[Congressional Bills 103th Congress]
[From the U.S. Government Printing Office]
[H.R. 2970 Enrolled Bill (ENR)]
H.R.2970
One Hundred Third Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twenty-fifth day of January, one thousand nine hundred and ninety-
four
An Act
To reauthorize the Office 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,

7540946179e9909a57af776cc29e0ad59b50008b9e4bc177fcf21719de5a352b

(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''.

f430bd5e4a1475c6ed4c9cd47859e3c61ad059467b2b4105c1def0450cca96f5

Section 1204 of title 5, United States Code, is amended by adding
at the end thereof the following new subsection:
``(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 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 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 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)).''.

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(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 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 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 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 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 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
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 following 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 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 additional period
of time as shall be agreed upon between the Special Counsel and
the person submitting the allegation.''; and
(3) by inserting after subparagraph (D) (as redesignated by
paragraph (1) of this subsection) the following new subparagraph:
``(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 administrative or judicial
proceeding for any purpose, without the consent of the person
submitting the allegation of a prohibited personnel
practice.''.
(e) Reports.--Section 1218 of title 5, United States Code, is
amended by inserting ``cases in which it did not 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 conducted by it,''.

fdb7868c245c9c25c02507054bdfe7e7e0a5c37640ddb01abf7303fce7eaf672

(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 subsection
(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 burdensome 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 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 paragraph:
``(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.''.

3fa6bea470b333a65e1eb36eaaa69e0e6171e078d541ab1af571069a7cba7d10

(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
``(xi) any other significant change in duties,
responsibilities, or working conditions;''; and
(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 prohibited
personnel practice described in subsection (b)(8), an employee or
applicant 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 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 policy-
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''.

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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.''.

f60bc49c58b749131851ae3aca1fb8d295f9d0355b207d9a201cc6538fa8d2cd

PERSONNEL.
Section 2105 of title 5, United States Code, is amended by adding
at the end thereof the following new subsection:
``(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.''.

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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 occurred; and
``(2) reimbursement for attorney's fees, back pay and related
benefits, medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential 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
(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 this
section, such corrective action may include--
``(i) 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
``(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).''.

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INVOLVING JUDICIAL REVIEW.
(a) 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), 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 procedure
providing for binding arbitration in accordance with paragraph
(1)(C)(iii) shall, 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) 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 title 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) 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, in accordance with the
provisions of the parties' negotiated procedure; or
``(C) the remedy described in paragraph (3)(C) if such person
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''.

ecf64fdff3e4409ada8e917b10ab0dbd2f3c24d9532611bd8e4744bd635582fa

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 paragraph:
``(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.''.

560953ada45fd1fb8226965ba0e6a63c22163b95d4cb059db941a46ac9535e2b

RESOLUTION TRUST CORPORATION AND THRIFT DEPOSITOR 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)(1) of the Federal Home Loan Bank Act (12
U.S.C. 1441a(q)(1)) seeks an administrative 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)(1) of such Act.

155191fa13e9bbd9d2a880b6492eb485aa829c33fd72e9b27ac920e6ce145238

(a) Policy Statement.--No later than 6 months after the date of
enactment of this Act, the Special Counsel shall issue a policy
statement regarding the implementation of the Whistleblower 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 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 Counsel shall 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 relevant facts ascertained
by the Special Counsel, and the law applicable to the person's
allegations.

dc2ec2c643516af9db1717daf4c0ddb22ce870d047c0bd19b7a4c7e59e257bd9

(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 individuals
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 subsection
(a) shall be published in the annual report of the Office of Special
Counsel.

e7d3cac6e51ca720e4e446b2b0b05a478f8e9f4459b03ec2bd5367f543e6f2de

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.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

ce86f456e126398017a95b48527f9012ae415c0b6cecc230ef93ead1ea6f32b2

An Act to authorize appropriations for the United States Office of Special Counsel, the Merit Systems Protection Board, and for other purposes. — HR. 2970

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