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114th Congress }                                        { Report
                        HOUSE OF REPRESENTATIVES
 2d Session    }                                        { 114-521

======================================================================
 
    THOROUGHLY INVESTIGATING RETALIATION AGAINST WHISTLEBLOWERS ACT

                                _______
                                

 April 25, 2016.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Chaffetz, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 4639]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 4639) to reauthorize the Office of 
Special Counsel, to amend title 5, United States Code, to 
provide modifications to authorities relating to the Office of 
Special Counsel, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     6
Explanation of Amendments........................................     8
Committee Consideration..........................................     8
Roll Call Votes..................................................     8
Application of Law to the Legislative Branch.....................     8
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     8
Statement of General Performance Goals and Objectives............     8
Duplication of Federal Programs..................................     9
Disclosure of Directed Rule Makings..............................     9
Federal Advisory Committee Act...................................     9
Unfunded Mandate Statement.......................................     9
Earmark Identification...........................................     9
Committee Estimate...............................................     9
Budget Authority and Congressional Budget Office Cost Estimate...     9
Changes in Existing Law Made by the Bill, as Reported............    11

    The amendment is as follows:
    At the end of the bill, add the following:

SEC. 9. REGULATIONS.

  Not later than two years after the date of enactment of this Act, the 
Special Counsel shall prescribe such regulations as may be necessary to 
perform the functions of the Special Counsel under subchapter II of 
chapter 12 of title 5, United States Code, including regulations 
necessary to carry out sections 1213, 1214, and 1215 of such title, and 
any functions required due to the amendments made by this Act. Such 
regulations shall be published in the Federal Register.

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 4639, the Thoroughly Investigating Retaliation Against 
Whistleblowers Act, would reauthorize the U.S. Office of 
Special Counsel (OSC) and make changes to improve the 
efficiency and effectiveness of OSC operations.

