[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 622 Engrossed in Senate (ES)]
103d CONGRESS
2d Session
S. 622
_______________________________________________________________________
AN ACT
To authorize appropriations for the United States Office of Special
Counsel, the Merit Systems Protection Board, and for other purposes.
103d CONGRESS
2d Session
S. 622
_______________________________________________________________________
AN ACT
To authorize appropriations for the United States Office of Special
Counsel, the Merit Systems Protection Board, 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, and
1995''.
(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, and 1995''.
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)(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)).''.
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 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)--
(A) 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.''; 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,''.
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
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.''.
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
``(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''.
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:
``(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 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).''.
SEC. 9. 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
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.''.
SEC. 10. ELECTION OF APPLICATION OF LAWS BY EMPLOYEES OF THE 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.
SEC. 11. IMPLEMENTATION.
(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.
SEC. 12. ANNUAL SURVEY OF INDIVIDUALS SEEKING ASSISTANCE.
(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.
SEC. 13. 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.
Passed the Senate October 3 (legislative day, September
12), 1994.
Attest:
Secretary.
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