H. R. 2970
One Hundred Third Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twenty-fifth day of January, one thousand nine hundred and ninety-four
An Act
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. AUTHORIZATION OF APPROPRIATIONS.
(a) MERIT SYSTEMS PROTECTION BOARD.—Section 8(a)(1) of the
Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note; Public
Law 101–12; 103 Stat. 34) is amended by striking out ‘‘1989, 1990,
1991, 1992, 1993, and 1994’’ and inserting in lieu thereof ‘‘1993,
1994, 1995, 1996, and 1997’’.
(b) OFFICE
OF
SPECIAL
COUNSEL.—Section 8(a)(2) of the
Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note; Public
Law 101–12; 103 Stat. 34) is amended by striking out ‘‘1989, 1990,
1991, and 1992’’ and inserting in lieu thereof ‘‘1993, 1994, 1995,
1996, and 1997’’.
SEC. 2. REASONABLE ATTORNEY FEES IN CERTAIN CASES.
Section 1204 of title 5, United States Code, is amended by
adding at the end thereof the following new subsection:
‘‘(m)(1) Except as provided in paragraph (2) of this subsection,
the Board, or an administrative law judge or other employee of
the Board designated to hear a case arising under section 1215,
may require payment by the agency involved of reasonable attorney
fees incurred by an employee or applicant for employment if the
employee or applicant is the prevailing party and the Board,
administrative law judge, or other employee (as the case may be)
determines that payment by the agency is warranted in the interest
of justice, including any case in which a prohibited personnel prac-
tice was engaged in by the agency or any case in which the agency’s
action was clearly without merit.
‘‘(2) If an employee or applicant for employment is the prevail-
ing party of a case arising under section 1215 and the decision
is based on a finding of discrimination prohibited under section
2302(b)(1) of this title, the payment of attorney fees shall be in
accordance with the standards prescribed under section 706(k) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e–5(k)).’’.
SEC. 3. OFFICE OF SPECIAL COUNSEL.
(a) SUCCESSION.—Section 1211(b) of title 5, United States Code,
is amended by inserting after the first sentence: ‘‘The Special Coun-
sel may continue to serve beyond the expiration of the term until
a successor is appointed and has qualified, except that the Special
Counsel may not continue to serve for more than one year after
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the date on which the term of the Special Counsel would otherwise
expire under this subsection.’’.
(b) LIMITATIONS ON DISCLOSURES.—Section 1212(g) of title 5,
United States Code, is amended—
(1) in paragraph (1), by striking out ‘‘provide information
concerning’’ and inserting in lieu thereof ‘‘disclose any informa-
tion from or about’’; and
(2) in paragraph (2), by striking out ‘‘a matter described
in subparagraph (A) or (B) of section 2302(b)(2) in connection
with a’’ and inserting in lieu thereof ‘‘an evaluation of the
work performance, ability, aptitude, general qualifications,
character, loyalty, or suitability for any personnel action of
any’’.
(c) STATUS REPORT BEFORE TERMINATION OF INVESTIGATION.—
Section 1214(a) of title 5, United States Code, is amended—
(1) in paragraph (1) by adding at the end thereof the
following new subparagraph:
‘‘(D) No later than 10 days before the Special Counsel termi-
nates any investigation of a prohibited personnel practice, the Spe-
cial Counsel shall provide a written status report to the person
who made the allegation of the proposed findings of fact and legal
conclusions. The person may submit written comments about the
report to the Special Counsel. The Special Counsel shall not be
required to provide a subsequent written status report under this
subparagraph after the submission of such written comments.’’;
and
(2) in paragraph (2)(A)—
(A) in clause (ii) by striking out ‘‘and’’ after the semi-
colon;
(B) in clause (iii) by striking out the period and insert-
ing in lieu thereof a semicolon and ‘‘and’’; and
(C) by adding at the end thereof the following new
clause:
‘‘(iv) a response to any comments submitted under para-
graph (1)(D).’’.
(d) DETERMINATIONS.—Section 1214(b)(2) of title 5, United
States Code, is amended—
(1) by redesignating subparagraphs (A), (B) and (C) as
subparagraphs (B), (C) and (D), respectively;
(2) by inserting before subparagraph (B) (as redesignated
by paragraph (1) of this subsection) the following:
‘‘(A)(i) Except as provided under clause (ii), no later
than 240 days after the date of receiving an allegation
of a prohibited personnel practice under paragraph (1),
the Special Counsel shall make a determination whether
there are reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to be taken.
‘‘(ii) If the Special Counsel is unable to make the
required determination within the 240-day period specified
under clause (i) and the person submitting the allegation
of a prohibited personnel practice agrees to an extension
of time, the determination shall be made within such addi-
tional period of time as shall be agreed upon between
the Special Counsel and the person submitting the allega-
tion.’’; and
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(3) by inserting after subparagraph (D) (as redesignated
by paragraph (1) of this subsection) the following new subpara-
graph:
‘‘(E) A determination by the Special Counsel under
this paragraph shall not be cited or referred to in any
proceeding under this paragraph or any other administra-
tive or judicial proceeding for any purpose, without the
consent of the person submitting the allegation of a prohib-
ited personnel practice.’’.
(e) REPORTS.—Section 1218 of title 5, United States Code, is
amended by inserting ‘‘cases in which it did not make a determina-
tion whether there are reasonable grounds to believe that a prohib-
ited personnel practice has occurred, exists, or is to be taken within
the 240-day period specified in section 1214(b)(2)(A)(i),’’ after ‘‘inves-
tigations conducted by it,’’.
SEC. 4. INDEPENDENT RIGHT OF ACTION.
(a) SUBPOENAS.—Section 1221(d) of title 5, United States Code,
is amended by striking out paragraph (1) and inserting in lieu
thereof the following:
‘‘(1) At the request of an employee, former employee, or
applicant for employment seeking corrective action under sub-
section (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 testimony or production requested is not unduly burden-
some and appears reasonably calculated to lead to the discovery
of admissible evidence.’’.
(b) CORRECTIVE ACTIONS.—Section 1221(e)(1) is amended by
adding after the last sentence: ‘‘The employee may demonstrate
that the disclosure was a contributing factor in the personnel action
through circumstantial evidence, such as evidence that—
‘‘(A) the official taking the personnel action knew of the
disclosure; and
‘‘(B) the personnel action occurred within a period of time
such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action.’’.
(c) REFERRALS.—Section 1221(f) of title 5, United States Code,
is amended by adding after paragraph (2) the following new para-
graph:
‘‘(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 to investigate and take appropriate
action under section 1215.’’.
SEC. 5. PROHIBITED PERSONNEL PRACTICES.
(a) PERSONNEL
ACTIONS.—Section 2302(a)(2)(A) of title 5,
United States Code, is amended—
(1) in clause (ix) by striking out ‘‘and’’ after the semicolon;
(2) by striking out clause (x) and inserting in lieu thereof
the following:
‘‘(x) a decision to order psychiatric testing or exam-
ination; and
‘‘(xi) any other significant change in duties, respon-
sibilities, or working conditions;’’; and