[Congressional Record Volume 162, Number 171 (Wednesday, November 30, 2016)]
[House]
[Pages H7012-H7014]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          FOLLOW THE RULES ACT

  Mr. GOSAR. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 6186) to amend title 5, United States Code, to extend certain 
protections against prohibited personnel practices, and for other 
purposes.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 6186

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Follow the Rules Act''.

     SEC. 2. PROHIBITED PERSONNEL ACTION BASED ON ORDERING 
                   INDIVIDUAL TO VIOLATE RULE OR REGULATION.

       (a) In General.--Subparagraph (D) of section 2302(b)(9) of 
     title 5, United States Code, is amended by inserting ``, 
     rule, or regulation'' after ``law''.
       (b) Technical Correction.--Such subparagraph is further 
     amended by striking ``for''.
       (c) Application.--The amendment made by subsection (a) 
     shall apply to any personnel action (as that term is defined 
     in section 2302(a)(2)(A) of such title) occurring after the 
     date of enactment of this Act.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Arizona (Mr. Gosar) and the gentleman from Massachusetts (Mr. Lynch) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Arizona.


                             General Leave

  Mr. GOSAR. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks and 
to include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Arizona?
  There was no objection.
  Mr. GOSAR. Mr. Speaker, I yield myself such time as I may consume.
  I rise in support of H.R. 6186, the Follow the Rules Act, introduced 
by Representative Sean Duffy. This legislation reiterates Congress' 
intent that whistleblower protections be broadly construed.
  Whistleblowers are the best source of information about waste, fraud, 
and abuse in the Federal Government. We should do all we can to protect 
them. Under the Whistleblower Protection Act of 1989, a whistleblower 
is protected for disclosing violations of laws, rules, or regulations; 
yet a recent opinion by the U.S. Court of Appeals for the Federal 
Circuit would limit the scope of those protections. The Federal Circuit 
held that Federal employees are not protected if they refuse to violate 
a rule or a regulation. This would mean whistleblowers could be ordered 
to violate the same rule or regulation whose violation they blew the 
whistle on. If they refuse, they could be retaliated against, such as 
being demoted or even fired.
  In the case heard by the Federal Circuit, Dr. Timothy Allen Rainey, a 
contracting officer at the Department of

[[Page H7013]]

