IB
Union Calendar No. 417
103D CONGRESS
2D SESSION
H. R. 2970
[Report No. 103–769]
To reauthorize the Office of Special Counsel, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
AUGUST 6, 1993
Mr. MCCLOSKEY introduced the following bill; which was referred to the
Committee on Post Office and Civil Service
SEPTEMBER 30, 1994
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on August 6, 1993]
A BILL
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 in-
serting ‘‘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 Counsel may con-
tinue to serve after the expiration of the Special Counsel’s
term until a successor has qualified, but for not longer than
1 year.’’.
(b) LIMITATIONS ON DISCLOSURES.—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 alle-
gation so made, except in accordance with the provisions
of section 552a or as required by any other applicable 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 agen-
cy which requires such information in order to make
a determination concerning access, for the person re-
ferred to in paragraph (1), to information the unau-
thorized disclosure of which could be expected to cause
exceptionally grave damage to national security.’’.
(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 receives informa-
tion from an individual other than an individual described
in subparagraph (A) or (B) of subsection (c)(2) which, if
such individual were an individual described in either of
such subparagraphs, would be considered 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 pro-
hibited personnel practice, the Special Counsel shall deter-
mine 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 circumstances
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 instances in
which it did not make a timely determination under section
1214(a)(1),’’ after ‘‘investigations conducted by it,’’.
(h) EFFECTIVE DATE.—The amendments made by sub-
section (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 employee,
or applicant for employment seeking corrective action under
subsection (a), the Board shall issue a subpoena for the at-
tendance 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 calculated
to lead to the discovery of admissible evidence.’’.
(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 involving
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 under
such paragraph (8) or (9) (as defined in paragraph (3)(A)
or (B), as applicable) was a contributing factor in the per-
sonnel action which was taken or is to be taken against
such employee, former employee, or applicant.
‘‘(2) Corrective action under paragraph (1) may not
be ordered if the agency demonstrates by clear and convinc-
ing evidence that it would have taken the same personnel
action in the absence of the protected conduct involved.
‘‘(3) For the purpose of this subsection, the term ‘pro-
tected conduct’ means—
(4) SAME STANDARD IF RELIEF IS SOUGHT BY
AN APPEAL UNDER SECTION 7701.—Section 7701(c) of
title 5, United States Code, is amended—
(A) in paragraph (1) by striking ‘‘Subject
to paragraph (2)’’ and inserting ‘‘Subject to
paragraphs (2) and (3)’’; and
(B) by adding at the end the following:
‘‘(3) To the extent that an appeal involves an alleged
prohibited personnel practice described in paragraph (8) or
(9) of section 2302(b), the standard under section 1221(e)
shall be applied.’’.
(c) REFERRALS
FOR POSSIBLE DISCIPLINARY AC-
TION.—Section 1221(f) of title 5, United States Code, is
amended by adding after paragraph (2) the following:
‘‘(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 for investigation and
appropriate action under section 1215.’’.
SEC. 4. PROHIBITED PERSONNEL PRACTICES.
(a) PERSONNEL ACTIONS.—
(1) IN GENERAL.—Section 2302(a)(2)(A) of title
5, United States Code, is amended—
(A) in clause (ix) by striking ‘‘and’’ after
the semicolon; and
(B) by redesignating clause (x) as clause
(xii) and inserting before such clause the
following:
‘‘(x) a decision to require psychiatric test-
ing or examination;
‘‘(xi) a denial, revocation, or other deter-
mination relating to a security clearance; and’’.
(2) CONFORMING AMENDMENT.—Section 2303(a)
of title 5, United States Code, is amended by striking
‘‘clauses (i) through (x)’’ and inserting ‘‘clauses (i)
through (xii)’’.
