[Senate Report 107-349]
[From the U.S. Government Publishing Office]
Calendar No. 771
107th Congress
2d Session SENATE Report
107-349
_______________________________________________________________________
TO AUTHORIZE APPROPRIATIONS FOR THE MERIT SYSTEMS PROTECTION BOARD AND
THE OFFICE OF SPECIAL COUNSEL, AND FOR OTHER PURPOSES
__________
R E P O R T
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 3070
TO AUTHORIZE APPROPRIATIONS FOR THE MERIT SYSTEMS PROTECTION BOARD AND
THE OFFICE OF SPECIAL COUNSEL, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 19, 2002.--Ordered to be printed
COMMITTEE ON GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia THAD COCHRAN, Mississippi
THOMAS R. CARPER, Delaware ROBERT F. BENNETT, Utah
JEAN CARNAHAN, Missouri JIM BUNNING, Kentucky
MARK DAYTON, Minnesota PETER G. FITZGERALD, Illinois
Joyce A. Rechtschaffen, Staff Director and Counsel
Lawrence B. Novey, Counsel
Nanci E. Langley, Deputy Staff Director, Subcommittee on
International Security, Proliferation and Federal Services
Jennifer L. Tyree, Counsel, Subcommittee on International Security,
Proliferation and Federal Services
Richard A. Hertling, Minority Staff Director
Alison E. Bean, Minority Professional Staff Member
Ann C. Fisher, Minority Professional Staff Member,
Subcommittee on International Security, Proliferation and Federal
Services
Darla D. Cassell, Chief Clerk
C O N T E N T S
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Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History.............................................27
IV. Regulatory Impact Statement.....................................27
V. Congressional Budget Office Cost Estimate.......................27
VI. Section-by-Section Analysis and Discussion......................29
VII. Changes in Existing Law Made by the Bill, as Reported...........33
Calendar No. 771
107th Congress Report
SENATE
2d Session 107-349
======================================================================
TO AUTHORIZE APPROPRIATIONS FOR THE MERIT SYSTEMS PROTECTION BOARD AND
THE OFFICE OF SPECIAL COUNSEL, AND FOR OTHER PURPOSES
_______
November 19, 2002.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Governmental Affairs, submitted
the following
R E P O R T
[To accompany S. 3070]
The Committee on Governmental Affairs, to which was
referred the bill (S. 3070) to authorize appropriations for the
Merit Systems Protection Board and the Office of Special
Counsel, and for other purposes, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
I. Purpose and Summary
The purposes of S. 3070 are to reauthorize appropriations
for the Office of Special Counsel (OSC) and the Merit Systems
Protection Board (MSPB) for five years, and to make
clarifications and changes to strengthen the Whistleblower
Protection Act (WPA). S. 3070 was introduced on October 9,
2002, by Senators Akaka and Levin, building on earlier
versions, S. 2829, introduced by Senator Akaka, and S. 995,
introduced by Senators Akaka, Levin, and Grassley.\1\
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\1\ Senator Leahy was added as a cosponsor of both S. 3070 and S.
995, and Senator Durbin and Senator Bob Smith were added as cosponsors
of S. 995.
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The OSC and MSPB administer programs and procedures to
safeguard the federal government's merit-based system of
employment and protect federal employees against improper
personnel practices, particularly those federal employees who
step forward to disclose government waste, fraud, and abuse.
The OSC's responsibilities include receiving and seeking
resolution of allegations by employees of wrongdoing in federal
agencies; investigating claims of improper personnel actions,
including reprisal against whistleblowers; and applying to the
MSPB for appropriate remedies for improper personnel actions.
The MSPB's responsibilities include hearing and deciding
appeals brought by federal employees from agency personnel
actions, hearing and deciding cases brought by the OSC, and
conducting studies and oversight of the civil service system.
The sponsors, in introducing the predecessor bills,
summarized the purposes of this legislation.\2\ As to
reauthorizing appropriations for the OSC and MSPB, Senator
Akaka explained: ``These two agencies safeguard the merit
system principles and protect Federal employees who step
forward to disclose government waste, fraud, and abuse. * * *
Together, OSC and MSPB act as stalwarts of justice for the
dedicated men and women who serve the public.'' \3\
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\2\ 2147 Cong. Rec. S5970-S5975 (daily ed. June 7, 2001)
(Statements of Senators Akaka, Levin, and Grassley) and 148 Cong. Rec.
S7746 (daily ed. July 31, 2002) (Statement of Senator Akaka).
\3\ 3148 Cong. Rec. S7746 (daily ed. July 31, 2002) (Statement of
Senator Akaka).
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Senator Akaka also explained why provisions clarifying and
strengthening the WPA are needed: ``The right of federal
employees to be free from workplace retaliation * * * has been
diminished by a pattern of court rulings that have narrowly
defined who qualifies as a whistleblower under the WPA, and
what statements are considered protected disclosures. These
rulings are inconsistent with congressional intent. * * * The
bill we introduce today will restore congressional intent
regarding who is entitled to relief under the WPA, and what
disclosures are protected.'' \4\
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\4\ 4147 Cong. Rec. S5970 (daily ed. June 7, 2001) (Statement of
Senator Akaka).
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Senator Levin also emphasized the role of Congress in
whistleblower protection: ``We want Federal employees to
identify problems in our programs so we can fix them, and if
they fear reprisal for doing so, then we are not only failing
to protect the whistleblower, but we are also failing to
protect the taxpayer.'' He explained how the bill would clarify
the law to prevent future misinterpretation, and also noted
that the bill ``adds a provision to the Whistleblower
Protection Act that provides specific protection to a
whistleblower who discloses evidence of fraud, waste, and abuse
involving classified information if that disclosure is made to
the appropriate committee of Congress * * *'' \5\
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\5\ 5147 Cong. Rec. S5973 (daily ed. June 7, 2001) (Statement of
Senator Levin).
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S. 3070 would strengthen the WPA by, among other things,
clarifying the unrestricted meaning of ``any'' disclosure
covered by the WPA, codifying an anti-gag provision to allow
employees to come forward with disclosures of illegality,
providing independent litigating authority for the OSC, and
allowing whistleblower cases to be heard by all United States
Courts of Appeals for a period of five years.
II. Background and Need for the Legislation
A. BACKGROUND ON THE OFFICE OF SPECIAL COUNSEL \6\
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\6\ This description of the history of OSC and the developments
since OSC's last reauthorization is based largely on briefings and
documents provided by OSC to the Committee.
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History and purpose
The position of Special Counsel was established on January
1, 1979, by Reorganization Plan Number 2 of 1978.\7\ The Civil
Service Reform Act (CSRA) of 1978, effective on January 11,
1979, enlarged its functions and powers.\8\ The Special Counsel
operated as the autonomous investigative and prosecutorial arm
of the Merit Systems Protection Board (MSPB) until 1989,
enforcing the laws concerning prohibited personnel practices,
as well as the restrictions on the political activity of
federal employees as governed by the Hatch Act.
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\7\ 43 F.R. 36037, 92 Stat. 3783, Sec. 204 (June 19, 1978) (5
U.S.C. App.).
\8\ Pub. L. No. 95-454, 92 Stat. 1111 (1978).
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In March of 1989, Congress enacted the Whistleblower
Protection Act (WPA) of 1989.\9\ The WPA established the Office
of Special Counsel (OSC) as an independent agency within the
Executive Branch, separate from the MSPB. Under the WPA, OSC
kept its basic investigative and prosecutorial functions and
its role in litigating cases before the MSPB. The WPA also
substantially amended the CSRA to enhance protections against
retaliation for those employees who disclose wrongdoing in the
federal government and to improve the ability of OSC to enforce
those protections.
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\9\ Pub. L. No. 101-12, 103 Stat. 16 (1989).
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Five years after passage of the WPA, Congress enacted the
Office of Special Counsel Reauthorization Act of 1994.\10\ In
response to widespread criticism concerning inordinate delays
in the processing of complaints by OSC, Congress imposed a 240-
day time limit on agency action, within which OSC is required
to determine whether there are reasonable grounds for believing
that a prohibited personnel practice has been committed. The
1994 legislation also added approximately 160,000 employees of
the Veterans Administration and certain government corporations
to coverage under the statutes administered by OSC and
significantly broadened the definitions of the types of
personnel actions covered under these statutes. Lastly, the
1994 legislation made federal agencies explicitly responsible
for informing their employees of available rights and remedies
under the WPA, and directed that OSC play a consultative role
in that process.\11\
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\10\ Pub. L. No. 103-424, 108 Stat. 4361 (1994).
\11\ See 5 U.S.C. Sec. 2302(c).
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The mission of OSC is to protect federal employees and
applicants, especially whistleblowers, from prohibited
employment practices; to promote compliance by government
employees with legal restrictions on political activity; and to
facilitate disclosures of wrongdoing in the federal government.
OSC carries out this mission by:
Investigating complaints of prohibited
employment practices, especially reprisal for
whistleblowing and pursuing remedies for violations;
Operating an independent and secure channel
for disclosure and investigation of wrongdoing in
federal agencies;
Providing advisory opinions on and enforcing
the Hatch Act;
Protecting the reemployment rights of
veterans under the Uniformed Services Employment and
Reemployment Rights Act (USERRA) by investigating
alleged violations of the Act by federal executive
agencies and prosecuting meritorious claims before the
MSPB on behalf of the aggrieved person; and
Promoting greater understanding of the
rights and responsibilities of government employees
under the statutes enforced by OSC through public
outreach and education programs.\12\
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\12\ U.S. Office of Special Counsel, FY 2001 Annual Report, at 4.
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OSC maintains its headquarters in Washington, DC and has
field offices in Texas and California. The Special Counsel and
the Immediate Office of the Special Counsel (IOSC) are
responsible for policy making and overall management of the
agency. IOSC responsibilities include congressional relations,
public affairs, and outreach. The outreach program director
develops and coordinates proactive educational efforts by OSC
and promotes compliance by federal agencies with the employee
information requirement at Sec. 2302(c), as amended. Until June
2001, OSC was organized into four operating divisions:
Complaint and Disclosure Analysis, Investigation, Prosecution,
and Planning and Advice. A restructuring in early June of that
year led to the consolidation of OSC's investigative and
prosecutorial functions and the creation of three parallel
Investigation and Prosecution Divisions. Since that
reorganization, agency functions are organized as follows:
The Complaints and Disclosure Analysis Division
consists of OSC's two intake units for new matters received by
the agency--the Complaints Examining Unit (CEU) and the
Disclosure Unit (DU).
The CEU serves as the intake point for all complaints
alleging prohibited personnel practices and other violations of
civil service law, rule, or regulation. The attorneys and
personnel management specialists in CEU conduct an initial
review of complaints to determine whether they are within OSC's
jurisdiction and whether further investigation is warranted.
CEU refers any such matter to one of the Investigation and
Prosecution Divisions.
The DU is responsible for reviewing information submitted
by federal whistleblowers and for advising the Special Counsel
on the appropriate disposition of the matter (including
possible referral to the head of the relevant agency for
investigation and a report to OSC, referral to the agency
Inspector General, or closure). DU attorneys also analyze
agency reports of investigation to determine whether they
appear reasonable and meet statutory requirements before the
Special Counsel sends them to the President and appropriate
congressional oversight committees.
The Investigation and Prosecution Divisions (IPDs)
consist of three parallel investigative and prosecutorial
units--IPD I, II, and III. These divisions investigate
complaints referred after a preliminary inquiry by CEU. Each
unit conducts investigations to review pertinent records and to
interview complainants and witnesses with knowledge of the
matters alleged. Matters not resolved during the investigative
phase undergo legal review and analysis to determine whether
the matter warrants corrective action, disciplinary action, or
both. If a negotiated resolution with the agency involved
cannot be reached, division attorneys conduct the litigation of
any enforcement proceedings filed by OSC with the U.S. Merit
Systems Protection Board. They also represent the Special
Counsel when OSC intervenes or otherwise participates in other
proceedings before the MSPB.
The Hatch Act Unit (HAU), located in IPD I, is
responsible for enforcing Hatch Act restrictions on the
political activities of federal and certain state and local
government employees. HAU attorneys receive and review
complaints alleging Hatch Act violations and, when warranted,
prosecute violations before the MSPB. The unit also issues
advisory opinions to individuals seeking information about the
provisions of the Act.
The Alternative Dispute Resolution (ADR) Unit was
established by the Special Counsel in FY 2000. It is located in
IPD III and operates OSC's Mediation Program. In selected cases
that have been referred for further investigation, it contacts
the complainant and the employing agency to invite their
participation in voluntary mediation. If both parties agree,
OSC conducts a mediation session, led by OSC staff who have
extensive training in mediation and experience in federal
personnel law. When mediation resolves the complaint, the
parties execute a written and binding settlement agreement. If
mediation does not result in a resolution, the case is referred
for further investigation, as it would have been had the
parties not tried mediation.
The Planning and Advice Division provides legal
advice and support on general management and administrative
matters; engages in planning and policy development; conducts
the statutorily required annual survey program; and manages the
agency's Freedom of Information/Privacy Act and ethics
programs. OSC also has two administrative support units: the
Human and Administrative Resources Management Branch and the
Information Systems Branch. Their functions include
administrative operations, personnel, procurement, information
technology, and records management services.\13\
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\13\ U.S. Office of Special Counsel, FY 2001 Annual Performance
Report, at 2-4.
