103D CONGRESS

2D SESSION H. R. 2970

AMENDMENT
In the Senate of the United States,

October 7 (legislative day, September 12), 1994.

Resolved, That the bill from the House of Representatives (H.R. 2970) entitled ‘‘An Act to reauthorize the Office

of Special Counsel, and for other purposes’’, do pass with the

following

AMENDMENT:

Strike out all after the enacting clause and insert:

1 SECTION 1. AUTHORIZATION OF APPROPRIATIONS.

2 (a) MERIT SYSTEMS PROTECTION BOARD.—Section

3 8(a)(1) of the Whistleblower Protection Act of 1989 (5

4 U.S.C. 5509 note; Public Law 101–12; 103 Stat. 34) is

5 amended by striking out ‘‘1989, 1990, 1991, 1992, 1993,

6 and 1994’’ and inserting in lieu thereof ‘‘1993, 1994, 1995,

7 1996, and 1997’’.

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

9 the Whistleblower Protection Act of 1989 (5 U.S.C. 5509

10 note; Public Law 101–12; 103 Stat. 34) is amended by

11 striking out ‘‘1989, 1990, 1991, and 1992’’ and inserting

12 in lieu thereof ‘‘1993, 1994, 1995, 1996, and 1997’’.

13 SEC. 2. REASONABLE ATTORNEY FEES IN CERTAIN CASES.

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

15 by adding at the end thereof the following new subsection:
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1 ‘‘(m)(1) Except as provided in paragraph (2) of this

2 subsection, the Board, or an administrative law judge or

3 other employee of the Board designated to hear a case aris4 ing under section 1215, may require payment by the agency

5 involved of reasonable attorney fees incurred by an em6 ployee or applicant for employment if the employee or ap7 plicant is the prevailing party and the Board, administra8 tive law judge, or other employee (as the case may be) deter9 mines that payment by the agency is warranted in the in10 terest of justice, including any case in which a prohibited

11 personnel practice was engaged in by the agency or any

12 case in which the agency’s action was clearly without merit.

13 ‘‘(2) If an employee or applicant for employment is

14 the prevailing party of a case arising under section 1215

15 and the decision is based on a finding of discrimination

16 prohibited under section 2302(b)(1) of this title, the pay17 ment of attorney fees shall be in accordance with the stand18 ards prescribed under section 706(k) of the Civil Rights Act

19 of 1964 (42 U.S.C. 2000e–5(k)).’’.

20 SEC. 3. OFFICE OF SPECIAL COUNSEL.

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

22 States Code, is amended by inserting after the first sentence:

23 ‘‘The Special Counsel may continue to serve beyond the ex24 piration of the term until a successor is appointed and has

25 qualified, except that the Special Counsel may not continue
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1 to serve for more than one year after the date on which

2 the term of the Special Counsel would otherwise expire

3 under this subsection.’’.

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

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

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

7 information concerning’’ and inserting in lieu thereof

8 ‘‘disclose any information from or about’’; and

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

10 described in subparagraph (A) or (B) of section

11 2302(b)(2) in connection with a’’ and inserting in

12 lieu thereof ‘‘an evaluation of the work performance,

13 ability, aptitude, general qualifications, character,

14 loyalty, or suitability for any personnel action of

15 any’’.

16 (c) STATUS REPORT BEFORE TERMINATION OF INVES17 TIGATION.—Section 1214(a) of title 5, United States Code,

18 is amended—

19 (1) in paragraph (1) by adding at the end there20 of the following new subparagraph:

21 ‘‘(D) No later than 10 days before the Special Counsel

22 terminates any investigation of a prohibited personnel

23 practice, the Special Counsel shall provide a written status

24 report to the person who made the allegation of the proposed

25 findings of fact and legal conclusions. The person may sub-
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1 mit written comments about the report to the Special Coun2 sel. The Special Counsel shall not be required to provide

3 a subsequent written status report under this subparagraph

4 after the submission of such written comments.’’; and

5 (2) in paragraph (2)(A)—

6 (A) in clause (ii) by striking out ‘‘and’’

7 after the semicolon;

8 (B) in clause (iii) by striking out the period

9 and inserting in lieu thereof a semicolon and

10 ‘‘and’’; and

11 (C) by adding at the end thereof the follow12 ing new clause:

13 ‘‘(iv) a response to any comments submitted

14 under paragraph (1)(D).’’.