                  BACKGROUND AND NEED FOR LEGISLATION

    The Civil Service Reform Act of 1978 (CSRA) established the 
U.S. Office of Special Counsel (OSC) as a separate 
investigative and prosecutorial section of the Merit Systems 
Protection Board (MSPB).\1\ With the enactment of the 
Whistleblower Protection Act of 1989, OSC became an independent 
agency in the executive branch.\2\ OSC's authorities come from 
four federal statutes: CSRA, the Whistleblower Protection Act, 
the Hatch Act, and the Uniformed Services Employment and 
Reemployment Rights Act of 1994 (USERRA).\3\
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    \1\U.S. Office of Special Counsel, Fiscal Year 2014 Annual Report 
to Congress, at 10, available at https://osc.gov/Resources/
OSC%20Annual%20Report%20to%20Congress%20FY%202014.pdf [hereinafter OSC 
FY 2014 Annual Report].
    \2\Id. at 10.
    \3\Id.
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    OSC's mission is to: (1) safeguard the merit system by 
protecting federal employees from prohibited personnel 
practices, especially reprisal from whistleblowing; (2) provide 
employees a mechanism for disclosing wrongdoing in government 
agencies; (3) enforce and provide advice on the Hatch Act, 
which restricts political activity by government employees; and 
(4) enforce employment rights under USERRA for federal 
employees who serve or have served in the uniformed 
services.\4\
---------------------------------------------------------------------------
    \4\Id. at 11.
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    OSC's staff primarily consists of 140 personnel management 
specialists, investigators, and attorneys located in 
Washington, D.C. and three field offices.\5\ OSC is headed by 
Carolyn Lerner, Special Counsel, who was appointed by the 
President and confirmed by the Senate for a five-year term 
(which began in June 2011).\6\ In October 2015, Special Counsel 
Lerner was nominated for another five-year term.\7\ In FY2016, 
OSC received appropriations of $24.1 million.\8\ For FY2017, 
OSC requested a funding level of $26.5 million to sustain its 
current workforce and increase staff size from 140 to 155 full-
time employees.\9\
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    \5\U.S. Office of Special Counsel, Fiscal Year 2016 Congressional 
Budget Justification and Performance Budget Goals, at pp. 3 and 12, 
available at https://osc.gov/Resources/CBJ%20-%20FY16-
Final%20Website%20Version.pdf [hereinafter OSC FY 2016 Cong. Budget 
Justification].
    \6\Biography of Special Counsel Carolyn Lerner, available at 
https://osc.gov/Pages/about-bio.aspx?ID=1.
    \7\https://www.congress.gov/nomination/114th-congress/896.
    \8\OSC FY 2017 Cong. Budget Justification at 3.
    \9\Id.
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    In FY2014 and FY2015, OSC achieved settlements in numerous 
cases on behalf of Department of Veterans Affairs (VA) 
employees that suffered retaliation after disclosing problems 
with the care of patients at various VA facilities.\10\ OSC 
also achieved an increase in favorable results in prohibited 
personnel practice cases, mediated settlements, and 
whistleblower disclosures.\11\ For cases involving violations 
of the Hatch Act, OSC obtained more disciplinary actions than 
any other similar period.\12\ OSC also worked with 
whistleblowers and leadership at the VA to identify quality of 
care issues and improper scheduling practices at VA.\13\ OSC 
has assisted service members and reservists returning to 
civilian life, achieving numerous favorable results under 
USERRA.\14\
---------------------------------------------------------------------------
    \10\OSC FY 2016 Cong. Budget Justification at 3.
    \11\U.S. Office of Special Counsel, Fiscal Year 2015, Performance 
and Accountability Report, at 4, available at https://osc.gov/
Resources/FY%202015%20PAR-16Nov2015%20Final.pdf [hereinafter, OSC FY 
2015 PAR].
    \12\Id.
    \13\Id.
    \14\Id.
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    Finally, in FY2014 and FY2015, whistleblowers made 
disclosures to OSC about the abuse of ``administratively 
uncontrollable overtime'' in the U.S. Department of Homeland 
Security (DHS).\15\ As a result, the DHS prohibited employees 
from earning improper overtime payments, saving approximately 
$83.7 million.\16\ In December 2014, Congress passed 
legislation implementing a new pay system, which CBO estimates 
will save $100 million every year.\17\
---------------------------------------------------------------------------
    \15\Id.
    \16\Id.
    \17\Id.
---------------------------------------------------------------------------
    OSC was last reauthorized in 2002 for the period of 2003 to 
2007.\18\ Since that time, OSC has experienced significant 
growth in its case load. In the past five years, OSC's caseload 
has risen by 58 percent.\19\
---------------------------------------------------------------------------
    \18\5 U.S.C. 5509 note.
    \19\OSC FY 2017 Cong. Budget Justification at 4.
---------------------------------------------------------------------------
    H.R. 4639 reauthorizes the agency for the years 2016 to 
2020. The bill also makes several changes to assist OSC in 
meeting its vital mission, including protecting whistleblowers 
and guarding the merit system principles. H.R. 4639 strengthens 
OSC's ability to hold agencies and individuals accountable, and 
codifies best practices that have recently been developed and 
implemented by OSC. The bill codifies OSC's current practice of 
providing key metrics in its annual reports to Congress, and 
requires additional metrics to support Congressional oversight 
of OSC's effectiveness.
    Once OSC receives a prohibited personnel practice 
complaint, OSC is required within fifteen days to provide a 
written acknowledgement of receipt and the name of the OSC 
staff member who will be the point of contact.\20\ For 
whistleblower disclosures, however, OSC is currently required 
within fifteen days to make a more substantive determination of 
whether there is a substantial likelihood that the information 
discloses a violation of any law, rule, or regulation, or gross 
mismanagement, gross waste of funds, abuse of authority, or 
substantial and specific danger to public health and 
safety.\21\ H.R. 4639 extends this timeframe for whistleblower 
disclosures from fifteen to forty-five days. Given the volume 
of cases OSC receives, this is a more realistic timeframe for 
OSC to make an assessment of the substance of the complaint.
---------------------------------------------------------------------------
    \20\5 U.S.C. Sec. 1214(a)(1)(B).
    \21\5 U.S.C. Sec. 1213(b).
---------------------------------------------------------------------------
    H.R. 4639 codifies several changes to improve OSC's 
effectiveness. Under current law, OSC closes, without 
investigation, three categories of prohibited personnel 
practice complaints: (1) cases which have previously been made 
by the same person with the same set of facts and circumstances 
and investigated by OSC; (2) cases with the same facts and 
circumstances which have previously been filed by the same 
person with the MSPB; and (3) cases which come from federal 
agencies over which OSC does not have investigative 
jurisdiction.\22\ Closure of these complaints requires OSC to 
give written notice of the proposed findings of fact and legal 
conclusions, allow an opportunity for written comments from the 
complainant, and then provide a final written status report. 
H.R. 4639 would provide OSC discretionary authority to close 
these cases under simplified procedures, providing a written 
notification of the grounds for closure of the case within 30 
days of OSC's decision.
---------------------------------------------------------------------------
    \22\For example, private citizens, Postal Service employees, 
employees at agencies listed in 5 U.S.C. Sec. 2302(a)(2)(C)(ii), etc.
---------------------------------------------------------------------------
    Since 1994, OSC has been required to conduct an annual 
survey of federal employees who contact OSC for assistance.\23\ 
The survey yields a low response rate, and provides little 
insight into what OSC might be able to do to improve its 
processes. For 2014, only 10 percent of recipients responded. 
H.R. 4639 eliminates the requirement for OSC to conduct an 
annual survey and instead provides OSC discretionary authority 
to pilot a new survey in FY2017 and FY2018. The resulting 
survey would be designed to gather information and improve 
customer service at various stages of the review or 
investigative process.
---------------------------------------------------------------------------
    \23\See Section 13, P.L. 103-424.
---------------------------------------------------------------------------
    H.R. 4639 would also establish a three-year statute of 
limitations. Importantly, this statute of limitations is not a 
prohibition barring OSC from considering cases older than three 
years. Rather, it is a permissive authority allowing OSC to 
retain the ability to review any claim regardless of its age.
    Additionally, H.R. 4639 makes several changes intended to 
strengthen OSC's ability to hold agencies and individuals 
accountable. With regard to whistleblower disclosures, OSC is 
required by statute to rely on agencies both to investigate 
allegations and take corrective action, reporting their 
findings back to OSC upon completion of their investigation. 
Such reports are required to include a list of any violation or 
apparent violation of any law, rule, or regulation, as well as 
a description of what corrective action the agency has taken or 
plans to take as a result of the investigation.\24\ H.R. 4639 
would require that if an agency substantiates a whistleblower 
disclosure from OSC in whole or in part, yet fails to take any 
corrective action, the agency's report must provide a detailed 
explanation of such failure. This change is intended to help 
ensure that agencies take action to both prevent problems in 
the future and correct substantiated claims of misconduct, such 
as by imposing discipline and holding employees accountable.
---------------------------------------------------------------------------
    \24\5 U.S.C. Sec. 1213(c)(1)(B); 5 U.S.C. Sec. 1213(d).
---------------------------------------------------------------------------
    Additionally, if an agency report states that the agency 
plans to take certain action in the future, H.R. 4639 would 
require that the agency submit a supplemental report no later 
than 180 days after the initial report which states whether the 
proposed action has been taken and explains any failure to take 
the proposed action. Finally, H.R. 4639 would require OSC to 
make public its initial transmittal of the whistleblower 
disclosure to the agency,\25\ in addition to the agency's 
report.\26\ The bill would also codify OSC's current practice 
of posting comments on the agency reports from the Special 
Counsel and, in some circumstances, from the whistleblower who 
submitted the initial disclosure.
---------------------------------------------------------------------------
    \25\Given the current requirements of 5 U.S.C. Sec. 1219(b), it is 
not believed that this will endanger whistleblowers by making any 
personally identifiable information public.
    \26\5 U.S.C. Sec. 1219.
---------------------------------------------------------------------------
    The legislation also would address a number of problems OSC 
faces regarding access to agency personnel and documents during 
investigations. The current Office of Personnel Management 
Civil Service Rule 5.4 states that when required by the Special 
Counsel or their authorized representative, agencies shall make 
employees available to testify, on official time, ``in regard 
to matters inquired of under the civil service laws, rules, and 
regulations,'' as well as make available ``all records 
pertinent to these matters.''\27\ It continues: ``All such 
employees, and all applicants or eligibles for positions 
covered by these rules, shall give to . . . the Special 
Counsel, or to their authorized representatives, all 
information, testimony, documents, and material in regard to 
the above matters, the disclosure of which is not otherwise 
prohibited by law or regulation.''\28\
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    \27\5 C.F.R. Sec. 5.4.
    \28\Id.
---------------------------------------------------------------------------
    Notwithstanding the unambiguous language of both 
provisions, OSC has historically faced a range of obstacles 
from agencies, including nonresponses, incomplete responses, 
untimely responses, and refusals to comply. In particular, 
refusals to comply have arisen from agencies stretching the 
interpretation of ``not otherwise prohibited by law or 
regulation'' to justify invoking common law privileges, such as 
attorney-client privilege, to prevent OSC from obtaining access 
to information. For example, the Committee on Oversight and 
Government Reform has heard concerns from the current Special 
Counsel regarding blanket assertions of attorney-client 
privilege by the Chemical Safety Board.
    While the Committee does not believe that legislative 
clarification should be necessary to make clear that OSC's 
access to information overrides internal agency regulations and 
common law privileges, this bill is intended to settle once and 
for all that in carrying out its work, OSC is authorized to 
have access to any information from agencies under its 
jurisdiction. H.R. 4639 makes clear that OSC is authorized to 
have access to any record or other information of any agency 
under its jurisdiction in investigating allegations of 
prohibited personnel practices or Hatch Act violations.
    Finally, H.R. 4639 would make a technical amendment to the 
penalties added by the Hatch Act Modernization Act of 2012.\29\ 
That Act provided for a range of penalties for violations of 
the Hatch Act. The same year, a provision in the Whistleblower 
Protection Enhancement Act of 2012 provided that the MSPB could 
impose a ``combination'' of penalties for prohibited personnel 
practice violations.\30\ H.R. 4639 would amend the Hatch Act 
penalties to clarify that a range of penalties could be imposed 
for violations.
---------------------------------------------------------------------------
    \29\P.L. 112-230.
    \30\P.L. 112-199.
---------------------------------------------------------------------------