State, was ordered to tell a contractor to rehire a terminated 
subcontractor. Dr. Rainey refused on the grounds it would violate the 
Federal Acquisition Regulation--governmentwide contracting standards 
that have been in place for over 30 years. These contracting standards 
are exactly the sort of thing the Oversight and Government Reform 
Committee oversees to ensure compliance. In return for his objections, 
Dr. Rainey was stripped of his duties as a contracting officer and was 
given a negative performance rating. The Court of Appeals for the 
Federal Circuit held that, because Dr. Rainey was refusing to obey an 
order that would require him to violate a regulation and not a law, he 
could not be shielded by the Whistleblower Protection Act.
  We should protect Federal workers who act in good faith to abide by 
the rules of their agencies. They shouldn't have to choose between 
disobeying the order of a supervisor and being disciplined for 
violating an agency's rules or regulations.
  While nearly all Federal laws have implementing regulations, not all 
regulations have a detailed basis in law. Furthermore, agencies do not 
always train their employees to know which regulations are based in 
law. This means Federal workers may have to conduct extensive legal 
research before deciding on the safest course of action, in this case, 
whether to apply the very standards their own agencies put into place.
  Whether the issue is regulations aimed against whistleblowers or 
whistleblowers acting to uphold other regulations, the issue is the 
same: we should incentivize and protect Federal employees for acting as 
principled civil servants. The Follow the Rules Act would send a clear, 
consistent message that Federal employees are expected to uphold 
standards of good government. It would ensure Federal workers are 
protected if they refuse to obey an order that would require them to 
violate even just a rule or a regulation.
  Mr. Speaker, we are a nation based on the rule of law. We expect 
agencies to act in a transparent fashion and to be governed by 
predictable rules. We should provide the same sort of predictability to 
whistleblowers and protect them when they apply what they have been 
trained to follow. For that reason, I urge my colleagues to support 
this legislation.
  I reserve the balance of my time.
  Mr. LYNCH. Mr. Speaker, I yield myself such time as I may consume.
  I rise in strong support of H.R. 6186, the Follow the Rules Act.
  I appreciate the hard work done by Representative Duffy of Wisconsin 
and by Mr. Connolly of Virginia in taking the lead in introducing this 
legislation and then in working diligently and in a bipartisan manner 
to achieve its passage.
  This bill would clarify that an employee who refuses to obey an order 
that would require the employee to violate the law, a rule, or a 
regulation is protected from retaliation under the Whistleblower 
Protection Act.
  In June 2016, the U.S. Court of Appeals for the Federal Circuit 
issued a ruling that is contrary to the Whistleblower Protection Act 
and that is contrary to congressional intent. As Mr. Gosar of Arizona 
previously laid out the facts, in Rainey v. MSPB, the court ruled that 
an employee who refuses to obey an order is protected only if the order 
would violate a statute but that the employee would not be protected if 
the order would simply violate a rule or a regulation.
  This ruling incorrectly interprets congressional intent. Employees 
should be protected from retaliation if they do the right thing. That 
includes refusing to obey orders that would violate an agency's rules 
and regulations, as well as statutes. It is more critical than ever 
that we send a message to Federal employees that they have the right to 
do their jobs free from political pressure to bend or to violate the 
rules.
  I urge my colleagues to support the passage of this legislation 
today.
  I reserve the balance of my time.
  Mr. GOSAR. Mr. Speaker, I yield 4 minutes to the gentleman from 
Wisconsin (Mr. Duffy).
  Mr. DUFFY. I thank the gentleman from Arizona for yielding, and I 
thank my friends across the aisle for their support of this commonsense 
piece of legislation that, again, rights a wrong perception from the 
U.S. Court of Appeals.
  Mr. Speaker, many of us in this institution do talk about how we are 
a nation of laws; but, unfortunately, on June 7, when the U.S. Court of 
Appeals handed down its decision, it ruled that we are a nation of laws 
but not a nation of rules and regulations, at least as they apply to 
Federal workers.
  We have had a good discussion about the case. Dr. Timothy Rainey, 
just to summarize again, is a State Department employee who was asked 
to violate the Federal Acquisition Regulation, and he didn't want to do 
it; so he denied, and he invoked his right to disobey under the 
Whistleblower Protection Act. This was brought to the Merit Systems 
Protection Board, and it ruled against Dr. Rainey. It went to the U.S. 
Court of Appeals, and it also found against Dr. Rainey. This exposed a 
glaring inconsistency in the application of the Whistleblower 
Protection Act, which, again, is inconsistent with the intent of this 
institution.
  So we ask ourselves: What does this mean?
  I chair the Financial Services Committee's Subcommittee on Oversight 
and Investigation. Federal whistleblowers play an important role in 
exposing the mismanagement at Federal agencies and in supporting the 
oversight that all of us do in this Congress. Critical to them is the 
Whistleblower Protection Act, which provides Federal workers with 
certain safeguards to disclose information that an employee reasonably 
believes evidences gross mismanagement, a waste of funds, an abuse of 
authority, or a violation of law.
  This court ruling will take away those protections when Federal 
employees stand up against bad actors within our Federal workforce. In 
effect, this ruling will give permission to supervisors in positions of 
authority to force Federal workers to violate the rules and regulations 
that Congress, through law, directs the agencies to implement.
  For example, at the Treasury Department, one of the agencies that I 
have the great privilege of overseeing, this would mean that Federal 
workers could be forced to violate sanctions against Russia for a 
violation of Ukraine's territorial integrity. Many of those sanctions 
are enforced through the Code of Federal Regulations pursuant to laws 
that are passed by this Congress.
  Regardless of one's opinion about rules and regulations--and if that 
were the conversation today, I am sure one would have a debate that was 
far more disagreeable, but that is not the issue. No matter what one 
thinks about rules and regulations, we should not leave exposed Federal 
workers who simply want to follow those rules and regulations. This 
bipartisan Follow the Rules Act, which, again, I introduced with my 
good friend from Virginia (Mr. Connolly), will close the loophole that 
was created by the court. What we are doing is ensuring that Federal 
employees aren't just protected under our whistleblower statute for 
violations of Federal law, but that they are also protected as 
whistleblowers if there is a violation of a Federal rule or regulation.
  This makes sense. It closes a loophole. I think that is why we have 
seen such bipartisan support from the far right of this institution and 
the far left of this institution. I think this is a great bill, and I 
thank my friends for so closely working with me to garner the support.
  Mr. LYNCH. Mr. Speaker, I yield such time as he may consume to the 
gentleman from Virginia (Mr. Connolly), the other champion along with 
Mr. Duffy of Wisconsin.

