by Rodger Malcolm Mitchell, www.nofica.com
So you think you know what protects the whistleblower?
You may think it all is quite simple. A whistleblower learns that some federal employee is doing something that is illegal so he reports it to someone in authority.
Since the whistleblower is not an attorney and may not even be sure that the act really was illegal, he reports it as a “possibly illegal act,” and leaves it to the authorities to determine whether, in fact, it is illegal.
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In return for doing what he believes benefits his country, the whistleblower has a right to expect not to be punished in any way. He even may wish to remain anonymous, so that he will not be vilified for innocently doing what he believed to be a service to America.
You may think that, but it is not so simple, especially when the President of the United States and his simpleton son, are aching to punish a whistleblower for doing what any honest federal employee should do.
I must admit that,not being a lawyer, I do not know exactly what protections a federal whistleblower has, and that is precisely the point. Neither do potential whistleblowers.
So one truly must be courage and dedicated to protecting America to become a federal whistleblower.
Here, for your amazement, is the text of the Whistleblower Protection Act of 1989: (If you can translate it into simple, understandable points a layman can understand, please let me know, in case I ever see what I believe to be a federal crime and wish to report it. )
S.20
One Hundred First Congress of the United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday, the third day of January,
one thousand nine hundred and eighty-nine
An Act
To amend title 5, United States Code, to strengthen the protections available
to Federal employees against prohibited personnel practices, 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. SHORT TITLE.
This Act may be cited as the `Whistleblower Protection Act of 1989′.
SEC. 2. FINDINGS AND PURPOSE.
(a) FINDINGS- The Congress finds that–
(1) Federal employees who make disclosures described in section 2302(b)(8)
of title 5, United States Code, serve the public interest by assisting in the
elimination of fraud, waste, abuse, and unnecessary Government expenditures;
(2) protecting employees who disclose Government illegality, waste, and
corruption is a major step toward a more effective civil service; and
(3) in passing the Civil Service Reform Act of 1978, Congress established
the Office of Special Counsel to protect whistleblowers (those individuals
who make disclosures described in such section 2302(b)(8)) from reprisal.
(b) PURPOSE- The purpose of this Act is to strengthen and improve protection
for the rights of Federal employees, to prevent reprisals, and to help
eliminate wrongdoing within the Government by–
(1) mandating that employees should not suffer adverse consequences as a
result of prohibited personnel practices; and
(2) establishing–
(A) that the primary role of the Office of Special Counsel is to protect
employees, especially whistleblowers, from prohibited personnel practices;
(B) that the Office of Special Counsel shall act in the interests of
employees who seek assistance from the Office of Special Counsel; and
(C) that while disciplining those who commit prohibited personnel practices
may be used as a means by which to help accomplish that goal, the protection
of individuals who are the subject of prohibited personnel practices remains
the paramount consideration.
SEC. 3. MERIT SYSTEMS PROTECTION BOARD; OFFICE OF SPECIAL COUNSEL; INDIVIDUAL
RIGHT OF ACTION.
(a) MERIT SYSTEMS PROTECTION BOARD- Chapter 12 of title 5, United States
Code is amended–
(1) in section 1201 in the second sentence by striking out `Chairman and’;
(2) in the heading for section 1202 by striking out the comma and inserting
in lieu thereof a semicolon;
(3) in section 1202(b)–
(A) in the first sentence by striking out `his’ and inserting in lieu thereof
`the member’s’; and
(B) in the second sentence by striking out `of this title’;
(4) in section 1203(a) in the first sentence by striking out the comma after
`time’;
(5) in section 1203(c) by striking out `the Chairman and Vice Chairman’
and inserting in lieu thereof `the Chairman and the Vice Chairman’;
(6) by redesignating section 1204 as section 1211(b) and inserting such
subsection after section 1211(a) (as added in paragraph (11) of this
subsection);
(7) by redesignating section 1205 as section 1204, and amending such
redesignated section–
(A) by striking out `and Special Counsel’, `the Special Counsel,’ and
`of this section’ each place such terms appear;
(B) by striking out `subpena’ and `subpenaed’ each place such terms appear
and inserting in lieu thereof `subpoena’ and `subpoenaed’, respectively;
(C) in subsection (a)(4) by striking out `(e)’ and inserting in lieu thereof
`(f)’;
(D) by amending subsection (b)(2) to read as follows:
`(2) Any member of the Board, any administrative law judge appointed by
the Board under section 3105, and any employee of the Board designated by
the Board may, with respect to any individual–
`(A) issue subpoenas requiring the attendance and presentation of testimony
of any such individual, and the production of documentary or other evidence
from any place in the United States, any territory or possession of the United
States, the Commonwealth of Puerto Rico, or the District of Columbia; and
`(B) order the taking of depositions from, and responses to written
interrogatories by, any such individual.’;
(E) in subsection (c) in the first sentence–
(i) by striking out `(b)(2) of this section,’ and inserting in lieu thereof
`(b)(2)(A) or section 1214(b), upon application by the Board,’; and
(ii) by striking out `judicial’;
(F) by redesignating subsections (d) through (k) as subsections (e) through
(l), respectively, and inserting after subsection (c) the following new
subsection:
`(d) A subpoena referred to in subsection (b)(2)(A) may, in the case of any
individual outside the territorial jurisdiction of any court of the United
States, be served in such manner as the Federal Rules of Civil Procedure
prescribe for service of a subpoena in a foreign country. To the extent
that the courts of the United States can assert jurisdiction over such
individual, the United States District Court for the District of Columbia
shall have the same jurisdiction to take any action respecting compliance
under this subsection by such individual that such court would have if such
individual were personally within the jurisdiction of such court.’;
(G) in subsection (e) (as redesignated by subparagraph (F) of this
paragraph)–
(i) in paragraph (1)–
(I) by redesignating such paragraph as subparagraph (A) of paragraph (1); and
(II) by inserting at the end thereof the following new subparagraph:
`(B)(i) The Merit Systems Protection Board may, during an investigation by
the Office of Special Counsel or during the pendency of any proceeding before
the Board, issue any order which may be necessary to protect a witness or
other individual from harassment, except that an agency (other than the
Office of Special Counsel) may not request any such order with regard to
an investigation by the Office of Special Counsel from the Board during
such investigation.
