[Congressional Record Volume 163, Number 74 (Monday, May 1, 2017)]
[House]
[Pages H2983-H2985]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          FOLLOW THE RULES ACT

  Mr. COMER. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 657) to amend title 5, United States Code, to extend certain 
protections against prohibited personnel practices, and for other 
purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                H.R. 657

       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''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Kentucky (Mr. Comer) and the gentleman from Virginia (Mr. Connolly) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Kentucky.


                             General Leave

  Mr. COMER. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks and 
include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Kentucky?
  There was no objection.
  Mr. COMER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today in support of H.R. 657, the Follow the 
Rules Act, introduced by Congressman Sean Duffy of Wisconsin.
  Less than 1 month ago marked the 28th anniversary of the 
Whistleblower Protection Act of 1989. That bill was a landmark 
accomplishment establishing enforcement mechanisms to protect those who 
help identify waste, fraud, and abuse in the Federal Government. It 
also protects those who, in good conscience, refuse orders that could 
violate the law.
  Last year, the U.S. Court of Appeals for the Federal Circuit 
considered the case of Dr. Timothy Rainey. Dr. Rainey, an employee of 
the State Department, refused an order to violate the Federal 
Acquisition Regulation.
  Dr. Rainey's supervisors subsequently took away his responsibilities 
as a contracting officer representative. He argued it was because of 
his refusal to obey the order. Thus, the Federal Circuit considered 
whether Federal managers can retaliate against employees who refuse to 
obey an order that would violate a government rule or regulation rather 
than a statute.
  Unfortunately, the Federal Circuit has a record of misinterpreting 
the law on whistleblowers. That is precisely what happened here. The 
court held such employees were not protected. Ironically, the court 
relied on a significant 2015 Supreme Court decision, DHS v. MacLean, 
which reaffirmed the protections of the Whistleblower Protection Act.
  The Federal Circuit's decision puts Federal employees in an 
impossible situation. It forces them to choose between following their 
superior's orders or following the agency's rules or regulations. In 
many ways, an agency's rules and regulations are the standing orders of 
the head of the agency.
  My colleague, Representative Duffy, introduced the Follow the Rules 
Act to fix this problem. H.R. 657 makes clear that employees are 
protected from retaliation for disobeying orders that would violate an 
agency rule or regulation. Refusing to obey such orders is exactly the 
type of action for which Federal employees should be protected from 
retaliation.
  This legislation has bipartisan, bicameral support. It passed the 
House by voice vote near the end of the last Congress.

                              {time}  1715

  I hope that this legislation will be signed into law this Congress 
and Federal employees will be protected in trying to do the right 
thing. I thank Representative Duffy for his leadership on this issue.
  I urge my colleagues to support this bill, and I reserve the balance 
of my time.
  Mr. CONNOLLY. Mr. Speaker, I yield myself such time as I may consume.
  When we are going to pass a bill on a bipartisan basis, it might be 
useful to acknowledge the bill has a Democratic cosponsor. I am proud 
to be the lead cosponsor with Congressman Duffy on the Follow the Rules 
Act--in fact, he asked me to play that role--and I rise

[[Page H2984]]