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

16 United States Code, is amended—

17 (1) by redesignating subparagraphs (A), (B) and

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

19 (2) by inserting before subparagraph (B) (as re20 designated by paragraph (1) of this subsection) the

21 following:

22 ‘‘(A)(i) Except as provided under clause

23 (ii), no later than 240 days after the date of re24 ceiving an allegation of a prohibited personnel

25 practice under paragraph (1), the Special Coun-
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1 sel shall make a determination whether there are

2 reasonable grounds to believe that a prohibited

3 personnel practice has occurred, exists, or is to

4 be taken.

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

6 make the required determination within the 240-

7 day period specified under clause (i) and the

8 person submitting the allegation of a prohibited

9 personnel practice agrees to an extension of time,

10 the determination shall be made within such ad11 ditional period of time as shall be agreed upon

12 between the Special Counsel and the person sub13 mitting the allegation.’’; and

14 (3) by inserting after subparagraph (D) (as re15 designated by paragraph (1) of this subsection) the

16 following new subparagraph:

17 ‘‘(E) A determination by the Special Coun18 sel under this paragraph shall not be cited or re19 ferred to in any proceeding under this para20 graph or any other administrative or judicial

21 proceeding for any purpose, without the consent

22 of the person submitting the allegation of a pro23 hibited personnel practice.’’.

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

25 Code, is amended by inserting ‘‘cases in which it did not
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1 make a determination whether there are reasonable grounds

2 to believe that a prohibited personnel practice has occurred,

3 exists, or is to be taken within the 240-day period specified

4 in section 1214(b)(2)(A)(i),’’ after ‘‘investigations con5 ducted by it,’’.

6 SEC. 4. INDEPENDENT RIGHT OF ACTION.

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

8 States Code, is amended by striking out paragraph (1) and

9 inserting in lieu thereof the following:

10 ‘‘(1) At the request of an employee, former em11 ployee, or applicant for employment seeking corrective

12 action under subsection (a), the Board shall issue a

13 subpoena for the attendance and testimony of any

14 person or the production of documentary or other evi15 dence from any person if the Board finds that the tes16 timony or production requested is not unduly burden17 some and appears reasonably calculated to lead to the

18 discovery of admissible evidence.’’.

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

20 amended by adding after the last sentence: ‘‘The employee

21 may demonstrate that the disclosure was a contributing fac22 tor in the personnel action through circumstantial evidence,

23 such as evidence that—

24 ‘‘(A) the official taking the personnel action

25 knew of the disclosure; and
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1 ‘‘(B) the personnel action occurred within a pe2 riod of time such that a reasonable person could con3 clude that the disclosure was a contributing factor in

4 the personnel action.’’.

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

6 States Code, is amended by adding after paragraph (2) the

7 following new paragraph:

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

9 this section, the Merit Systems Protection Board de10 termines that there is reason to believe that a current

11 employee may have committed a prohibited personnel

12 practice, the Board shall refer the matter to the Spe13 cial Counsel to investigate and take appropriate ac14 tion under section 1215.’’.

15 SEC. 5. PROHIBITED PERSONNEL PRACTICES.

16 (a) PERSONNEL ACTIONS.—Section 2302(a)(2)(A) of

17 title 5, United States Code, is amended—

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

19 semicolon;

20 (2) by striking out clause (x) and inserting in

21 lieu thereof the following:

22 ‘‘(x) a decision to order psychiatric

23 testing or examination; and
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1 ‘‘(xi) any other significant change in

2 duties, responsibilities, or working condi3 tions;’’; and

4 (3) in the matter following designated clause (xi)

5 (as added by paragraph (2) of this subsection) by in6 serting before the semicolon the following: ‘‘, and in

7 the case of an alleged prohibited personnel practice

8 described in subsection (b)(8), an employee or appli9 cant for employment in a Government corporation as

10 defined in section 9101 of title 31’’.

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

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

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

14 any personnel action, any position in the competitive

15 service, a career appointee position in the Senior Ex16 ecutive Service, or a position in the excepted service,

17 but does not include any position which is, prior to

18 the personnel action—

19 ‘‘(i) excepted from the competitive service

20 because of its confidential, policy-determining,

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

22 ‘‘(ii) excluded from the coverage of this sec23 tion by the President based on a determination

24 by the President that it is necessary and war-
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1 ranted by conditions of good administration;

2 and’’.

3 (c) AGENCIES.—Section 2302(a)(2)(C) of title 5, Unit4 ed States Code, is amended in clause (i) by inserting before

5 the semicolon: ‘‘, except in the case of an alleged prohibited

6 personnel practice described under subsection (b)(8)’’.

