103D CONGRESS
2D SESSION
H. R. 2970
AN ACT
To reauthorize the Office of Special Counsel, and for other
purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. REAUTHORIZATIONS.
Section 8(a) of the Whistleblower Protection Act of
1989 (5 U.S.C. 5509 note) is amended by striking ‘‘fiscal
years’’ through ‘‘such sums’’ each place it appears and
inserting ‘‘fiscal years 1993–1997, such sums’’.
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 Coun-
sel may continue to serve after the expiration of the Spe-
cial Counsel’s term until a successor has qualified, but for
not longer than 1 year.’’.
(b) LIMITATIONS ON DISCLOSURES.—
(1) IN GENERAL.—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 per-
son making an allegation under section 1214(a) or any
allegation so made, except in accordance with the provi-
sions of section 552a or as required by any other applica-
ble 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 disclo-
sure 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 per-
son referred to in paragraph (1), to information the
unauthorized disclosure of which could be expected
to cause exceptionally grave damage to national se-
curity.’’.
(2) 
CONFORMING
AMENDMENTS.—Section
7121(a)(1) of title 5, United States Code, is amend-
ed—
(A) by inserting ‘‘administrative’’ after
‘‘exclusive’’; and
(B) by striking ‘‘(d) and (e)’’ and inserting
‘‘(d), (e), and (g)’’.
(c) STANDARD APPLICABLE WITH RESPECT TO CER-
TAIN 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 sup-
ported 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 re-
ceives information from an individual other than an indi-
vidual described in subparagraph (A) or (B) of subsection
(c)(2) which, if such individual were an individual de-
scribed in either of such subparagraphs, would be consid-
ered 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 ter-
minated, 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 there-
after, 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 cir-
cumstances as would apply under paragraph (2)(B) with
respect to a written statement under paragraph (2)(A).’’.
(f) CLARIFICATION
RELATING
TO
BURDEN
OF
PROOF.—Sections 1214(b)(4)(B)(i) and 1221(e)(1) (as
amended by section 3(b)) are 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 in-
stances in which it did not make a timely determination
under section 1214(a)(1),’’ after ‘‘investigations con-
ducted 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 em-
ployee, or applicant for employment seeking corrective ac-
tion under subsection (a), the Board shall issue a sub-
poena 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 cal-
culated to lead to the discovery of admissible evi-
dence.’’.
(b) BURDEN OF PROOF.—
(1) IN GENERAL.—Section 1221(e) of title 5,
United States Code, is amended to read as follows:
‘‘(e)(1) Subject to paragraph (2), in any case involv-
ing an alleged prohibited personnel practice as described
in paragraph (8) or (9) of section 2302(b), the Board shall
order such corrective action as the Board considers appro-
priate if the employee, former employee, or applicant for
employment has demonstrated that protected conduct