An Act to authorize appropriations for the United States Office of Special Counsel, the Merit Systems Protection Board, and for other purposes.
PL 103-424 (H.R.2970), enacted 10/29/1994

Oct. 29, 1994 
[H.R. 2970] 
PUBLIC LAW 103-424—OCT. 29, 1994 
108 STAT. 4361 
Public Law 103-424 
103d Congress 
An Act 
To reauthorize the OflEice of Special Counsel, and for other purposes. 
Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, 
SECTION 1, AUTHORIZATION OF APPROPRIATIONS. 
(a) MERIT SYSTEMS PROTECTION BOARD.—Section 8(a)(1) of the 
Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note; Public 
Law 101-12; 103 Stat. 34) is amended by striking out "1989, 1990, 
1991, 1992, 1993, and 1994" and inserting in lieu thereof "1993, 
1994, 1995, 1996, and 1997". 
(b) OFFICE OF SPECIAL COUNSEL.—Section 8(a)(2) of the 
Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note; Public 
Law 101-12; 103 Stat. 34) is amended by striking out "1989, 1990, 
1991, and 1992" and inserting in lieu thereof "1993, 1994, 1995, 
1996, and 1997". 
SEC. 
2
. 
REASONABLE 
ATTORNEY 
FEES 
IN 
CERTAIN 
CASES. 
Section 1204 of title 5, United States Code, is amended by 
adding at the end thereof the following new subsection: 
"(m)(l) 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 arising under section 1215, 
may require payment by the agency involved of reasonable attorney 
fees incurred by an employee or applicant for employment if the 
employee or applicant is the prevailing party and the Board, 
administrative law judge, or other employee (as the case may be) 
determines that payment by the agency is warranted in the interest 
of justice, including any case in which a prohibited personnel prac-
tice 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 prevail-
ing 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 payment of attorney fees shall be in 
accordance with the standards 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 Coun-
sel may continue to serve beyond the expiration of the term until 
a successor is appointed and has qualified, except that the Special 
Counsel may not continue to serve for more than one year after 
108 STAT. 4362 
PUBLIC LAW 103-424—OCT. 29, 1994 
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 informa-
tion 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 INVESTIGATION.— 
Section 1214(a) of title 5, United States Code, is amended— 
(1) in paragraph (1) by adding at the end thereof the 
following new subparagraph: 
"(D) No later than 10 days before the Special Counsel termi-
nates any investigation of a prohibited personnel practice, the Spe-
cial 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 submit written comments about the 
report to the Special Counsel. 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 semi-
colon; 
(B) in clause (iii) by striking out the period and insert-
ing in lieu thereof a semicolon and "and"; and 
(C) by adding at the end thereof the following new 
clause: 
"(iv) a response to any comments submitted under para-
graph (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 sulsparagraph (B) (as redesignated 
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 receiving an allegation 
of a prohibited personnel practice under paragraph (1), 
the Special Counsel 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 addi-
tional period of time as shall be agreed upon between 
the Special Counsel and the person submitting the allega-
tion."; and 
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PUBLIC LAW 103-424—OCT. 29, 1994 
108 STAT. 4363 
(3) by inserting after subparagraph (D) (as redesignated 
by paragraph (1) of this subsection) the following new subpara-
graph: 
"(E) A determination by the Special Counsel under 
this paragraph shall not be cited or referred to in any 
proceeding under this paragraph or any other administra-
tive or judicial proceeding for any purpose, without the 
consent of the person submitting the allegation of a prohib-
ited personnel practice.". 
(e) REPORTS.—Section 1218 of title 5, United States Code, is 
amended by inserting "cases in which it did not make a determina-
tion whether there are reasonable grounds to believe that a prohib-
ited personnel practice has occurred, exists, or is to be taken within 
the 240-day period specified in section 1214(b)(2)(A)(i)," after "inves-
tigations conducted 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 employee, or 
applicant for employment seeking corrective action under sub-
section (a), the Board shall issue a subpoena 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 testimony 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 5USC1221. 