`(ii) An order issued under this subparagraph may be enforced in the same
manner as provided for under paragraph (2) with respect to any order under
subsection (a)(2).’;
(ii) in paragraph (2)–
(I) by redesignating such paragraph as subparagraph (A) of paragraph (2)
and striking out `of this section’ in the first sentence therein; and
(II) by inserting at the end thereof the following new subparagraph (B):
`(B) The Board shall prescribe regulations under which any employee who is
aggrieved by the failure of any other employee to comply with an order of
the Board may petition the Board to exercise its authority under subparagraph
(A).’; and
(iii) in paragraph (3) by inserting `of Personnel Management’ after `Office’;
(H) in subsection (f) (as redesignated by subparagraph (F) of this
paragraph)–
(i) in paragraph (1) in the first sentence by inserting `of the Office of
Personnel Management’ after `Director’, and by striking out `of this title’;
(ii) in paragraph (2)–
(I) in the first sentence by inserting a comma after `subsection’;
(II) in subparagraph (A) by striking out `of this title’; and
(III) in subparagraph (B) by striking out `of this title’; and
(iii) in paragraph (3)–
(I) in subparagraph (A) by striking out `(A)’;
(II) by striking out subparagraph (B); and
(III) by redesignating subparagraph (C) and clauses (i) and (ii) therein
as paragraph (4) and subparagraphs (A) and (B), respectively; and
(I) in subsection (j) (as redesignated by subparagraph (F) of this paragraph)
in the second sentence by striking out `of this title’ after `chapter 33′;
(8) by striking out sections 1206 through 1208;
(9) by redesignating section 1209(a) as section 1205, and inserting before
such section the following section heading:
`Sec. 1205. Transmittal of information to Congress’;
(10) by redesignating section 1209(b) as section 1206, and inserting before
such section the following section heading:
`Sec. 1206. Annual report’;
(11) by inserting after section 1206 (as redesignated in paragraph (10)
of this subsection) the following:
`SUBCHAPTER II–OFFICE OF SPECIAL COUNSEL
`Sec. 1211. Establishment
`(a) There is established the Office of Special Counsel, which shall be headed
by the Special Counsel. The Office shall have an official seal which shall be
judicially noticed. The Office shall have its principal office in the District
of Columbia and shall have field offices in other appropriate locations.’;
(12) by amending section 1211(b) (as redesignated and inserted by paragraph
(6) of this subsection)–
(A) in the first sentence by striking out `of the Merit Systems Protection
Board’ and `from attorneys’;
(B) by striking the second sentence and inserting in lieu thereof `The
Special Counsel shall be an attorney who, by demonstrated ability, background,
training, or experience, is especially qualified to carry out the functions
of the position. A Special Counsel appointed to fill a vacancy occurring
before the end of a term of office of the Special Counsel’s predecessor
serves for the remainder of the term.’; and
(C) by adding at the end thereof `The Special Counsel may not hold another
office or position in the Government of the United States, except as
otherwise provided by law or at the direction of the President.’; and
(13) inserting after section 1211 the following:
`Sec. 1212. Powers and functions of the Office of Special Counsel
`(a) The Office of Special Counsel shall–
`(1) in accordance with section 1214(a) and other applicable provisions of
this subchapter, protect employees, former employees, and applicants for
employment from prohibited personnel practices;
`(2) receive and investigate allegations of prohibited personnel practices,
and, where appropriate–
`(A) bring petitions for stays, and petitions for corrective action, under
section 1214; and
`(B) file a complaint or make recommendations for disciplinary action under
section 1215;
`(3) receive, review, and, where appropriate, forward to the Attorney General
or an agency head under section 1213, disclosures of violations of any law,
rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health or safety;
`(4) review rules and regulations issued by the Director of the Office of
Personnel Management in carrying out functions under section 1103 and,
where the Special Counsel finds that any such rule or regulation would,
on its face or as implemented, require the commission of a prohibited
personnel practice, file a written complaint with the Board; and
`(5) investigate and, where appropriate, bring actions concerning allegations
of violations of other laws within the jurisdiction of the Office of Special
Counsel (as referred to in section 1216).
`(b)(1) The Special Counsel and any employee of the Office of Special Counsel
designated by the Special Counsel may administer oaths, examine witnesses,
take depositions, and receive evidence.
`(2) The Special Counsel may–
`(A) issue subpoenas; and
`(B) order the taking of depositions and order responses to written
interrogatories;
in the same manner as provided under section 1204.
`(3)(A) In the case of contumacy or failure to obey a subpoena issued
under paragraph (2)(A), the Special Counsel may apply to the Merit Systems
Protection Board to enforce the subpoena in court pursuant to section 1204(c).
`(B) A subpoena under paragraph (2)(A) may, in the case of any individual
outside the territorial jurisdiction of any court of the United States, be
served in the manner referred to in subsection (d) of section 1204, and the
United States District Court for the District of Columbia may, with respect
to any such individual, compel compliance in accordance with such subsection.
`(4) Witnesses (whether appearing voluntarily or under subpoena) shall be
paid the same fee and mileage allowances which are paid subpoenaed witnesses
in the courts of the United States.
`(c)(1) Except as provided in paragraph (2), the Special Counsel may as a
matter of right intervene or otherwise participate in any proceeding before
the Merit Systems Protection Board, except that the Special Counsel shall
comply with the rules of the Board.
`(2) The Special Counsel may not intervene in an action brought by an
individual under section 1221, or in an appeal brought by an individual
under section 7701, without the consent of such individual.
`(d)(1) The Special Counsel may appoint the legal, administrative, and
support personnel necessary to perform the functions of the Special Counsel.
`(2) Any appointment made under this subsection shall be made in accordance
with the provisions of this title, except that such appointment shall
not be subject to the approval or supervision of the Office of Personnel
Management or the Executive Office of the President (other than approval
required under section 3324 or subchapter VIII of chapter 33).
