 1221(e)(1) (as amended by section 
3(b)) is further amended, by striking the period at the end and 
inserting ``, notwithstanding the provisions of section 7701(c)(1).''.
    (g) Additional Information To Be Included in Annual Reports.--
Section 1218 of title 5, United States Code, is amended by inserting 
``the number of instances in which it did not make a timely 
determination under section 1214(a)(1),'' after ``investigations 
conducted by it,''.
    (h) Effective Date.--The amendments made by subsection (e) shall 
apply with respect to any allegation first received by the Office of 
Special Counsel on or after the effective date of this Act.

SEC. 3. INDIVIDUAL RIGHT OF ACTION RELATING TO THE MERIT SYSTEMS 
              PROTECTION BOARD.

    (a) Subpoenas.--Section 1221(d)(1) of title 5, United States Code, 
is amended to read as follows:
    ``(d)(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 matter requested--
            ``(A) is not unduly burdensome;
            ``(B) is not privileged or otherwise protected from 
        disclosure by law, rule, or regulation; and
            ``(C) is relevant to the subject matter involved in the 
        pending action or appears reasonably calculated to lead to the 
        discovery of admissible evidence.''.
    (b) Burden of Proof.--Section 1221(e) of title 5, United States 
Code, is amended to read as follows:
    ``(e)(1) Subject to paragraph (2), in any case involving an 
allegation of a prohibited personnel practice described in paragraph 
(8) or (9) of section 2302(b), the Board shall order such corrective 
action as the Board considers appropriate if the employee, former 
employee, or applicant for employment has demonstrated that protected 
conduct under such paragraph (8) or (9) (as defined in paragraph (3)(A) 
or (B), as applicable) was a contributing factor in the personnel 
action which was taken or is to be taken against such employee, former 
employee, or applicant.
    ``(2) Corrective action under paragraph (1) may not be ordered if 
the agency demonstrates by clear and convincing evidence that it would 
have taken the same personnel action in the absence of the protected 
conduct involved.
    ``(3) For the purpose of this subsection, the term `protected 
conduct' means--
            ``(A) with respect to paragraph (8) of section 2302(b), any 
        disclosure described in subparagraph (A) or (B) of such 
        paragraph; and
            ``(B) with respect to paragraph (9) of section 2302(b), any 
        conduct described in subparagraph (A), (B), (C), or (D) of such 
        paragraph.''.
    (c) Referrals for Possible Disciplinary Action.--Section 1221(f) of 
title 5, United States Code, is amended by adding after paragraph (2) 
the following:
    ``(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 for investigation and appropriate action under section 1215.''.

SEC. 4. PROHIBITED PERSONNEL PRACTICES.

    (a) Personnel Actions.--
            (1) In general.--Section 2302(a)(2)(A) of title 5, United 
        States Code, is amended--
                    (A) in clause (ix) by striking ``and'' after the 
                semicolon; and
                    (B) by redesignating clause (x) as clause (xiv) and 
                inserting before such clause the following:
            ``(x) a decision to require psychiatric testing or 
        examination;
            ``(xi) a denial, revocation, or other determination 
        relating to a security clearance;
            ``(xii) a removal (other than a removal which is covered by 
        clause (iii) or which is based on performance);
            ``(xiii) a decision to commence a formal investigation that 
        may result in criminal prosecution or an adverse personnel 
        action (as defined by any other clause of this subparagraph); 
        and''.
            (2) Conforming amendment.--Section 2302(a) of title 5, 
        United States Code, is amended by striking ``clauses (i) 
        through (x)'' and inserting ``clauses (i) through (xiv)''.
    (b) Covered Positions.--Section 2302(a)(2)(B) of title 5, United 
States Code, is amended to read as follows:
            ``(B) `covered position', as used with respect to an 
        employee or applicant for employment, means any position in the 
        competitive service, a career appointee position in the Senior 
        Executive Service, a position in the excepted service, or a 
        position covered by chapter 74 of title 38, but does not 
        include any position which, as of the date on which the 
        employee began serving in the position or the applicant applied 
        for such position (as the case may be), was--
                    ``(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.''.
    (c) Agencies.--Section 2302(a)(2)(C) of title 5, United States 
Code, is amended--
            (i) in clause (i) by striking ``corporation;'' and 
        inserting ``corporation (except for purposes of subsection 
        (b)(8) and any other provision of this section if, or to the 
        extent that, it relates to subsection (b)(8));''; and
            (ii) in clause (ii) by striking ``activities; or'' and 
        inserting ``activities (except for the same purposes as set 
        forth parenthetically in clause (i)); or''.
    (d) Information.--Section 2302(c) of title 5, United States Code, 
is amended in the first sentence by striking ``management.'' and 
inserting ``management, and for ensuring (in consultation with the 
Office of Special Counsel) that employees of such agency are informed 
of the rights and remedies available to them under this chapter and 
chapter 12.''.
    (e) Sense of Congress.--It is the sense of the Congress that a 
Federal employee or applicant for Federal employment who makes a 
disclosure described in section 2302(b)(8) of title 5, United States 
Code, should not be prosecuted, or threatened with prosecution, under 
section 205 of title 18, United States Code, for such disclosure.