                              {time}  1615

  Mr. CONNOLLY. Mr. Speaker, I thank the gentleman from Massachusetts 
(Mr. Lynch). I thank the gentleman from Arizona (Mr. Gosar). I thank 
the gentleman from Wisconsin (Mr. Duffy) for his leadership and 
collaboration on this important bill that he and I have introduced and 
is on the floor today, the Follow the Rules Act, H.R. 6186.
  I appreciate Representative Duffy's efforts to work to advance this 
legislation that falls under the umbrella of good government, which the 
Oversight and Government Reform Committee usually strives to promote on 
a bipartisan basis.

[[Page H7014]]

  I welcome consideration of the bill, the Follow the Rules Act, to 
extend Congress' commitment to whistleblowers. The Follow the Rules Act 
upholds the committee's obligation to protect whistleblowers and help 
identify mismanagement at Federal agencies in supporting the oversight 
work of Congress.
  The bill's language was previously adopted by a voice vote as section 
1206 of the House-passed Financial Services and General Government 
Appropriations Act of 2017, H.R. 5482. The bill closes a loophole in 
the Whistleblower Protection Act created falsely, in my view, by the 
ruling in Rainey v. Merit Systems Protection Board, a precedent-setting 
case decided on June 7 in the U.S. Court of Appeals for the Federal 
Circuit.
  The Whistleblower Protection Act provides Federal workers with legal 
safeguards to disclose information that an employee reasonably believes 
is evidence of gross mismanagement of a contract or a grant, gross 
waste of funds, abuse of authority regarding a contract or grant, or 
violation of law or rule regarding a contract or grant. That language 
ought to be fairly clear, but apparently it wasn't to the appellate 
court.
  In Rainey, the right-to-disobey provision of the Whistleblower 
Protection Act was determined to only provide protection to Federal 
workers who refuse to obey an order that would require the individual 
to violate a law, but not to Federal workers who refuse to violate 
rules and regulations. God knoweth why.
  This distinction leaves a gap in protections originally clearly 
intended for Federal employees by this Congress. In effect, the ruling 
exposes whistleblowers who refuse to violate the rules and regulations 
that were promulgated as a result of laws passed by Congress and signed 
by the President. That is how it flows.
  This is a gap in coverage that must be addressed by Congress and 
clarified in the statute. Though, had the appellate court ruled 
correctly, it would be unnecessary.
  The only way to protect whistleblowers from this court decision is to 
update the law to ensure that rules and regulations are covered by the 
right-to-disobey provision of the Whistleblower Protection Act.
  I urge my colleagues to continue Congress' longstanding support for 
whistleblowers and vote in the affirmative for the Follow the Rules 
Act.
  Mr. LYNCH. Mr. Speaker, having no further speakers on our side, I 
yield back the balance of my time.
  Mr. GOSAR. Mr. Speaker, I urge the adoption of the bill.
  I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Arizona (Mr. Gosar) that the House suspend the rules and 
pass the bill, H.R. 6186.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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