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OSC developments
For years, the backlog of prohibited personnel practice
cases has been a significant problem for the OSC. To address
this problem, Congress amended the WPA in 1994 to set a 240-day
deadline for OSC to make a determination as to whether a
prohibited personnel practice occurred.\14\ To meet this
statutory requirement, OSC has sought and Congress has granted
the agency additional resources. During FY 2000 and 2001,
Congress appropriated funds for 15 additional full-time
employees. OSC also redirected two full-time-equivalents (FTEs)
to program functions as a result of internal reforms. The
provision of additional resources seemed to help. On June 1,
2001, there were 477 prohibited personnel cases more than 240
days old. Just one year later, the number of cases was reduced
nearly 53 percent with only 226 cases more than 240 days old.
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\14\ 5 U.S.C. Sec. 1214(b)(2)(A)(i).
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In addition to the increase in staff, OSC implemented its
most significant reorganization in over 15 years by merging
investigative and prosecutorial functions that had been housed
in two separate divisions. The reorganization joined
investigators and attorneys in three teams (IPDs--Investigation
and Prosecution Divisions), each of which reports to a single
Associate Special Counsel. The reorganization eliminated
several layers of management review to which cases referred for
investigation had previously been subject. It also permits
closer, more effective, and more efficient coordination of
strategy between investigators and attorneys. This enhanced
coordination is expected to reduce case processing times,
permit OSC to make better decisions about allocation of
investigative resources, and improve the quality of OSC's
investigative and legal work.\15\
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\15\ U.S. Office of Special Counsel, supra note 13 at 8.
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As a result of the FY 2001 reorganization, the number of
cases pending at the end of the fiscal year was 733, down
substantially from the 1,114 cases that were pending at the end
of FY 2000. There were also significant gains in the number of
cases referred for investigation that OSC resolved. Thus, in FY
2001, OSC resolved 410 cases that were referred for
investigation, which represented a 79 percent increase over FY
2000's 228 cases resolved. Productivity also increased at OSC
by 38 percent as a result of the reorganization.
In addition to the backlog problem, OSC continues to face a
public information problem as many employees in the federal
government are unaware of the role of the OSC and the laws it
enforces.\16\ To address this problem, the Special Counsel
hired an Outreach Specialist and has established an outreach
and training program. The Outreach Program was established to
assist agencies in meeting their statutory mandate under 5
U.S.C. Sec. 2302(c), which Congress imposed in 1994. Under that
provision, federal agencies are responsible ``for ensuring (in
consultation with the Office of Special Counsel) that agency
employees are informed of the rights and remedies available to
them'' under chapters 12 and 23 of title 5. Because of this
clear statutory mandate, OSC considers outreach to federal
managers and employees to be an essential part of its
mission.\17\
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\16\ See OPM Merit System Principles Questionnaire, FY 2002
Governmentwide Results.
\17\ U.S. Office of Special Counsel, FY 2000 Annual Report, at 26.
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A chief focus of the Outreach Program is to work
proactively with federal agencies to design employee education
programs. A significant step towards achieving that goal came
in FY 2000 with an OSC survey of federal agency efforts to
comply with Sec. 2302(c). The results of that survey found that
the majority of federal agencies do not comprehensively inform
or educate their employees regarding prohibited personnel
practices or whistleblower retaliation. Half of the responding
agencies did not provide any type of in person training on
prohibited personnel practices.\18\ However, the survey caused
many agencies to implement stepped-up measures to inform their
employees of their rights.\19\
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\18\ Summary of Findings from 2000 OSC Survey on Implementation of
5 U.S.C. Sec. 2302(c).
\19\ U.S. Office of Special Counsel, supra note 17.
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During FY 2000, OSC also established its Alternative
Dispute Resolution Unit, which directs OSC's Mediation Program.
As the program matured during the second half of FY 2001, two
significant program design modifications were implemented.
First, the scope of cases in which OSC offers mediation was
substantially broadened. Among the factors that determine
``mediation-appropriate'' cases are the relationship of the
parties, the complexity of the issues, and the relief sought by
the complainant. Consequently, the rate at which OSC offers
mediation to parties doubled from 15 percent in FY 2000 to 30
percent in FY 2001.
SUMMARY OF OSC ACTION FOR 1997-2001 \20\
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1997 1998 1999 2000 2001
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Prohibited personnel practices:
Favorable actions.............................................. 56 42 52 75 74
Negotiated stays............................................... 12 8 12 7 13
Litigated stays................................................ 0 8 3 2 1
Hatch Act:
Advisory opinions issued....................................... 1,700 2,124 2,063 2,810 2,806
Warning letters issued......................................... 24 20 21 21 59
Enforcement actions filed...................................... 3 0 3 4 8
Disciplinary actions obtained.................................. 3 5 1 2 8
Disclosure Unit:
Matters referred to agency head for investigation.............. 14 2 15 8 15
Matters referred to IGs for investigation...................... 72 65 71 106 119
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BUDGET AND STAFFING
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FY 1997 FY 1998 FY 1999 FY 2000 FY 2001 FY 2002
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Budget...................... $8,116,000 $8,450,000 $8,720,000 $9,740,000 $11,147,000 $11,891,000
FTEs........................ 83.5 87.17 87.80 90.86 104.66 105.5
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B. BACKGROUND ON THE MERIT SYSTEMS PROTECTION BOARD \21\
History and purpose
The U.S. Merit Systems Protection Board is an independent,
quasi-judicial agency in the Executive Branch that serves as
the guardian of Federal merit system principles. The MSPB was
established by Reorganization Plan No. 2 of 1978, which was
codified by the Civil Service Reform Act of 1978 (CSRA).\22\
The CSRA, which became effective January 11, 1979, replaced the
Civil Service Commission with three new independent agencies:
the Office of Personnel Management (OPM), which manages the
federal work force; the Federal Labor Relations Authority,
which oversees Federal labor-management relations; and the
MSPB.
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\20\ FY 2002 information not yet available from OSC.
\21\ This description of the history of MSPB and the developments
since MSPB's last reauthorization is based largely on briefings and
documents provided by MSPB to the Committee.
\22\ Pub. L. No. 95-454, 92 Stat. 1111 (1978).
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The Board assumed the employee appeals function of the
Civil Service Commission and was given the new responsibilities
to perform merit systems studies and to review the significant
actions of OPM. The MSPB carries out its statutory mission
principally by:
Adjudicating employee appeals of personnel
actions over which the Board has jurisdiction, such as
removals, suspensions, furloughs, and demotions;
Adjudicating employee complaints filed under
the Whistleblower Protection Act, the Uniformed
Services Employment & Reemployment Rights Act (USERRA),
and the Veterans Employment Opportunities Act;
Adjudicating cases brought by the Special
Counsel, principally complaints of prohibited personnel
practices and Hatch Act violations;
Adjudicating requests to review regulations
of the Office of Personnel Management (OPM) that are
alleged to require or result in the commission of a
prohibited personnel practice or reviewing such
regulations on the Board's own motion;
Ordering compliance with final Board orders
where appropriate; and
Conducting studies of the federal civil
service and other merit systems in the Executive Branch
to determine whether they are free from prohibited
personnel practices.\23\
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\23\ U.S. Merit Systems Protection Board, FY 2001 Annual
Performance Report, at 5.
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The Board is composed of a Chairman, Vice Chairman, and
Member who adjudicate the cases brought to the Board. The
Chairman, by statute, is the chief executive and administrative
officer of the Board. Office heads report to the Chairman
through the Chief of Staff. The MSPB consists of the following
offices:
The Office of Regional Operations oversees the
five MSPB regional offices (including five field offices),
which receive and process initial appeals and related cases.
Administrative judges in the regional and field offices are
responsible for adjudicating assigned cases and for issuing
fair and well-reasoned initial decisions.
The Office of the Administrative Law Judge
adjudicates and issues initial decisions in Hatch Act cases,
corrective and disciplinary action complaints brought by the
Special Counsel, proposed agency actions against administrative
law judges, MSPB employee appeals, and other cases assigned by
the Board.
The Office of Appeals Counsel conducts legal
research and prepares proposed decisions for the Board in cases
where a party petitions for review of a judge's initial
decision and in all other cases decided by the three-member
Board, except for those cases assigned to the Office of the
General Counsel. The office also conducts the Board's petition
for review settlement program, processes interlocutory appeals
of rulings made by judges, makes recommendations on reopening
cases on the Board's own motion, and provides research and
policy memoranda to the Board on legal issues.
The Office of the Clerk of the Board receives and
processes cases filed at Board headquarters, rules on certain
procedural matters, and issues the Board's Opinions and Orders.
The office serves as the Board's public information center,
coordinates media relations, produces public information
publications, operates the Board's library and on-line
information services, and administers the Freedom of
Information Act and Privacy Act programs. The office also
certifies official records to the courts and federal
administrative agencies, and manages the Board's records and
directives system, legal research programs, and the Government
in the Sunshine Act program.
The Office of the General Counsel, as legal
counsel to the Board, provides advice to the Board and MSPB
offices on matters of law arising in day-to-day operations. The
office represents the Board in litigation, prepares proposed
decisions for the Board on assigned cases, and coordinates the
Board's legislative policy and congressional relations
functions. The office also conducts the Board's ethics program
and plans and directs audits and investigations.
The Office of Policy and Evaluation carries out
the Board's statutory responsibility to conduct special studies
of the civil service and other merit systems. Reports of these
studies are directed to the President and the Congress and are
distributed to a national audience. The office also conducts an
outreach program and responds to requests from federal agencies
for information, advice, and assistance on issues that have
been the subject of Board studies.
The Office of Equal Employment Opportunity plans,
implements, and evaluates the Board's equal employment
opportunity (EEO) programs. It processes complaints of alleged
discrimination and furnishes advice and assistance on
affirmative action initiatives to the Board's managers and
supervisors.
The Office of Financial and Administrative
Management administers the budget, procurement, property
management, physical security, and general services functions
of the Board. It develops and coordinates internal management
programs and projects, including review of internal controls
agency-wide. It also administers the agency's cross-servicing
arrangements with the U.S. Department of Agriculture's National
Finance Center (NFC) for accounting and payroll services and
with ABS (APHIS Business Services) for human resources
management services.
The Office of Information Resources Management
develops, implements, and maintains the Board's automated
information systems in order to help the Board manage its
caseload efficiently and carry out its administrative and
research responsibilities.
MSPB developments
Over the past five years, the Board made a number of
amendments to its regulations governing the processing of
cases, most of them aimed at assisting parties in pursuing
their cases before the Board. Perhaps the most significant was
the issuance of a new Part 1208 of 5 CFR, setting forth the
requirements for processing USERRA and Veterans Employment
Opportunities Act (VEOA) appeals.\24\ The Board also finalized
two proposed rules it had issued in 1999. To assist appellants
in obtaining adequate legal representation, it amended its
regulations on an award of attorney fees to permit
reimbursement at the attorney's customary billing rate in the
community where the attorney normally practices.\25\ In order
to assist appellants in understanding the consequences of an
election between appealing to MSPB or filing a grievance, the
Board amended its requirements for the notice an agency must
give when it takes an appealable action against an employee who
has both a right to appeal to MSPB and a right to grieve the
matter under a negotiated grievance procedure.\26\
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\24\ Interim rule at 65 Fed. Reg. 5410, February 4, 2000; final
rule at 65 Fed. Reg. 49895, August 16, 2000; conforming amendment to 5
CFR Part 1201 at 65 Fed. Reg. 5409, February 4, 2000.
\25\ 65 Fed. Reg. 24381, April 26, 2000.
\26\ 65 Fed. Reg. 25623, May 3, 2000.
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Other amendments to the regulations in FY 2000 clarified
the procedures for obtaining copies of hearing tapes and
transcripts,\27\ made address changes to reflect the relocation
of the MSPB headquarters office,\28\ and corrected a citation
in the rules governing the Board's review of regulations of the
Office of Personnel Management.\29\
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\27\ 65 Fed. Reg. 19293, April 11, 2000.
\28\ 65 Fed. Reg. 48885-48886, August 10, 2000.
\29\ 65 Fed. Reg. 57939, September 27, 2000.
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In FY 2001, the Board also launched two pilot projects
aimed at improving case processing. In November 1999, the Board
implemented its suspended case pilot project, which allows
appellants and agencies up to 60 days additional time to pursue
discovery and settlement efforts in their pending appeals. If
the parties mutually request a 30-day suspension, the presiding
administrative judge will grant it, without requiring the
parties to provide evidence and argument to support the
request. A second 30-day suspension will be granted if the
parties agree that further time is necessary. By the end of FY
2000, judges had granted 319 initial 30-day suspensions and 98
additional 30-day suspensions.\30\
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\30\ U.S. Merit Systems Protection Board, FY 2001 Annual Report, at
3.