`(e) The Special Counsel may prescribe such regulations as may be necessary
to perform the functions of the Special Counsel. Such regulations shall be
published in the Federal Register.
`(f) The Special Counsel may not issue any advisory opinion concerning any
law, rule, or regulation (other than an advisory opinion concerning chapter
15 or subchapter III of chapter 73).
`(g)(1) The Special Counsel may not respond to any inquiry or provide
information concerning any person making an allegation under section 1214(a),
except in accordance with the provisions of section 552a of title 5, United
States Code, or as required by any other applicable Federal law.
`(2) Notwithstanding the exception under paragraph (1), the Special Counsel
may not respond to any inquiry concerning a matter described in subparagraph
(A) or (B) of section 2302(b)(2) in connection with a person described in
paragraph (1)–
`(A) unless the consent of the individual as to whom the information pertains
is obtained in advance; or
`(B) except upon request of an agency which requires such information in
order to make a determination concerning an individual’s having access to
the information unauthorized disclosure of which could be expected to cause
exceptionally grave damage to the national security.
`Sec. 1213. Provisions relating to disclosures of violations of law, gross
mismanagement, and certain other matters
`(a) This section applies with respect to–
`(1) any disclosure of information by an employee, former employee, or
applicant for employment which the employee, former employee, or applicant
reasonably believes evidences–
`(A) a violation of any law, rule, or regulation; or
`(B) gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety;
if such disclosure is not specifically prohibited by law and if such
information is not specifically required by Executive order to be kept secret
in the interest of national defense or the conduct of foreign affairs; and
`(2) any disclosure by an employee, former employee, or applicant for
employment to the Special Counsel or to the Inspector General of an agency
or another employee designated by the head of the agency to receive such
disclosures of information which the employee, former employee, or applicant
reasonably believes evidences–
`(A) a violation of any law, rule, or regulation; or
`(B) gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety.
`(b) Whenever the Special Counsel receives information of a type described
in subsection (a) of this section, the Special Counsel shall review such
information and, within 15 days after receiving the information, determine
whether there is a substantial likelihood that the information discloses
a violation of any law, rule, or regulation, or gross mismanagement, gross
waste of funds, abuse of authority, or substantial and specific danger to
public health and safety.
`(c)(1) Subject to paragraph (2), if the Special Counsel makes a positive
determination under subsection (b) of this section, the Special Counsel shall
promptly transmit the information with respect to which the determination
was made to the appropriate agency head and require that the agency head–
`(A) conduct an investigation with respect to the information and any
related matters transmitted by the Special Counsel to the agency head; and
`(B) submit a written report setting forth the findings of the agency head
within 60 days after the date on which the information is transmitted to
the agency head or within any longer period of time agreed to in writing
by the Special Counsel.
`(2) The Special Counsel may require an agency head to conduct an
investigation and submit a written report under paragraph (1) only if the
information was transmitted to the Special Counsel by–
`(A) an employee, former employee, or applicant for employment in the agency
which the information concerns; or
`(B) an employee who obtained the information in connection with the
performance of the employee’s duties and responsibilities.
`(d) Any report required under subsection (c) shall be reviewed and signed
by the head of the agency and shall include–
`(1) a summary of the information with respect to which the investigation
was initiated;
`(2) a description of the conduct of the investigation;
`(3) a summary of any evidence obtained from the investigation;
`(4) a listing of any violation or apparent violation of any law, rule,
or regulation; and
`(5) a description of any action taken or planned as a result of the
investigation, such as–
`(A) changes in agency rules, regulations, or practices;
`(B) the restoration of any aggrieved employee;
`(C) disciplinary action against any employee; and
`(D) referral to the Attorney General of any evidence of a criminal violation.
`(e)(1) Any such report shall be submitted to the Special Counsel, and the
Special Counsel shall transmit a copy to the complainant, except as provided
under subsection (f) of this section. The complainant may submit comments to
the Special Counsel on the agency report within 15 days of having received
a copy of the report.
`(2) Upon receipt of any report of the head of an agency required under
subsection (c) of this section, the Special Counsel shall review the report
and determine whether–
`(A) the findings of the head of the agency appear reasonable; and
`(B) the report of the agency under subsection (c)(1) of this section
contains the information required under subsection (d) of this section.
`(3) The Special Counsel shall transmit any agency report received
pursuant to subsection (c) of this section, any comments provided by the
complainant pursuant to subsection (e)(1), and any appropriate comments or
recommendations by the Special Counsel to the President, the congressional
committees with jurisdiction over the agency which the disclosure involves,
and the Comptroller General.
`(4) Whenever the Special Counsel does not receive the report of the agency
within the time prescribed in subsection (c)(2) of this section, the Special
Counsel shall transmit a copy of the information which was transmitted to the
agency head to the President, the congressional committees with jurisdiction
over the agency which the disclosure involves, and the Comptroller General
together with a statement noting the failure of the head of the agency to
file the required report.
`(f) In any case in which evidence of a criminal violation obtained by an
agency in an investigation under subsection (c) of this section is referred
to the Attorney General–
`(1) the report shall not be transmitted to the complainant; and
`(2) the agency shall notify the Office of Personnel Management and the
Office of Management and Budget of the referral.
`(g)(1) If the Special Counsel receives information of a type described
in subsection (a) from an individual other than an individual described
in subparagraph (A) or (B) of subsection (c)(2), the Special Counsel may
transmit the information to the head of the agency which the information
concerns. The head of such agency shall, within a reasonable time after
the information is transmitted, inform the Special Counsel in writing
of what action has been or is being taken and when such action shall be
completed. The Special Counsel shall inform the individual of the report of
the agency head. If the Special Counsel does not transmit the information
to the head of the agency, the Special Counsel shall return any documents
and other matter provided by the individual who made the disclosure.