clearly in strong support of the legislation which will protect, 
critically, whistleblowers who disclose waste, fraud, and abuse.
  I want to thank my colleague, Representative Duffy, for working with 
me in a bipartisan way on this important bill. We initially introduced 
the bill together in the 114th Congress, and it passed the House 
without opposition. Unfortunately, the Senate did not act. Hopefully, 
this Congress we will be able to persuade the Senate to enact this 
important protection.
  This bill would clarify that, under the Whistleblower Protection Act, 
an employee who refuses to obey an order that would require the 
employee to violate a law, rule, or regulation is protected.
  Congressman Duffy and I introduced the bill to address a 
misinterpretation of the Whistleblower Protection Act by the U.S. Court 
of Appeals for the Federal Circuit in the case of Rainey v. MSPB in 
2016, as my colleague from Kentucky suggested. In that case, a 
contracting officer, Dr. Timothy Rainey, was ordered by his supervisor 
to tell a contractor to rehire a terminated subcontractor. Dr. Rainey, 
in principle, refused because carrying out that order would have 
required him to violate the Federal Acquisition Regulation by 
improperly interfering with the contractor's personnel decisions and 
requiring the contractor to act contrary to the terms of the contract.
  What reward did Dr. Rainey get for doing the right thing? He was 
stripped of his duties and given a negative performance rating.
  The Federal circuit, God knoweth how, held that an employee who 
refuses to obey an order is protected only if the order would violate a 
law, a statute, but not if the order would violate a rule or a 
regulation. Talk about looking at angels on the head of a pin. The 
court's ruling was contrary, clearly, to the Whistleblower Protection 
Act and the intent of this Congress.
  In enacting the Whistleblower Protection Act, Congress clearly 
intended that protections granted to government employees who blow the 
whistle on waste, fraud, and abuse be construed broadly. We clearly had 
in mind not only laws, but rules and regulations as well.
  Congress and the American people rely on whistleblowers to make 
government efficient, honest, and effective, and we in Congress want to 
support those people. As a member of the Committee on Oversight and 
Government Reform, I rely on whistleblowers to help us with our 
oversight and reform work. Without them, rooting out mismanagement, 
abuse, and corruption would be very difficult.
  The underlying principle of the Whistleblower Protection Act is that 
employees should be protected from retaliation if they do the right 
thing, even if it means disobeying orders from their superiors. Given 
the Trump administration's attacks on the Federal workforce, it is 
especially important now, more than ever, for this Congress to uphold 
whistleblower protections for all of our public servants.
  We cannot tolerate the issuance of gag orders to silence dissent, and 
we cannot permit the firing of agency employees who have differing 
political views from our own or who might object to administration 
actions. If the administration and my colleagues are serious about 
draining the swamp, we need to do all we can to ensure that Federal 
employees are allowed to perform their jobs free from political 
pressure to violate laws, rules, and regulations.
  Protecting whistleblowers has been and should continue to be a 
bipartisan--indeed, nonpartisan--issue and something on which we can 
find common ground. I urge my colleagues to support the passage of this 
important bipartisan legislation. I am proud to cosponsor it with my 
friend, the gentleman from Wisconsin (Mr. Duffy).
  Mr. Speaker, I reserve the balance of my time.
  Mr. COMER. Mr. Speaker, I yield 5 minutes to the gentleman from 
Wisconsin (Mr. Grothman).
  Mr. GROTHMAN. Mr. Speaker, those of us in this institution talk about 
we are a country of laws. However, over time, more and more of the 
statements that we have to live by are not laws. They are rules and 
regulations. Therefore, when the Whistleblower Protection Act was 
passed in 1989, I am not sure at the time whether it was intended to 
cover rules and regulations, but, as a practical matter, I think 
Federal employees will run into problems in which they are asked to 
disobey rules and regulations even more than statutory laws themselves.
  On June 7 of last year, the U.S. Court of Appeals for the Federal 
Circuit ruled in Rainey v. Merit Systems Protection Board that, while 
laws were covered by the Whistleblower Protection Act, rules and 
regulations were not, at least if you weren't a Federal employee.
  Why is it relevant that we have to make up for the problems caused by 
this decision? Dr. Timothy Rainey was a State Department employee who, 
while serving as a contracting officer in 2013, was ordered by his 
superior to violate the Federal Acquisition Regulation. Dr. Rainey 
refused and was subsequently removed from his duties.
  When Dr. Rainey invoked the right-to-disobey provision of the 
Whistleblower Protection Act, the Merit Systems Protection Board ruled 
the law only protected him from violating Federal laws, but such 
protections don't apply to rules or regulations. Dr. Rainey appealed 
the case, and the U.S. Court of Appeals upheld the Protection Board 
ruling and, in doing so, exposed a glaring inconsistency in the 
application of the act.

  What does this mean? Federal whistleblowers play an important role in 
exposing mismanagement, the rampant mismanagement at Federal agencies, 
and supporting the oversight work of Congress. Critical to them is the 
Whistleblower Protection Act which provides Federal workers with 
certain legal safeguards to disclose information that an employee 
reasonably believes evidences gross mismanagement, waste of funds, 
abuse of authority, or a violation of the law.
  This ruling will take away the protections when they stand up to bad 
actors in the 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 implement.
  Regardless of your opinion about certain rules, we should not leave, 
exposed, Federal workers who are just trying to follow the rules 
instead of obeying supervisors who want them to disobey the rules and 
regulations. The bipartisan Follow the Rules Act, which I am an 
original cosponsor of, will close this loophole created by the court's 
ruling and ensure that Federal employees have protections for refusing 
to violate the rules and regulations in addition to the law.
  I ask support for this bill.
  Mr. CONNOLLY. Mr. Speaker, I agree with my friend from Wisconsin. I 
think he laid out the case very well.
  I think the ruling of the circuit court in many ways tells us about 
the perils of a very juridical view of what a statute is all about. To 
refuse to take into account context, history, legislative history, and 
congressional intent that is reflected often in the kind of debate we 
are having here on the floor I think is not in the spirit of trying to 
interpret the laws as Congress intends them. Sooner or later I think 
Congress is going to have to address this kind of fundamentalist, 
originalist approach to laws that I think is nonsensical and leads to 
this kind of cherry-picking about what it was Congress intended to 
protect.
  I agree with my friend from Wisconsin. I think this bill is necessary 
because we have to clarify the law, apparently, for the courts and 
protect people like Dr. Rainey.
  Mr. Speaker, I yield back the balance of my time.
  Mr. COMER. Mr. Speaker, I urge adoption of the bill, and I yield back 
the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Kentucky (Mr. Comer) that the House suspend the rules 
and pass the bill, H.R. 657, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. COMER. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

[[Page H2985]]

  

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