the Director shall have the right to appear in the
proceeding before such other court.’’.
(2) CONFORMING AMENDMENT.—Paragraph (9)
of section 1295(a) of title 28, United States Code, is
repealed.
(3) APPLICABILITY.—The amendments made by
this subsection shall apply to petitions filed on or
after the effective date of this Act.
(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 prohib-
ited 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 insert-
ing 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 appli-
cant has sought corrective action from the Special
Counsel under this subchapter;’’.
(d) CHOICE OF REMEDIES PROVISION INVOLVING JU-
DICIAL REVIEW.—
(1) IN GENERAL.—Chapter 12 of title 5, United
States Code, is amended by adding at the end the fol-
lowing:
‘‘SUBCHAPTER IV—JUDICIAL REVIEW
‘‘§ 1231. Judicial review
‘‘(a) Subject to subsection (c) and section 1232, an em-
ployee, former employee, or applicant for employment may,
with respect to a personnel action taken, or proposed to be
taken, against such employee, former employee, or appli-
cant for employment, as a result of a prohibited personnel
practice described in section 2302(b)(8), bring a civil action
in the appropriate district court of the United States for
relief. For purposes of the preceding sentence, the term ‘per-
sonnel action’ means—
‘‘(1) an action under subchapter II of chapter
75;
‘‘(2) a detail, transfer, or reassignment; and
‘‘(3) a reduction in grade or removal under sec-
tion 4303.
‘‘(b) The district courts of the United States shall have
jurisdiction of actions brought under this section without
regard to the amount in controversy.
‘‘(c) An action under this section—
‘‘(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 prac-
tice; and
‘‘(2) shall be brought within 120 days after the
prohibited personnel practice is alleged to have oc-
curred.
‘‘(d) REVIEW.—In any action brought under this sec-
tion, the court—
‘‘(1) shall review the matter de novo; and
‘‘(2) shall apply the same standard as would the
Merit Systems Protection Board under section
1214(b)(4)(B) or 1221(e).
‘‘§ 1232. Choice of remedies
‘‘(a) An action under section 1231—
‘‘(1) if brought, shall be in lieu of any remedy
described in subsection (b); but
‘‘(2) may not be brought if the aggrieved person
has elected to raise the same matter under any of the
remedies described in subsection (b).
‘‘(b) The remedies described in this subsection are as
follows:
‘‘(1) An appeal to the Merit Systems Protection
Board under section 7701.
‘‘(2) A negotiated grievance procedure under sec-
tion 7121.
‘‘(3) Procedures for seeking corrective action
under subchapters II and III.
‘‘(c) For the purpose of this section, a person shall be
considered to have elected—
‘‘(1) the remedy described in subsection (b)(1) if
such person has timely filed a notice of appeal under
the applicable appellate procedures;
‘‘(2) the remedy described in subsection (b)(2) if
such person has timely filed a grievance in writing,
in accordance with the provisions of the parties’ nego-
tiated procedure; or
‘‘(3) the remedy described in subsection (b)(3) if
such person has sought corrective action from the Of-
fice of Special Counsel by making an allegation under
section 1214(a)(1).
‘‘(d) For purposes of subsection (a)(1), a person shall
be considered to have elected the remedy under section 1231
if such person has timely commenced an action in an ap-
propriate court, in accordance with applicable procedures.’’.
(2) CHAPTER ANALYSIS.—The analysis for chap-
ter 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 AR-
BITRATORS.—Section 7121(b) of title 5, United States Code,
is amended—
(1) by redesignating subparagraphs (A) through
(C) of paragraph (3) as clauses (i) through (iii), re-
spectively;
(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 proce-
dure providing for binding arbitration in accordance with
paragraph (1)(C)(iii) shall, if or to the extent that an al-
leged prohibited personnel practice is involved, allow the ar-
bitrator 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) the taking, by an agency, of any discipli-
nary action identified under section 1215(a)(3) that
is otherwise within the authority of such agency to
take.
‘‘(B) Any employee who is the subject of any discipli-
nary action ordered under subparagraph (A)(ii) may ap-
peal such action to the same extent and in the same manner
as if the agency had taken the disciplinary action absent
arbitration.’’.
(f) CHOICE OF REMEDIES PROVISION NOT INVOLVING
JUDICIAL REVIEW.—Section 7121 of title 5, United States
Code, is amended by adding at the end the following:
‘‘(g)(1) This subsection applies with respect to a pro-
hibited personnel practice other than a prohibited personnel
practice to which subsection (d) applies.
‘‘(2) An aggrieved employee affected by a prohibited
personnel practice described in paragraph (1) may elect not
more than one of the remedies described in paragraph (3)
with respect thereto. For purposes of the preceding sentence,
a determination as to whether a particular remedy has been
elected shall be made in the same way as set forth in section
1232(c).
‘‘(3) The remedies described in this paragraph are as
follows:
‘‘(A) An appeal to the Merit Systems Protection
Board under section 7701.
‘‘(B) A negotiated grievance procedure under this
section.
‘‘(C) Procedures for seeking corrective action
under subchapters II and III of chapter 12.’’.
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, achieve-
ment 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 Coun-
sel shall issue a policy statement regarding the implementa-
tion of the amendments made by the Whistleblower Protec-
tion Act of 1989. Such policy statement shall be made avail-
able to each person alleging a prohibited personnel practice
described in section 2302(b) of title 5, United States Code,
and shall include detailed guidelines identifying specific
categories of information that may (or may not) be commu-
nicated 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 wheth-
er 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 in-
volved, 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 representa-
tion’’.
(b) CHAPTER 77.—Section 7701(g) of title 5, United
States Code, is amended—
(1) by striking ‘‘attorney fees’’ each place it ap-
pears 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. MSPB RETIREMENT APPEALS EXPENSE AUTHORIZA-
TION.
(a) IN GENERAL.—Section 8348(a) of title 5, United
States Code, is amended by striking ‘‘and’’ at the end of
paragraph (1), by striking the period at the end of para-
graph (2) and inserting ‘‘; and’’, and by adding at the end
the following:
‘‘(3) is made available, subject to such annual
limitation as the Congress may prescribe, for any ex-
penses incurred by the Merit Systems Protection
Board in connection with the administration of ap-
peals authorized under section 8347(d) or 8461(e).’’.
(b) EFFECTIVE DATE.—The amendments made by sub-
section (a) shall take effect on October 1, 1995.
SEC. 10. EFFECTIVE DATE.
(a) IN GENERAL.—Except as provided in section 9,
this Act and the amendments made by 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 provision takes effect. Orders shall be issued in
such proceedings and appeals shall be taken therefrom as
if this Act had not been enacted.
HR 2970 RH——2