`(2) If the Special Counsel receives information of a type described in
subsection (a) from an individual described in subparagraph (A) or (B)
of subsection (c)(2), but does not make a positive determination under
subsection (b), the Special Counsel may transmit the information to the head
of the agency which the information concerns, except that the information
may not be transmitted to the head of the agency without the consent of the
individual. The head of such agency shall, within a reasonable time after
the information is transmitted, inform the Special Counsel in writing of what
action has been or is being taken and when such action will be completed. The
Special Counsel shall inform the individual of the report of the agency head.
`(3) If the Special Counsel does not transmit the information to the head
of the agency under paragraph (2), the Special Counsel shall–
`(A) return any documents and other matter provided by the individual who
made the disclosure; and
`(B) inform the individual of–
`(i) the reasons why the disclosure may not be further acted on under this
chapter; and
`(ii) other offices available for receiving disclosures, should the individual
wish to pursue the matter further.
`(h) The identity of any individual who makes a disclosure described
in subsection (a) may not be disclosed by the Special Counsel without
such individual’s consent unless the Special Counsel determines that the
disclosure of the individual’s identity is necessary because of an imminent
danger to public health or safety or imminent violation of any criminal law.
`(i) Except as specifically authorized under this section, the provisions
of this section shall not be considered to authorize disclosure of any
information by any agency or any person which is–
`(1) specifically prohibited from disclosure by any other provision of law; or
`(2) specifically required by Executive order to be kept secret in the
interest of national defense or the conduct of foreign affairs.
`(j) With respect to any disclosure of information described in subsection
(a) which involves foreign intelligence or counterintelligence information,
if the disclosure is specifically prohibited by law or by Executive order,
the Special Counsel shall transmit such information to the National Security
Advisor, the Permanent Select Committee on Intelligence of the House of
Representatives, and the Select Committee on Intelligence of the Senate.
`Sec. 1214. Investigation of prohibited personnel practices; corrective action
`(a)(1)(A) The Special Counsel shall receive any allegation of a prohibited
personnel practice and shall investigate the allegation to the extent
necessary to determine whether there are reasonable grounds to believe that
a prohibited personnel practice has occurred, exists, or is to be taken.
`(B) Within 15 days after the date of receiving an allegation of a prohibited
personnel practice under paragraph (1), the Special Counsel shall provide
written notice to the person who made the allegation that–
`(i) the allegation has been received by the Special Counsel; and
`(ii) shall include the name of a person at the Office of Special Counsel
who shall serve as a contact with the person making the allegation.
`(C) Unless an investigation is terminated under paragraph (2), the Special
Counsel shall–
`(i) within 90 days after notice is provided under subparagraph (B), notify
the person who made the allegation of the status of the investigation and
any action taken by the Office of the Special Counsel since the filing of
the allegation;
`(ii) notify such person of the status of the investigation and any action
taken by the Office of the Special Counsel since the last notice, at least
every 60 days after notice is given under clause (i); and
`(iii) notify such person of the status of the investigation and any action
taken by the Special Counsel at such time as determined appropriate by the
Special Counsel.
`(2)(A) If the Special Counsel terminates any investigation under paragraph
(1), the Special Counsel shall prepare and transmit to any person on whose
allegation the investigation was initiated a written statement notifying
the person of–
`(i) the termination of the investigation;
`(ii) a summary of relevant facts ascertained by the Special Counsel,
including the facts that support, and the facts that do not support, the
allegations of such person; and
`(iii) the reasons for terminating the investigation.
`(B) A written statement under subparagraph (A) may not be admissible as
evidence in any judicial or administrative proceeding, without the consent
of the person who received such statement under subparagraph (A).
`(3) Except in a case in which an employee, former employee, or applicant for
employment has the right to appeal directly to the Merit Systems Protection
Board under any law, rule, or regulation, any such employee, former employee,
or applicant shall seek corrective action from the Special Counsel before
seeking corrective action from the Board. An employee, former employee,
or applicant for employment may seek corrective action from the Board
under section 1221, if such employee, former employee, or applicant seeks
corrective action for a prohibited personnel practice described in section
2302(b)(8) from the Special Counsel and–
`(A)(i) the Special Counsel notifies such employee, former employee, or
applicant that an investigation concerning such employee, former employee,
or applicant has been terminated; and
`(ii) no more than 60 days have elapsed since notification was provided
to such employee, former employee, or applicant for employment that such
investigation was terminated; or
`(B) 120 days after seeking corrective action from the Special Counsel,
such employee, former employee, or applicant has not been notified by the
Special Counsel that the Special Counsel shall seek corrective action on
behalf of such employee, former employee, or applicant.
`(4) If an employee, former employee, or applicant seeks a corrective action
from the Board under section 1221, pursuant to the provisions of paragraph
(3)(B), the Special Counsel may continue to seek corrective action personal
to such employee, former employee, or applicant only with the consent of
such employee, former employee, or applicant.
`(5) In addition to any authority granted under paragraph (1), the Special
Counsel may, in the absence of an allegation, conduct an investigation for
the purpose of determining whether there are reasonable grounds to believe
that a prohibited personnel practice (or a pattern of prohibited personnel
practices) has occurred, exists, or is to be taken.
`(b)(1)(A)(i) The Special Counsel may request any member of the Merit
Systems Protection Board to order a stay of any personnel action for 45
days if the Special Counsel determines that there are reasonable grounds
to believe that the personnel action was taken, or is to be taken, as a
result of a prohibited personnel practice.
`(ii) Any member of the Board requested by the Special Counsel to order a
stay under clause (i) shall order such stay unless the member determines
that, under the facts and circumstances involved, such a stay would not
be appropriate.
`(iii) Unless denied under clause (ii), any stay under this subparagraph shall
be granted within 3 calendar days (excluding Saturdays, Sundays, and legal
holidays) after the date of the request for the stay by the Special Counsel.
`(B) The Board may extend the period of any stay granted under subparagraph
(A) for any period which the Board considers appropriate.
`(C) The Board shall allow any agency which is the subject of a stay to
comment to the Board on any extension of stay proposed under subparagraph (B).