                          LEGISLATIVE HISTORY

    H.R. 4639, the Thoroughly Investigating Retaliation Against 
Whistleblowers Act, was introduced on February 26, 2016 by 
Congressman Rod Blum (R-IA) and referred to the Committee on 
Oversight and Government Reform. On March 1, 2016, the 
Committee on Oversight and Government Reform ordered H.R. 4639 
reported, as amended, by voice vote.

                           Section-by-Section


Section 1. Short title

    Designates the short title of the bill as the ``Thoroughly 
Investigating Retaliation Against Whistleblowers Act.''

Section 2. Reauthorization of the Office of Special Counsel

    This bill reauthorizes OSC for a five-year period, for 
fiscal years 2016 through 2020.

Section 3. Access to agency information

    Amends 5 U.S.C. Sec. 1212(b) by adding a subsection (5). 
The new section clarifies that OSC is authorized to have access 
to any record or other information (such as reports, audits, 
recommendations, etc.) that is available to an agency within 
its jurisdiction. Similarly, it allows OSC to require any 
agency employee to provide relevant information during its 
investigations.

Section 4. Whistleblower provisions

    Amends 5 U.S.C. Sec. 1213, which concerns substantive 
disclosures of waste, fraud, and abuse. It extends from 15 to 
45 days the timeframe in which OSC must determine if there is 
any merit to substantive disclosures.
    Once a disclosure is sent to an agency for response, if the 
agency substantiates the allegations in the disclosure and yet 
fails to take any action on the allegations (such as changing 
their rules or practices, restoring any aggrieved employee, 
disciplining any employee misconduct, etc.), the head of the 
agency's response to OSC, per Sec. 1213(d), must include a 
detailed description of why the agency has failed to take any 
action.
    Finally, this section requires that if an agency head 
states in their response that they propose to take certain 
action, within 180 days the head of the agency shall submit a 
supplemental report stating whether the action has been taken, 
and a reason if the action has not been taken.

Section 5. Termination of certain OSC investigations

    Amends 5 U.S.C. Sec. 1214, which concerns OSC's 
investigation of prohibited personnel practices. It would add a 
new subsection to Sec. 1214(a) stating that, without its 
typical detailed description and opportunity to respond, OSC 
may within 30 days of receipt terminate any investigation 
which:
          (i) Constitutes the same allegations, from the same 
        individual, which have previously been investigated by 
        OSC if they concern the same set of facts and 
        circumstances;
          (ii) Constitutes the same allegations, from the same 
        individual, which have previously been filed with MSPB 
        if they concern the same set of facts and 
        circumstances; or
          (iii) Comes from a federal employee over which OSC 
        does not have jurisdiction, such as FBI or intelligence 
        community employees.
    This section also includes a statute of limitations in a 
fourth category which may, at the discretion of the Special 
Counsel, be closed out with the simplified process. This 
category applies to investigations which:
          (iv) Concern allegations of a prohibited personnel 
        practice which the complainant knew or should have 
        known about over three years prior to filing with OSC.
    For any investigation from any of the four categories 
above, OSC must provide written notice within 30 days of 
termination that the case is being closed and providing the 
reason.

Section 6. Reporting requirements

    Amends 5 U.S.C. Sec. 1218 to require that OSC's annual 
report to Congress include a wider number of reporting metrics, 
including the number of stays or disciplinary actions 
negotiated by OSC with agencies; the number of stays and stay 
extensions obtained from the MSPB; the number of prohibited 
personnel practice complaints that result in favorable actions, 
and the number that result in favorable outcomes, both for 
whistleblowers and for all prohibited personnel practice cases; 
and the cost per case resolved.
    With regard to substantive disclosures, this section also 
amends 5 U.S.C. Sec. 1219(a)(1) to expand the list of items 
that OSC should make publicly available to include:
          (i) The transmission of a matter to an agency head;
          (ii) Any report from the agency head;
          (iii) Comments from the complainant, if they give 
        consent; and
          (iv) OSC's comments or recommendations.
    This section would also require that OSC include additional 
items in its annual report to Congress.

Section 7. Establishment of survey pilot program

    Suspends, for FY2017 and FY2018, the current annual survey 
requirement, implemented by Congress in 1994 (P.L. 103-424) and 
instead gives OSC flexibility to implement a pilot program 
which would survey individuals at various stages of its 
process.

Section 8. Penalties under the Hatch Act

    Amends 5 U.S.C. Sec. 7326, to clarify that anyone who 
violates Sec. 7323 (political activity generally) or Sec. 7324 
(political activity on duty or with official resources) of the 
Hatch Act may be subject to not just one of the penalties in 
Sec. 7326, but to a combination of them. Those penalties, added 
in 2012 by the Hatch Act Modernization Act, include removal, 
reduction in grade, debarment from federal employment for up to 
five years, suspension, reprimand, or up to a $1000 civil 
penalty.

Section 9. Regulations

    Requires that, not later than two years after the date of 
enactment of the Act, OSC adopt regulations concerning: 5 
U.S.C. Sec. 1213, which relates to whistleblower disclosures; 
Sec. 1214, which relates to the investigation of prohibited 
personnel practices and the imposition of disciplinary action; 
and Sec. 1215, which relates to disciplinary action. The OSC is 
required to publish the regulations in the Federal Register.

                       Explanation of Amendments

    During Full Committee consideration of the bill, 
Congressman Mark Meadows (R-NC) offered an amendment to require 
OSC to adopt regulations within two years of the bill's 
passage, including regulations to carry out: 5 U.S.C. 
Sec. 1213, which relates to whistleblower disclosures; 
Sec. 1214, which relates to the investigation of prohibited 
personnel practices and the imposition of disciplinary action; 
and Sec. 1215, which relates to disciplinary action. The 
Meadows amendment was adopted by voice vote.

                        Committee Consideration

    On March 1, 2016 the Committee met in open session and 
ordered reported favorably the bill, H.R. 4639, as amended, by 
voice vote, a quorum being present.