adding after the last sentence: "The employee may demonstrate 
that the disclosure was a contributing factor in the personnel action 
through circumstantial evidence, such as evidence that— 
"(A) the official taking the personnel action knew of the 
disclosure; and 
"(B) the personnel action occurred within a period of time 
such that a reasonable person could conclude 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 para-
graph: 
"(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 to investigate and take appropriate 
action 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 exam-
ination; and 
"(xi) any other significant change in duties, respon-
sibilities, or working conditions;"; and 
108 STAT. 4364 
PUBLIC LAW 103-424—OCT. 29, 1994 
(3) in the matter following designated clause (xi) (as added 
by paragraph (2) of this subsection) by inserting before the 
semicolon the following: ", and in the case of an alleged prohib-
ited personnel practice described in subsection (b)(8), an 
employee or applicant for employment in a Government corpora-
tion 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 Executive 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 pol-
icy-advocating character; or 
"(ii) excluded from the coverage of this section by the 
President based on a determination by the President that 
it is necessary and warranted by conditions of good 
administration; and". 
(c) AGENCIES.—Section 2302(a)(2)(C) of title 5, United 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 consultation 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, achievement 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 
VETERANS 
AFFAIRS PERSONNEL. 
Section 2105 of title 5, United States Code, is amended by 
adding at the end thereof the following new subsection: 
"(0 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 sub-
section: 
"(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 occurred; and 
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^ 
PUBLIC LAW 103-424—OCT. 29, 1994 
108 STAT. 4365 
"(2) reimbursement for attorney's fees, back pay and related 
benefits, medicsil costs incurred, travel expenses, and any other 
reasonable and foreseeable consequential aamages.". 
(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 
(2) by inserting before paragraph (2) (as redesignated by 
paragraph (1) of this subsection) the following new paragraph: 
^1)(A) If the Board orders corrective action under mis 
section, such corrective action may include— 
**(i) that the individual be placed, as nearly as possible, 
in the position the individum would have been in had 
the prombited personnel practice 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 shaU include attorneys fees and costs 
as provided for under paragraphs (2) and (3).". 
SEC. 9. AUTHORTTIES RELATING TO ABBITRATORS AND CHOICE OF 
REMEDIES NOT INVOLVING JUDICIAL REVIEW. 
(a) AUTHORITIES WHICH MAY BE EXTENDED TO ARBITRATORS.— 
Section 7121(b) of titie 5, United States Code, is amended— 
(1) by redesignating subparagraphs (A) through (C) of para-
graph (3) £is clauses (i) mrough (iii), respectively; 
(2) by redesignating paragraphs (1) througn (3) as subpara-
graphs (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 procedure 
providing for binding arbitration in accordance with paragraph 
(l)(C)(iiiT shall, if or to the extent that an alleged prohibited person-
nel 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) the taking, by an agency, of any disciplinary 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 disciplinary action 
ordered under subparagraph (A)(ii) may appeal 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 titie 5, United States Code, is amended 
by adding at the end the following: 
"(g)(1) This subsection applies with respect to a prohibited 
personnel practice other than a prohibited personnel practice to 
which subsection (d) appUes. 
"(2) An aggrievea 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). 
108 STAT. 4366 
PUBLIC LAW 103-424—OCT. 29, 1994 
12 use 1441a 
note. 
5 use 1212 
note. 
"(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 sub-
chapters II and III of chapter 12. 
"(4) For the purpose of this subsection, a person shall be consid-
ered to have elected— 
"(A) the remedy described in paragraph (3)(A) if such per-
son has timely filed a notice of appeal under the applicable 
appellate procedures; 
"(B) the remedy described in paragraph (3)(B) if such per-
son has timely filed a grievance in writing, in accordance with 
the provisions of the parties' negotiated procedure; or 
"(C) the remedy described in paragraph (3)(C) if such per-
son has sought corrective action from the Office of Special 
Counsel by making an allegation under section 1214(a)(1).". 
(c) 
TECHNICAL 
AND 
CONFORMING 
AMENDMENTS.—Section 
7121(a)(1) of title 5, United States Code, is amended— 
(1) by striking "(d) and (e)" and inserting "(d), (e), and 
(g)"; and 
(2) by inserting "administrative" after "exclusive". 
SEC. 1
0
. 
EXPENSES 
RELATED TO FEDERAL RETIREMENT 
APPEALS. 
