‘‘(B) Subchapter III.
‘‘(C) A negotiated grievance procedure referred
to in section 7121 (if available).
‘‘(D) Section 1231.
‘‘(2) A person shall be considered to have exercised
such person’s option to raise a matter under any of the
alternatives listed under paragraph (1) at such time as
such person timely initiates an action under the applicable
statutory procedures or timely files a grievance in writing.
‘‘(b)(1) With respect to a prohibited personnel prac-
tice other than a prohibited personnel practice described
in paragraph (1) or (8) of section 2302(b), an aggrieved
person may raise the matter under either of the following
(but not both):
‘‘(A) The provisions of law referred to in sub-
section (a)(1)(B) (including any subsequent right of
action under section 1221 or 1231, but not both).
‘‘(B) A negotiated grievance procedure referred
to in section 7121 (if available).
‘‘(2) A person shall be considered to have exercised
such person’s option to raise a matter under either of the
alternatives listed under paragraph (1) (including, at the
appropriate point in time, and if applicable, the options
referred to parenthetically in paragraph (1)(A)) at such
time as the person timely initiates an action under the
applicable statutory procedures or timely files a grievance
in writing.’’.
(2) TECHNICAL
AND
CONFORMING
AMEND-
MENTS.—
(A) SECTION 1214.—Section 1214 of title
5, United States Code, is amended by adding at
the end the following:
‘‘(g) For choice of remedies provisions relevant to this
section, see section 1232.’’.
(B) SECTION 1221.—Section 1221 of title
5, United States Code, is amended by adding at
the end the following:
‘‘(k) For choice of remedies provisions relevant to this
section, see section 1232.’’.
(C) SECTION 7121.—Section 7121 of title
5, United States Code, is amended by adding at
the end the following:
‘‘(g) For choice of remedies provisions relevant to this
section, see section 1232.’’.
(3) 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.’’.
(e) 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) as clauses (i) through (iii), respectively;
(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) may, 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) any disciplinary action allowable under
section 1215, consistent with the due process rights
afforded under such section.
‘‘(B) With respect to any disciplinary action imposed
by an arbitrator pursuant to subparagraph (A)(ii), judicial
review of the order imposing such disciplinary action may
be obtained in the same manner and on the same basis
as could be obtained under section 1215(a)(4) if such an
order had been issued by the Merit Systems Protection
Board.’’.
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)(8) 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. EFFECTIVE DATE; SAVINGS PROVISION.
(a) IN GENERAL.—The provisions of 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 provisions take effect. Orders shall be issued
in such proceedings and appeals shall be taken therefrom
as if this Act had not been enacted.
Æ
HR 2970 IH——2