                            Roll Call Votes

    No roll call votes were requested or conducted during Full 
Committee consideration of H.R. 4639.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill reauthorizes the Office of Special Counsel, amends 
title 5, United States Code, and provides modifications to 
authorities relating to the Office of Special Counsel. As such 
this bill does not relate to employment or access to public 
services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the descriptive portions of this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal or objective is to reauthorize the Office of Special 
Counsel, to amend title 5, United States Code, and to provide 
modifications to authorities relating to the Office of Special 
Counsel.

                    Duplication of Federal Programs

    No provision of this bill establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    This bill requires that within two years of the date of 
enactment, OSC prescribe regulations necessary to perform the 
functions of the Special Counsel under subchapter II of chapter 
12 of title 5 of the United States Code, including regulations 
necessary to carry out sections 1213, 1214, and 1215 of such 
title, and any functions required due to the amendments made by 
this act.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of Rule XXI.

                           Committee Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(2)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for this bill from the Director of 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 11, 2016.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4639, the 
Thoroughly Investigating Retaliation Against Whistleblowers 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 4639--Thoroughly Investigating Retaliation Against Whistleblowers 
        Act

    Summary: H.R. 4639 would authorize appropriations for the 
Office of Special Counsel (OSC) for fiscal years 2016 through 
2020. The bill also would amend several of the laws governing 
the OSC. Finally, the bill would change how penalties could be 
applied to federal workers who violate the Hatch Act. (The 
Hatch Act prohibits most employees of the Executive branch from 
engaging in certain forms of political activity.)
    CBO estimates that implementing this legislation would cost 
$106 million over the 2017-2021 period, assuming appropriation 
of the estimated amounts. Because enacting H.R. 4639 could 
affect the amount of revenues collected from civil fines 
imposed on federal employees who violate the Hatch Act, pay-as-
you-go procedures apply. However, CBO expects that any change 
in revenues collected would not be significant in any year. 
Enacting the bill would not affect direct spending.
    CBO estimates that enacting H.R. 4639 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    H.R. 4639 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 effects of H.R. 4639 are shown in the following 
table. The costs of this legislation fall within budget 
function 800 (general government).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars
                                                         -------------------------------------------------------
                                                            2017     2018     2019     2020     2021   2017-2021
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATIONa
 
Estimated Authorization Level...........................       25       26       27       28        0       106
Estimated Outlays.......................................       23       26       27       28        2      106
----------------------------------------------------------------------------------------------------------------
aIn fiscal year 2016, OSC received an appropriation of $24 million.

    Basis of estimate: For this estimate, CBO assumes that H.R. 
4639 will be enacted by the end of fiscal year 2016 and the 
amounts provided in 2016 for the OSC will be appropriated for 
each fiscal year through 2020 with adjustments for anticipated 
inflation. For fiscal year 2016, the OSC received an 
appropriation of $24 million. Estimated outlays are based on 
historical spending patterns for the agency.
    Pay-As-You-Go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. Enacting H.R. 4639 could affect the amount of revenue 
collected from civil fines imposed on federal employees who 
violate the Hatch Act. Under the bill employees who participate 
in unauthorized political activities could be penalized through 
workplace disciplinary actions (reprimand, suspension, removal, 
debarment) and civil penalties. Under current law only one of 
those sanctions may be used. CBO estimates that any change in 
revenue collections under the bill would not be significant. 
Enacting the bill would not affect direct spending.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting H.R. 4639 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2027.
    Intergovernmental and private-sector impact: H.R. 4639 
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: Jon Sperl; 
Impact on the private-sector: Paige Piper/Bach.
    Estimate approved by: H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, 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 italic, and existing law in which no 
change is proposed is shown in roman):

                  WHISTLEBLOWER PROTECTION ACT OF 1989



           *       *       *       *       *       *       *
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 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 [2003, 2004, 2005, 2006, 
        and 2007] 2016, 2017, 2018, 2019, and 2020 such sums as 
        necessary to carry out subchapter I1 of chapter 12 of 
        title 5, United States Code (as amended by this Act).
  (b) Restriction Relating to Appropriations Under the Civil 
Service Reform Act of 1978.--No funds may be appropriated to 
the Merit Systems Protection Board or the Office of Special 
Counsel pursuant to section 903 of the Civil Service Reform Act 
of 1978 (5 U.S.C. 5509 note).
  (c) Transfer of Funds.--The personnel, assets, liabilities, 
contracts, property, records, and unexpended balances of 
appropriations, authorizations, allocations, and other funds 
employed, held, used, arising from, available or to be made 
available to the Special Counsel of the Merit Systems 
Protection Board are, subject to section 1531 of title 31, 
United States Code, transferred to the Special Counsel referred 
to in section 1211 of title 5, United States Code (as added by 
section 3(a) of this Act), for appropriate allocation.

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                              ----------                              


                      TITLE 5, UNITED STATES CODE



           *       *       *       *       *       *       *
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

           *       *       *       *       *       *       *


CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, 
AND EMPLOYEE RIGHT OF ACTION

           *       *       *       *       *       *       *


SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL

           *       *       *       *       *       *       *


Sec. 1212. Powers and functions of the Office of Special Counsel

  (a) The Office of Special Counsel shall--
          (1) in accordance with section 1214(a) and other 
        applicable provisions of this subchapter, protect 
        employees, former employees, and applicants for 
        employment from prohibited personnel practices;
          (2) receive and investigate allegations of prohibited 
        personnel practices, and, where appropriate--
                  (A) bring petitions for stays, and petitions 
                for corrective action, under section 1214; and
                  (B) file a complaint or make recommendations 
                for disciplinary action under section 1215;
          (3) receive, review, and, where appropriate, forward 
        to the Attorney General or an agency head under section 
        1213, disclosures of violations of any law, rule, or 
        regulation, or gross mismanagement, a gross waste of 
        funds, an abuse of authority, or a substantial and 
        specific danger to public health or safety;
          (4) review rules and regulations issued by the 
        Director of the Office of Personnel Management in 
        carrying out functions under section 1103 and, where 
        the Special Counsel finds that any such rule or 
        regulation would, on its face or as implemented, 
        require the commission of a prohibited personnel 
        practice, file a written complaint with the Board; and
          (5) investigate and, where appropriate, bring actions 
        concerning allegations of violations of other laws 
        within the jurisdiction of the Office of Special 
        Counsel (as referred to in section 1216).
  (b)(1) The Special Counsel and any employee of the Office of 
Special Counsel designated by the Special Counsel may 
administer oaths, examine witnesses, take depositions, and 
receive evidence.
  (2) The Special Counsel may--
          (A) issue subpoenas; and
          (B) order the taking of depositions and order 
        responses to written interrogatories;
in the same manner as provided under section 1204.
  (3)(A) In the case of contumacy or failure to obey a subpoena 
issued under paragraph (2)(A), the Special Counsel may apply to 
the Merit Systems Protection Board to enforce the subpoena in 
court pursuant to section 1204(c).
  (B) A subpoena under paragraph (2)(A) may, in the case of any 
individual outside the territorial jurisdiction of any court of 
the United States, be served in the manner referred to in 
subsection (d) of section 1204, and the United States District 
Court for the District of Columbia may, with respect to any 
such individual, compel compliance in accordance with such 
subsection.
  (4) Witnesses (whether appearing voluntarily or under 
subpoena) shall be paid the same fee and mileage allowances 
which are paid subpoenaed witnesses in the courts of the United 
States.
  (5)(A) In carrying out this subchapter, the Special Counsel 
is authorized to--
          (i) have access to any record or other information 
        (including a report, audit, review, document, 
        recommendation, or other material) of any agency under 
        the jurisdiction of the Office of Special Counsel; and
          (ii) require any employee of such an agency to 
        provide to the Office any record or other information 
        during an investigation, review, or inquiry of any 
        agency under the jurisdiction of the Office.
  (B) With respect to any record or other information made 
available by an agency under this subchapter, the Office shall 
apply a level of confidentiality to such record or information 
at the level of confidentiality applied to the record by the 
agency.
  (c)(1) Except as provided in paragraph (2), the Special 
Counsel may as a matter of right intervene or otherwise 
participate in any proceeding before the Merit Systems 
Protection Board, except that the Special Counsel shall comply 
with the rules of the Board.
  (2) The Special Counsel may not intervene in an action 
brought by an individual under section 1221, or in an appeal 
brought by an individual under section 7701, without the 
consent of such individual.
  (d)(1) The Special Counsel may appoint the legal, 
administrative, and support personnel necessary to perform the 
functions of the Special Counsel.
  (2) Any appointment made under this subsection shall be made 
in accordance with the provisions of this title, except that 
such appointment shall not be subject to the approval or 
supervision of the Office of Personnel Management or the 
Executive Office of the President (other than approval required 
under section 3324 or subchapter VIII of chapter 33).
  (e) The Special Counsel may prescribe such regulations as may 
be necessary to perform the functions of the Special Counsel. 
Such regulations shall be published in the Federal Register.
  (f) The Special Counsel may not issue any advisory opinion 
concerning any law, rule, or regulation (other than an advisory 
opinion concerning chapter 15 or subchapter III of chapter 73).
  (g)(1) The Special Counsel may not respond to any inquiry or 
disclose any information from or about any person making an 
allegation under section 1214(a), except in accordance with the 
provisions of section 552a of title 5, United States Code, or 
as required by any other applicable Federal law.
  (2) Notwithstanding the exception under paragraph (1), the 
Special Counsel may not respond to any inquiry concerning an 
evaluation of the work performance, ability, aptitude, general 
qualifications, character, loyalty, or suitability for any 
personnel action of any person described in paragraph (1)--
          (A) unless the consent of the individual as to whom 
        the information pertains is obtained in advance; or
          (B) except upon request of an agency which requires 
        such information in order to make a determination 
        concerning an individual's having access to the 
        information unauthorized disclosure of which could be 
        expected to cause exceptionally grave damage to the 
        national security.
  (h)(1) The Special Counsel is authorized to appear as amicus 
curiae in any action brought in a court of the United States 
related to section 2302(b) (8) or (9), or as otherwise 
authorized by law. In any such action, the Special Counsel is 
authorized to present the views of the Special Counsel with 
respect to compliance with section 2302(b) (8) or (9) and the 
impact court decisions would have on the enforcement of such 
provisions of law.
  (2) A court of the United States shall grant the application 
of the Special Counsel to appear in any such action for the 
purposes described under subsection (a).

Sec. 1213. Provisions relating to disclosures of violations of law, 
                    gross mismanagement, and certain other matters

  (a) This section applies with respect to--
          (1) any disclosure of information by an employee, 
        former employee, or applicant for employment which the 
        employee, former employee, or applicant reasonably 
        believes evidences--
                  (A) a violation of any law, rule, or 
                regulation; or
                  (B) gross mismanagement, a gross waste of 
                funds, an abuse of authority, or a substantial 
                and specific danger to public health or safety;
        if such disclosure is not specifically prohibited by 
        law and if such information is not specifically 
        required by Executive order to be kept secret in the 
        interest of national defense or the conduct of foreign 
        affairs; and
          (2) any disclosure by an employee, former employee, 
        or applicant for employment to the Special Counsel or 
        to the Inspector General of an agency or another 
        employee designated by the head of the agency to 
        receive such disclosures of information which the 
        employee, former employee, or applicant reasonably 
        believes evidences--
                  (A) a violation of any law, rule, or 
                regulation; or
                  (B) gross mismanagement, a gross waste of 
                funds, an abuse of authority, or a substantial 
                and specific danger to public health or safety.
  (b) Whenever the Special Counsel receives information of a 
type described in subsection (a) of this section, the Special 
Counsel shall review such information and, within [15 days] 45 
days after receiving the information, determine whether there 
is a substantial likelihood that the information discloses a 
violation of any law, rule, or regulation, or gross 
mismanagement, gross waste of funds, abuse of authority, or 
substantial and specific danger to public health and safety.
  (c)(1) Subject to paragraph (2), if the Special Counsel makes 
a positive determination under subsection (b) of this section, 
the Special Counsel shall promptly transmit the information 
with respect to which the determination was made to the 
appropriate agency head and require that the agency head--
          (A) conduct an investigation with respect to the 
        information and any related matters transmitted by the 
        Special Counsel to the agency head; and
          (B) submit a written report setting forth the 
        findings of the agency head within 60 days after the 
        date on which the information is transmitted to the 
        agency head or within any longer period of time agreed 
        to in writing by the Special Counsel.
  (2) The Special Counsel may require an agency head to conduct 
an investigation and submit a written report under paragraph 
(1) only if the information was transmitted to the Special 
Counsel by--
          (A) an employee, former employee, or applicant for 
        employment in the agency which the information 
        concerns; or
          (B) an employee who obtained the information in 
        connection with the performance of the employee's 
        duties and responsibilities.
  (d) Any report required under subsection (c) shall be 
reviewed and signed by the head of the agency and shall 
include--
          (1) a summary of the information with respect to 
        which the investigation was initiated;
          (2) a description of the conduct of the 
        investigation;
          (3) a summary of any evidence obtained from the 
        investigation;
          (4) a listing of any violation or apparent violation 
        of any law, rule, or regulation; [and]
          (5) a description of any action taken or planned as a 
        result of the investigation, [such as] including--
                  (A) changes in agency rules, regulations, or 
                practices;
                  (B) the restoration of any aggrieved 
                employee;
                  (C) disciplinary action against any employee; 
                and
                  (D) referral to the Attorney General of any 
                evidence of a criminal violation[.]; and
          (6) if any disclosure referred to an agency head 
        under subsection (c) is substantiated in whole or in 
        part by the agency head, a detailed explanation of the 
        failure to take any action described under paragraph 
        (5).
  (e)(1) Any such report shall be submitted to the Special 
Counsel, and the Special Counsel shall transmit a copy to the 
complainant, except as provided under subsection (f) of this 
section. The complainant may submit comments to the Special 
Counsel on the agency report within 15 days of having received 
a copy of the report.
  (2) Upon receipt of any report of the head of an agency 
required under subsection (c) of this section, the Special 
Counsel shall review the report and determine whether--
          (A) the findings of the head of the agency appear 
        reasonable; and
          (B) the report of the agency under subsection (c)(1) 
        of this section contains the information required under 
        subsection (d) of this section.
  (3) The Special Counsel shall transmit any agency report 
received pursuant to subsection (c) of this section, any 
comments provided by the complainant pursuant to subsection 
(e)(1), and any appropriate comments or recommendations by the 
Special Counsel to the President and the congressional 
committees with jurisdiction over the agency which the 
disclosure involves.
  (4) Whenever the Special Counsel does not receive the report 
of the agency within the time prescribed in subsection (c)(2) 
of this section, the Special Counsel shall transmit a copy of 
the information which was transmitted to the agency head to the 
President and the congressional committees with jurisdiction 
over the agency which the disclosure involves together with a 
statement noting the failure of the head of the agency to file 
the required report.
  (5) If an agency head submits a report to the Special Counsel 
under subsection (d) that includes a description of any agency 
action proposed to be taken as a result of the investigation, 
the agency head shall, not later than 180 days after the date 
of such submission, submit a supplemental report to the Special 
Counsel stating whether any proposed action has been taken, and 
if the action has not been taken, the reason why it has not 
been taken.
  (f) In any case in which evidence of a criminal violation 
obtained by an agency in an investigation under subsection (c) 
of this section is referred to the Attorney General--
          (1) the report shall not be transmitted to the 
        complainant; and
          (2) the agency shall notify the Office of Personnel 
        Management and the Office of Management and Budget of 
        the referral.
  (g)(1) If the Special Counsel receives information of a type 
described in subsection (a) from an individual other than an 
individual described in subparagraph (A) or (B) of subsection 
(c)(2), the Special Counsel may transmit the information to the 
head of the agency which the information concerns. The head of 
such agency shall, within a reasonable time after the 
information is transmitted, inform the Special Counsel in 
writing of what action has been or is being taken and when such 
action shall be completed. The Special Counsel shall inform the 
individual of the report of the agency head.
  (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 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.
  (h) The identity of any individual who makes a disclosure 
described in subsection (a) may not be disclosed by the Special 
Counsel without such individual's consent unless the Special 
Counsel determines that the disclosure of the individual's 
identity is necessary because of an imminent danger to public 
health or safety or imminent violation of any criminal law.
  (i) Except as specifically authorized under this section, the 
provisions of this section shall not be considered to authorize 
disclosure of any information by any agency or any person which 
is--
          (1) specifically prohibited from disclosure by any 
        other provision of law; or
          (2) specifically required by Executive order to be 
        kept secret in the interest of national defense or the 
        conduct of foreign affairs.
  (j) With respect to any disclosure of information described 
in subsection (a) which involves foreign intelligence or 
counterintelligence information, if the disclosure is 
specifically prohibited by law or by Executive order, the 
Special Counsel shall transmit such information to the National 
Security Advisor, the Permanent Select Committee on 
Intelligence of the House of Representatives, and the Select 
Committee on Intelligence of the Senate.

Sec. 1214. Investigation of prohibited personnel practices; corrective 
                    action

  (a)(1)(A) [The Special Counsel] Except as provided in 
paragraph (6), the Special Counsel shall receive any allegation 
of a prohibited personnel practice and shall investigate the 
allegation to the extent necessary to determine whether there 
are reasonable grounds to believe that a prohibited personnel 
practice has occurred, exists, or is to be taken.
  (B) Within 15 days after the date of receiving an allegation 
of a prohibited personnel practice under paragraph (1), the 
Special Counsel shall provide written notice to the person who 
made the allegation that--
          (i) the allegation has been received by the Special 
        Counsel; and
          (ii) shall include the name of a person at the Office 
        of Special Counsel who shall serve as a contact with 
        the person making the allegation.
  (C) Unless an investigation is terminated under paragraph (2) 
or paragraph (6) , the Special Counsel shall--
          (i) within 90 days after notice is provided under 
        subparagraph (B), notify the person who made the 
        allegation of the status of the investigation and any 
        action taken by the Office of the Special Counsel since 
        the filing of the allegation;
          (ii) notify such person of the status of the 
        investigation and any action taken by the Office of the 
        Special Counsel since the last notice, at least every 
        60 days after notice is given under clause (i); and
          (iii) notify such person of the status of the 
        investigation and any action taken by the Special 
        Counsel at such time as determined appropriate by the 
        Special Counsel.
  (D) No later than 10 days before the Special Counsel 
terminates any investigation of a prohibited personnel 
practice, the Special Counsel shall provide a written status 
report to the person who made the allegation of the proposed 
findings of fact and legal conclusions. The person may submit 
written comments about the report to the Special Counsel. The 
Special Counsel shall not be required to provide a subsequent 
written status report under this subparagraph after the 
submission of such written comments.
  (2)(A) If the Special Counsel terminates any investigation 
under paragraph (1), the Special Counsel shall prepare and 
transmit to any person on whose allegation the investigation 
was initiated a written statement notifying the person of--
          (i) the termination of the investigation;
          (ii) a summary of relevant facts ascertained by the 
        Special Counsel, including the facts that support, and 
        the facts that do not support, the allegations of such 
        person;
          (iii) the reasons for terminating the investigation; 
        and
          (iv) a response to any comments submitted under 
        paragraph (1)(D).
  (B) A written statement under subparagraph (A) may not be 
admissible as evidence in any judicial or administrative 
proceeding, without the consent of the person who received such 
statement under subparagraph (A).
  (3) Except in a case in which an employee, former employee, 
or applicant for employment has the right to appeal directly to 
the Merit Systems Protection Board under any law, rule, or 
regulation, any such employee, former employee, or applicant 
shall seek corrective action from the Special Counsel before 
seeking corrective action from the Board. An employee, former 
employee, or applicant for employment may seek corrective 
action from the Board under section 1221, if such employee, 
former employee, or applicant seeks corrective action for a 
prohibited personnel practice described in section 2302(b)(8) 
or section 2302(b)(9) (A)(i), (B), (C), or (D) from the Special 
Counsel and--
          (A)(i) the Special Counsel notifies such employee, 
        former employee, or applicant that an investigation 
        concerning such employee, former employee, or applicant 
        has been terminated; and
          (ii) no more than 60 days have elapsed since 
        notification was provided to such employee, former 
        employee, or applicant for employment that such 
        investigation was terminated; or
          (B) 120 days after seeking corrective action from the 
        Special Counsel, such employee, former employee, or 
        applicant has not been notified by the Special Counsel 
        that the Special Counsel shall seek corrective action 
        on behalf of such employee, former employee, or 
        applicant.
  (4) If an employee, former employee, or applicant seeks a 
corrective action from the Board under section 1221, pursuant 
to the provisions of paragraph (3)(B), the Special Counsel may 
continue to seek corrective action personal to such employee, 
former employee, or applicant only with the consent of such 
employee, former employee, or applicant.
  (5) In addition to any authority granted under paragraph (1), 
the Special Counsel may, in the absence of an allegation, 
conduct an investigation for the purpose of determining whether 
there are reasonable grounds to believe that a prohibited 
personnel practice (or a pattern of prohibited personnel 
practices) has occurred, exists, or is to be taken.
  (6)(A) Within 30 days of receiving an allegation from a 
person under paragraph (1), the Special Counsel may terminate 
an investigation under such paragraph with respect to the 
allegation, without further inquiry or an opportunity for the 
person to respond, if the Special Counsel determines that--
          (i) the same allegation, based on the same set of 
        facts and circumstances--
                  (I) had previously been made by the person 
                and previously investigated by the Special 
                Counsel; or
                  (II) had previously been filed by the person 
                with the Merit Systems Protection Board;
          (ii) the Office of Special Counsel does not have 
        jurisdiction to investigate the allegation; or
          (iii) the person knew or should have known of the 
        alleged prohibited personnel practice earlier than the 
        date that is 3 years before the date Special Counsel 
        received the allegation.
  (B) If the Special Counsel terminates an investigation under 
subparagraph (A), not later than 30 days after the date of such 
termination the Special Counsel shall provide a written 
notification stating the basis for the termination to the 
person who made the allegation. Paragraph (1)(D) shall not 
apply to any termination under such subparagraph.
  (b)(1)(A)(i) The Special Counsel may request any member of 
the Merit Systems Protection Board to order a stay of any 
personnel action for 45 days if the Special Counsel determines 
that there are reasonable grounds to believe that the personnel 
action was taken, or is to be taken, as a result of a 
prohibited personnel practice.
  (ii) Any member of the Board requested by the Special Counsel 
to order a stay under clause (i) shall order such stay unless 
the member determines that, under the facts and circumstances 
involved, such a stay would not be appropriate.
  (iii) Unless denied under clause (ii), any stay under this 
subparagraph shall be granted within 3 calendar days (excluding 
Saturdays, Sundays, and legal holidays) after the date of the 
request for the stay by the Special Counsel.
  (B) The Board may extend the period of any stay granted under 
subparagraph (A) for any period which the Board considers 
appropriate.
  (C) The Board shall allow any agency which is the subject of 
a stay to comment to the Board on any extension of stay 
proposed under subparagraph (B).
  (D) A stay may be terminated by the Board at any time, except 
that a stay may not be terminated by the Board--
          (i) on its own motion or on the motion of an agency, 
        unless notice and opportunity for oral or written 
        comments are first provided to the Special Counsel and 
        the individual on whose behalf the stay was ordered; or
          (ii) on motion of the Special Counsel, unless notice 
        and opportunity for oral or written comments are first 
        provided to the individual on whose behalf the stay was 
        ordered.
  (2)(A)(i) Except as provided under clause (ii), no later than 
240 days after the date of receiving an allegation of a 
prohibited personnel practice under paragraph (1), the Special 
Counsel shall make a determination whether there are reasonable 
grounds to believe that a prohibited personnel practice has 
occurred, exists, or is to be taken.
  (ii) If the Special Counsel is unable to make the required 
determination within the 240-day period specified under clause 
(i) and the person submitting the allegation of a prohibited 
personnel practice agrees to an extension of time, the 
determination shall be made within such additional period of 
time as shall be agreed upon between the Special Counsel and 
the person submitting the allegation.
  (B) If, in connection with any investigation, the Special 
Counsel determines that there are reasonable grounds to believe 
that a prohibited personnel practice has occurred, exists, or 
is to be taken which requires corrective action, the Special 
Counsel shall report the determination together with any 
findings or recommendations to the Board, the agency involved 
and to the Office of Personnel Management, and may report such 
determination, findings and recommendations to the President. 
The Special Counsel may include in the report recommendations 
for corrective action to be taken.
  (C) If, after a reasonable period of time, the agency does 
not act to correct the prohibited personnel practice, the 
Special Counsel may petition the Board for corrective action.
  (D) If the Special Counsel finds, in consultation with the 
individual subject to the prohibited personnel practice, that 
the agency has acted to correct the prohibited personnel 
practice, the Special Counsel shall file such finding with the 
Board, together with any written comments which the individual 
may provide.
  (E) A determination by the Special Counsel under this 
paragraph shall not be cited or referred to in any proceeding 
under this paragraph or any other administrative or judicial 
proceeding for any purpose, without the consent of the person 
submitting the allegation of a prohibited personnel practice.
  (3) Whenever the Special Counsel petitions the Board for 
corrective action, the Board shall provide an opportunity for--
          (A) oral or written comments by the Special Counsel, 
        the agency involved, and the Office of Personnel 
        Management; and
          (B) written comments by any individual who alleges to 
        be the subject of the prohibited personnel practice.
  (4)(A) The Board shall order such corrective action as the 
Board considers appropriate, if the Board determines that the 
Special Counsel has demonstrated that a prohibited personnel 
practice, other than one described in section 2302(b)(8) or 
section 2302(b)(9) (A)(i), (B), (C), or (D), has occurred, 
exists, or is to be taken.
  (B)(i) Subject to the provisions of clause (ii), in any case 
involving an alleged prohibited personnel practice as described 
under section 2302(b)(8) or section 2302(b)(9) (A)(i), (B), 
(C), or (D), the Board shall order such corrective action as 
the Board considers appropriate if the Special Counsel has 
demonstrated that a disclosure or protected activity described 
under section 2302(b)(8) or section 2302(b)(9) (A)(i), (B), 
(C), or (D) was a contributing factor in the personnel action 
which was taken or is to be taken against the individual.
  (ii) Corrective action under clause (i) may not be ordered 
if, after a finding that a protected disclosure was a 
contributing factor, the agency demonstrates by clear and 
convincing evidence that it would have taken the same personnel 
action in the absence of such disclosure.
  (c)(1) Judicial review of any final order or decision of the 
Board under this section may be obtained by any employee, 
former employee, or applicant for employment adversely affected 
by such order or decision.
  (2) A petition for review under this subsection shall be 
filed with such court, and within such time, as provided for 
under section 7703(b).
  (d)(1) If, in connection with any investigation under this 
subchapter, the Special Counsel determines that there is 
reasonable cause to believe that a criminal violation has 
occurred, the Special Counsel shall report the determination to 
the Attorney General and to the head of the agency involved, 
and shall submit a copy of the report to the Director of the 
Office of Personnel Management and the Director of the Office 
of Management and Budget.
  (2) In any case in which the Special Counsel determines that 
there are reasonable grounds to believe that a prohibited 
personnel practice has occurred, exists, or is to be taken, the 
Special Counsel shall proceed with any investigation or 
proceeding unless--
          (A) the alleged violation has been reported to the 
        Attorney General; and
          (B) the Attorney General is pursuing an 
        investigation, in which case the Special Counsel, after 
        consultation with the Attorney General, has discretion 
        as to whether to proceed.
  (e) If, in connection with any investigation under this 
subchapter, the Special Counsel determines that there is 
reasonable cause to believe that any violation of any law, 
rule, or regulation has occurred other than one referred to in 
subsection (b) or (d), the Special Counsel shall report such 
violation to the head of the agency involved. The Special 
Counsel shall require, within 30 days after the receipt of the 
report by the agency, a certification by the head of the agency 
which states--
          (1) that the head of the agency has personally 
        reviewed the report; and
          (2) what action has been or is to be taken, and when 
        the action will be completed.
  (f) During any investigation initiated under this subchapter, 
no disciplinary action shall be taken against any employee for 
any alleged prohibited activity under investigation or for any 
related activity without the approval of the Special Counsel.
  (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, any other reasonable and foreseeable 
        consequential damages, and compensatory damages 
        (including interest, reasonable expert witness fees, 
        and costs).
  (h) Any corrective action ordered under this section to 
correct a prohibited personnel practice may include fees, 
costs, or damages reasonably incurred due to an agency 
investigation of the employee, if such investigation was 
commenced, expanded, or extended in retaliation for the 
disclosure or protected activity that formed the basis of the 
corrective action.