`(D) A stay may be terminated by the Board at any time, except that a stay
may not be terminated by the Board–
`(i) on its own motion or on the motion of an agency, unless notice and
opportunity for oral or written comments are first provided to the Special
Counsel and the individual on whose behalf the stay was ordered; or
`(ii) on motion of the Special Counsel, unless notice and opportunity for
oral or written comments are first provided to the individual on whose
behalf the stay was ordered.
`(2)(A) If, in connection with any investigation, the Special Counsel
determines that there are reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to be taken which requires
corrective action, the Special Counsel shall report the determination together
with any findings or recommendations to the Board, the agency involved and
to the Office of Personnel Management, and may report such determination,
findings and recommendations to the President. The Special Counsel may
include in the report recommendations for corrective action to be taken.
`(B) If, after a reasonable period of time, the agency does not act to
correct the prohibited personnel practice, the Special Counsel may petition
the Board for corrective action.
`(C) If the Special Counsel finds, in consultation with the individual
subject to the prohibited personnel practice, that the agency has acted to
correct the prohibited personnel practice, the Special Counsel shall file
such finding with the Board, together with any written comments which the
individual may provide.
`(3) Whenever the Special Counsel petitions the Board for corrective action,
the Board shall provide an opportunity for–
`(A) oral or written comments by the Special Counsel, the agency involved,
and the Office of Personnel Management; and
`(B) written comments by any individual who alleges to be the subject of
the prohibited personnel practice.
`(4)(A) The Board shall order such corrective action as the Board considers
appropriate, if the Board determines that the Special Counsel has demonstrated
that a prohibited personnel practice, other than one described in section
2302(b)(8), has occurred, exists, or is to be taken.
`(B)(i) Subject to the provisions of clause (ii), in any case involving
an alleged prohibited personnel practice as described under section
2302(b)(8), the Board shall order such corrective action as the Board
considers appropriate if the Special Counsel has demonstrated that a
disclosure described under section 2302(b)(8) was a contributing factor in
the personnel action which was taken or is to be taken against the individual.
`(ii) Corrective action under clause (i) may not be ordered if the agency
demonstrates by clear and convincing evidence that it would have taken the
same personnel action in the absence of such disclosure.
`(c)(1) Judicial review of any final order or decision of the Board under
this section may be obtained by any employee, former employee, or applicant
for employment adversely affected by such order or decision.
`(2) A petition for review under this subsection shall be filed with such
court, and within such time, as provided for under section 7703(b).
`(d)(1) If, in connection with any investigation under this subchapter,
the Special Counsel determines that there is reasonable cause to believe
that a criminal violation has occurred, the Special Counsel shall report the
determination to the Attorney General and to the head of the agency involved,
and shall submit a copy of the report to the Director of the Office of
Personnel Management and the Director of the Office of Management and Budget.
`(2) In any case in which the Special Counsel determines that there are
reasonable grounds to believe that a prohibited personnel practice has
occurred, exists, or is to be taken, the Special Counsel shall proceed with
any investigation or proceeding unless–
`(A) the alleged violation has been reported to the Attorney General; and
`(B) the Attorney General is pursuing an investigation, in which case the
Special Counsel, after consultation with the Attorney General, has discretion
as to whether to proceed.
`(e) If, in connection with any investigation under this subchapter, the
Special Counsel determines that there is reasonable cause to believe that
any violation of any law, rule, or regulation has occurred other than one
referred to in subsection (b) or (d), the Special Counsel shall report such
violation to the head of the agency involved. The Special Counsel shall
require, within 30 days after the receipt of the report by the agency,
a certification by the head of the agency which states–
`(1) that the head of the agency has personally reviewed the report; and
`(2) what action has been or is to be taken, and when the action will
be completed.
`(f) During any investigation initiated under this subchapter, no disciplinary
action shall be taken against any employee for any alleged prohibited activity
under investigation or for any related activity without the approval of
the Special Counsel.
`Sec. 1215. Disciplinary action
`(a)(1) Except as provided in subsection (b), if the Special Counsel
determines that disciplinary action should be taken against any employee
for having–
`(A) committed a prohibited personnel practice,
`(B) violated the provisions of any law, rule, or regulation, or engaged
in any other conduct within the jurisdiction of the Special Counsel as
described in section 1216, or
`(C) knowingly and willfully refused or failed to comply with an order of
the Merit Systems Protection Board,
the Special Counsel shall prepare a written complaint against the employee
containing the Special Counsel’s determination, together with a statement
of supporting facts, and present the complaint and statement to the employee
and the Board, in accordance with this subsection.
`(2) Any employee against whom a complaint has been presented to the Merit
Systems Protection Board under paragraph (1) is entitled to–
`(A) a reasonable time to answer orally and in writing, and to furnish
affidavits and other documentary evidence in support of the answer;
`(B) be represented by an attorney or other representative;
`(C) a hearing before the Board or an administrative law judge appointed
under section 3105 and designated by the Board;
`(D) have a transcript kept of any hearing under subparagraph (C); and
`(E) a written decision and reasons therefor at the earliest practicable
date, including a copy of any final order imposing disciplinary action.
`(3) A final order of the Board may impose disciplinary action consisting
of removal, reduction in grade, debarment from Federal employment for a
period not to exceed 5 years, suspension, reprimand, or an assessment of
a civil penalty not to exceed $1,000.
`(4) There may be no administrative appeal from an order of the Board. An
employee subject to a final order imposing disciplinary action under this
subsection may obtain judicial review of the order by filing a petition
therefor with such court, and within such time, as provided for under
section 7703(b).
`(5) In the case of any State or local officer or employee under chapter
15, the Board shall consider the case in accordance with the provisions of
such chapter.
`(b) In the case of an employee in a confidential, policy-making,
policy-determining, or policy-advocating position appointed by the President,
by and with the advice and consent of the Senate (other than an individual
in the Foreign Service of the United States), the complaint and statement
referred to in subsection (a)(1), together with any response of the employee,
shall be presented to the President for appropriate action in lieu of being
presented under subsection (a).
`(c)(1) In the case of members of the uniformed services and individuals
employed by any person under contract with an agency to provide goods or
services, the Special Counsel may transmit recommendations for disciplinary or
other appropriate action (including the evidence on which such recommendations
are based) to the head of the agency concerned.
