‘‘(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 rel-
evant to such practice are maintained and adminis-
tered, or in which the aggrieved person works or
would have worked but for the alleged prohibited
personnel practice; and
‘‘(2) shall be brought within 120 days after the
prohibited personnel practice is alleged to have oc-
curred.
‘‘(c) STANDARD OF REVIEW.—In any action brought
under this section, 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
section 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 writ-
ing, in accordance with the provisions of the parties’
negotiated procedure; or
‘‘(3) the remedy described in subsection (b)(3)
if such person has sought corrective action from the
Office 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 appropriate court, in accordance with applicable proce-
dures.
‘‘§ 1233. Appeals
‘‘Any party aggrieved by a final decision under sec-
tion 1231 may appeal such decision only to the United
States Court of Appeals for the Federal Circuit.’’.
(2) CHAPTER
ANALYSIS.—The analysis for
chapter 12 of title 5, United States Code, is amend-
ed by striking ‘‘Sec.’’ each place it appears, by in-
serting ‘‘Sec.’’ as a flush left item after the item re-
lating to subchapter I, and by adding at the end the
following:
‘‘SUBCHAPTER IV—JUDICIAL REVIEW
‘‘1231. Judicial review.
‘‘1232. Choice of remedies.
‘‘1233. Appeals.’’.
(d) 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) 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 pro-
cedure providing for binding arbitration in accordance
with paragraph (1)(C)(iii) shall, 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) 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 man-
ner as if the agency had taken the disciplinary action ab-
sent arbitration.’’.
(e) CHOICE OF REMEDIES PROVISION NOT INVOLV-
ING JUDICIAL REVIEW.—Section 7121 of title 5, United
States Code, is amended by adding at the end the follow-
ing:
‘‘(g)(1) This subsection applies with respect to a pro-
hibited personnel practice other than a prohibited person-
nel 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 rem-
edy 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
Counsel shall issue a policy statement regarding the imple-
mentation of the amendments made by the Whistleblower
Protection Act of 1989. Such policy statement shall be
made available to each person alleging a prohibited per-
sonnel 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 communicated to agency officials for an inves-
tigative 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 Coun-
sel 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 Spe-
cial Counsel who shall be available to respond to reason-
able 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 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 re-
solved.’’.
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
subsection (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.
Passed the House of Representatives October 3,
1994.
Attest:
Clerk.
103D CONGRESS
2D SESSION
H. R. 2970
AN ACT
To reauthorize the Office of Special Counsel, and
for other purposes.