7 (d) INFORMATIONAL PROGRAM.—Section 2302(c) of

8 title 5, United States Code, is amended in the first sentence

9 by inserting before the period ‘‘, and for ensuring (in con10 sultation with the Office of Special Counsel) that agency

11 employees are informed of the rights and remedies available

12 to them under this chapter and chapter 12 of this title’’.

13 SEC. 6. PERFORMANCE APPRAISALS.

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

15 amended to read as follows:

16 ‘‘(5) meeting affirmative action goals, achieve17 ment of equal employment opportunity requirements,

18 and compliance with the merit systems principles set

19 forth under section 2301 of this title.’’.

20 SEC. 7. MERIT SYSTEMS APPLICATION TO CERTAIN VETER21 ANS AFFAIRS PERSONNEL.

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

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

2 1216, 1221, 1222, 2302, and 7701, employees appointed

3 under chapter 73 or 74 of title 38 shall be employees.’’.

4 SEC. 8. CORRECTIVE ACTIONS ORDERED BY THE MERIT

5 SYSTEMS PROTECTION BOARD.

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

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

8 following new subsection:

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

10 section, such corrective action may include—

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

12 possible, in the position the individual would have

13 been in had the prohibited personnel practice not oc14 curred; and

15 ‘‘(2) reimbursement for attorney’s fees, back pay

16 and related benefits, medical costs incurred, travel ex17 penses, and any other reasonable and foreseeable con18 sequential damages.’’.

19 (b) CERTAIN REPRISAL CASES.—Section 1221(g) of

20 title 5, United States Code (as amended by section 4(d) of

21 this Act) is further amended—

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

23 paragraphs (2) and (3), respectively; and
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1 (2) by inserting before paragraph (2) (as redesig2 nated by paragraph (1) of this subsection) the follow3 ing new paragraph:

4 ‘‘(1)(A) If the Board orders corrective action

5 under this section, such corrective action may in6 clude—

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

8 as possible, in the position the individual would

9 have been in had the prohibited personnel prac10 tice not occurred; and

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

12 costs incurred, travel expenses, and any other

13 reasonable and foreseeable consequential changes.

14 ‘‘(B) Corrective action shall include attorney’s

15 fees and costs as provided for under paragraphs (2)

16 and (3).’’.

17 SEC. 9. AUTHORITIES RELATING TO ARBITRATORS AND

18 CHOICE OF REMEDIES NOT INVOLVING JUDI19 CIAL REVIEW.

20 (a) AUTHORITIES WHICH MAY BE EXTENDED TO AR21 BITRATORS.—Section 7121(b) of title 5, United States Code,

22 is amended—

23 (1) by redesignating subparagraphs (A) through

24 (C) of paragraph (3) as clauses (i) through (iii), re25 spectively;
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1 (2) by redesignating paragraphs (1) through (3)

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

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

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

5 ‘‘(2)(A) The provisions of a negotiated grievance proce6 dure providing for binding arbitration in accordance with

7 paragraph (1)(C)(iii) shall, if or to the extent that an al8 leged prohibited personnel practice is involved, allow the ar9 bitrator to order—

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

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

12 with respect to the Merit Systems Protection Board;

13 and

14 ‘‘(ii) the taking, by an agency, of any discipli15 nary action identified under section 1215(a)(3) that

16 is otherwise within the authority of such agency to

17 take.

18 ‘‘(B) Any employee who is the subject of any discipli19 nary action ordered under subparagraph (A)(ii) may ap20 peal such action to the same extent and in the same manner

21 as if the agency had taken the disciplinary action absent

22 arbitration.’’.

23 (b) CHOICE OF REMEDIES PROVISION NOT INVOLVING

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

25 Code, is amended by adding at the end the following:
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1 ‘‘(g)(1) This subsection applies with respect to a pro2 hibited personnel practice other than a prohibited personnel

3 practice to which subsection (d) applies.

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

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

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

7 with respect thereto. For purposes of the preceding sentence,

8 a determination as to whether a particular remedy has been

9 elected shall be made as set forth under paragraph (4).

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

11 follows:

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

13 Board under section 7701.

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

15 section.

16 ‘‘(C) Procedures for seeking corrective action

17 under subchapters II and III of chapter 12.

