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‘‘(m)(1) Except as provided in paragraph (2) of this
subsection, the Board, or an administrative law judge or
other employee of the Board designated to hear a case aris-
ing under section 1215, may require payment by the agency
involved of reasonable attorney fees incurred by an em-
ployee or applicant for employment if the employee or ap-
plicant is the prevailing party and the Board, administra-
tive law judge, or other employee (as the case may be) deter-
mines that payment by the agency is warranted in the in-
terest of justice, including any case in which a prohibited
personnel practice was engaged in by the agency or any
case in which the agency’s action was clearly without merit.
‘‘(2) If an employee or applicant for employment is
the prevailing party of a case arising under section 1215
and the decision is based on a finding of discrimination
prohibited under section 2302(b)(1) of this title, the pay-
ment of attorney fees shall be in accordance with the stand-
ards prescribed under section 706(k) of the Civil Rights Act
of 1964 (42 U.S.C. 2000e–5(k)).’’.
SEC. 3. OFFICE OF SPECIAL COUNSEL.
(a) SUCCESSION.—Section 1211(b) of title 5, United
States Code, is amended by inserting after the first sentence:
‘‘The Special Counsel may continue to serve beyond the ex-
piration of the term until a successor is appointed and has
qualified, except that the Special Counsel may not continue
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to serve for more than one year after the date on which
the term of the Special Counsel would otherwise expire
under this subsection.’’.
(b) LIMITATIONS ON DISCLOSURES.—Section 1212(g)
of title 5, United States Code, is amended—
(1) in paragraph (1), by striking out ‘‘provide
information concerning’’ and inserting in lieu thereof
‘‘disclose any information from or about’’; and
(2) in paragraph (2), by striking out ‘‘a matter
described in subparagraph (A) or (B) of section
2302(b)(2) in connection with a’’ and inserting in
lieu thereof ‘‘an evaluation of the work performance,
ability, aptitude, general qualifications, character,
loyalty, or suitability for any personnel action of
any’’.
(c) STATUS REPORT BEFORE TERMINATION OF INVES-
TIGATION.—Section 1214(a) of title 5, United States Code,
is amended—
(1) in paragraph (1) by adding at the end there-
of the following new subparagraph:
‘‘(D) No later than 10 days before the Special Counsel
terminates any investigation of a prohibited personnel
practice, the Special Counsel shall provide a written status
report to the person who made the allegation of the proposed
findings of fact and legal conclusions. The person may sub-
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mit written comments about the report to the Special Coun-
sel. The Special Counsel shall not be required to provide
a subsequent written status report under this subparagraph
after the submission of such written comments.’’; and
(2) in paragraph (2)(A)—
(A) in clause (ii) by striking out ‘‘and’’
after the semicolon;
(B) in clause (iii) by striking out the period
and inserting in lieu thereof a semicolon and
‘‘and’’; and
(C) by adding at the end thereof the follow-
ing new clause:
‘‘(iv) a response to any comments submitted
under paragraph (1)(D).’’.
(d) DETERMINATIONS.—Section 1214(b)(2) of title 5,
United States Code, is amended—
(1) by redesignating subparagraphs (A), (B) and
(C) as subparagraphs (B), (C) and (D), respectively;
(2) by inserting before subparagraph (B) (as re-
designated by paragraph (1) of this subsection) the
following:
‘‘(A)(i) Except as provided under clause
(ii), no later than 240 days after the date of re-
ceiving an allegation of a prohibited personnel
practice under paragraph (1), the Special Coun-
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sel shall make a determination whether there are
reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to
be taken.
‘‘(ii) If the Special Counsel is unable to
make the required determination within the 240-
day period specified under clause (i) and the
person submitting the allegation of a prohibited
personnel practice agrees to an extension of time,
the determination shall be made within such ad-
ditional period of time as shall be agreed upon
between the Special Counsel and the person sub-
mitting the allegation.’’; and
(3) by inserting after subparagraph (D) (as re-
designated by paragraph (1) of this subsection) the
following new subparagraph:
‘‘(E) A determination by the Special Coun-
sel under this paragraph shall not be cited or re-
ferred to in any proceeding under this para-
graph or any other administrative or judicial
proceeding for any purpose, without the consent
of the person submitting the allegation of a pro-
hibited personnel practice.’’.
(e) REPORTS.—Section 1218 of title 5, United States
Code, is amended by inserting ‘‘cases in which it did not
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make a determination whether there are reasonable grounds
to believe that a prohibited personnel practice has occurred,
exists, or is to be taken within the 240-day period specified
in section 1214(b)(2)(A)(i),’’ after ‘‘investigations con-
ducted by it,’’.
SEC. 4. INDEPENDENT RIGHT OF ACTION.
(a) SUBPOENAS.—Section 1221(d) of title 5, United
States Code, is amended by striking out paragraph (1) and
inserting in lieu thereof the following:
‘‘(1) At the request of an employee, former em-
ployee, or applicant for employment seeking corrective
action under subsection (a), the Board shall issue a
subpoena for the attendance and testimony of any
person or the production of documentary or other evi-
dence from any person if the Board finds that the tes-
timony or production requested is not unduly burden-
some and appears reasonably calculated to lead to the
discovery of admissible evidence.’’.
(b) CORRECTIVE
ACTIONS.—Section 1221(e)(1) is
amended by adding after the last sentence: ‘‘The employee
may demonstrate that the disclosure was a contributing fac-
tor in the personnel action through circumstantial evidence,
such as evidence that—
‘‘(A) the official taking the personnel action
knew of the disclosure; and
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‘‘(B) the personnel action occurred within a pe-
riod of time such that a reasonable person could con-
clude that the disclosure was a contributing factor in
the personnel action.’’.