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In June 2000, the Board also launched an expanded pilot
program at headquarters to expedite the processing of certain
petitions for review (PFRs) of administrative judges' initial
decisions. The purpose of the program is to identify non-
meritorious PFRs that can be disposed of quickly so that the
three-member Board can focus its resources on complex and
precedential cases.\31\ If a PFR meets one of the eight
criteria established for expedited processing (e.g., clearly
not within the Board's purview, no attempt to meet the criteria
for Board review), the Office of the Clerk prepares a proposed
decision and forwards it to the Board, rather than transferring
the case to the Office of Appeals Counsel for preparation of a
decision. A senior attorney detailed from the Office of Appeals
Counsel to the Office of the Clerk of the Board conducts the
reviews. In the first six months of the expedited PFR pilot
program, approximately eight percent of the 724 PFRs reviewed
were expedited. The average time for processing the expedited
cases--from receipt of the PFR to issuance of the decision--was
60 days.
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\31\ Id.
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In a further effort to improve case processing times at
headquarters, the Board targeted its enforcement cases during
the latter half of FY 2000. These cases arise after the Board
issues a final order in a case and a party subsequently
petitions the Board to enforce its order. If the judge to whom
the petition for enforcement is assigned determines that there
is noncompliance with the Board's order, the case is referred
to the 3-member Board for enforcement. Because enforcement
cases cannot be closed until compliance is achieved, they
frequently take longer to complete than other cases. By
focusing on enforcement cases that had been pending at
headquarters for more than 300 days, the Board was able to
reduce the number of such cases substantially. One of the
methods employed to reduce the processing time was to hold
meetings with agencies that process the payment of judgments,
such as the Defense Finance & Accounting Service (DFAS), the
National Finance Center, and the U.S. Postal Service, to
develop mutually beneficial systems for achieving full
compliance with Board orders in a timely manner. One of the
impediments identified was that responsible agency managers and
personnel officials thought they had taken the steps necessary
to comply with a Board order, but the payroll office lacked all
the information necessary to process payments required by the
order. As a result of those meetings, the agencies have
developed checklists and other tools that advise agencies and
appellants of the information required to process payments
agreed upon in settlements or as ordered by the Board. The DFAS
and NFC checklists are available on the MSPB Web site. The USPS
is developing a compliance handbook.
In addition, the MSPB has accomplished the following over
the past five years:
Made Office of Policy and Evaluation study
reports available on the Internet;
Began a major initiative to design and
develop an integrated document management and workflow
system that will include support and maintenance of
imaged and electronic case records;
Saved money through the significant increase
in the number of video conferences used for hearings,
settlements and conferences related to cases before
MSPB, focus groups and related studies activities, and
for other activities related to MSPB business; and
Developed an Alternative Dispute Resolution
(ADR) Working Group.
The Civil Service Reform Act also authorized the Board to
conduct studies of the civil service and other merit systems in
the Executive Branch and report to the President and Congress
on whether the public interest in a civil service free of
prohibited personnel practices is being adequately
protected.\32\ Since 1997, the Board has published 15 reports
by the Office of Program and Evaluation (OPE) staff as well as
20 editions of the Issues of Merit newsletter.\33\
---------------------------------------------------------------------------
\32\ 5 U.S.C. Sec. 1204(a)(3).
\33\ Merit Systems Protection Board (visited Nov. 4, 2002) .
---------------------------------------------------------------------------
The OPE staff also serves as a valuable resource for the
Board in meeting internal agency research needs. For example,
during FY 2001, OPE conducted a survey of appellants and their
representatives, agency representatives, and MSPB
administrative judges who participated in the pilot projects
testing the use of video conferencing for hearings and the
issuance of bench decisions by MSPB judges. The subsequent
report of the survey results provided information that the
Board and senior managers can use to evaluate these projects.
In addition, as the following two tables show, the Board
has issued an average of 9,000 decisions (regions and
headquarters) annually for the past five years while
maintaining an average case processing time of less than 100
days. The percentage of Board decisions affirmed or otherwise
left unchanged by the Court of Appeals for the Federal Circuit,
which has sole jurisdiction over MSPB appeals, has exceeded 90
percent.\34\
---------------------------------------------------------------------------
\34\ Merit Systems Protection Board (visited Nov. 4, 2002) .
CASES DECIDED
----------------------------------------------------------------------------------------------------------------
Regional & HQ appellate HQ original
Fiscal year field offices jurisdiction jurisdiction Total
----------------------------------------------------------------------------------------------------------------
1997............................................ 8,314 1,740 100 10,154
1998............................................ 8,442 1,887 47 10,376
1999............................................ 7,670 2,037 106 9,813
2000............................................ 7,489 1,827 58 9,374
2001............................................ 7,174 1,357 28 8,559
----------------------------------------------------------------------------------------------------------------
SELECTED CASE PROCESSING STATISTICS \35\
----------------------------------------------------------------------------------------------------------------
Average
Percent of Average Average processing
final processing processing time for
Fiscal year decisions left time for time for enforcement
unchanged upon initial petitions for cases in the
review decisions review OGC
----------------------------------------------------------------------------------------------------------------
1997............................................ 96 108 183 202
1998............................................ 92 108 205 163
1999............................................ 92 100 222 206
2000............................................ 96 89 176 206
2001............................................ 96 92 214 224
----------------------------------------------------------------------------------------------------------------
The time for case processing has been an issue at the MSPB.
While the case processing time for initial decisions has
decreased over the past five years, the processing time for
decisions on petitions for review issued by the Board has once
again increased. In addition, the processing time for
enforcement cases in the Office of General Counsel has
increased. From 1995 to 2000, the average processing time for
enforcement cases in OGC ranged from 163 days to 206 days, with
results at the high end of that range in both FY 1999 and FY
2000. MSPB explains that the increase from 206 to 224 reflects
a significant achievement by OGC in closing a substantial
number of overage enforcement cases during the fiscal year.\36\
---------------------------------------------------------------------------
\35\Id.
\36\ Merit Systems Protection Board, FY 2001 Performance Report,
.
BUDGET AND STAFFING
----------------------------------------------------------------------------------------------------------------
FY 1997 FY 1998 FY 1999 FY 2000 FY 2001 FY 2002
----------------------------------------------------------------------------------------------------------------
Budget...................... $23,923,000 $27,720,000 $25,780,000 $27,481,000 $29,372,000 $33,075,000
FTE......................... 259 238 237 226 222 228
----------------------------------------------------------------------------------------------------------------
C. PAST REAUTHORIZATIONS FOR OSC AND MSPB
When the Civil Service Reform Act created the MSPB and the
OSC in 1979, the MSPB, of which OSC was a part, was granted a
permanent authorization of appropriations.\37\ With enactment
of the WPA in 1989, appropriations for the OSC and the MSPB
were for the first time authorized for a limited time period.
MSPB was authorized for the fiscal years 1989-1994, while the
OSC was authorized for fiscal years 1989-1992.\38\ According to
the Senate committee report, this was done to require Congress
to take affirmative action to continue funding for the two
agencies.\39\ Legislative history on the Act suggests that the
shorter authorization for OSC resulted from the negative
perception many in Congress had of the agency.\40\
---------------------------------------------------------------------------
\37\ Civil Service Reform Act, Pub. L. No. 95-454, 92 Stat. 1111
Sec. 903 (1978) (stating ``There are authorized to be appropriated, out
of any moneys in the Treasury not otherwise appropriated, such sums as
may be necessary to carry out the provisions of this Act.'').
\38\ Pub. L. No. 101-12, 103 Stat. 16 (1989).
\39\ S. Rep. No. 100-413, at 36 (1988).
\40\ See Whistleblower Protection Act of 1987: Hearing on S. 508
before the Subcomm. on Federal Services, Post Office and Civil Service
of the Senate Comm. on Governmental Affairs, 100th Cong., at 234-35,
260-64 (1987); Hearings on Whistleblower Protection Act of 1986 Before
the House Subcomm. on Civil Service of the House Comm. on Post Office
and Civil Service, 99th Cong 151 (1986).
---------------------------------------------------------------------------
The OSC was reauthorized for fiscal years 1993-1997 with
enactment of the Office of Special Counsel Reauthorization Act
\41\ on October 29, 1994--two years after the agency's
authorization had expired. At the same time, the MSPB was
reauthorized through 1997. A 1994 committee report stated that
the change was necessary to place the two agencies on the same
authorization cycle and to maintain close congressional
oversight over OSC and the MSPB and ensure that improvements in
the operations of both agencies in fact take place.\42\ The
Omnibus Consolidated Appropriations Act for FY 1997 extended
the authorization of appropriations for the OSC and the MSPB
through FY 2002.\43\ (Although the conference report stated
that Congress intended to extend the authorization of
appropriations for both MSPB and OSC, a drafting error caused
the OSC's reauthorization not to be actually enacted into
statute.) As the authorization for these two agencies expired
on October 1, 2002, S. 3070 reauthorizes OSC and MSPB for five
additional years, through the end of the 2007 fiscal year.
---------------------------------------------------------------------------
\41\ Pub. L. No. 103-424 (1994).
\42\ S. Rep. No. 103-358 (1994).
\43\ Pub. L. No. 104-208 (1996).
---------------------------------------------------------------------------
D. AMENDMENTS TO CLARIFY AND STRENGTHEN THE WHISTLEBLOWER PROTECTION
ACT
Background
The Civil Service Reform Act of 1978 (CSRA) created
statutory protections for federal employees to encourage
disclosure of government illegality, waste, fraud, and abuse.
As stated in the Senate Report concerning the whistleblowing
provisions of the civil service reform legislation:
Often, the whistleblower's reward for dedication to
the highest moral principles is harassment and abuse.
Whistleblowers frequently encounter severe damage to
their careers and substantial economic loss. Protecting
employees who disclose government illegality, waste,
and corruption is a major step toward a more effective
civil service. In the vast federal bureaucracy it is
not difficult to conceal wrongdoing provided that no
one summons the courage to disclose the truth. Whenever
misdeeds take place in a federal agency, there are
employees who know that it has occurred, and who are
outraged by it. What is needed is a means to assure
them that they will not suffer if they help uncover and
correct administrative abuses. What is needed is a
means to protect the Pentagon employee who discloses
billions of dollars in cost overruns, the GSA employee
who discloses widespread fraud, and the nuclear
engineer who questions the safety of certain nuclear
plants. These conscientious civil servants deserve
statutory protection rather than bureaucratic
harassment and intimidation.\44\
---------------------------------------------------------------------------
\44\ S. Rep. No. 95-969, at 8 (1978).
The CSRA established the Office of Special Counsel to
investigate and prosecute allegations of prohibited personnel
practices or other violations of the merit system and the Merit
Systems Protection Board to adjudicate such cases. However, in
1984, the MSPB reported that in practice the Act had no effect
on the number of whistleblowers and that federal employees
continued to fear reprisals. The Senate Governmental Affairs
Committee subsequently reported that employees felt that OSC
engaged in apathetic and sometimes detrimental practices toward
employees seeking its assistance. The Committee also found that
restrictive MSPB and federal court decisions had hindered the
ability of whistleblowers to win redress.\45\
---------------------------------------------------------------------------
\45\ S. Rep. No. 100-413, at 6-16 (1988).
---------------------------------------------------------------------------
In response, Congress in 1989 unanimously passed the
Whistleblower Protection Act, Public Law No. 101-12. The stated
congressional intent of the WPA was 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 that while disciplining those
who commit prohibited personnel practices may be used as a
means to help accomplish that goal, the protection of
individuals who are the subject of prohibited personnel
practices remains the paramount consideration.\46\
---------------------------------------------------------------------------
\46\ Whistleblower Protection Act of 1989 Sec. 2(b), Pub. L. No.
101-12, 103 Stat. 16 (1989).
---------------------------------------------------------------------------
Congress substantially amended the WPA in 1994, as part of
legislation to reauthorize OSC and MSPB. The amendment was
designed, in part, to address a series of actions by the OSC
and decisions by the MSPB and the Federal Circuit that were
found to be inconsistent with congressional intent of the 1989
Act. Both the House and Senate committee reports accompanying
the 1994 amendments specifically criticized these decisions,
particularly those limiting the types of disclosures covered by
the WPA.
Specifically, this Committee explained that the 1994
amendments were intended to reaffirm its long-held view that
the plain meaning language of the Whistleblower Protection Act
covers any disclosure:
The Committee * * * reaffirms the plain language of
the Whistleblower Protection Act, which covers, by its
terms, ``any disclosure'', of violations of law, gross
mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to
public health or safety. The Committee stands by that
language, as it explained in its 1988 report on the
Whistleblower Protection Act. That report states: ``The
Committee intends that disclosures be encouraged. The
OSC, the Board and the courts should not erect barriers
to disclosures which will limit the necessary flow of
information from employees who have knowledge of
government wrongdoing. For example, it is inappropriate
for disclosures to be protected only if they are made
for certain purposes or to certain employees or only if
the employee is the first to raise the issue'' * * *
\47\
---------------------------------------------------------------------------
\47\ S. Rep. No. 103-358 (1994), at 10 (quoting S. Rep. No. 100-
413, at 13 (1988)).
---------------------------------------------------------------------------
Similarly, the House stated:
Perhaps the most troubling precedents involve the
Board's inability to understand that ``any'' means
``any.'' The WPA protects ``any'' disclosure evidencing
a reasonable belief of specified misconduct, a
cornerstone to which the MSPB remains blind. The only
restrictions are for classified information or material
the release of which is specifically prohibited by
statute. Employees must disclose that type of
information through confidential channels to maintain
protection; otherwise there are no exceptions.\48\
---------------------------------------------------------------------------
\48\ H. Rep. No. 103-769, at 18 (1994).
Clarification of what constitutes protected disclosure under the WPA
Despite the clearly stated intent of the 1994 amendments,
it is necessary once again to state legislatively what
constitutes protected disclosure under the WPA, because the
Federal Circuit has continued to misinterpret the law, creating
new hurdles for whistleblowers along the way. For example, in
Horton v. Department of the Navy,\49\ the Federal Circuit ruled
that disclosures to co-workers or to the wrong-doer, or
disclosures to a supervisor are not protected by the Act. In
Willis v. Department of Agriculture,\50\ the court ruled that
disclosures to officials in the agency chain of command or
those made in the course of normal job duties are not
protected. And in Meuwissen v. Department of Interior,\51\ the
Federal Circuit held that disclosures of information previously
known do not qualify as ``disclosures'' under the WPA.
---------------------------------------------------------------------------
\49\ Horton v. Dept. of Navy, 66 F. 3d 279 (Fed. Cir. 1995).
\50\ Willis v. Dept. of Agriculture, 141 F. 3d 1139 (Fed. Cir.
1998).
\51\ Meuwissen v. Dept. of Interior, 234 F. 3d 9 (Fed. Cir. 2000).
---------------------------------------------------------------------------
As both House and Senate reports explicitly noted, the
plain language of the WPA extends to retaliation for ``any
disclosure,'' regardless of the setting of the disclosure, the
form of the disclosure, or the person to whom the disclosure is
made. S. 3070 would further clarify the definition of ``any
disclosure.'' The bill amends the WPA to cover any disclosure
of information ``without restriction to time, place, form,
motive or context, or prior disclosure made to any person by an
employee or applicant, including a disclosure made in the
ordinary course of an employee's duties.''
It is also necessary to clarify the test that must be met
to show that a Federal employee reasonably believed that his or
her disclosure was evidence of wrongdoing. Under the WPA, an
employee or applicant is protected for disclosures of
information he or she reasonably believes evidences a violation
of 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 and safety. However, Senator
Levin explained:
[T]he Federal Circuit * * * impose[d] a clearly
erroneous and excessive standard on the employee in
proving ``reasonable belief,'' requiring
``irrefragable'' proof that there was gross
mismanagement. * * * The employee, under the clear
language of the statute, need only have ``a reasonable
belief'' that there is fraud, waste or abuse occurring
before making a protected disclosure. This bill will
clarify the law so this misinterpretation will not
happen again.\52\
---------------------------------------------------------------------------
\52\ 147 Cong. Rec. S5973 (daily ed. June 7, 2001) (Statement of
Senator Levin upon introduction of S. 995).
This case that Senator Levin referenced was Lachance v.
White,\53\ in which the Office of Personnel Management (OPM)
sought review of an MSPB order that found that White made
protected disclosures resulting in a downgrade in position. OPM
argued that White's belief that he uncovered gross
mismanagement (an allegedly wasteful Air Force education
program) was inadequate to support a violation of the WPA
without an independent review of the reasonableness of the
belief by MSPB. The Federal Circuit agreed and stated that MSPB
must look for evidence that it was reasonable to believe that
the disclosures revealed misbehavior by the Air Force described
by 5 U.S.C. Sec. 2302(b)(8). The court said that the test is:
``Could a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the
employee reasonably conclude that the actions of the government
evidence gross mismanagement? A purely subjective perspective
of an employee is not sufficient even if shared by other
employees.'' \54\
---------------------------------------------------------------------------
\53\ Lachance v. White, 174 F. 3d 1378 (Fed. Cir. 1999).
\54\ Id. at 1381.
---------------------------------------------------------------------------
However, the court went further in holding that the
reasonableness review must begin with the--
presumption that public officers perform their duties
correctly, fairly, in good faith, and in accordance
with the law and governing regulations. * * * And this
presumption stands unless there is ``irrefragable
proof'' to the contrary.\55\
---------------------------------------------------------------------------
\55\ Id. at 1381 (quoting Alaska Airlines, Inc. v. Johnson, 8 F. 3d
791, 795 (Fed. Cir. 1993)).
By definition, irrefragable means impossible to refute.\56\
This imposes an impossible evidentiary burden on
whistleblowers, and there is nothing in the law or legislative
history that even suggests such a standard under the WPA.
---------------------------------------------------------------------------
\56\ Merriam-Webster's Collegiate Dictionary (10th ed. 1999).
---------------------------------------------------------------------------
To assure this misinterpretation does not happen again, S.
3070 provides that any presumption that a public employee
(i.e., the official whose misconduct the whistleblower is
disclosing) acted in good faith may be rebutted by
``substantial evidence.'' Substantial evidence has been defined
by the Supreme Court as ``such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.'' \57\ It consists of ``more than a mere scintilla
of evidence but may be somewhat less than a preponderance.''
\58\ By establishing a substantial evidence test, the Committee
intends to provide a standard that is consistent with the
legislative history of the Act and will protect whistleblowers
instead of creating a higher bar to protection as the Federal
Circuit did in Lachance v. White.
---------------------------------------------------------------------------
\57\ Richardson v. Perales, 402 U.S. 389, 401 (1971).
\58\ Hays v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990)
(quoting Laws v. Celebrezze, 368 F. 2d 640, 642 (4th Cir. 1966)).
---------------------------------------------------------------------------
All-circuit review
When the Civil Service Reform Act of 1978 was enacted, it
gave employees an option of where to appeal final orders of the
MSPB. The 1978 Act allowed a petition to be filed in either the
Court of Claims, the U.S. Court of Appeals for the circuit
where the petitioner resided, or the U.S. Court of Appeals for
the D.C. Circuit.\59\ In 1982, when the Federal Circuit was
created, Congress established that petitions for review of an
MSPB order could be filed with the Federal Circuit only.\60\
(An exception applies to cases of discrimination before the
MSPB, which are filed in district court under the applicable
anti-discrimination law.\61\)
---------------------------------------------------------------------------
\59\ Public Law No. 95-454, Sec. 205, 92 Stat. 1143 (Oct. 13, 1978)
(adding 5 U.S.C. Sec. 7703).
\60\ Public Law No. 97-164, Sec. 144 (April 2, 1982).
\61\ 5 U.S.C. Sec. Sec. 7702, 7703(b)(2).
---------------------------------------------------------------------------
Subject to a five year sunset, S. 3070 suspends the Federal
Circuit's exclusive jurisdiction over whistleblower appeals.
The Lachance v. White case is one in a long series of cases
decided by the Federal Circuit that have misinterpreted the
provisions of the WPA. Also, this bill represents the third
time Congress has had to clarify the language of the WPA to
overturn these misinterpretations. The five year period will
allow Congress to evaluate whether decisions of other appellate
courts in whistleblower cases are consistent with the Federal
Circuit's interpretation of WPA protections and guide
Congressional efforts to clarify the law if necessary.
A number of Federal statutes already allow cases involving
rights and protections of Federal employees, or involving
whistleblowers, to be subject to multi-circuit review, i.e.,
they may be appealed to Courts of Appeals across the country.
Decisions of the Federal Labor Relations Authority (FLRA) may
be appealed to Court of Appeals for the Circuit where the
petitioner resides or to the D.C. Circuit.\62\ In addition, in
cases involving allegations of discrimination, cases decided by
the MSPB may be brought in the United States District Courts.
State or local government employees affected by the MSPB's
Hatch Act decisions may also obtain review in the U.S. District
Courts.\63\ Appeal from decisions of the District Courts in
these cases may then be brought in the appropriate Court of
Appeals for the appropriate Circuit.
---------------------------------------------------------------------------
\62\ 5 U.S.C. Sec. 7123.
\63\ 5 U.S.C. Sec. 1508.
---------------------------------------------------------------------------
Moreover, a multi-circuit appellate review process of
whistleblower claims already exists in many cases.
Under the False Claims Act, as amended in 1986,
whistleblowers who disclose fraud in government contracts can
file a case in District Court and appeal to the appropriate
Federal Court of Appeals.\64\
---------------------------------------------------------------------------
\64\ 31 U.S.C. Sec. 3730(h).
---------------------------------------------------------------------------
Congress passed the Resolution Trust Corporation
Completion Act in 1993, which provided employees of banking
related agencies the right to go to District Court and have
regular avenues of appeal.\65\
---------------------------------------------------------------------------
\65\ 12 U.S.C. Sec. 1441a(q).
---------------------------------------------------------------------------
In 1991, Congress passed the Federal Deposit
Insurance Corporation Improvement Act which provides district
court review with regular avenues of appeal for whistleblowers
in federal credit unions.\66\
---------------------------------------------------------------------------
\66\ 12 U.S.C. Sec. 1790b(b).
---------------------------------------------------------------------------
Department of Labor corporate whistleblower laws
passed as part of the Energy Reorganization Act, as amended in
1992,\67\ and the Clean Air Act, as amended in 1977,\68\ allow
whistleblowers to obtain review of orders issued in the
Department of Labor administrative process in the appropriate
Federal Court of Appeals.
---------------------------------------------------------------------------
\67\ 42 U.S.C. Sec. 5851(c).
\68\ 42 U.S.C. Sec. 7622(c).
---------------------------------------------------------------------------
The Wendell H. Ford Aviation Investment and Reform
Act for the 21st Century (AIR 21),\69\ passed in 2000, allows
whistleblowers to obtain review of their cases in the
appropriate Federal Court of Appeals.
---------------------------------------------------------------------------
\69\ 49 U.S.C. Sec. 42121(b)(4).
---------------------------------------------------------------------------
Accordingly, subject to the five year sunset, the bill
amends 5 U.S.C. Sec. 7703 to provide that a petition to review
a final order or final decision of the MSPB may be filed in the
United States Court of Appeals for the Federal Circuit or the
U.S. Court of Appeals for the circuit where the petitioner
resides.
Office of Special Counsel--Litigating authority and right to seek
review
The bill would grant OSC authority to represent itself in
court through its own lawyers and to seek judicial review of
MSPB decisions in certain situations if the case will have an
impact on the enforcement of the whistleblower statute. Senator
Akaka explained:
The measure also provides the Special Counsel with
greater litigating authority for merit system
principles that the office is responsible to protect.
Under current law, the OSC plays a central role as
public prosecutor in cases before the MSPB, but cannot
choose to defend the merit system in court. Our
legislation recognizes that providing the Special
Counsel this authority to seek such review, in
precedential cases, is crucial to ensuring the
promotion of the public interest furthered by these
statutes.\70\
---------------------------------------------------------------------------
\70\ 147 Cong. Rec. S5971 (daily ed. June 7, 2001) (Statement of
Senator Akaka upon introduction of S. 995).
The OSC, initially established in 1979 as the investigative
and prosecutorial arm of the MSPB, became an independent agency
within the Executive Branch, separate from the MSPB, with
passage of the WPA in 1989. The Special Counsel does not serve
at the President's pleasure, but ``may be removed by the
President only for inefficiency, neglect of duty, or
malfeasance in office.'' \71\ The primary mission of OSC is to
protect federal employees and applicants from prohibited
employment practices, with a particular focus on protecting
whistleblowers from retaliation. OSC accomplishes this mission
by investigating complaints filed by federal employees and
applicants that allege that federal officials have committed
prohibited personnel practices.
---------------------------------------------------------------------------
\71\ 5 U.S.C. Sec. 1211(b).
---------------------------------------------------------------------------
When such a claim is filed by a federal employee, OSC
investigates the allegation to determine whether there are
reasonable grounds to believe that a prohibited personnel
practice has occurred. If the Special Counsel determines there
are reasonable grounds to believe that a prohibited personnel
practice has occurred, a report is sent to the head of the
employing agency, outlining OSC's findings and requesting that
the agency remedy the illegal action. In the majority of cases
in which the Special Counsel has found a violation, the
agencies voluntarily take corrective action. If an agency does
not do so, OSC is authorized to file a petition for corrective
action with the MSPB.\72\
---------------------------------------------------------------------------
\72\ 5 U.S.C. Sec. 1214(b)(2)(C).
---------------------------------------------------------------------------
If the OSC does not send the whistleblower's disclosures to
an agency head, it returns the information and any accompanying
documents to the whistleblower explaining why the Special
Counsel did not refer the information. In such a situation, the
whistleblower may file a request for corrective action with the
MSPB. This procedure is commonly known as an individual right
of action (IRA). At proceedings before the MSPB, OSC is
represented by its own attorneys while the employing agency is
represented by the agency's counsel. In IRAs, OSC may not
intervene unless it has the consent of the whistleblower.
Under this system, however, OSC's ability to effectively
enforce and defend whistleblower laws is limited. For example,
the law provides the OSC with no authority to request that the
MSPB reconsider its decision or to seek review of an MSPB
decision by the Federal Circuit. Even when another party with
authority to petition for a review of a MSPB decision does so,
OSC has historically been denied the right to participate in
those proceedings. Further, OPM, which typically is not a party
to the case, can request that the MSPB reconsider its rulings,
while OSC cannot. The problem with OSC's effectiveness is
exacerbated since the majority of the MSPB's decisions arise in
IRA cases where OSC is not a party. S. 3070 would remedy this
situation by providing explicit authority for OSC to
participate in such matters.