`(2) In any case in which the Special Counsel transmits recommendations
to an agency head under paragraph (1), the agency head shall, within 60
days after receiving such recommendations, transmit a report to the Special
Counsel on each recommendation and the action taken, or proposed to be taken,
with respect to each such recommendation.
`Sec. 1216. Other matters within the jurisdiction of the Office of Special
Counsel
`(a) In addition to the authority otherwise provided in this chapter,
the Special Counsel shall, except as provided in subsection (b), conduct
an investigation of any allegation concerning–
`(1) political activity prohibited under subchapter III of chapter 73,
relating to political activities by Federal employees;
`(2) political activity prohibited under chapter 15, relating to political
activities by certain State and local officers and employees;
`(3) arbitrary or capricious withholding of information prohibited under
section 552, except that the Special Counsel shall make no investigation of
any withholding of foreign intelligence or counterintelligence information the
disclosure of which is specifically prohibited by law or by Executive order;
`(4) activities prohibited by any civil service law, rule, or regulation,
including any activity relating to political intrusion in personnel
decisionmaking; and
`(5) involvement by any employee in any prohibited discrimination found by
any court or appropriate administrative authority to have occurred in the
course of any personnel action.
`(b) The Special Counsel shall make no investigation of any allegation of
any prohibited activity referred to in subsection (a)(5), if the Special
Counsel determines that the allegation may be resolved more appropriately
under an administrative appeals procedure.
`(c)(1) If an investigation by the Special Counsel under subsection (a)(1)
substantiates an allegation relating to any activity prohibited under section
7324, the Special Counsel may petition the Merit Systems Protection Board
for any penalties provided for under section 7325.
`(2) If the Special Counsel receives an allegation concerning any matter
under paragraph (3), (4), or (5) of subsection (a), the Special Counsel
may investigate and seek corrective action under section 1214 in the same
way as if a prohibited personnel practice were involved.
`Sec. 1217. Transmittal of information to Congress
`The Special Counsel or any employee of the Special Counsel designated
by the Special Counsel, shall transmit to the Congress on the request of
any committee or subcommittee thereof, by report, testimony, or otherwise,
information and the Special Counsel’s views on functions, responsibilities, or
other matters relating to the Office. Such information shall be transmitted
concurrently to the President and any other appropriate agency in the
executive branch.
`Sec. 1218. Annual report
`The Special Counsel shall submit an annual report to the Congress on
the activities of the Special Counsel, including the number, types,
and disposition of allegations of prohibited personnel practices filed
with it, investigations conducted by it, and actions initiated by it
before the Merit Systems Protection Board, as well as a description of
the recommendations and reports made by it to other agencies pursuant
to this subchapter, and the actions taken by the agencies as a result of
the reports or recommendations. The report required by this section shall
include whatever recommendations for legislation or other action by Congress
the Special Counsel may consider appropriate.
`Sec. 1219. Public information
`(a) The Special Counsel shall maintain and make available to the public–
`(1) a list of noncriminal matters referred to heads of agencies under
subsection (c) of section 1213, together with reports from heads of agencies
under subsection (c)(1)(B) of such section relating to such matters;
`(2) a list of matters referred to heads of agencies under section 1215(c)(2);
`(3) a list of matters referred to heads of agencies under subsection (e)
of section 1214, together with certifications from heads of agencies under
such subsection; and
`(4) reports from heads of agencies under section 1213(g)(1).
`(b) The Special Counsel shall take steps to ensure that any list or
report made available to the public under this section does not contain any
information the disclosure of which is prohibited by law or by Executive
order requiring that information be kept secret in the interest of national
defense or the conduct of foreign affairs.
`SUBCHAPTER III–INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
`Sec. 1221. Individual right of action in certain reprisal cases
`(a) Subject to the provisions of subsection (b) of this section and
subsection 1214(a)(3), an employee, former employee, or applicant for
employment may, with respect to any personnel action taken, or proposed to be
taken, against such employee, former employee, or applicant for employment, as
a result of a prohibited personnel practice described in section 2302(b)(8),
seek corrective action from the Merit Systems Protection Board.
`(b) This section may not be construed to prohibit any employee, former
employee, or applicant for employment from seeking corrective action from
the Merit Systems Protection Board before seeking corrective action from
the Special Counsel, if such employee, former employee, or applicant for
employment has the right to appeal directly to the Board under any law,
rule, or regulation.
`(c)(1) Any employee, former employee, or applicant for employment seeking
corrective action under subsection (a) may request that the Board order a
stay of the personnel action involved.
`(2) Any stay requested under paragraph (1) shall be granted within 10
calendar days (excluding Saturdays, Sundays, and legal holidays) after the
date the request is made, if the Board determines that such a stay would
be appropriate.
`(3)(A) The Board shall allow any agency which would be subject to a stay
under this subsection to comment to the Board on such stay request.
`(B) Except as provided in subparagraph (C), a stay granted under this
subsection shall remain in effect for such period as the Board determines
to be appropriate.
`(C) The Board may modify or dissolve a stay under this subsection at
any time, if the Board determines that such a modification or dissolution
is appropriate.
`(d)(1) At the request of an employee, former employee, or applicant for
employment seeking corrective action under subsection (a), the Board may 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
such subpoena is necessary for the development of relevant evidence.
`(2) A subpoena under this subsection may be issued, and shall be enforced,
in the same manner as applies in the case of subpoenas under section 1204.
`(e)(1) Subject to the provisions of paragraph (2), in any case involving an
alleged prohibited personnel practice as described under section 2302(b)(8),
the Board shall order such corrective action as the Board considers
appropriate if the employee, former employee, or applicant for employment
has demonstrated that a disclosure described under section 2302(b)(8) 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 convincing evidence that it would have taken the
same personnel action in the absence of such disclosure.
`(f)(1) A final order or decision shall be rendered by the Board as soon
as practicable after the commencement of any proceeding under this section.
`(2) A decision to terminate an investigation under subchapter II may not
be considered in any action or other proceeding under this section.
