II
103D CONGRESS
2D SESSION
H. R. 2970
IN THE SENATE OF THE UNITED STATES
OCTOBER 4 (legislative day, SEPTEMBER 12), 1994
Received
AN ACT
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
inserting ‘‘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 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.—
(1) IN GENERAL.—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 national se-
curity.’’.
(2) 
CONFORMING
AMENDMENTS.—Section
7121(a)(1) of title 5, United States Code, is amend-
ed—
(A) by inserting ‘‘administrative’’ after
‘‘exclusive’’; and
(B) by striking ‘‘(d) and (e)’’ and inserting
‘‘(d), (e), and (g)’’.
(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.—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 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.—
(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 involv-
ing 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 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.’’.
(2) SAME
STANDARD
IF
RELIEF
IS
SOUGHT
THROUGH OFFICE OF SPECIAL COUNSEL.—
(A) IN
GENERAL.—Subparagraph (B) of
section 1214(b)(4) of title 5, United States
Code, is amended to read as follows:
‘‘(B)(i) Subject to the provisions of clause (ii), 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 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
clause (iii)(I) or (II), as applicable) was a contributing fac-
tor in the personnel action which was taken or is to be
taken against such employee, former employee, or
applicant.
‘‘(ii) Corrective action under clause (i) 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.
‘‘(iii) For the purpose of this subparagraph, the term
‘protected conduct’ means—
‘‘(I) with respect to paragraph (8) of section
2302(b), any disclosure described in subparagraph
(A) or (B) of such paragraph; and
‘‘(II) with respect to paragraph (9) of section
2302(b), any conduct described in subparagraph
(A), (B), (C), or (D) of such paragraph.’’.
(B) CONFORMING
AMENDMENT.—Section
1214(b)(4)(A) is amended by striking ‘‘section
2302(b)(8),’’ and inserting ‘‘paragraph (8) or
(9) of section 2302(b),’’.
(3) SAME
STANDARD
IF
RELIEF
IS
SOUGHT
THROUGH BINDING ARBITRATION.—Section 7121(b)
of title 5, United States Code, as amended by sec-
tion 5(d), is further amended by adding at the end
the following:
‘‘(3) 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 described in paragraph
(8) or (9) of section 2302(b) is involved, require that the
arbitrator apply the same standard as would apply under
section 1221(e).’’.
(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 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
(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 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.—
(1) IN
GENERAL.—Section 2302(a)(2)(C) of
title 5, United States Code, is amended—
(A) by striking clause (i); and
(B) by redesignating clauses (ii) and (iii)
as clauses (i) and (ii), respectively.
(2) COORDINATION WITH CERTAIN OTHER PRO-
VISIONS OF LAW.—Section 2305 of title 5, United
States Code, is amended—
(A) by striking ‘‘No’’ and inserting ‘‘(a)
No’’; and
(B) by adding at the end the following:
‘‘(b)(1) This subsection applies with respect to a pro-
hibited personnel practice described in section 2302(b)(8)
for which a remedy is also available under section 33 of
the Federal Deposit Insurance Act or section 21A(q) of
the Federal Home Loan Bank Act.
‘‘(2) An employee or former employee affected by a
prohibited personnel practice described in paragraph (1)
may raise the matter under (A) section 33 of the Federal
Deposit Insurance Act or section 21A(q) of the Federal
Home Loan Bank Act, as the case may be, or (B) a proce-
dure available under this title, but not both.
‘‘(3) A determination as to if or when an employee
or former employee has made a choice under this sub-
section shall be made in a manner similar to that set forth
in section 7121(g).’’.
(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.’’.
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.—Subsection (b) of section
1221 of title 5, United States Code, is amended by
redesignating 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 ‘per-
sonnel 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) AMENDMENTS
RELATING
TO
THE
‘‘PASS-
THROUGH’’ REQUIREMENT.—Section 1214(a)(3) of title
5, United States Code, is amended—
(1) by adding at the end the following:
‘‘This paragraph shall not apply with respect to a prohib-
ited personnel practice described in section 2302(b)(8).’’;
(2) by redesignating subparagraphs (A) and
(B) as subparagraphs (B) and (C), respectively; and
(3) by striking the matter before subparagraph
(B) (as so redesignated by paragraph (2)) and in-
serting the following:
‘‘(3) Except as provided in the last sentence of this
paragraph, an employee, former employee, or applicant for
employment may not seek corrective action from the
Board under section 1221 unless—
‘‘(A) such employee, former employee, or appli-
cant has sought corrective action from the Special
Counsel under this subchapter;’’.
(c) CHOICE
OF REMEDIES PROVISION INVOLVING
JUDICIAL REVIEW.—
(1) IN GENERAL.—Chapter 12 of title 5, United
States Code, is amended by adding at the end the
following:
‘‘SUBCHAPTER IV—JUDICIAL REVIEW
‘‘§ 1231. Judicial review
‘‘(a) Subject to subsection (b) and section 1232, an
employee, former employee, or applicant for employment
may, with respect to a personnel action taken, or proposed
to be taken, against such employee, former employee, or
applicant for employment, as a result of a prohibited per-
sonnel practice described in section 2302(b)(8), bring a
civil action in the appropriate district court of the United
States for relief. For purposes of the preceding sentence,
the term ‘personnel action’ means—
‘‘(1) an action under subchapter II of chapter
75;
‘‘(2) a detail, transfer, or reassignment; and
‘‘(3) a reduction in grade or removal under sec-
tion 4303.
‘‘(b) An action under this section—
‘‘(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: