S 2057 ISCommentsClose CommentsPermalink

To reauthorize the Merit Systems Protection Board and the Office of Special Counsel, to modify the procedures of the Merit Systems Protection Board and the Office of Special Counsel, and for other purposes.CommentsClose CommentsPermalink

September 17, 2007

Mr. AKAKA introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental AffairsCommentsClose CommentsPermalink

To reauthorize the Merit Systems Protection Board and the Office of Special Counsel, to modify the procedures of the Merit Systems Protection Board and the Office of Special Counsel, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the `Federal Merit System Reauthorization Act of 2007'.CommentsClose CommentsPermalink





(b) Table of Contents- The table of contents is as follows:CommentsClose CommentsPermalink





Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink





Sec. 2. Authorization of appropriations.CommentsClose CommentsPermalink





Sec. 3. Allegations of wrongdoing against Special Counsel or Deputy Special Counsel.CommentsClose CommentsPermalink





Sec. 4. Discrimination on the basis of sexual orientation prohibited.CommentsClose CommentsPermalink





Sec. 5. Procedures of the Merit Systems Protection Board.CommentsClose CommentsPermalink





Sec. 6. Procedures of the Office of Special Counsel.CommentsClose CommentsPermalink





Sec. 7. Reporting requirements.CommentsClose CommentsPermalink

SEC. 2. AUTHORIZATION OF APPROPRIATIONS.

(a) Merit Systems Protection Board- Section 8(a)(1) of the Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is amended by striking `2003, 2004, 2005, 2006, and 2007' and inserting `2008, 2009, and 2010'.CommentsClose CommentsPermalink





(b) Office of Special Counsel- Section 8(a)(2) of the Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is amended by striking `2003, 2004, 2005, 2006, and 2007' and inserting `2008, 2009, and 2010'.CommentsClose CommentsPermalink





(c) Effective Date- This section shall take effect as of October 1, 2007.CommentsClose CommentsPermalink

SEC. 3. ALLEGATIONS OF WRONGDOING AGAINST SPECIAL COUNSEL OR DEPUTY SPECIAL COUNSEL.

(a) Definitions- In this section--CommentsClose CommentsPermalink





(1) the term `Special Counsel' refers to the Special Counsel appointed under section 1211(b) of title 5, United States Code;CommentsClose CommentsPermalink





(2) the term `Integrity Committee' refers to the Integrity Committee described in Executive Order 12993 (relating to administrative allegations against inspectors general) or its successor in function (as identified by the President); andCommentsClose CommentsPermalink





(3) the terms `wrongdoing' and `Inspector General' have the same respective meanings as under the Executive order cited in paragraph (2).CommentsClose CommentsPermalink





(b) Authority of Integrity Committee-CommentsClose CommentsPermalink





(1) IN GENERAL- An allegation of wrongdoing against the Special Counsel (or the Deputy Special Counsel) may be received, reviewed, and referred for investigation by the Integrity Committee to the same extent and in the same manner as in the case of an allegation against an Inspector General (or a member of the staff of an Office of Inspector General), subject to the requirement that the Special Counsel recuse himself or herself from the consideration of any allegation brought under this subsection.CommentsClose CommentsPermalink





(2) COORDINATION WITH EXISTING PROVISIONS OF LAW- This section does not eliminate access to the Merit Systems Protection Board for review under section 7701 of title 5, United States Code. To the extent that an allegation brought under this subsection involves section 2302(b)(8) of such title, a failure to obtain corrective action within 120 days after the date on which that allegation is received by the Integrity Committee shall, for purposes of section 1221 of such title, be considered to satisfy section 1214(a)(3)(B) of such title.CommentsClose CommentsPermalink





(c) Regulations- The Integrity Committee may prescribe any rules or regulations necessary to carry out this section, subject to such consultation or other requirements as might otherwise apply.CommentsClose CommentsPermalink

SEC. 4. DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION PROHIBITED.

(a) Repudiation- In order to dispel any public confusion, Congress repudiates any assertion that Federal employees are not protected from discrimination on the basis of sexual orientation.CommentsClose CommentsPermalink





(b) Affirmation- It is the sense of Congress that, in the absence of the amendment made by subsection (c), discrimination against Federal employees and applicants for Federal employment on the basis of sexual orientation is prohibited by section 2302(b)(10) of title 5, United States Code.CommentsClose CommentsPermalink





(c) Discrimination Based on Sexual Orientation Prohibited- Section 2302(b)(1) of title 5, United States Code, is amended--CommentsClose CommentsPermalink





(1) in subparagraph (D), by striking `or' at the end;CommentsClose CommentsPermalink





(2) in subparagraph (E), by inserting `or' at the end; andCommentsClose CommentsPermalink





(3) by adding at the end the following:CommentsClose CommentsPermalink





`(F) on the basis of sexual orientation;'.CommentsClose CommentsPermalink

SEC. 5. PROCEDURES OF THE MERIT SYSTEMS PROTECTION BOARD.

(a) Proof of Exhaustion for Individual Right of Action- Section 1221(a) of title 5, United States Code, is amended--CommentsClose CommentsPermalink





(1) by striking `(a)' and inserting `(a)(1)'; andCommentsClose CommentsPermalink





(2) by adding at the end the following:CommentsClose CommentsPermalink





`(2) For purposes of paragraph (1), an employee, former employee, or applicant for employment may demonstrate compliance with section 1214(a)(3)(B) by--CommentsClose CommentsPermalink





`(A) submitting a copy of the complaint or other pleading pursuant to which such employee, former employee, or applicant sought corrective action from the Special Counsel with respect to the personnel action involved; andCommentsClose CommentsPermalink





`(B) certifying that the Special Counsel did not provide notice of intent to seek such corrective action to such employee, former employee, or applicant within the 120-day period described in such section 1214(a)(3)(B).'.CommentsClose CommentsPermalink





(b) Individual Requests for Stays- Section 1221(c) of title 5, United States Code, is amended by striking paragraph (2) and inserting the following:CommentsClose CommentsPermalink





`(2) Any stay requested under paragraph (1) shall be granted within 10 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date the request is made, if the Board determines that the employee, former employee, or applicant has demonstrated that protected activity described under section 2302(b)(8) was a contributing factor to the personnel action involved. If the stay request is denied, the employee, former employee, or applicant may submit an interlocutory appeal for expedited review by the Board.'.CommentsClose CommentsPermalink





(c) Joining Subsequent and Related Claims With Pending Litigation-CommentsClose CommentsPermalink





(1) IN GENERAL- Section 1221 of title 5, United States Code, is amended--CommentsClose CommentsPermalink





(A) by redesignating subsections (h), (i), and (j) as subsections (i), (j), and (k), respectively; andCommentsClose CommentsPermalink





(B) inserting after subsection (g) the following:CommentsClose CommentsPermalink





`(h) During a pending proceeding, subsequent personnel actions may be joined if the employee, former employee, or applicant for employment demonstrates that retaliation for protected activity at issue in the pending proceeding was a contributing factor to subsequent alleged prohibited personnel practices.'.CommentsClose CommentsPermalink





(2) CONFORMING AMENDMENT- Section 1222 of title 5, United States Code, is amended by striking `section 1221(i)' and inserting `section 1221(j)'.CommentsClose CommentsPermalink





(d) Procedural Due Process- Section 1204(b)(1) of title 5, United States Code, is amended by inserting `in accordance with regulations consistent with the Federal Rules of Civil Procedure, so far as practicable' before the period.CommentsClose CommentsPermalink





(e) Attorney Fees- Section 7701(g)(1) of title 5, United States Code, is amended by striking `if the employee or applicant is the prevailing party and' and inserting `if the claim or claims raised by the employee or applicant were not frivolous, unreasonable, or groundless; the case was a substantial or significant factor in the agency's action providing some relief or benefit to the employee or applicant; and'.CommentsClose CommentsPermalink

SEC. 6. PROCEDURES OF THE OFFICE OF SPECIAL COUNSEL.

(a) Investigations of Alleged Prohibited Personnel Practices- Section 1212(e) of title 5, United States Code, is amended by striking `may prescribe such regulations as may be necessary to perform the functions' and inserting `shall prescribe such regulations as may be necessary to carry out subsection (a)(2) and may prescribe any regulations necessary to carry out any of the other functions'.CommentsClose CommentsPermalink





(b) Mandatory Communications With Complainants-CommentsClose CommentsPermalink





(1) CONTACT INFORMATION- Section 1214(a)(1)(B) of title 5, United States Code, is amended by striking clause (ii) and inserting the following:CommentsClose CommentsPermalink





`(ii) shall include the name and contact information of a person at the Office of Special Counsel who--CommentsClose CommentsPermalink





`(I) shall be responsible for interviewing the complainant and making recommendations to the Special Counsel regarding the allegations of the complainant; andCommentsClose CommentsPermalink





`(II) shall be available to respond to reasonable questions from the complainant regarding the investigation or review conducted by the Special Counsel, the relevant facts ascertained by the Special Counsel, and the law applicable to the allegations of the complainant.'.CommentsClose CommentsPermalink





(2) STATEMENT AFTER TERMINATION OF INVESTIGATION- Section 1214(a)(2)(A)(iv) of title 5, United States Code, is amended by striking `a response' and inserting `specific responses'.CommentsClose CommentsPermalink





(c) Qualifications of Special Counsel- The third sentence of section 1211(b) of title 5, United States Code, is amended by striking `position.' and inserting `position and has professional experience that demonstrates an understanding of and a commitment to protecting the merit based civil service.'.CommentsClose CommentsPermalink





(d) Alternative Dispute Resolution Program of the Office of Special Counsel- Section 1212 of title 5, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





`(h) The Office of Special Counsel shall by regulation provide for one or more alternative methods for settling matters subject to the jurisdiction of the Office which shall be applicable at the election of an employee, former employee, or applicant for employment or at the direction of the Special Counsel with the consent of the employee, former employee, or applicant concerned. In order to carry out this subsection, the Special Counsel shall provide for appropriate offices in the District of Columbia and other appropriate locations.'.CommentsClose CommentsPermalink





(e) Substantial Likelihood Determinations- Section 1213 of title 5, United States Code, is amended--CommentsClose CommentsPermalink





(1) in subsection (b), by striking `15 days' and inserting `45 days'; andCommentsClose CommentsPermalink





(2) in subsection (c)(1), by inserting `, after consulting with the person who made the disclosure on how to characterize the issues,' after `appropriate agency head'.CommentsClose CommentsPermalink





(f) Determination of Statutory Requirements Met- Section 1213(e) of title 5, United States Code, is amended--CommentsClose CommentsPermalink





(1) in paragraph (3), by striking `subsection (e)(1)' and inserting `paragraph (1)';CommentsClose CommentsPermalink





(2) by redesignating paragraphs (3) and (4) as paragraphs (4) and (5), respectively; andCommentsClose CommentsPermalink





(3) by inserting after paragraph (2) the following:CommentsClose CommentsPermalink





`(3) Upon receipt of any report of the head of an agency required under subsection (c), if the Special Counsel is unable to make a determination under paragraph (2)(A) or (B), the Special Counsel shall require the agency head to submit any additional information necessary for the Special Counsel to make such determinations before any information is transmitted under paragraph (4).'.CommentsClose CommentsPermalink





(g) Public and Internet Access for Agency Investigations- Section 1219 of title 5, United States Code, is amended by striking subsections (a) and (b) and inserting the following:CommentsClose CommentsPermalink





`(a) The Special Counsel shall maintain and make available to the public (including on the website of the Office of Special Counsel)--CommentsClose CommentsPermalink





`(1) a list of noncriminal matters referred to heads of agencies under subsection (c) of section 1213, together with--CommentsClose CommentsPermalink





`(A) reports from heads of agencies under subsection (c)(1)(B) of such section relating to such matters;CommentsClose CommentsPermalink





`(B) comments submitted under subsection (e)(1) of such section relating to such matters, if the person making the disclosure consents; andCommentsClose CommentsPermalink





`(C) comments or recommendations by the Special Counsel under subsection (e)(4) of such section relating to such matters;CommentsClose CommentsPermalink





`(2) a list of matters referred to heads of agencies under section 1215(c)(2);CommentsClose CommentsPermalink





`(3) a list of matters referred to heads of agencies under subsection (e) of section 1214, together with certifications from heads of agencies under such subsection; andCommentsClose CommentsPermalink





`(4) reports from heads of agencies under section 1213(g)(1).CommentsClose CommentsPermalink





`(b) The Special Counsel shall take steps to ensure that any list or report made available to the public or placed on the website of the Office of Special Counsel under this section does not contain any information the disclosure of which is prohibited by law or by Executive order requiring that information be kept secret in the interest of national defense or the conduct of foreign affairs.'.CommentsClose CommentsPermalink

SEC. 7. REPORTING REQUIREMENTS.

(a) Merit Systems Protection Board- Each annual report submitted by the Merit Systems Protection Board under section 1206 of title 5, United States Code, shall, with respect to the period covered by such report, include--CommentsClose CommentsPermalink





(1) the number of cases and alleged violations of section 2302 of such title 5 filed with the Board for each agency, itemized for each prohibited personnel practice;CommentsClose CommentsPermalink





(2) the number of cases and alleged violations of section 2302 of such title 5 that the Board determines for each agency, itemized for each prohibited personnel practice and compared to the total number of cases and allegations filed with the Board for each, both with respect to the initial decisions by administrative judges and final Board decisions;CommentsClose CommentsPermalink





(3) the number of cases and allegations in which corrective action was provided, compared to the total number of cases and allegations filed with the Board for each, itemized separately for settlements and final Board decisions; andCommentsClose CommentsPermalink





(4) with respect to paragraphs (8) and (9) of section 2302 (b) of such title 5, the number of cases in which the Board has ruled in favor of the employee on the merits of the claim compared to the total number of cases and allegations filed with the Board for each, where findings of fact and conclusions of law were issued on whether those provisions were violated, independent from cases disposed by procedural determinations, including a separate itemization of both initial decisions by administrative judges and final Board decisions for each category.CommentsClose CommentsPermalink





(b) Office of Special Counsel- Each annual report submitted under section 1218 of title 5, United States Code, by the Special Counsel or an employee designated by the Special Counsel shall, with respect to the period covered by such report, include--CommentsClose CommentsPermalink





(1) the number of cases and allegations for each prohibited personnel practice, delineated by type of prohibited personnel practice;CommentsClose CommentsPermalink





(2) for each type of prohibited personnel practice, the number of cases and allegations as to which the Office of Special Counsel found reasonable grounds to believe section 2302 of such title 5 had been violated;CommentsClose CommentsPermalink





(3) for each type of prohibited personnel practice, the number of cases and allegations as to which the Office of Special Counsel referred the complaint for full field investigation;CommentsClose CommentsPermalink





(4) for each prohibited personnel practice, the number of cases and allegations as to which the Office of Special Counsel recommended corrective action;CommentsClose CommentsPermalink





(5) for each prohibited personnel practice, the number of cases and allegations as to which the Office of Special Counsel conducted a mediation or other form of alternative dispute resolution, with statistics and illustrative examples describing the results with particularity;CommentsClose CommentsPermalink





(6) the number of instances in which the Office of Special Counsel referred disclosures submitted under section 1213 of such title 5 to an agency head, without any finding under subsection (c) or (g) of such section;CommentsClose CommentsPermalink





(7) a statistical tabulation of results for each customer satisfaction survey question, both with respect to allegations of prohibited personnel practice submitted under section 1214 of such title 5 and disclosures submitted under section 1213 of such title; andCommentsClose CommentsPermalink





(8) for each provision under section 1216(a) (1) through (5) and (c) of such title 5, the number of cases and allegations, the number of field investigations opened, the number of instances in which corrective action was sought, and the number of instances in which corrective action was obtained.CommentsClose CommentsPermalink





(c) Annual Survey- Section 13(a) of the Act entitled `An Act to reauthorize the Office of Special Counsel, and for other purposes', approved October 29, 1994 (5 U.S.C. 1212 note; Public Law 103-424) is amended in the first sentence by inserting `, including individuals who disclose information to the Office of Special Counsel under section 1213' before the period.CommentsClose CommentsPermalink