`(g)(1) If an employee, former employee, or applicant for employment is the
prevailing party before the Merit Systems Protection Board, and the decision
is based on a finding of a prohibited personnel practice, the agency involved
shall be liable to the employee, former employee, or applicant for reasonable
attorney’s fees and any other reasonable costs incurred.
`(2) If an employee, former emloyee, or applicant for employment is the
prevailing party in an appeal from the Merit Systems Protection Board,
the agency involved shall be liable to the employee, former employee, or
applicant for reasonable attorney’s fees and any other reasonable costs
incurred, regardless of the basis of the decision.
`(h)(1) An employee, former employee, or applicant for employment adversely
affected or aggrieved by a final order or decision of the Board under this
section may obtain judicial review of the order or decision.
`(2) A petition for review under this subsection shall be filed with such
court, and within such time, as provided for under section 7703(b).
`(i) Subsections (a) through (h) shall apply in any proceeding brought under
section 7513(d) if, or to the extent that, a prohibited personnel practice
as defined in section 2302(b)(8) is alleged.
`(j) In determining the appealability of any case involving an allegation
made by an individual under the provisions of this chapter, neither the
status of an individual under any retirement system established under a
Federal statute nor any election made by such individual under any such
system may be taken into account.
`Sec. 1222. Availability of other remedies
`Except as provided in section 1221(i), nothing in this chapter or chapter 23
shall be construed to limit any right or remedy available under a provision
of statute which is outside of both this chapter and chapter 23.’.
(b) CONFORMING AMENDMENTS- (1) The table of chapters for part II of title 5,
United States Code, is amended by striking the item relating to chapter 12
and inserting in lieu thereof the following:
1201′.
(2) The heading for chapter 12 of title 5, United States Code, is amended
to read as follows:
`CHAPTER 12–MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION’.
(3) The table of sections for chapter 12 of title 5, United States Code,
is amended to read as follows:
`SUBCHAPTER I–MERIT SYSTEMS PROTECTION BOARD
`Sec. 1201. Appointment of members of the Merit Systems Protection Board.
`Sec. 1202. Term of office; filling vacancies; removal.
`Sec. 1203. Chairman; Vice Chairman.
`Sec. 1204. Powers and functions of the Merit Systems Protection Board.
`Sec. 1205. Transmittal of information to Congress.
`Sec. 1206. Annual report.
`SUBCHAPTER II–OFFICE OF SPECIAL COUNSEL
`Sec. 1211. Establishment.
`Sec. 1212. Powers and functions of the Office of Special Counsel.
`Sec. 1213. Provisions relating to disclosures of violations of law,
mismanagement, and certain other matters.
`Sec. 1214. Investigation of prohibited personnel practices; corrective action.
`Sec. 1215. Disciplinary action.
`Sec. 1216. Other matters within the jurisdiction of the Office of Special
Counsel.
`Sec. 1217. Transmittal of information to Congress.
`Sec. 1218. Annual report.
`Sec. 1219. Public information.
`SUBCHAPTER III–INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
`Sec. 1221. Individual right of action in certain reprisal cases.
`Sec. 1222. Availability of other remedies.’.
(4) Chapter 12 of title 5, United States Code, is further amended by
inserting before section 1201 the following subchapter heading:
`SUBCHAPTER I–MERIT SYSTEMS PROTECTION BOARD’.
SEC. 4. REPRISALS.
(a) AMENDMENTS TO SECTION 2302(b)(8)- Section 2302(b)(8) of title 5, United
States Code, is amended–
(1) by inserting `, or threaten to take or fail to take,’ after `take or
fail to take’;
(2) by striking out `as a reprisal for’ and inserting in lieu thereof
`because of’;
(3) in subparagraph (A) by striking out `a disclosure’ and inserting in
lieu thereof `any disclosure’;
(4) in subparagraph (A)(ii) by inserting `gross’ before `mismanagement’;
(5) in subparagraph (B) by striking out `a disclosure’ and inserting in
lieu thereof `any disclosure’; and
(6) in subparagraph (B)(ii) by inserting `gross’ before `mismanagement’.
(b) AMENDMENT TO SECTION 2302(b)(9)- Section 2302(b)(9) of title 5, United
States Code, is amended to read as follows:
`(9) take or fail to take, or threaten to take or fail to take, any personnel
action against any employee or applicant for employment because of–
`(A) the exercise of any appeal, complaint, or grievance right granted by
any law, rule, or regulation;
`(B) testifying for or otherwise lawfully assisting any individual in the
exercise of any right referred to in subparagraph (A);
`(C) cooperating with or disclosing information to the Inspector General of
an agency, or the Special Counsel, in accordance with applicable provisions
of law; or
`(D) for refusing to obey an order that would require the individual to
violate a law;’.
SEC. 5. PREFERENCE IN TRANSFERS FOR WHISTLEBLOWERS.
(a) IN GENERAL- Subchapter IV of chapter 33 of title 5, United States Code,
is amended by adding at the end thereof the following new section:
`Sec. 3352. Preference in transfers for employees making certain disclosures
`(a) Subject to the provisions of subsections (d) and (e), in filling a
position within any Executive agency, the head of such agency may give
preference to any employee of such agency, or any other Executive agency,
to transfer to a position of the same status and tenure as the position of
such employee on the date of applying for a transfer under subsection (b) if–
`(1) such employee is otherwise qualified for such position;
`(2) such employee is eligible for appointment to such position; and
`(3) the Merit Systems Protection Board makes a determination under the
provisions of chapter 12 that a prohibited personnel action described under
section 2302(b)(8) was taken against such employee.
`(b) An employee who meets the conditions described under subsection (a)
(1), (2), and (3) may voluntarily apply for a transfer to a position, as
described in subsection (a), within the Executive agency employing such
employee or any other Executive agency.
`(c) If an employee applies for a transfer under the provisions of subsection
(b) and the selecting official rejects such application, the selecting
official shall provide the employee with a written notification of the
reasons for the rejection within 30 days after receiving such application.