           *       *       *       *       *       *       *


[Sec. 1218. Annual report

  [The Special Counsel shall submit an annual report to the 
Congress on the activities of the Special Counsel, including 
the number, types, and disposition of allegations of prohibited 
personnel practices filed with it, investigations conducted by 
it, cases in which it did not make a determination whether 
there are reasonable grounds to believe that a prohibited 
personnel practice has occurred, exists, or is to be taken 
within the 240-day period specified in section 
1214(b)(2)(A)(i), and actions initiated by it before the Merit 
Systems Protection Board, as well as a description of the 
recommendations and reports made by it to other agencies 
pursuant to this subchapter, and the actions taken by the 
agencies as a result of the reports or recommendations. The 
report required by this section shall include whatever 
recommendations for legislation or other action by Congress the 
Special Counsel may consider appropriate.]

Sec. 1218. Annual report

  (a) The Special Counsel shall submit an annual report to 
Congress on the activities of the Special Counsel. Any such 
report shall include--
          (1) the number, types, and disposition of allegations 
        of prohibited personnel practices filed with the 
        Special Counsel, and the cost of allegations so 
        disposed of;
          (2) the number of investigations conducted by the 
        Special Counsel;
          (3) the number of stays or disciplinary actions 
        negotiated by the Special Counsel with agencies;
          (4) the number of cases in which the Special Counsel 
        did not make a determination whether there are 
        reasonable grounds to believe that a prohibited 
        personnel practice has occurred, exists, or is to be 
        taken within the 240-day period specified in section 
        1214(b)(2)(A)(i);
          (5) a description of the recommendations and reports 
        made by the Special Counsel to other agencies pursuant 
        to this subchapter, and the actions taken by the 
        agencies as a result of the reports or recommendations;
          (6) the number of--
                  (A) actions initiated before the Merit 
                Systems Protection Board, including the number 
                of corrective action petitions and disciplinary 
                action complaints so initiated; and
                  (B) stays and stay extensions obtained from 
                the Board; and
          (7) the number of prohibited personnel practice 
        complaints that result in--
                  (A) a favorable action for the complainant, 
                categorized by actions with respect to 
                whistleblower reprisal cases and all other 
                cases; and
                  (B) a favorable outcome for the complainant, 
                categorized by outcomes with respect to 
                whistleblower reprisal cases and all other 
                cases.
  (b) The report required by subsection (a) shall include 
whatever recommendations for legislation or other action by 
Congress the Special Counsel may consider appropriate.

Sec. 1219. Public information

  (a) The Special Counsel shall maintain and make available to 
the public--
          [(1) a list of noncriminal matters referred to heads 
        of agencies under subsection (c) of section 1213, 
        together with reports from heads of agencies under 
        subsection (c)(1)(B) of such section relating to such 
        matters;]
          (1) a list of any noncriminal matter referred to an 
        agency head under section 1213(c), together with--
                  (A) the applicable transmittal of the matter 
                to the agency head under section 1213(c)(1);
                  (B) any report from agency head under section 
                1213(c)(1)(B) relating to such matter;
                  (C) if appropriate, not otherwise prohibited 
                by law, and with the consent of the 
                complainant, any comments from the complainant 
                under section 1213(e)(1) relating to the 
                matter; and
                  (D) the Special Counsel's comments or 
                recommendations under section 1213(e)(3) or (4) 
                relating to the matter;
          (2) a list of matters referred to heads of agencies 
        under section 1215(c)(2);
          (3) a list of matters referred to heads of agencies 
        under subsection (e) of section 1214, together with 
        certifications from heads of agencies under such 
        subsection; and
          (4) reports from heads of agencies under section 
        1213(g)(1).
  (b) The Special Counsel shall take steps to ensure that any 
list or report made available to the public under this section 
does not contain any information the disclosure of which is 
prohibited by law or by Executive order requiring that 
information be kept secret in the interest of national defense 
or the conduct of foreign affairs.

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PART III--EMPLOYEES

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SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS

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CHAPTER 73--SUITABILITY, SECURITY, AND CONDUCT

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SUBCHAPTER III--POLITICAL ACTIVITIES

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[Sec. 7326. Penalties

  [An employee or individual who violates section 7323 or 7324 
shall be subject to 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.]

Sec. 7326. Penalties

  An employee or individual who violates section 7323 or 7324 
shall be subject to--
          (1) disciplinary action consisting of removal, 
        reduction in grade, debarment from Federal employment 
        for a period not to exceed 5 years, suspension, or 
        reprimand;
          (2) an assessment of a civil penalty not to exceed 
        $1,000; or
          (3) any combination of the penalties described in 
        paragraph (1) or (2).

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