(b) COVERED POSITIONS.—Section 2302(a)(2)(B) of
title 5, United States Code, is amended to read as follows:
‘‘(B) ‘covered position’, as used with respect to
an employee or applicant for employment, means any
position in the competitive service, a career appointee
position in the Senior Executive Service, a position
in the excepted service, or a position covered by chap-
ter 74 of title 38, but does not include any position
which, as of the date on which the employee began
serving in the position or the applicant applied for
such position (as the case may be), was—
‘‘(i) excepted from the competitive service
because of its confidential, policy-determining,
policy-making, or policy-advocating character; or
‘‘(ii) excluded from the coverage of this sec-
tion by the President based on a determination
by the President that it is necessary and war-
ranted by conditions of good administration.’’.
(c) AGENCIES.—Section 2302(a)(2)(C) of title 5,
United States Code, is amended—
(1) by striking clause (i); and
(2) by redesignating clauses (ii) and (iii) as
clauses (i) and (ii), respectively.
(d) INFORMATION.—Section 2302(c) of title 5, United
States Code, is amended in the first sentence by striking
‘‘management.’’ and inserting ‘‘management, and for ensur-
ing (in consultation with the Office of Special Counsel) that
employees of such agency are informed of the rights and
remedies available to them under this chapter and chapter
12.’’.
(e) SENSE OF CONGRESS.—It is the sense of the Con-
gress that a Federal employee or applicant for Federal em-
ployment who makes a disclosure described in section
2302(b) of title 5, United States Code, should not be pros-
ecuted, or threatened with prosecution, under section 205
of title 18, United States Code, for such disclosure.
SEC. 5. ADDITIONAL AMENDMENTS RELATING TO PROCE-
DURES UNDER WHICH INDIVIDUALS MAY
SEEK RELIEF FROM PROHIBITED PERSONNEL
PRACTICES.
(a) INDIVIDUAL RIGHT OF ACTION BEFORE MSPB
AVAILABLE FOR PROHIBITED PERSONNEL PRACTICES GEN-
ERALLY.—
(1) IN
GENERAL.—Section 1221(a) of title 5,
United States Code, is amended by striking ‘‘practice
described in section 2302(b)(8),’’ and inserting ‘‘prac-
tice,’’.
(2) EXCEPTION.—Subsection (b) of section 1221
of title 5, United States Code, is amended by redesig-
nating such subsection as subsection (b)(1), and by
adding at the end the following:
‘‘(2) Nothing in this subchapter shall be considered to
create any right to seek corrective action with respect to
a prohibited personnel practice described in section
2302(b)(1).
‘‘(3) For purposes of subsection (a), the term ‘personnel
action’, if taken or proposed to be taken as a result of a
prohibited personnel practice other than one described in
paragraph (1) or (8) of section 2302(b), means—
‘‘(A) an action under subchapter II of chapter
75;
‘‘(B) a detail, transfer, or reassignment; and
‘‘(C) a reduction in grade or removal under sec-
tion 4303.’’.
(3) TECHNICAL CORRECTION.—Section 1221(a)
is amended by striking ‘‘subsection 1214(a)(3)’’ and
inserting ‘‘section 1214(a)(3)’’.
(b) APPEALS.—
(1) IN GENERAL.—Section 7703 of title 5, Unit-
ed States Code, is amended—
(A) in subsection (b)(1) by striking ‘‘Cir-
cuit.’’ and inserting ‘‘Circuit or the United
States court of appeals for the circuit in which
the petitioner resides.’’;
(B) in subsection (c)—
(i) by striking ‘‘In any case filed in
the United States Court of Appeals for the
Federal Circuit,’’ and inserting ‘‘In any
case filed under subsection (b)(1),’’; and
(ii) by striking ‘‘evidence;’’ at the end
of paragraph (3) and inserting ‘‘evidence.’’,
and by striking ‘‘except that in’’ and insert-
ing ‘‘In’’; and
(C) by adding at the end of subsection (d)
the following: ‘‘If a proceeding under this sub-
section is transferred to another court of appeals,