[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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