(c) REFERRALS.—Section 1221(f) of title 5, United
States Code, is amended by adding after paragraph (2) the
following new paragraph:
‘‘(3) If, based on evidence presented to it under
this section, the Merit Systems Protection Board de-
termines 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 Spe-
cial Counsel to investigate and take appropriate ac-
tion under section 1215.’’.
SEC. 5. PROHIBITED PERSONNEL PRACTICES.
(a) PERSONNEL ACTIONS.—Section 2302(a)(2)(A) of
title 5, United States Code, is amended—
(1) in clause (ix) by striking out ‘‘and’’ after the
semicolon;
(2) by striking out clause (x) and inserting in
lieu thereof the following:
‘‘(x) a decision to order psychiatric
testing or examination; and
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‘‘(xi) any other significant change in
duties, responsibilities, or working condi-
tions;’’; and
(3) in the matter following designated clause (xi)
(as added by paragraph (2) of this subsection) by in-
serting before the semicolon the following: ‘‘, and in
the case of an alleged prohibited personnel practice
described in subsection (b)(8), an employee or appli-
cant for employment in a Government corporation as
defined in section 9101 of title 31’’.
(b) COVERED POSITIONS.—Section 2302(a)(2)(B) of
title 5, United States Code, is amended to read as follows:
‘‘(B) ‘covered position’ means, with respect to
any personnel action, any position in the competitive
service, a career appointee position in the Senior Ex-
ecutive Service, or a position in the excepted service,
but does not include any position which is, prior to
the personnel action—
‘‘(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-
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ranted by conditions of good administration;
and’’.
(c) AGENCIES.—Section 2302(a)(2)(C) of title 5, Unit-
ed States Code, is amended in clause (i) by inserting before
the semicolon: ‘‘, except in the case of an alleged prohibited
personnel practice described under subsection (b)(8)’’.
(d) INFORMATIONAL PROGRAM.—Section 2302(c) of
title 5, United States Code, is amended in the first sentence
by inserting before the period ‘‘, and for ensuring (in con-
sultation with the Office of Special Counsel) that agency
employees are informed of the rights and remedies available
to them under this chapter and chapter 12 of this title’’.
SEC. 6. PERFORMANCE APPRAISALS.
Section 4313(5) 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 under section 2301 of this title.’’.
SEC. 7. MERIT SYSTEMS APPLICATION TO CERTAIN VETER-
ANS AFFAIRS PERSONNEL.
Section 2105 of title 5, United States Code, is amended
by adding at the end thereof the following new subsection:
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‘‘(f) For purposes of sections 1212, 1213, 1214, 1215,
1216, 1221, 1222, 2302, and 7701, employees appointed
under chapter 73 or 74 of title 38 shall be employees.’’.
SEC. 8. CORRECTIVE ACTIONS ORDERED BY THE MERIT
SYSTEMS PROTECTION BOARD.
(a) IN GENERAL.—Section 1214 of title 5, United
States Code, is amended by adding at the end thereof the
following new subsection:
‘‘(g) If the Board orders corrective action under this
section, such corrective action may include—
‘‘(1) that the individual be placed, as nearly as
possible, in the position the individual would have
been in had the prohibited personnel practice not oc-
curred; and
‘‘(2) reimbursement for attorney’s fees, back pay
and related benefits, medical costs incurred, travel ex-
penses, and any other reasonable and foreseeable con-
sequential damages.’’.
(b) CERTAIN REPRISAL CASES.—Section 1221(g) of
title 5, United States Code (as amended by section 4(d) of
this Act) is further amended—
(1) by redesignating paragraphs (1) and (2) as
paragraphs (2) and (3), respectively; and
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(2) by inserting before paragraph (2) (as redesig-
nated by paragraph (1) of this subsection) the follow-
ing new paragraph:
‘‘(1)(A) If the Board orders corrective action
under this section, such corrective action may in-
clude—
‘‘(i) that the individual be placed, as nearly
as possible, in the position the individual would
have been in had the prohibited personnel prac-
tice not occurred; and
‘‘(ii) back pay and related benefits, medical
costs incurred, travel expenses, and any other
reasonable and foreseeable consequential changes.
‘‘(B) Corrective action shall include attorney’s
fees and costs as provided for under paragraphs (2)
and (3).’’.
SEC. 9. AUTHORITIES RELATING TO ARBITRATORS AND
CHOICE OF REMEDIES NOT INVOLVING JUDI-
CIAL REVIEW.
(a) AUTHORITIES WHICH MAY BE EXTENDED TO AR-
BITRATORS.—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;
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(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 proce-
dure providing for binding arbitration in accordance with
paragraph (1)(C)(iii) shall, if or to the extent that an al-
leged prohibited personnel practice is involved, allow the ar-
bitrator 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 manner
as if the agency had taken the disciplinary action absent
arbitration.’’.
(b) CHOICE OF REMEDIES PROVISION NOT INVOLVING
JUDICIAL REVIEW.—Section 7121 of title 5, United States
Code, is amended by adding at the end the following:
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‘‘(g)(1) This subsection applies with respect to a pro-
hibited personnel practice other than a prohibited personnel
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 remedy has been
elected shall be made as set forth under paragraph (4).
‘‘(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.
‘‘(4) For the purpose of this subsection, a person shall
be considered to have elected—
‘‘(A) the remedy described in paragraph (3)(A)
if such person has timely filed a notice of appeal
under the applicable appellate procedures;
‘‘(B) the remedy described in paragraph (3)(B)
if such person has timely filed a grievance in writing,