18 ‘‘(4) For the purpose of this subsection, a person shall

19 be considered to have elected—

20 ‘‘(A) the remedy described in paragraph (3)(A)

21 if such person has timely filed a notice of appeal

22 under the applicable appellate procedures;

23 ‘‘(B) the remedy described in paragraph (3)(B)

24 if such person has timely filed a grievance in writing,
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1 in accordance with the provisions of the parties’ nego2 tiated procedure; or

3 ‘‘(C) the remedy described in paragraph (3)(C)

4 if such person has sought corrective action from the

5 Office of Special Counsel by making an allegation

6 under section 1214(a)(1).’’.

7 (c) TECHNICAL AND CONFORMING AMENDMENTS.—

8 Section 7121(a)(1) of title 5, United States Code, is amend9 ed—

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

11 (e), and (g)’’; and

12 (2) by inserting ‘‘administrative’’ after ‘‘exclu13 sive’’.

14 SEC. 10. EXPENSES RELATED TO FEDERAL RETIREMENT AP15 PEALS.

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

17 amended—

18 (1) in paragraph (1)(B) by striking out ‘‘and’’

19 at the end thereof;

20 (2) in paragraph (2) by striking out the period

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

22 and

23 (3) by adding at the end thereof the following

24 new paragraph:
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1 ‘‘(3) is made available, subject to such annual

2 limitation as the Congress may prescribe, for any ex3 penses incurred by the Merit Systems Protection

4 Board in the administration of appeals authorized

5 under sections 8347(d) and 8461(e) of this title.’’.

6 SEC. 11. ELECTION OF APPLICATION OF LAWS BY EMPLOY7 EES OF THE RESOLUTION TRUST CORPORA8 TION AND THRIFT DEPOSITOR PROTECTION

9 OVERSIGHT BOARD.

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

11 STATES CODE.—If an individual who believes he has been

12 discharged or discriminated against in violation of section

13 21a(q)(1) of the Federal Home Loan Bank Act (12 U.S.C.

14 1441a(q)(1)) seeks an administrative corrective action or

15 judicial remedy for such violation under the provisions of

16 chapters 12 and 23 of title 5, United States Code, the provi17 sions of section 21a(q) of such Act shall not apply to such

18 alleged violation.

19 (b) ELECTION OF PROVISIONS OF FEDERAL HOME

20 LOAN BANK ACT.—If an individual files a civil action

21 under section 21a(q)(2) of the Federal Home Loan Bank

22 Act (12 U.S.C. 1441a(q)(2)), the provisions of chapters 12

23 and 23 of title 5, United States Code, shall not apply to

24 any alleged violation of section 21a(q)(1) of such Act.
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1 SEC. 12. IMPLEMENTATION.

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

3 after the date of enactment of this Act, the Special Counsel

4 shall issue a policy statement regarding the implementation

5 of the Whistleblower Protection Act of 1989. Such policy

6 statement shall be made available to each person alleging

7 a prohibited personnel practice described under section

8 2302(b)(8) of title 5, United States Code, and shall include

9 detailed guidelines identifying specific categories of infor10 mation that may (or may not) be communicated to agency

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

12 obtaining corrective action under section 1214 of title 5,

13 United States Code, or disciplinary action under section

14 1215 of such title, the circumstances under which such in15 formation is likely to be disclosed, and whether or not the

16 consent of any person is required in advance of any such

17 communication.

18 (b) TERMINATION STATEMENT.—The Special Counsel

19 shall include in any letter terminating an investigation

20 under section 1214(a)(2) of title 5, United States Code, the

21 name and telephone number of an employee of the Special

22 Counsel who is available to respond to reasonable questions

23 from the person regarding the investigation or review con24 ducted by the Special Counsel, the relevant facts ascertained

25 by the Special Counsel, and the law applicable to the per26 son’s allegations.
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1 SEC. 13. ANNUAL SURVEY OF INDIVIDUALS SEEKING AS2 SISTANCE.

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

4 after consulting with the Office of Policy and Evaluation

5 of the Merit Systems Protection Board, conduct an annual

6 survey of all individuals who contact the Office of Special

7 Counsel for assistance. The survey shall—

8 (1) determine if the individual seeking assistance

9 was fully apprised of their rights;

10 (2) determine whether the individual was suc11 cessful either at the Office of Special Counsel or the

12 Merit Systems Protection Board; and

13 (3) determine if the individual, whether success14 ful or not, was satisfied with the treatment received

15 from the Office of Special Counsel.

16 (b) REPORT.—The results of the survey conducted

17 under subsection (a) shall be published in the annual report

18 of the Office of Special Counsel.

19 SEC. 14. EFFECTIVE DATE.

20 The provisions of this Act and the amendments made

21 by this Act shall be effective on and after the date of the

22 enactment of this Act.

Attest:

Secretary.
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