Furthermore, the Department of Justice (DOJ) has recognized
OSC's right to appear as an intervenor only in those few cases
where OSC was a party before the Board and the case reaches the
court of appeals on another party's petition for review. These
cases usually involve agency officials' efforts to reverse
Board decisions that have granted a petition by OSC to impose
discipline for retaliating against a whistleblower. Because OSC
lacks independent litigating authority, it must be represented
by the Justice Department, rather than its own attorneys in
such cases. DOJ's representation of an independent agency like
OSC is a significant impediment to the effective enforcement of
the WPA because DOJ routinely represents employing agencies and
their officers or OPM on appeal in IRA cases. Indeed, DOJ
itself could be the respondent in such cases.
On July 25, 2001, the Subcommittee on International
Security, Proliferation and Federal Services held a hearing on
S. 995. DOJ submitted testimony opposing provisions that would
grant OSC the authority to represent itself in litigation and
to prosecute appeals. DOJ argued that granting independent
litigating authority would ``erode centralized control over
personnel litigation.'' According to DOJ's testimony, such
centralized control furthers the goals of enabling the
government to present uniform legal positions, providing for
``objective'' litigation by attorneys unaffected by a single
agency's concerns, and ``the facilitation of presidential
supervision over Executive Branch policies.'' Authorizing OSC
to prosecute appeals, according to the testimony, ``would
disrupt this carefully crafted scheme'' under which the various
appeal rights, if any, of employees, agencies, the Office of
Personnel Management, and OSC are carefully delineated.
``Moreover,'' argued the DOJ, granting independent litigating
authority ``could result in the Special Counsel litigating
against other Executive Branch agencies.'' \73\
---------------------------------------------------------------------------
\73\ S. 955--Whistleblower Protection Act Amendments: Hearing on S.
995 Before the Subcommittee on International Security, Proliferation,
and Federal Services of the Committee on Governmental Affairs, S. Hrg.
107-160 (2001).
---------------------------------------------------------------------------
On balance, however, granting OSC these additional
litigation authorities is justified. For example, in several
kinds of cases that arise under the civil service laws, it is
routine for there to be more than one government party in the
federal courts. Both the MSPB \74\ and the FLRA \75\ possess
the authority to represent themselves in the courts of appeals,
often against other federal agencies that are represented by
the Justice Department.
---------------------------------------------------------------------------
\74\ 5 U.S.C. Sec. Sec. 1201-1206.
\75\ 5 U.S.C. Sec. Sec. 7104 and 7105(d)-(e).
---------------------------------------------------------------------------
Further, the OSC, like the MSPB and the FLRA, occupies a
unique role in the Executive Branch because part of its job is
to police other federal agencies' compliance with the civil
service laws. Even under current law, OSC's mission routinely
requires it to take positions adverse to other federal
government agencies, albeit before an administrative agency,
the MSPB. Denying OSC independent litigating authority in the
context of the civil service scheme creates an exception to
what is otherwise the rule, under which DOJ provides
representation to employing agencies defending themselves
against the independent litigating agencies (the FLRA, the
MSPB) who are represented by their own counsel.
Without independent litigating authority, OSC is blocked
from participating in the forum in which the law is largely
shaped: the U.S. Court of Appeals for the Federal Circuit (and,
if this legislation were passed, the other Circuits). Should
the OSC conclude that MSPB misinterprets one of the laws within
OSC's jurisdiction, the OSC has no right to appeal that
decision, even if it was a party before the MSPB. The
limitation undermines both OSC's ability to protect
whistleblowers and the integrity of the whistleblower law.
Precedent exists for independent litigating authority for
independent agencies. In the area of employment law, both the
Equal Employment Opportunity Commission \76\ and the National
Labor Relations Board,\77\ in addition to the MSPB and the
FLRA, have such authority. OSC itself has the authority to
appear before the Court of Appeals and represent complainants
alleging that the MSPB has wrongfully rejected their complaints
under the Uniformed Services Employment Restoration Rights Act
(USERRA).\78\
---------------------------------------------------------------------------
\76\ 42 U.S.C. Sec. Sec. 2000e-4, 2000e-5(f)(2).
\77\ 29 U.S.C. Sec. Sec. 154(a) and 160(e).
\78\ 38 U.S.C. Sec. 4324(d)(2).
---------------------------------------------------------------------------
For these reasons, S. 3070 provides explicit authority for
the Special Counsel to appear, through attorneys that he or she
may designate, in any civil action brought in connection with
the WPA. In addition, the bill provides OSC the authority to
obtain court review of any MSPB order in a whistleblowing case
if the OSC determines the Board erred and the case will have an
impact on the enforcement of the whistleblower statute.
According to Special Counsel Elaine Kaplan, these changes are
``necessary, not only to ensure OSC's effectiveness, but to
address continuing concerns about the whittling away of the
WPA's protections by narrow judicial interpretations of the
law.'' \79\
---------------------------------------------------------------------------
\79\ Letter from Elaine Kaplan, Special Counsel, Office of Special
Counsel, to Senator Carl Levin, (Sept. 11, 2002).
---------------------------------------------------------------------------
Burden of proof in OSC disciplinary actions
Current law authorizes the OSC to pursue disciplinary
action against managers who retaliate against whistleblowers.
More generally, if the Special Counsel determines that
disciplinary action should be taken against an employee for
having committed a prohibited personnel practice or other
misconduct within OSC's purview, the Special Counsel shall
present a written complaint to the MSPB, and then the Board may
issue an order taking disciplinary action against the
employee.\80\
---------------------------------------------------------------------------
\80\ 5 U.S.C. Sec. 1215.
---------------------------------------------------------------------------
However, under MSPB case law, OSC bears the burden of
demonstrating that protected activity was the ``but-for cause''
of an adverse personnel action against a whistleblower--in
other words, if the whistleblowing activity had not occurred,
then that manager would not have taken the adverse personnel
action.\81\ This is a heavy burden to meet. In 1989, Congress
had lowered the burden of proof for whistleblowers to win
corrective action when they were retaliated against. The 1989
Act eliminated the relevance of employer motives, eased the
standard to establish a prima facie case (showing that the
protected speech was a contributing factor in the action), and
reversed the burden for agencies who must now provide
independent justification for the personnel action at issue by
clear and convincing evidence.\82\ However, the 1989 statutory
language only established burdens for defending against
retaliation. It failed to address disciplinary actions. As a
result, the Board has on many occasions ruled that
whistleblower reprisal had been proven for purposes of
providing relief to the employees, but rejected OSC's claim for
disciplinary action against the managers in the same case.
---------------------------------------------------------------------------
\81\ Special Counsel v. Santella, 65 M.S.P.R. 452 (1994).
\82\ 5 U.S.C. Sec. Sec. 1214 and 1221. See also 135 Cong. Rec.
4509, 4517, 5033 (1989).
---------------------------------------------------------------------------
The Special Counsel has written that MSPB case law relating
to OSC's disciplinary authority should be overturned. She
explained: ``change is necessary in order to ensure that the
burden of proof in these [disciplinary] cases is not so onerous
as to make it virtually impossible to secure disciplinary
action against retaliators.'' \83\
---------------------------------------------------------------------------
\83\ Kaplan, supra note 79.
---------------------------------------------------------------------------
The bill addresses the burden of proof problem in OSC
disciplinary action cases by employing the same burden-of-proof
as was set forth by the Supreme Court in Mt. Healthy v.
Doyle.\84\ Under the Mt. Healthy test, if it were made
applicable in a disciplinary case, OSC would have to show that
protected whistleblowing was a ``significant, motivating
factor'' in the decision to take or threaten to take a
personnel action. If OSC made such a showing, the MSPB would
order appropriate discipline unless the official showed, ``by a
preponderance of evidence,'' that he or she would have taken or
threatened to take the same personnel action even if there had
been no protected whistleblower disclosure.
---------------------------------------------------------------------------
\84\ Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977).
---------------------------------------------------------------------------
Other provisions
Anti-gag provisions
In 1988, Senator Grassley attached an appropriations rider
to the Treasury, Postal and General Government bill, which has
been referred to as the ``anti-gag'' provision. This provision
has been included in spending legislation every year since
then. The annual anti-gag provision states that no appropriated
funds may be used to implement or enforce agency non-disclosure
policies or agreements unless there is a specific, express
statement informing employees that the disclosure restrictions
do not override their right to disclose waste, fraud, and abuse
under the WPA, to communicate with Congress under the Lloyd
Lafollette Act, and to make appropriate disclosures under other
particular laws specified in the addendum. This bill would
institutionalize the anti-gag provision by codifying it and
making it enforceable.
Specifically, S. 3070 would require that every
``nondisclosure policy, form, or agreement of the Government
shall contain'' the specific addendum set forth in the
legislation informing employees of their rights. A
nondisclosure policy, form or agreement that does not contain
the required statement ``may not be implemented or enforced to
the extent * * * inconsistent with that statement.''
Furthermore, the bill makes it a prohibited personnel
practice for any manager to ``implement or enforce any
nondisclosure policy, form, or agreement'' that does not
contain the specific statement mandated in the bill. Making it
a prohibited personnel practice means that the anti-gag
requirement is enforceable by the OSC and the MSPB, and any
employee can seek protection from these agencies against a
personnel action taken in violation of the anti-gag
requirement.
Board review of actions relating to security clearance
At the Subcommittee's hearing on S. 955, Senator Grassley
testified about his concern that a whistleblower's security
clearance can be used as a means of retaliation. He stated:
I am aware of several instances where a
whistleblower's security clearance has been pulled as a
means of retaliation. The pulling of a security
clearance effectively fires employees. A whistleblower
does not have rights to a third-party proceeding in
these instances. I think this matter needs to be
reviewed and it should be possible to find a balance
between the legitimate security concerns of the
government and ensuring that pulling a security
clearance is not used as a back door to get
whistleblowers.\85\
---------------------------------------------------------------------------
\85\ Hearing, supra note 73.
In 2000, the Federal Circuit held that the MSPB lacks
jurisdiction over an employee's claim that his security
clearance was revoked in retaliation for whistleblowing.\86\ It
held that the MSPB may neither review a security clearance
determination nor require the grant or reinstatement of a
clearance, and that the denial or revocation of a clearance is
not a personnel action.
---------------------------------------------------------------------------
\86\ Hesse v. State, 217 F. 3d 1372 (Fed. Cir. 2000).
---------------------------------------------------------------------------
As a result of this decision, an employee's security
clearance can be suspended or revoked in retaliation for making
protected disclosures, the employee with a suspended or revoked
clearance can be terminated from his or her federal government
job, and MSPB may not review the revocation. According to the
OSC, revocation of a security clearance is a way to camouflage
retaliation. At the hearing on S. 955, Senator Levin asked the
Special Counsel about ``a situation where a federal employee
can blow the whistle on waste, fraud or abuse, and then, in
retaliation for so doing, have his or her security clearance
withdrawn and then be fired because he or she no longer has a
security clearance.'' The Special Counsel, as part of her
response, said:
It is sort of Kafkaesque. If you are complaining
about being fired, and then one can go back and say,
``Well, you are fired because you do not have your
security clearance and we cannot look at why you do not
have your security clearance,'' it can be a basis for
camouflaging retaliation.\87\
---------------------------------------------------------------------------
\87\ Hearing, supra note 73, at 24 (testimony of Hon. Elaine
Kaplan).
To address this situation, S. 3070 makes it a prohibited
personnel practice for a manager to suspend, revoke or take
other action with respect to an employee's security clearance
in retaliation for the employee blowing the whistle. The bill
specifies that the MSPB, or a reviewing court, may issue
declaratory and other appropriate relief. But the legislation
is clear that the MSPB or a reviewing court may not direct the
President to restore a security clearance.
Appropriate relief may include back pay, an order to
reassign the employee, attorney fees, and any other relief the
Board or court is authorized to provide for other prohibited
personnel practices. In addition, if the Board finds the action
illegal, it may bar the agency from directly or indirectly
taking any other personnel action based on the illegal security
clearance action. The bill also requires agencies to issue a
report to Congress detailing the circumstances of the agency's
security clearance decision and provides for expedited review
of whistleblower cases by the OSC, the MSPB and the reviewing
court where a security clearance was revoked or suspended. The
latter is important because a person whose clearance has been
suspended or revoked, and whose job responsibilities require
clearance, may be unable to work while his or her case is being
considered.
In drafting this provision, the Committee has worked with
the Administration to produce a fair and balanced approach to
solving this problem. Despite the Committee's efforts, the
Administration still has some concerns over this provision. In
particular, the Administration asserts that this provision is a
substantial intrusion into Executive Branch prerogatives to
control national security information and those who have access
to it. It is important to note, however, that in Department of
Navy v. Egan, the Supreme Court, while expressing a reluctance
to intrude on its own initiative upon military and national
security affairs, explicitly acknowledged the role of the
Congress in national security issues, stating that ``unless
Congress has specifically provided otherwise, courts
traditionally have been reluctant to intrude upon the authority
of the Executive in military and national security affairs.''
\88\
---------------------------------------------------------------------------
\88\ Dept. of Navy v. Egan, 484 U.S. 518, 530 (1988) (citations
omitted).
---------------------------------------------------------------------------
The Administration has also averred that inclusion of this
protection would induce more employees to challenge and
litigate security clearance determinations and, as a result,
will deter managers from making their best judgments on these
sensitive issues.
The Committee, however, believes that the language in this
provision strikes the right balance and would not chill a
manager's willingness to deny or revoke a clearance. It bears
repeating that, under this bill, the Executive Branch retains
the authority to ignore the MSPB's recommendations--there is no
authority under this bill to direct that a security clearance
be restored.
