I
103D CONGRESS
1ST SESSION
H. R. 2970
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
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. REAUTHORIZATION.
Section 8(a)(2) of the Whistleblower Protection Act
of 1989 (5 U.S.C. 5509 note) is amended by striking
‘‘1989, 1990, 1991, and 1992’’ and inserting ‘‘1994 and
1995’’.
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.—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 the 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 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.—Section 1214(b)(4)(B)(i) is amended, and
1221(e)(1) (as amended by section 3(b)) is further amend-
ed, by striking the period at the end and inserting ‘‘, not-
withstanding 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.—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 allegation of a prohibited personnel practice de-
scribed in paragraph (8) or (9) of section 2302(b), the
Board shall order such corrective action as the Board con-
siders appropriate 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 personnel 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 con-
vincing evidence that it would have taken the same person-
nel action in the absence of the protected conduct involved.
‘‘(3) For the purpose of this subsection, the term
‘protected conduct’ means—
‘‘(A) with respect to paragraph (8) of section
2302(b), any disclosure described in subparagraph
(A) or (B) of such paragraph; and
‘‘(B) with respect to paragraph (9) of section
2302(b), any conduct described in subparagraph
(A), (B), (C), or (D) of such paragraph.’’.
(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 investiga-
tion 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
(xiv) and inserting before such clause the
following:
‘‘(x) a decision to require psychiatric testing or
examination;
‘‘(xi) a denial, revocation, or other determina-
tion relating to a security clearance;
‘‘(xii) a removal (other than a removal which is
covered by clause (iii) or which is based on perform-
ance);
‘‘(xiii) a decision to commence a formal inves-
tigation that may result in criminal prosecution or
an adverse personnel action (as defined by any other
clause of this subparagraph); and’’.
(2) 
CONFORMING
AMENDMENT.—Section
2302(a) of title 5, United States Code, is amended
by striking ‘‘clauses (i) through (x)’’ and inserting
‘‘clauses (i) through (xiv)’’.
(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 ap-
pointee position in the Senior Executive Service, a
position in the excepted service, or a position covered
by chapter 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 ap-
plied 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
section by the President based on a determina-
tion by the President that it is necessary and
warranted by conditions of good administra-
tion.’’.
(c) AGENCIES.—Section 2302(a)(2)(C) of title 5,
United States Code, is amended—
(i) in clause (i) by striking ‘‘corporation;’’ and
inserting ‘‘corporation (except for purposes of sub-
section (b)(8) and any other provision of this section
if, or to the extent that, it relates to subsection
(b)(8));’’; and
(ii) in clause (ii) by striking ‘‘activities; or’’ and
inserting ‘‘activities (except for the same purposes as
set forth parenthetically in clause (i)); or’’.
(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 ensuring (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 chap-
ter and chapter 12.’’.
(e) SENSE OF CONGRESS.—It is the sense of the Con-
gress that a Federal employee or applicant for Federal
employment who makes a disclosure described in section
2302(b)(8) of title 5, United States Code, should not be
prosecuted, 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 PERSON-
NEL PRACTICES.
(a) INDIVIDUAL RIGHT OF ACTION BEFORE MSPB
AVAILABLE
FOR PROHIBITED PERSONNEL PRACTICES
GENERALLY.—
(1) IN GENERAL.—Section 1221(a) of title 5,
United States Code, is amended by striking ‘‘prac-
tice described in section 2302(b)(8),’’ and inserting
‘‘practice,’’.
(2) EXCEPTION.—Section 1221(b) of title 5,
United States Code, is amended to read as follows:
‘‘(b) Nothing in this subchapter shall be considered
to create any right to seek corrective action with respect