`(d) An employee whose application for transfer is rejected under the
provisions of subsection (c) may request the head of such agency to review
the rejection. Such request for review shall be submitted to the head of
the agency within 30 days after the employee receives notification under
subsection (c). Within 30 days after receiving a request for review, the
head of the agency shall complete the review and provide a written statement
of findings to the employee and the Merit Systems Protection Board.
`(e) The provisions of subsection (a) shall apply with regard to any
employee–
`(1) for no more than 1 transfer;
`(2) for a transfer from or within the agency such employee is employed
at the time of a determination by the Merit Systems Protection Board that
a prohibited personnel action as described under section 2302(b)(8) was
taken against such employee; and
`(3) no later than 18 months after such a determination is made by the
Merit Systems Protection Board.
`(f) Notwithstanding the provisions of subsection (a), no preference may
be given to any employee applying for a transfer under subsection (b),
with respect to a preference eligible (as defined under section 2108(3))
applying for the same position.’.
(b) TECHNICAL AMENDMENT- The table of sections for chapter 33 of title 5,
United States Code, is amended by inserting after the item relating to
section 3351 the following:
`3352. Preference in transfers for employees making certain disclosures.’.
SEC. 6. INTERIM RELIEF.
Section 7701 of title 5, United States Code, is amended–
(1) by redesignating subsection (b) as paragraph (1) of subsection (b); and
(2) by adding at the end thereof the following new paragraph:
`(2)(A) If an employee or applicant for employment is the prevailing party
in an appeal under this subsection, the employee or applicant shall be
granted the relief provided in the decision effective upon the making of
the decision, and remaining in effect pending the outcome of any petition
for review under subsection (e), unless–
`(i) the deciding official determines that the granting of such relief is
not appropriate; or
`(ii)(I) the relief granted in the decision provides that such employee
or applicant shall return or be present at the place of employment during
the period pending the outcome of any petition for review under subsection
(e); and
`(II) the employing agency, subject to the provisions of subparagraph (B),
determines that the return or presence of such employee or applicant is
unduly disruptive to the work environment.
`(B) If an agency makes a determination under subparagraph (A)(ii)(II) that
prevents the return or presence of an employee at the place of employment,
such employee shall receive pay, compensation, and all other benefits as
terms and conditions of employment during the period pending the outcome
of any petition for review under subsection (e).
`(C) Nothing in the provisions of this paragraph may be construed to require
any award of back pay or attorney fees be paid before the decision is final.’.
SEC. 7. SAVINGS PROVISIONS.
(a) ORDERS, RULES, AND REGULATIONS- All orders, rules, and regulations
issued by the Merit Systems Protection Board or the Special Counsel before
the effective date of this Act shall continue in effect, according to their
terms, until modified, terminated, superseded, or repealed.
(b) ADMINISTRATIVE PROCEEDINGS- No provision of this Act shall affect
any administrative proceeding pending at the time such provisions take
effect. Orders shall be issued in such proceedings, and appeals shall be
taken therefrom, as if this Act had not been enacted.
(c) SUITS AND OTHER PROCEEDINGS- No suit, action, or other proceeding lawfully
commenced by or against the members of the Merit Systems Protection Board,
the Special Counsel, or officers or employees thereof, in their official
capacity or in relation to the discharge of their official duties, as in
effect immediately before the effective date of this Act, shall abate by
reason of the enactment of this Act. Determinations with respect to any
such suit, action, or other proceeding shall be made as if this Act had
not been enacted.
SEC. 8. AUTHORIZATION OF APPROPRIATIONS; RESTRICTION RELATING TO APPROPRIATIONS
UNDER THE CIVIL SERVICE REFORM ACT OF 1978; TRANSFER OF FUNDS.
(a) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated,
out of any moneys in the Treasury not otherwise appropriated–
(1) for each of fiscal years 1989, 1990, 1991, 1992, 1993, and 1994, such
sums as necessary to carry out subchapter I of chapter 12 of title 5,
United States Code (as amended by this Act); and
(2) for each of fiscal years 1989, 1990, 1991, and 1992, such sums as
necessary to carry out subchapter II of chapter 12 of title 5, United States
Code (as amended by this Act).
(b) RESTRICTION RELATING TO APPROPRIATIONS UNDER THE CIVIL SERVICE REFORM
ACT OF 1978- No funds may be appropriated to the Merit Systems Protection
Board or the Office of Special Counsel pursuant to section 903 of the Civil
Service Reform Act of 1978 (5 U.S.C. 5509 note).
(c) TRANSFER OF FUNDS- The personnel, assets, liabilities, contracts,
property, records, and unexpended balances of appropriations, authorizations,
allocations, and other funds employed, held, used, arising from, available
or to be made available to the Special Counsel of the Merit Systems
Protection Board are, subject to section 1531 of title 31, United States
Code, transferred to the Special Counsel referred to in section 1211 of
title 5, United States Code (as added by section 3(a) of this Act), for
appropriate allocation.
SEC. 9. TECHNICAL AND CONFORMING AMENDMENTS.
(a)(1) Section 2303(c) of title 5, United States Code, is amended by striking
`the provisions of section 1206′ and inserting `applicable provisions of
sections 1214 and 1221′.
(2) Sections 7502, 7512(E), 7521(b)(C), and 7542 of title 5, United States
Code, are amended by striking `1206′ and inserting `1215′.
(3) Section 1109(a) of the Foreign Service Act of 1980 (22 U.S.C. 4139(a))
is amended by striking `1206′ and inserting `1214 or 1221′.
(b) Section 3393(g) of title 5, United States Code, is amended by striking
`1207′ and inserting `1215′.
SEC. 10. BOARD RESPONDENT.
Section 7703(a)(2) of title 5, United States Code, is amended to read
as follows:
`(2) The Board shall be named respondent in any proceeding brought pursuant
to this subsection, unless the employee or applicant for employment seeks
review of a final order or decision on the merits on the underlying personnel
action or on a request for attorney fees, in which case the agency responsible
for taking the personnel action shall be the respondent.’.
SEC. 11. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect 90 days
following the date of enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
.