The Administration has also claimed that MSPB has no
expertise in making decisions on clearances. However, under
this bill, the MSPB would not be making decisions relative to
clearances. Rather, the decisions would relate to whether a
disclosure is protected and whether there exists the proper
nexus between the disclosure and the personnel action of
denying or revoking a clearance. Such a determination is
analogous to MSPB's current duties and is squarely within its
expertise. For this reason, the provision is also consistent
with U.S. Supreme Court precedent in Department of Navy v.
Egan, which held that the Board does not have statutory
authority to review the substance of an underlying security-
clearance determination in the course of reviewing an adverse
action, and that such review cannot be presumed merely because
the statute does not expressly preclude it.\89\
---------------------------------------------------------------------------
\89\ Id.
---------------------------------------------------------------------------
Compensatory damages
When the Board imposes corrective action, the statute now
expressly authorizes ``reimbursement * * * for reasonable and
foreseeable consequential damages,'' but it does not make
express reference to ``compensatory damages.'' \90\ The 1978
Civil Service Reform Act gives the Board broad authority to
impose appropriate corrective action, but the law does not
specify traditional terms such as compensatory damages, which
are explicit in equivalent civil rights remedial statutes
providing ``make whole'' relief.\91\ This was not a particular
problem, because the 1978 legislative history made clear the
statute provides for a comprehensive ``make whole'' remedy: A
prevailing employee is entitled ``to be made whole for any of
the losses found to have been suffered by the employee.'' \92\
The Board also reaffirmed its authority to order that an
employee be ``made whole'' for any damages incurred as a result
of a prohibited personnel practice.\93\
---------------------------------------------------------------------------
\90\ 5 U.S.C. Sec. 1214(g).
\91\ See, e.g., 42 U.S.C. Sec. 1981a.
\92\ S. Rep. No. 95-969, at 114-15 (1978), reprinted in 1978 USCCAN
2723, 2837.
\93\ In re Frazier, 1 M.S.P.R. 259, 268 and n.4 (1979) (stating
``Clearly, the Board ultimately has the power under its broad
corrective action authority to order a federal employee made whole if
it is found on appeal that the employee has been subject to a
prohibited personnel practice. See 5 U.S.C. Sec. 1206(c)(1)(B)).
---------------------------------------------------------------------------
A dispute arose, however, concerning litigation costs for
prevailing appellants. The Federal Circuit and Board permitted
reimbursement for items like attorney time and photocopying,
but not deposition transcript costs, printing costs and witness
fees. In addition, reimbursement for telephone charges for
witnesses depended on whether the attorney or the client made
the call.\94\ In the 1994 amendments, Congress sought to close
remaining loopholes and provide relief for ``back pay and
related benefits, medical costs incurred, travel expenses, and
any other reasonable and foreseeable consequential changes.''
\95\ The legislative history for this provision again stressed
that employees are to be made whole. During debate over the
1994 amendments, Congressman Frank McCloskey said that ``the
expanded provisions for consequential damages and attorney fees
are intended to provide a realistic expectation that employees
who prevail will recover their costs, the same as if a merit
system reprisal had not occurred. Too many employees who win
their cases find their victories to be pyrrhic.'' \96\ In
addition, the Senate Report accompanying the 1994 amendments
stated that ``the Board [could] order corrective action [to]
make, as nearly as possible, the individual whole.'' \97\
Despite Congressional intent, MSPB and the Federal Circuit have
narrowed the scope of relief--finding that nonpecuniary
damages, such as pain and suffering or emotional distress are
not included.\98\ However, compensatory damages are already
authorized for federal employees under the civil rights acts
\99\ and for environmental and nuclear whistleblowers, among
others, under other federal statutes.\100\ Accordingly, the
bill would clarify that whistleblowers are eligible to receive
``compensatory'' damages, as well as the consequential damages
that are already stated in the statute.
---------------------------------------------------------------------------
\94\ See Bennett v. Dept of Navy, 699 F.2d 1140 (Fed. Cir. 1983);
O'Donnell v. Dept. of Interior, 2 M.S.P.R. 445 (1980); and Wiatr v.
Dept. of Air Force, 50 M.S.P.R. 441 (1991).
\95\ 5 U.S.C. Sec. 1221(g)(1)(A)(ii).
\96\ 140 Cong. Rec. H11421 (daily ed. Oct. 7, 1994).
\97\ S. Rep. No. 103-358, at 11 (1994).
\98\ Kinney v. Dept. of Agriculture, 82 M.S.P.R. 338 (1999). See
also Bohac v. Dept. of Agriculture, No. 99-3306 (Fed. Cir. 2001).
\99\ See the Civil Rights Act of 1991 42 U.S.C. Sec. 1981a;
Fitzgerald v. VA, 121 F.3d 203, 207 (5th Cir. 1997); Martin v.
Department of Air Force, 73 M.S.P.R. 590, 594-96 (1997); Callagan v.
Dept. of Agriculture, 74 M.S.P.R. 4, 6 (1997).
\100\ See the Clean Air Act, 42 U.S.C. Sec. 7622(b)(2)(B); Safe
Drinking Water Act, 42 U.S.C. Sec. 300j-9(ii); and Toxic Substances
Control Act, 15 U.S.C. Sec. 2622(b)(2)(B).
---------------------------------------------------------------------------
Classified disclosures to Congress
The bill amends 5 U.S.C. Sec. 2302(b)(8) to provide
whistleblower protections for certain disclosures of classified
information to Congress. A whistleblower must limit the
disclosure to a member of Congress who is authorized to receive
the information disclosed or congressional staff who holds the
appropriate security clearance and is authorized to receive the
information disclosed. In order for a disclosure of classified
information to be protected, the employee must possess a
reasonable belief that the disclosure is direct and specific
evidence of a violation of law, rule or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, a
substantial and specific danger to public health or safety, or
a false statement to Congress on an issue of material fact.
The language in this bill is very similar to a provision
ordered reported by the Senate Armed Services Committee in 1997
as section 1068 of S. 924, the National Defense Authorization
bill for FY 1998. In 1998, another similar measure, containing
provisions affecting the Intelligence Community, was reported
by the Intelligence Committee and passed the Senate by a vote
of 93 to 1, as section 501 of S. 2052, the Intelligence
Authorization bill for FY 1999. The Senate provision was not
contained in the enacted legislation, which instead
incorporated a modified version of provisions that passed the
House. Those enacted provisions established a secure process by
which a whistleblower in the Intelligence Community intending
to disclose wrongdoing to Congress may initially report to the
appropriate inspector general, and then, if the information is
not transmitted to the Intelligence Committees through that
process, may contact the Intelligence Committees directly.\101\
The conferees explained that this measure ``establishes an
additional process to accommodate the disclosure of classified
information of interest to Congress,'' and emphasized that the
new provision ``is not the exclusive process by which an
Intelligence Community employee may make a report to
Congress.'' \102\
---------------------------------------------------------------------------
\101\ Intelligence Authorization Act for FY 1999, Pub. L. No. 105-
272, title VII (1998) (``Intelligence Community Whistleblower
Protection Act of 1998'').
\102\ H.R. Rep. No. 105-760 (1998) (emphasis added).
---------------------------------------------------------------------------
The Senate Intelligence Committee had held hearings and
reported out legislation in 1998 containing these same
provisions, S. 1668. In its report, the Intelligence Committee
described its consideration of constitutional and other
ramifications of the legislation. That Committee was persuaded
that the regulation of national security information, while
implicit in the command authority of the President, is equally
implicit in the national security and foreign affairs
authorities vested in Congress by the Constitution. The
Intelligence Committee was further persuaded that the provision
was constitutional because it did not prevent the President
from accomplishing his constitutionally assigned functions, and
because any intrusion upon his authority is justified by an
overriding need to promote objectives within the constitutional
authority of Congress.\103\
---------------------------------------------------------------------------
\103\ S. Rep. No. 105-165 (1998).
---------------------------------------------------------------------------
The provision in S. 3070 is intended to ensure that
Congress receives the information necessary to fulfill its
constitutional oversight responsibilities, while protecting
employees from adverse actions based on what was considered an
unauthorized disclosure to Congress, and also retaining
appropriate security-related restrictions in defining the
individuals to whom classified information may be disclosed.
Ex post facto agency loophole amendment
The WPA provides that certain employees and agencies are
exempt from the Act. Employees excluded from the Act include
those in positions exempted from the competitive service
because of their confidential, policy-determining, policy-
making, or policy advocating character and those employees
excluded by the President if necessary and warranted by
conditions of good administration.\104\ Certain agencies are
also excluded from the Act. They include the General Accounting
Office, the Federal Bureau of Investigation the Central
Intelligence Agency, the National Security Agency, and other
agencies determined by the President to have the principal
function of conducting foreign intelligence or
counterintelligence activities.\105\
---------------------------------------------------------------------------
\104\ 5 U.S.C. Sec. 2302(a)(2)(B).
\105\ Id.
---------------------------------------------------------------------------
In 1994 Congress amended the WPA to block agencies from
designating particular positions as confidential policymaker
exceptions after the employees filed prohibited personnel
practice complaints. As a result, Congress restricted this
jurisdictional loophole to positions designated as exceptions
``prior to the personnel action.'' \106\ Unfortunately, a
similar practice has occurred again, in a context with far
broader consequences. An agency was exempted from the Act over
a year into whistleblower litigation, and only after the Board
had overturned an Administrative Judge's decision to order a
hearing.\107\ S. 3070 would close the loophole for agencies in
the same manner as Congress did for positions in 1994, by
specifying that an agency may be excluded under the Act only
prior to the personnel action taking place.
---------------------------------------------------------------------------
\106\ Id.
\107\ See Czarkowski v. Dept. of Navy, Docket No. DC-1221-99-0547-
B-1. The agency invoked the exemption after the Board rejected an
earlier effort to avoid litigation on a different basis and ordered a
hearing, Czarkowski v. Dept. of the Navy, 87 M.S.P.R. 107 (2000).
---------------------------------------------------------------------------
III. Legislative History
S. 3070 was introduced by Senator Daniel Akaka and Senator
Carl Levin on October 8, 2002, and was referred to the
Committee on Governmental Affairs. The bill builds on
provisions of S. 2829, which was introduced by Senator Akaka on
July 31, 2002, to reauthorize appropriations for the MSPB and
OSC and make changes to the WPA, and of S. 995, which was
introduced by Senators Akaka, Levin, and Grassley on June 7,
2001, to make amendments to the WPA. S. 2829 and S. 995 were
referred to the Subcommittee on International Security,
Proliferation and Federal Services. A hearing on S. 995 was
held before the Subcommittee on July 25, 2001. The witnesses
included Senator Grassley, Special Counsel Elaine Kaplan, Merit
Systems Protection Board Chair Beth Slavet, and Thomas Devine
of the Government Accountability Project. The Department of
Justice was invited to testify, but declined. Written testimony
was submitted by the Department.
On September 23, 2002, representatives from the MSPB and
OSC met with Governmental Affairs Committee staff to discuss
the reauthorization of OSC and MSPB. Tim Hannapel, Deputy
Special Counsel, and Jane McFarland, Director of Congressional
and Public Affairs, represented the OSC. MSPB was represented
by Chief of Staff Richard Banchoff, General Counsel Lynn
Jennings, Legislative Counsel Rosalyn Wilcots, Budget Officer
Doug Wade, and Steve Nelson, the Director of the Office of
Policy and Evaluation.
On October 8, 2002, the Subcommittee on International
Security, Proliferation, and Federal Services favorably polled
out the language of S. 3070. On October 9, 2002, the Committee
met in open session and ordered favorably reported the bill, S.
3070, without amendment unanimously by rollcall vote. Present
and voting in the affirmative were Senators Akaka, Levin,
Durbin, Torricelli, Cleland, Carnahan, Carper, Dayton, and
Lieberman.
IV. Regulatory Impact Statement
Paragraph 11(b)(1) of rule XXVI of the Standing Rules of
the Senate requires that each report accompanying a bill
evaluate the ``regulatory impact which would be incurred in
carrying out this bill.'' The Committee has determined that the
enactment of this legislation will not have significant
regulatory impact.
V. Congressional Budget Office Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and with section 403 of the
Congressional Budget Act of 1974, 2 U.S.C. Sec. 653, the
Committee sets forth the following cost estimate with respect
to S. 3070 submitted to the Committee by the Congressional
Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 18, 2002.
Hon. Joseph I. Lieberman,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3070, a bill to
authorize appropriations for the Merit Systems Protection Board
and the Office of Special Counsel, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 3070--A bill to authorize appropriations for the Merit Systems
Protection Board and the Office of Special Counsel, and for
other purposes
Summary: S. 3070 would authorize appropriations for the
Merit Systems Protection Board (MSPB) and the Office of Special
Counsel (OSC) for fiscal years 2003 through 2007. The bill also
would make several amendments to the laws governing the MSPB
and the OSC and would clarify the employment protections and
rules that apply to employees who disclose government waste,
fraud, and abuse.
Based on the amounts appropriated for these agencies in
2002 and assuming adjustments for anticipated inflation, CBO
estimates that implementing this legislation would cost $242
million over the 2003-2007 period. Enacting S. 3070 would not
affect direct spending or revenues. The bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would not affect the
budgets of state, local, or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 3070 is shown in the following table.