Section 8348(a) of title 5, United States Code, is amended— 
(1) in paragraph (1)(B) by striking out "and" at the end 
thereof; 
(2) in paragraph (2) by striking out the period and inserting 
in lieu thereof a semicolon and "and"; and 
(3) by adding at the end thereof the following new para-
graph: 
"(3) is made available, subject to such annual limitation 
as the Congress may prescribe, for any expenses incurred by 
the Merit Systems Protection Board in the administration of 
appeals authorized under sections 8347(d) and 8461(e) of this 
title.". 
SEC. 11. ELECTION OF APPLICATION OF LAWS BY EMPLOYEES OF THE 
RESOLUTION TRUST CORPORATION AND THRIFT DEPOSI-
TOR PROTECTION OVERSIGHT BOARD. 
(a) 
ELECTION OF PROVISIONS OF TITLE 5, UNITED STATES 
CODE.—If an individual who believes he has been discharged or 
discriminated against in violation of section 21a(q)(l) of the Federal 
Home Loan Bank Act (12 U.S.C. 1441a(q)(l)) seeks an administra-
tive corrective action or judicial remedy for such violation under 
the provisions of chapters 12 and 23 of title 5, United States 
Code, the provisions of section 21a(q) of such Act shall not apply 
to such alleged violation. 
(b) ELECTION OF PROVISIONS OF FEDERAL HOME LOAN BANK 
ACT.—If an individual files a civil action under section 21a(q)(2) 
of the Federal Home Loan Bank Act (12 U.S.C. 1441a(q)(2)), the 
provisions of chapters 12 and 23 of title 5, United States Code, 
shall not apply to any alleged violation of section 21a(q)(l) of 
such Act. 
SEC. 12. IMPLEMENTATION. 
(a) POLICY STATEMENT.—No later than 6 months after the 
date of enactment of this Act, the Special Counsel shall issue 
PUBLIC LAW 103-424—OCT. 29, 1994 
108 STAT. 4367 
a policy statement regarding the implementation of the Whistle-
blower Protection Act of 1989. Such policy statement shall be made 
available to each person alleging a prohibited personnel practice 
described under 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 investigative 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 cir-
cumstances 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 Counsel shall 
5 use 1214 
include in any letter terminating an investigation under section 
"°**" 
1214(a)(2) of title 5, United States Code, the name and telephone 
number of an employee of the Special Counsel who is available 
to respond to reasonable questions from the person regarding the 
investigation or review conducted by the Special Counsel, the rel-
evant facts ascertained by the Special Counsel, and the law 
applicable to the person's allegations. 
SEC. 13. ANNUAL SURVEY OF INDIVIDUALS SEEKING ASSISTANCE. 
5 USC 1212 
(a) IN GENERAL.—The Office of Special Counsel shall, after 
consulting with the Office of Policy and Evaluation of the Merit 
Systems Protection Board, conduct an annual survey of all individ-
uals who contact the Office of Special Counsel for assistance. The 
survey shall— 
(1) determine if the individual seeking assistance was fully 
apprised of their rights; 
(2) determine whether the individual was successful either 
at the Office of Special Counsel or the Merit Systems Protection 
Board; and 
(3) determine if the individual, whether successful or not, 
was satisfied with the treatment received from the Office of 
Special Counsel. 
(b) REPORT.—The results of the survey conducted under sub-
section (a) shall be published in the annual report of the Office 
of Special Counsel. 
108 STAT. 4368 
PUBLIC LAW 103-424—OCT. 29, 1994 
SEC. 14. EFFECTIVE DATE. 
The provisions of this Act and the amendments made by this 
Act shall be effective on and after the date of the enactment of 
this Act. 
Approved October 29, 1994. 
LEGISLATIVE HISTORY—H.R. 2970 (S. 622): 
HOUSE REPORTS: No. 103-769 (Ckimm. on Post Office and Civil Service). 
SENATE REPORTS: No. 103-358 accompanying S. 622 (Comm. on Governmental 
Affairs). 
CONGRESSIONAL RECORD, Vol. 140 (1994): 
Oct. 3, considered and passed House. S. 622 considered and passed Senate. 
Oct. 7, H.R. 2970 considered and passed Senate, amended. House concurred in 
Senate amendment. 
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 30 (1994): 
Oct. 29, Presidential statement.