SEC. 5. ADDITIONAL AMENDMENTS RELATING TO PROCEDURES UNDER WHICH 
              INDIVIDUALS MAY SEEK RELIEF FROM PROHIBITED PERSONNEL 
              PRACTICES.

    (a) Individual Right of Action Before MSPB Available for Prohibited 
Personnel Practices Generally.--
            (1) In general.--Section 1221(a) of title 5, United States 
        Code, is amended by striking ``practice described in section 
        2302(b)(8),'' and inserting ``practice,''.
            (2) Exception.--Section 1221(b) of title 5, United States 
        Code, is amended to read as follows:
    ``(b) Nothing in this subchapter shall be considered to create any 
right to seek corrective action with respect to a prohibited personnel 
practice described in section 2302(b)(1).''.
            (3) Technical correction.--Section 1221(a) is amended by 
        striking ``subsection 1214(a)(3)'' and inserting ``section 
        1214(a)(3)''.
    (b) Review by the United States Court of Appeals for the District 
of Columbia Circuit.--
            (1) In general.--Sections 1214(c)(2) and 1221(h)(2) of 
        title 5, United States Code, are each amended to read as 
        follows:
    ``(2)(A) A petition for review under this subsection shall be filed 
with the United States Court of Appeals for the District of Columbia 
Circuit within 30 days after the date the petitioner receives notice of 
the final order or decision of the Board.
    ``(B) The provisions of section 706 shall govern any such review, 
notwithstanding any provision of section 7703(b)(1).
    ``(C) For purposes of applying the provisions of section 7703(d) 
with respect to any matter as to which judicial review is sought under 
this subsection, the reference in such provisions to the `United States 
Court of Appeals for the Federal Circuit' shall be deemed to be a 
reference to the `United States Court of Appeals for the District of 
Columbia Circuit'.''.
            (2) Conforming amendment.--Section 7703(b)(1) of title 5, 
        United States Code, is amended by striking ``subsection,'' and 
        inserting ``subsection or section 1214(c)(2) or 1221(h)(2),''.
    (c) Amendments Relating to the ``Pass-Through'' Requirement.--
Section 1214(a)(3) of title 5, United States Code, is amended--
            (1) by adding at the end the following:
``This paragraph shall not apply with respect to a prohibited personnel 
practice described in section 2302(b)(8).'';
            (2) by redesignating subparagraphs (A) and (B) as 
        subparagraphs (B) and (C), respectively; and
            (3) by striking the matter before subparagraph (B) (as so 
        redesignated by paragraph (2)) and inserting the following:
    ``(3) Except as provided in the last sentence of this paragraph, an 
employee, former employee, or applicant for employment may not seek 
corrective action from the Board under section 1221 unless--
            ``(A) such employee, former employee, or applicant has 
        sought corrective action from the Special Counsel under this 
        subchapter;''.
    (d) Choice of Remedies.--
            (1) In general.--Chapter 12 of title 5, United States Code, 
        is amended by adding at the end the following:

                    ``SUBCHAPTER IV--JUDICIAL REVIEW

``Sec. 1231. Judicial review
    ``(a) Subject to section 1232, any employee, former employee, or 
applicant for employment may, with respect to any personnel action 
taken, or proposed to be taken, against such employee, former employee, 
or applicant for employment, as a result of a prohibited personnel 
practice (other than a prohibited personnel practice described in 
section 2302(b)(1)), bring a civil action in the appropriate district 
court of the United States.
    ``(b) The district courts of the United States shall have 
jurisdiction of actions brought under this subchapter without regard to 
the amount in controversy.
    ``(c) An action under this subchapter--
            ``(1) shall be brought in the district court of the United 
        States for the judicial district in which the prohibited 
        personnel practice is alleged to have been committed, in which 
        the employment records relevant to such practice are maintained 
        and administered, or in which the aggrieved person works or 
        would have worked but for the alleged prohibited personnel 
        practice; and
            ``(2)(A) in the case of a prohibited personnel practice 
        described in section 2302(b)(8), shall be brought within 120 
        days after the alleged prohibited personnel practice occurred; 
        or
            ``(B) in the case of a prohibited personnel practice other 
        than a prohibited personnel practice described in paragraph (1) 
        or (8) of section 2302(b)--
                    ``(i) may be brought only after such person's 
                administrative remedies under section 1214 have been 
                exhausted; and
                    ``(ii) must be brought within 60 days after the 
                exhaustion requirement referred to in clause (i) has 
                first been met.
For purposes of paragraph (2)(B), a person's administrative remedies 
under section 1214 shall be considered to have been exhausted once 
subparagraph (B) or (C) of section 1214(a)(3) has been satisfied. 
Review of any matter brought in accordance with paragraph (2)(B) shall 
be de novo.
``Sec. 1232. Choice of remedies
    ``(a)(1) With respect to a prohibited personnel practice described 
in section 2302(b)(8), an aggrieved person may raise the matter under 
not more than any 1 of the following:
            ``(A) Subchapter II.
            ``(B) Subchapter III.
            ``(C) A negotiated grievance procedure referred to in 
        section 7121 (if available).
            ``(D) Section 1231.
    ``(2) A person shall be considered to have exercised such person's 
option to raise a matter under any of the alternatives listed under 
paragraph (1) at such time as such person timely initiates an action 
under the applicable statutory procedures or timely files a grievance 
in writing.
    ``(b)(1) With respect to a prohibited personnel practice other than 
a prohibited personnel practice described in paragraph (1) or (8) of 
section 2302(b), an aggrieved person may raise the matter under either 
of the following (but not both):
            ``(A) The provisions of law referred to in subsection 
        (a)(1)(B) (including any subsequent right of action under 
        section 1221 or 1231, but not both).
            ``(B) A negotiated grievance procedure referred to in 
        section 7121 (if available).
    ``(2) A person shall be considered to have exercised such person's 
option to raise a matter under either of the alternatives listed under 
paragraph (1) (including, at the appropriate point in time, and if 
applicable, the options referred to parenthetically in paragraph 
(1)(A)) at such time as the person timely initiates an action under the 
applicable statutory procedures or timely files a grievance in 
writing.''.
            (2) Technical and conforming amendments.--
                    (A) Section 1214.--Section 1214 of title 5, United 
                States Code, is amended by adding at the end the 
                following:
    ``(g) For choice of remedies provisions relevant to this section, 
see section 1232.''.
                    (B) Section 1221.--Section 1221 of title 5, United 
                States Code, is amended by adding at the end the 
                following:
    ``(k) For choice of remedies provisions relevant to this section, 
see section 1232.''.
                    (C) Section 7121.--Section 7121 of title 5, United 
                States Code, is amended by adding at the end the 
                following:
    ``(g) For choice of remedies provisions relevant to this section, 
see section 1232.''.
            (3) Chapter analysis.--The analysis for chapter 12 of title 
        5, United States Code, is amended by striking ``Sec.'' each 
        place it appears, by inserting ``Sec.'' as a flush left item 
        after the item relating to subchapter I, and by adding at the 
        end the following:
                    ``subchapter iv--judicial review
``1231. Judicial review.
``1232. Choice of remedies.''.
    (e) 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) as 
        clauses (i) through (iii), respectively;
            (2) by redesignating paragraphs (1) through (3) as 
        subparagraphs (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) may, 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) any disciplinary action allowable under section 
        1215, consistent with the due process rights afforded under 
        such section.
    ``(B) With respect to any disciplinary action imposed by an 
arbitrator pursuant to subparagraph (A)(ii), judicial review of the 
order imposing such disciplinary action may be obtained in the same 
manner and on the same basis as could be obtained under section 
1215(a)(4) if such an order had been issued by the Merit Systems 
Protection Board.''.

SEC. 6. PERFORMANCE APPRAISALS.

    Paragraph (5) of section 4313 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 in section 2301.''.

SEC. 7. IMPLEMENTATION.

    (a) Policy Statement.--No later than 6 months after the date of the 
enactment of this Act, the Special Counsel shall issue a policy 
statement regarding the implementation of the amendments made by the 
Whistleblower Protection Act of 1989. Such policy statement shall be 
made available to each person alleging a prohibited personnel practice 
described in 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 written statement under section 1214(a)(2)(A) of title 5, United 
States Code, the name and telephone number of an employee of the Office 
of Special Counsel who shall be available to respond to reasonable 
questions from the person regarding the investigation involved, the 
relevant facts ascertained by the Special Counsel, and the law 
applicable to the person's allegations.

SEC. 8. AMENDMENTS RELATING TO ATTORNEY'S FEES.

    (a) Chapter 12.--Section 1221(g) of title 5, United States Code, is 
amended by striking ``attorney's fees'' each place it appears and 
inserting ``fees for legal representation''.
    (b) Chapter 77.--Section 7701(g) of title 5, United States Code, is 
amended--
            (1) by striking ``attorney fees'' each place it appears and 
        inserting ``fees for legal representation''; and
            (2) in paragraph (1)--
                    (A) by inserting ``substantially'' before 
                ``prevailing''; and
                    (B) by striking ``agency or any case in which the 
                agency's action was clearly without merit.'' and 
                inserting ``agency, in which the agency's action was 
                clearly without merit, or which is settled or otherwise 
                similarly resolved.''.

SEC. 9. EFFECTIVE DATE; SAVINGS PROVISION.

    (a) In General.--The provisions of this Act shall take effect 120 
days after the date of the enactment of this Act.
    (b) Savings Provision.--No provision of this Act shall affect any 
administrative proceeding pending at the time such provisions take 
effect. Orders shall be issued in such proceedings and appeals shall be 
taken therefrom as if this Act had not been enacted.

                                 <all>

HR 2970 IH----2
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