The costs of this legislation fall within budget function 800
(general government).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2003 2004 2005 2006 2007
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION \1\
Merit Systems Protection Board:
Estimated Authorization Level.................................. 32 33 34 34 37
Estimated Outlays.............................................. 31 31 33 34 36
Office of Special Counsel:
Estimated Authorization Level.................................. 12 13 13 14 14
Estimated Outlays.............................................. 12 13 13 14 14
Compensatory Damage Awards:
Estimated Authorization Level.................................. 1 2 2 2 2
Estimated Outlays.............................................. 1 2 2 2 2
Total Changes:
Estimated Authorization Level.................................. 45 48 49 50 53
Estimated Outlays.............................................. 44 48 48 50 52
----------------------------------------------------------------------------------------------------------------
\1\ A full-year appropriation has not yet been enacted for the MSPB and the OSC. In fiscal year 2002, MSPB
received an appropriation of $31 million and OSC received an appropriation of $12 million.
Basis of Estimate: For this estimate, CBO assumes that the
bill will be enacted in fiscal year 2003 and that the amounts
necessary to operate the MSPB and OSC at the same level
provided in 2002 will be appropriated for each fiscal year,
including adjustments for anticipated inflation. Outlay
estimates are based on historical spending patterns for the
agencies.
When implementing corrective actions to settle an
employment dispute between the federal government and its
employees regarding prohibited personnel practices, federal
agencies are required to spend appropriated funds to pay for an
employee's attorney's fees, back pay, and any associated travel
and medical costs. Under S. 3070, federal employees would be
authorized to receive additional compensatory damages,
including pain and suffering, for employment disputes brought
under the Whistleblower Protection Act.
CBO cannot estimate the cost of compensatory damage awards
in such cases because the amount awarded would depend on the
particular circumstances of each case and the frequency of
cases involving such damages. The OSC is involved in settling
an average of 75 disputes under the Whistleblower Protection
Act each year. Settlement amounts range from about $20,000 to
$200,000. While it is uncertain how often compensatory damages
would be awarded in such cases, the OSC expects such awards
could more than double the cost of some settlements. Hence, CBO
expects this provision would add a few million dollars each
year to the cost of agency settlements, which are paid from
individual agency appropriations.
Intergovernmental and private-sector impact: The bill
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal Costs: Matthew Pickford;
Impact on State, Local, and Tribal Governments: Susan Sieg
Tompkins; and Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
VI. Section-by-Section Analysis and Discussion
SECTION 1
Reauthorizes appropriations for the Office of Special
Counsel and the Merit Systems Protection Board through fiscal
year 2007.
SECTION 2
Removes the requirement for OSC to return all documents to
the whistleblower in all disclosure cases that are closed
without referral to an agency head. OSC currently devotes 85
hours of monthly full-time-equivalent employee time to meet
this statutory requirement which could otherwise be devoted to
processing. In addition, OSC spends almost $5,000 a year on
paper and mailing costs associated with the requirement. Added
to the salary costs, this provision would save more than
$20,000 annually. OSC would still be required to return all
documentation provided by the whistleblower, if requested,
under the Freedom of Information Act.
SECTION 3
Clarification of disclosures covered
The bill reaffirms and codifies the WPA's fundamental
principle that ``any'' lawful disclosure that the employee or
applicant reasonably believes is credible evidence of waste,
fraud, abuse, or gross mismanagement is covered by the WPA. The
bill amends 5 U.S.C. Sec. Sec. 2302(b)(8)(A) and 2302(b)(8)(B)
to cover any disclosure of information ``without restriction to
time, place, form, motive or context, or prior disclosure made
to any person by an employee or applicant, including a
disclosure made in the ordinary course of an employee's duties
that the employee or applicant reasonably believes is credible
evidence of any violation of any law, rule, or regulation, or
other misconduct specified in section 2302(b)(8).''
This section also amends 5 U.S.C. Sec. 2302(b)(8) to
subject certain disclosures of classified information to
whistleblower protections. In order for a disclosure of
classified information to be protected, the employee must
possess a reasonable belief that the disclosure is evidence of
a violation of law, rule or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, a substantial and
specific danger to public health or safety, or a false
statement to Congress on an issue of material fact. A
whistleblower must also limit the disclosure to a member of
Congress or staff holding the appropriate security clearance
who is authorized to receive the information disclosed.
Covered disclosures
This section clarifies the meaning of ``disclosure'' to
mean a formal or informal communication or transmission.
Rebuttable presumption
The U.S. Court of Appeals for the Federal Circuit has
imposed a clearly erroneous standard on federal whistleblowers.
Under the clear language of the statute, an employee need only
have ``a reasonable belief'' that he or she is providing
evidence of fraud, waste or abuse before making a protected
disclosure. However, the Court of Appeals for the Federal
Circuit ruled that reasonable belief was insufficient and held
that ``irrefragable proof'' was needed for a whistleblower to
overcome the ``presumption that a public officer performed
their duties correctly, fairly, in good faith, and in
accordance with the law and governing regulations.'' \108\
Irrefragable means ``undeniable, incontestable,
incontrovertible, incapable of being overthrown.'' The
irrefragable standard is nearly impossible to meet. Further,
there is nothing in the law or the legislative history that
suggests such a standard with respect to the WPA. The amendment
to 2302(b) provides that a whistleblower can rebut the
presumption with ``substantial evidence.''
---------------------------------------------------------------------------
\108\ Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999).
---------------------------------------------------------------------------
Nondisclosure policies, security clearances, and retaliatory
investigations
Personnel actions
This section amends 5 U.S.C. Sec. 2302(a)(2)(A) to add
three new personnel actions. The amendment makes--
the enforcement of any nondisclosure policy, form or
agreement; the suspension, revocation, or other
determination relating to a security clearance; and an
investigation of an employee or applicant for
employment--
illegal if taken because a whistleblower makes a protected
disclosure.
Prohibited personnel practice
This section amends 2302(b), adding two prohibited
personnel practices to the whistleblower law. Congress
repeatedly has reaffirmed its intent that employees should not
be forced to sign disclosure agreements or be subjected to
nondisclosure rules or policies that supercede an employee's
rights under good government statutes. Moreover, Congress has
consistently supported the concept that federal employees
should not be subject to prior restraint from disclosing
wrongdoing nor suffer retaliation for speaking out. This
section first codifies an ``anti-gag'' provision that Congress
has passed annually since 1988 as part of the appropriations
process. It bans agencies from implementing or enforcing any
nondisclosure policy, form or agreement that does not contain
specified language preserving open government statutes such as
the WPA, the Military Whistleblower Protection Act, and the
Lloyd Lafollette Act, which prohibits discrimination against
government employees who communicate with Congress.
Second, this section makes it illegal for a manager to
initiate an investigation of an employee or applicant for
employment because they engaged in a protected activity
(including whistleblowing) under the statute.
Board and court review of actions relating to security
clearance
By adding ``the suspension, revocation, or other
determination relating to a security clearance'' to the list of
personnel actions in 2302(a)(2)(A), the amendment makes it a
prohibited personnel practice for a manager to suspend, revoke
or take other action with respect to an employee's security
clearance in retaliation for the employee blowing the whistle.
However, the amendment limits the relief that the MSPB and
reviewing court can order if it is demonstrated that such
retaliation has occurred. The amendment adds a new section
after 5 U.S.C. Sec. 7702 stating that the MSPB or the reviewing
court may issue declaratory and other appropriate relief, but
may not direct the President to restore a security clearance.
In cases where the MSPB or court declares that a security
clearance decision was made in retaliation for an employee
blowing the whistle, the agency must issue a report to Congress
detailing the circumstances of the agency's security clearance
decision. The amendment also provides for expedited review of
whistleblower cases where a security clearance was revoked or
suspended.
Exclusion of agencies by the President
Certain employees are not covered by the WPA, including
those who hold ``confidential policy-making positions.'' In
1994 Congress amended the WPA to stop agencies from designating
employees confidential policymakers after the employees filed
whistleblower complaints. Under the WPA, the President has the
authority to designate agencies that are outside WPA
protections. Section 2302(a)(2)(C) allows the President to
exclude from WPA jurisdiction ``any agency or unit thereof the
principal function of which is the conduct of foreign
intelligence or counterintelligence activities.'' The amendment
maintains that authority but clarifies that the designation
must be made prior to a personnel action being taken against a
whistleblower. This ensures that agencies cannot argue that an
employee is exempt from whistleblower protections after the
employee files a claim that they were retaliated against.
Attorney fees
The amendment would require the employing agency, not the
OSC, to reimburse the prevailing party for attorney fees in a
disciplinary proceeding brought by the OSC.
Compensatory damages
In the 1994 WPA amendments, Congress attempted to expand
relief for whistleblowers by providing that whistleblowers
could receive all direct or indirect consequential damages.
Despite Congressional intent, the Board and the Federal Circuit
have narrowed the scope of relief. The amendment would clarify
5 U.S.C. Sec. 1214(g)(2) to provide whistleblowers relief for
``compensatory or consequential damages.''
Disciplinary action
The WPA authorizes the OSC to pursue disciplinary action
against managers who retaliate against whistleblowers. This
section establishes a reasonable burden of proof for such
actions. It amends 5 U.S.C. Sec. 1215 to require the OSC to
demonstrate in disciplinary cases that the whistleblower's
protected disclosure was a ``significant motivating factor'' in
the decision by a manager to take or threaten to take a
personnel action against them. If OSC makes such a showing,
appropriate disciplinary action could be ordered unless the
official showed, by a preponderance of the evidence, that he or
she would have taken, or threatened to take, the same personnel
action even if there had been no disclosure.
Disclosures to Congress
This section amends 5 U.S.C. Sec. 2302 to require agencies
to establish a process to provide confidential advice to
employees on how to lawfully make a protected disclosure of
classified information to Congress.
Authority of Special Counsel relating to civil actions
Representation of Special Counsel
Current law provides the Office of Special Counsel with no
authority to request the MSPB to reconsider one of its
decisions or to seek review of an MSPB decision by the U.S.
Court of Appeals for the Federal Circuit. Even when another
party with authority to petition for a review of a MSPB
decision does so, OSC has historically been denied the right to
participate in those proceedings. This section amends 5 U.S.C.
Sec. 1212 to provide explicit authority for the Office of
Special Counsel to appear in any civil action brought in
connection with the whistleblower law.
Judicial review of Merit Systems Protection Board decisions
When the OSC believes that MSPB misinterprets one of the
laws within OSC's jurisdiction, the OSC has no right to appeal
that decision, even if it was one of the parties before the
MSPB. Under current law, while the OPM can request that the
MSPB reconsider its rulings, OSC cannot. The limitation
undermines both OSC's ability to protect whistleblowers and the
integrity of the whistleblower law. This section provides OSC
with the authority to obtain review in the U.S. Court of
Appeals for the Federal Circuit or a court of competent
jurisdiction of any MSPB order in a whistleblowing case where
the OSC determines the MSPB erred and the case will have an
impact on the enforcement of the whistleblower statute.
Judicial review
Subject to a five year sunset, this section suspends the
exclusive jurisdiction of the U.S. Court of Appeals for the
Federal Circuit over whistleblower appeals. It amends 5 U.S.C.
Sec. 7703 to provide that a petition to review a final order or
final decision of the MSPB may be filed in the U.S. Court of
Appeals for the Federal Circuit or the United States Court of
Appeals where the petitioner resides.
NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS
This section requires agencies to include in their
nondisclosure policies, forms and agreements a statement that
informs employees of their statutory obligations and rights
with regards to disclosing information. It also institutes a
government-wide ban on agency implementation or enforcement of
any nondisclosure policy, form or agreement that does not
contain the specified language preserving open government
statutes such as the WPA, the Military Whistleblower Protection
Act, and the Lloyd Lafollette Act, which prohibit
discrimination against government employees who communicate
with Congress. The ban is limited to those instances where the
implementation or enforcement conflicts with the enumerated
open government statutes. This section also requires that
nondisclosure agreements with persons who are not federal
employees but who are connected with intelligence related
activities must contain language barring the person from
disclosing any classified information unless they are
specifically authorized to do so by the United States
Government. The nondisclosure agreements must also make it
clear that the agreement does not bar disclosures of a
substantial violation of law to Congress, an authorized
executive agency, or the Department of Justice.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 12 of rule XXVI of the Rules of
the United States Senate, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italics, existing law in which no change is proposed
is shown in roman):
WHISTLEBLOWER PROTECTION ACT OF 1989
* * * * * * *
(5 U.S.C. 5509 note, Public Law 101-12; 103 Stat. 34)
* * * * * * *
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 [1998, 1999, 2000, 2001,
and 2002] 2003, 2004, 2005, 2006, and 2007 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 [1993, 1994, 1995, 1996,
and 1997] 2003, 2004, 2005, 2006, and 2007 such sums as
necessary to carry out subchapter II of chapter 12 of
title 5, United States Code (as amended by this Act).
* * * * * * *
TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION
Subchapter I--Merit Systems Protection Board
SEC. 1204. POWERS AND FUNCTIONS OF THE MERIT SYSTEMS PROTECTION BOARD.
* * * * * * *
(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]
agency where the prevailing party is employed or has applied
for employment 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.
Subchapter II--Office of Special Counsel
SEC. 1213. PROVISIONS RELATING TO DISCLOSURES OF VIOLATIONS OF LAW,
GROSS MISMANAGEMENT, AND CERTAIN OTHER MATTERS.
* * * * * * *
(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.] (3) If the
Special Counsel does not transmit the information to the head
of the agency under paragraph (2), the Special Counsel shall
inform the individual of--
(A) the reasons why the disclosure may not be further
acted on under this chapter; and
(B) other offices available for receiving
disclosures, should the individual wish to pursue the
matter further.
SEC. 1212. POWERS AND FUNCTIONS OF THE OFFICE OF SPECIAL COUNSEL.
(a) The Office of Special Counsel shall--
* * * * * * *
(h) Except as provided in section 518 of title 28, relating
to litigation before the Supreme Court, attorneys designated by
the Special Counsel may appear for the Special Counsel and
represent the Special Counsel in any civil action brought in
connection with section 2302(b)(8) or subchapter III of chapter
73, or as otherwise authorized by law.
SEC. 1214 INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; CORRECTIVE
ACTION.
* * * * * * *
(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
compensatory or consequential damages.
SEC. 1215. 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.]
(3)(A) 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 $1000.
(B) In any case in which the Board finds that an
employee has committed a prohibited personnel practice
under section 2303(b) (8) or (9), the Board shall
impose disciplinary action if the Board finds that
protected activity was a significant motivating factor
in the decision to take, fail to take, or threaten to
take or fail to take a personnel action, unless that
employee demonstrates, by preponderance of evidence,
that the employee would have taken, failed to take, or
threatened to take or fail to take the same personnel
action, in the absence of such protected activity.
PART III--EMPLOYEES
Subpart A--General Provisions
CHAPTER 23--MERIT SYSTEM PRINCIPLES
SEC. 2302. PROHIBITED PERSONNEL PRACTICES.
(a)(1) For the purpose of this title, ``prohibited
personnel practice'' means any action described in subsection
(b).
(2) For the purpose of this section--
(A) ``personnel action'' means--
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this
title or other disciplinary or corrective
action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter
43 of this title;
(ix) a decision concerning pay, benefits, or
awards, concerning education or training if the
education or training may reasonably be
expected to lead to an appointment, promotion,
performance evaluation, or other action
described in this subparagraph;
(x) a decision to order psychiatric testing
or examination; [and]
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement;
(xii) a suspension, revocation, or
determination relating to a security clearance;
(xiii) an investigation of an employee or
applicant for employment because of any
activity protected under this section; and
[(xi)] (xiv) any other significant change in
duties, responsibilities, or working
conditions; with respect to an employee in, or
applicant for, a covered position in an agency,
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;
* * * * * * *
(C) ``agency'' means an Executive agency and the
Government Printing Office, but does not include--
(i) a Government corporation, except in the
case of an alleged prohibited personnel
practice described under subsection (b)(8);
[(ii) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Imagery and
Mapping Agency, the National Security Agency,
and, as determined by the President, any
Executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities;
or]
(ii)(I) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Imagery and
Mapping Agency, the National Security Agency;
and
(II) as determined by the President, any
Executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
if the determination (as that determination
relates to a personnel action) is made before
that personnel action; or
(iii) the General Accounting Office.
(b) Any employee who has authority to take, direct others
to take, recommend, or approve any personnel action, shall not,
with respect to such authority--
* * * * * * *
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or [applicant which the employee or
applicant reasonably believes evidences,]
without restriction to time, place, form,
motive, context, or prior disclosure made to
any person by an employee or applicant,
including a disclosure made in the ordinary
course of an employee's duties, that the
employee or applicant reasonably believes is
evidence of--
(i) [a violation] any violation of
any law, rule, or regulation, or
(ii) 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; or
(B) any disclosure 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 or applicant
reasonably believes evidences,] without
restriction to time, place, form motive,
context, or prior disclosure made to any person
by an employee or applicant, including a
disclosure made in the ordinary course of an
employee's duties, 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 that the employee or applicant
reasonably believes is evidence of--
(i) [a violation] any violation
(other than a violation of this
section) of any law, rule, or
regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety;
(C) a disclosure that--
(i) is made by an employee or
applicant of information required by
law or Executive order to be kept
secret in the interest of national
defense or the conduct of foreign
affairs that the employee or applicant
reasonably believes is direct and
specific evidence of--
(I) any violation of any law,
rule, or regulation;
(II) gross mismanagement, a
gross waste of funds, an abuse
of authority, or a substantial
and specific danger to public
health or safety; or
(III) a false statement to
Congress on an issue of
material fact; and
(ii) is made to--
(I) a member of a committee
of Congress having primary
responsibility for oversight of
a department, agency, or
element of the Federal
Government to which the
disclosed information relates
and who is authorized to
receive information of the type
disclosed;
(II) any other Member of
Congress who is authorized to
received information of the
type disclosed; or
(III) an employee of Congress
who has the appropriate
security clearance and is
authorized to receive the
information disclosed.
* * * * * * *
(11)(A) knowingly take, recommend, or approve any
personnel action if the taking of such action would
violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action
would violate a veterans' preference requirement; [or]
(12) take or fail to take any other personnel action
if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title[.];
(13) implement or enforce any nondisclosure policy,
form, or agreement, if such policy, form, or agreement
does not contain the following statement: ``These
provisions are consistent with and do not supersede,
conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by
Executive Order No. 12958; section 7211 of title 5,
United States Code (governing disclosures to Congress);
section 1034 of title 10, United States Code (governing
disclosure to Congress by members of the military);
section 2302(b)(8) of title 5, United States Code
(governing disclosures of illegality, waste, fraud,
abuse, or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50
U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the
statutes which protect against disclosures that could
compromise national security, including sections 641,
793, 794, 798, and 952 of title 18, United States Code,
and section 4(b) of the Subversive Activities Control
Act of 1950 (50 U.S.C. 783(b)). The definitions,
requirements, obligations, rights, sanctions, and
liabilities created by such Executive order and such
statutory provisions are incorporated into this
agreement and are controlling.''; or
(14) conduct, or cause to be conducted, an
investigation of an employee or applicant for
employment because of any activity protected under this
section.
[This subsection] This subsection shall not be construed to
authorize the withholding of information from the Congress or
the taking of any personnel action against an employee who
discloses information to the Congress. In this subsection, the
term ``disclosure'' means a formal or informal communication or
transmission.
For purposes of paragraph (8), any presumption relating to
the performance of a duty by an employee who has authority to
take, direct others to take, recommend, or approve any
personnel action may be rebutted by substantial evidence.
* * * * * * *
(f) Each agency shall establish a process that provides
confidential advice to employees on making a lawful disclosure
to Congress of information that is specifically required by law
or Executive order to be kept secret in the interest of
national defense or the conduct of foreign affairs.
Subpart F--Labor Management and Employee Relations
CHAPTER 77--APPEALS
* * * * * * *
SEC. 7702A. ACTIONS RELATING TO SECURITY CLEARANCES.
(a) In any appeal relating to the suspension, revocation,
or other determination relating to a security clearance, the
Merit Systems Protection Board or a court--
(1) shall determine whether section 2302 was
violated;
(2) may not order the President to restore a security
clearance; and
(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
(b)(1) If, in any final judgment, the Board or court
declares that any suspension, revocation, or other
determination with regards to a security clearance was made in
violation of section 2302, the affected agency shall conduct a
review of that suspension, revocation, or other determination,
giving great weight to the Board or court judgment.
(2) Not later than 30 days after any Board or court
judgment declaring that a security clearance suspension,
revocation, or other determination was made in violation of
section 2302, the affected agency shall issue an unclassified
report to the congressional committees of jurisdiction (with a
classified annex if necessary), detailing the circumstances of
the agency's security clearance suspension, revocation, or
other determination. A report under this paragraph shall
include any proposed agency action with regards to the security
clearance.
(c) An allegation that a security clearance was revoked or
suspended in retaliation for a protected disclosure shall
receive expedited review by the Office of Special Counsel, the
Merit Systems Protection Board, and any reviewing court.
SEC. 7703. JUDICIAL REVIEW OF DECISIONS OF THE MERIT SYSTEMS PROTECTION
BOARD.
(a)(1) Any employee or applicant for employment adversely
affected or aggrieved by a final order or decision of the Merit
Systems Protection Board may obtain judicial review of the
order or decision.
* * * * * * *
[(b)(1) Except as provided in paragraph (2) of this
subsection, a petition to review a final order or final
decision of the Board shall be filed in the United States Court
of Appeals for the Federal Circuit. Notwithstanding any other
provision of law, any petition for review must be filed within
60 days after the date the petitioner received notice of the
final order or decision of the Board.]
(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2) of this subsection, a petition to review a final
order or final decision of the Board shall be filed in the
United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review must be filed within 60 days after the date the
petitioner received notice of the final order or decision of
the Board.
(B) During the 5-year period beginning on February 1, 2003,
a petition to review a final order or final decision of the
Board shall be filed in the United States Court of Appeals for
the Federal Circuit or the United States Court of Appeals for
the circuit in which the petitioner resides. Notwithstanding
any other provision of law, any petition for review must be
filed within 60 days after the date the petitioner received
notice of the final order or decision of the Board.
* * * * * * *
[(d) The Director of the Office of Personnel Management may
obtain review of any final order or decision of the Board by
filing, within 60 days after the date the Director received
notice of the final order or decision of the Board, a petition
for judicial review in the United States Court of Appeals for
the Federal Circuit if the Director determines, in his
discretion, that the Board erred in interpreting a civil
service law, rule, or regulation affecting personnel management
and that the Board's decision will have a substantial impact on
a civil service law, rule, regulation, or policy directive. If
the Director did not intervene in a matter before the Board,
the Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such petition
is denied. In addition to the named respondent, the Board and
all other parties to the proceedings before the Board shall
have the right to appear in the proceeding before the Court of
Appeals. The granting of the petition for judicial review shall
be at the discretion of the Court of Appeals.]
(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director of
the Office of Personnel Management. The Director of the Office
of Personnel Management may obtain review of any final order or
decision of the Board by filing, within 60 days after the date
the Director received notice of the final order or decision of
the Board, a petition for judicial review in the United States
Court of Appeals for the Federal Circuit if the Director
determines, in his discretion, that the Board erred in
interpreting a civil service law, rule, or regulation affecting
personnel management and that the Board's decision will have a
substantial impact on a civil service law, rule, regulation, or
policy directive. If the Director did not intervene in a matter
before the Board, the Director may not petition for review of a
Board decision under this section unless the Director first
petitions the Board for a reconsideration of its decision, and
such petition is denied. In addition to the named respondent,
the Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals. The granting of the petition for judicial
review shall be at the discretion of the Court of Appeals.
(2) During the 5-year period beginning on February 1, 2003,
this paragraph shall apply to any review obtained by the
Director of the Office of Personnel Management. The Director of
the Office of Personnel Management may obtain review of any
final order or decision of the Board by filing, within 60 days
after the date the Director received notice of the final order
or decision of the Board, a petition for judicial review in any
appellate court of competent jurisdiction as provided under
subsection (b)(2) if the Director determines, in his
discretion, that the Board erred in interpreting a civil
service law, rule, or regulation affecting personnel management
and that the Board's decision will have a substantial impact on
a civil service law, rule, regulation, or policy directive. If
the Director did not intervene in a matter before the Board,
the Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such petition
is denied. In addition to the named respondent, the Board and
all other parties to the proceedings before the Board shall
have the right to appear in the proceeding before the court of
appeals. The granting of the petition for judicial review shall
be at the discretion of the Court of Appeals.
(e)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Special
Counsel. The Special Counsel may obtain review of any final
order or decision of the Board by filing a petition for
judicial review in the United States Court of Appeals for the
Federal Circuit if the Special Counsel determines, in the
discretion of the Special Counsel, that the Board erred in
deciding a case arising under section 2302(b)(8) or subchapter
III of chapter 73 and that the Board's decision will have a
substantial impact on the enforcement of section 2302(b)(8) or
subchapter III of chapter 73. If the Special Counsel was not a
party or did not intervene in a matter before the Board, the
Special Counsel may not petition for review of a Board decision
under this section unless the Special Counsel first petitions
the Board for reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the Board
shall have the right to appear in the proceedings before the
Court of Appeals. The granting of the petition for judicial
review shall be at the discretion of the Court of Appeals.
(2) During the 5-year period beginning on February 1, 2003,
this paragraph shall apply to any review obtained by the
Special Counsel. The Special Counsel may obtain review of any
final order or decision of the Board by filing a petition for
judicial review in the United States Court of Appeals for the
Federal Circuit or any court of appeals of competent
jurisdiction if the Special Counsel determines, in the
discretion of the Special Counsel, that the Board erred in
deciding a case arising under section 2302(b)(8) or subchapter
III of chapter 73 and that the Board's decision will have a
substantial impact on the enforcement of section 2302(b)(8) or
subchapter III of chapter 73. If the Special Counsel was not a
party or did not intervene in a matter before the Board, the
Special Counsel may not petition for review of a Board decision
under this section unless the Special Counsel first petitions
the Board for reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the Board
shall have the right to appear in the proceedings before the
court of appeals. The granting of the petition for judicial
review shall be at the discretion of the court of appeals.